Comet Trailer Corp.

COMET TRAILER CORP Comet Trailer Corporation and General Teamsters Union, Local No 524, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO Cases 19-CA-19693 and 19-CA-19703 May 12, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On December 14, 1988, Administrative Law Judge Clifford H Anderson issued the attached de- cision The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a memorandum in support of the judge's decision and reply to the Respondent's exceptions 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 beefs and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order as modified 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Comet Trailer Corporation, Selah, Wash- ington, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Insert the following as paragraph 2(d) and re- letter the subsequent paragraphs (d) Make whole employee Richard King for any losses he may have suffered as a result of the Respondent's unlawful transfer of him on February 23, with interest, as set forth in the remedy section of the decision " 2 Substitute the attached notice for that of the administrative law judge 1 The Respondent has excepted to the judge s credibility findings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Prod ucts 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the find rags 2 Contrary to the judge s stated intent in the remedy section of his de cision the recommended Order and notice do not include a provision re quinng the Respondent to make whole Richard King for any losses re suiting from his unlawful transfer Although it is undisputed that as stated by the judge King s wages and hours were not changed by his transfer the transfer may have had an adverse impact on other benefits Accordingly we shall modify the recommended Order and substitute a new notice to provide make whole relief if necessary to King APPENDIX 1025 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT take away the leadman position of employees or otherwise demote employees because of their handbilling in support of General Team sters Union, Local No 524, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL- CIO WE WILL NOT transfer employees to positions where they have less contact with other employees because of those employees' handbilling or other union activities WE WILL NOT lay off employees because of their handbilling or other union activities WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer cise of the rights guaranteed by Section 7 of the Act WE WILL reinstate employee Harold Volland to his position as liner crew leadman and we will make him whole, with interest, for any losses he may have suffered as a result of our illegal demo- tion of him WE WILL return employee Richard King to his former position of inside expediter and we will make him whole, with interest, for any losses he may have suffered as a result of our illegal transfer of him WE WILL make employees Byron Hahner and Larry Taylor whole, with interest, for any losses they suffered as a result of our illegal layoff of them WE WILL expunge from our files any reference to the adverse actions we have taken against em- ployees Volland, King, Hahner, and Taylor, and WE WILL notify them in writing that this has been done and that any evidence of the adverse actions taken against them will not be used as a basis for future personnel action against them COMET TRAILER CORPORATION Catherine M Roth Esq, for the General Counsel Gary E Lofland Esq (Lofland & Associates), of Yakima Washington, for the Respondent Mark L Rogstad Business Representative, of Yakima, Washington, for the Charging Party 293 NLRB No 131 1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE CLIFFORD H ANDERSON, Administrative Law Judge I heard these consolidated cases in trial at Yakima, Wash ington, on June 29 and 30 1988 The matter arose as fol lows On February 26, 1988, General Teamsters Union Local No 524, affiliated with International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union or the Charging Party) filed a charge docketed as Case 19-CA-19693 with the Seattle Regional Office of the National Labor Relations Board against Comet Trailer Corporation (the Employer or Respondent) A copy of that charge was receipted for by Respondent on March 2, 1988 On March 2, 1988, the Charging Party filed a second charge against Respondent docketed as Case 19-CA-19703 A copy of this charge was receipted for by Respondent on March 7, 1988 Thereafter on April 28, 1988, the Acting Regional Direc tor issued an order consolidating cases, consolidated complaint, and notice of hearing concerning the above captioned cases The consolidated complaint alleges and the answer admits that in February 1988 Respondent demoted em ployee Harold Volland, transferred employee Richard King, and laid off employees Larry Taylor and Byron Hahner The complaint further alleges Respondent took these actions because of the employees union activities in violation of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) Respondent avers that the actions against employees (1) were undertaken for business reasons at a time when Respondent had no knowledge of the employees union activities and (2) were undertaken without animus against the employees because of their known or suspected union activities All parties were given full opportunity to participate at the hearing to introduce relevant evidence, to call ex amine, and cross examine witnesses, to argue orally, and to file posthearing briefs On the entire record, including able postheanng briefs from the General Counsel and Respondent and from my observation of the witnesses and their demeanor I make the following FINDINGS OF FACT I JURISDICTION Respondent is a State of Washington corporation with an office and place of business in Selah, Washington where it is engaged in the business of manufacturing truck trailers Respondent, during the 12 months immedi ately preceding the date of issuance of the complaint, a representative period, in the course and conduct of its business operations, had gross sales of goods and services valued in excess of $500,000 During the same period Re spondent sold and shipped goods or provided services from its facility within the State of Washington to cus tomers outside the State, or sold and shipped goods or provided services to customers within the State, which customers were themselves engaged in interstate com merce by other than indirect means of a total value in excess of $50,000 Further, Respondent during the same period, purchased and caused to be transferred and deliv ered to its Washington State facility goods and materials valued in excess of $50,000 directly from sources outside the State of Washington, or from suppliers within the State that in turn obtained such goods and materials di rectly from sources outside the State The complaint al leges, the answer admits, and I find that Respondent is, and has been at all times material an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act II LABOR ORGANIZATION Crediting the unchallenged testimony of Union Presi dent and Business Representative Mark Rogstad, the Union is an organization in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor dis putes, wages, rates of pay, hours of employment, or con ditions of work of their employees Accordingly, I find that the Union is a labor organization as defined by Sec tion 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background At all relevant times the Employer has been engaged at Selah, Washington, in the production and sale of corn mercial freight trailers The operation employs over 100 production employees At relevant times the following individuals held the titles opposite their names There is no dispute and I find that they were at all relevant times agents of Respondent acting on its behalf and su pervisors within the meaning of Section 2(11) of the Act Name Steve Owens Charles Alexander Glenn Collins Ken Cleveland David McPherson Jack Pendarvis Ken Reeser Title Plant Manager Plant Superintendent Service Parts Manager Foreman Foreman Foreman Foreman In January and early February 19881 Respondents employees initiated contacts with the Union and a preor ganizational union meeting was held on February 10 Following a card solicitation campaign, the Union filed a petition seeking to represent Respondents employees The petition was docketed as Case 19-RC-11717 on Friday February 19 with a copy of the petition ad dressed to Respondent being placed in the mail by the Seattle Board Office on Monday February 22 Following the events in dispute, an election was con ducted by the Board among Respondent s employees on April 14 and the Union was certified on April 22 as the exclusive representative of Respondent s employees ' All dates hereinafter refer to 1988 unless otherwise indicated COMET TRAILER CORP 1027 B February Chronology 1 The events of February 23 In order to publicize its recently filed petition, the Union determined to handbill the Employer s premises Three union officials including Mark Rogstad, the Union s president and business representative , and seven of Respondent's employees participated in two morning leafletting sessions designed to cover both of the morn ing starting times of Respondent's production staff Thus on February 23 three union representatives and three employees leafleted from 5 30 to 6 30 a in at Respond ent's premises and the same three Union representatives, one employee from the earlier session and four new em ployees handbilled from 7 a in to 7 30 a in The five em ployees handing out leaflets at the second leafleting ses sion that morning were Daryl Landsidel, the employee from the earlier session Byron Hahner, Larry Taylor, Harold (Tiny) Volland, and Richard King The bulk of employees at Respondents facility started at 7 30 a in so the second handbilling session involved the greater degree of traffic and congestion at the entry gate where the handbills were distributed The employ ees and union representatives distributed a vivid yellow handbill that announced the filing of the Union s petition with the National Labor Relations Board and the fact of an upcoming election There is no dispute that Owens Respondents president, after driving into the facility, no ticed the congestion at the gate and, after initially going into the facility, exited the facility and approached the handbilling area somewhat before 7 30 a m There he had a conversation with the three union representatives while the five employees working with them continued to dis tribute handbills to passing employees as they funneled through the gate to enter the workplace Owens conver sation with the union representatives was, if somewhat tentative, neither hostile nor of long duration During Owens' conversation with the three union representa tives the handbilling employees, who were scheduled to commence work at 7 30 a in approached the union rep resentatives handed over their stock of undistributed handbills and in various fashions announced they were going to work and would see the union representatives again later These remarks were made while Owens was still talking to the union representatives The employees then went to the facility and commenced work Follow ing the departure of the handbilling employees, Owens concluded his conversation with the union representa tives and returned to the facility The handbilling that day concluded Respondents supervisory and management staff nor mally hold a production meeting in Charles Alexander s office at 10 am each day On February 23 a regular meeting was held Present were Steve Owens and Fore men David McPherson, Jack Pendarvis, Kenny Cleve land, Kenny Reesner, and others Soon after the conclu sion of the management meeting, Jack Pendarvis ap proached leadman Volland and informed him he was to lose his leadman status and the concomitant wage premi urn associated with the position About the same time, Foreman David McPherson went to Richard King who was working in the newly created position of expediter McPherson informed King that he was being immediate ly transferred to a position involving outside work with little contact with other employees 2 The events of February 29 On February 29 the handbilling pattern of February 23 was repeated although no management agents engaged in conversation or, apparently on this record, approached the employees or union representatives during the hand billing The same union officials and employees of Re spondent were involved in the second handbilling Later that day, employees Byron Hahner and Larry Taylor, who were two of the three employees employed in the truck repair department, were laid off These employees were not recalled to work until the week of March 11 C The Adverse Actions 1 The demotion of Harold (Tiny) Volland Harold Volland, a very large and tall man who bears the nickname Tiny was hired by Respondent in No vember 1984 and in that year was appointed to the posi tion of leadman over the liner crews He had been super vised by Jack Pendarvis, foreman of the final Bay Area, since Pendarvis became foreman in 1984 In addition to acting as leadman over the liner crews, Volland was di rectly involved in the axle assembly process This in volved mounting tires, axles, landing gear etc, in the axle assembly area that is within the liner crews' general work area Volland testified that throughout the period he worked as liner crew leadman and axle installer, no one from management ever complained to him about his per formance as leadman or suggested that it was difficult for him to be an effective leadman over the liner crew while being simultaneously involved in axle installation Jack Pendarvis testified that since his assumption of foreman responsibilities over Volland in 1984 Volland s work duties and the quality of his performance as lead man had not changed Pendarvis testified that from the very beginning Volland was, of necessity spending a large part of his time on the installation of axles, wheels, and doors and was therefore unable to give sufficient time to being leadman over the liner crews A result of this Pendarvis testified, was that liner crews mistakes were often corrected after the fact with concomitant ex pense rather than being prevented before they occurred Thus in Pendarvis view Volland had at all times since 1984 been consistently unable to perform adequately as a liner crew leadman Steve Owens, plant manager had been urging his su pervisory team in early 1988 to achieve greater efficien cies in the manufacturing process to reduce costs and in crease profits Pendarvis testified however that he did not consult with Owens regarding his decision to replace Volland as leadman Rather, he testified he simply in formed his immediate supervisor, Plant Superintendent Charles Alexander that he intended to demote Volland and replace him with two leadmen who were to be part of the liner crew and have no additional nonlead respon 1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sibilities Pendarvis testified Chuck Alexander responded that he saw nothing wrong with it ' 2 Pendarvis testified that as of February 23 he was aware only of longstanding rumors of union activity at the facility Thus he testified that although he observed the handbilling on the morning of February 23, he did not associate it nor Volland with specific union activities among Respondent's employees Further he suggested that even were he to have learned of Volland s union ac tivities they would not have in any way affected his de cision to remove Volland's leadman status There is no dispute that Pendarvis came to Volland soon after the 10 a in management meeting on February 23 and informed Volland, in Pendarvis recollection, that we d have to remove him from leadman because he wasn t doing the job that that entailed, and that there were some things about my job that aren t fun that I didn t like to do but that had to be done Volland was informed that he would be losing his leadman wage pre mium Volland became displeased and, in his recollec tion, asked Pendarvis if his demotion had anything to do with my union organizing Pendarvis did not recall the subject of union organizing being raised in this conversa tion Thereafter two new leadmen were appointed and Vol land, minus his leadman status and concomitant wage premium, continued in his axle and wheel assembly posi tion to the time of the hearing 2 The transfer of Richard King Richard King was hired in 1986 and, after holding a variety of positions in inventory parts, and shipping and receiving was put in charge of the toolcnb in January The toolcrib was apparently a staffed general storage area where various tools necessary to the production process were stored and issued to production personnel on an as needed basis Sometime in early February, King was assigned the new position of expediter under the su pervision of David McPherson the foreman in charge of the warehouse inventory and shipping receiving The new expediter position was intended to eliminate the need for production employees to leave their work stations and go to the toolcnb or elsewhere to obtain needed tools or materials Rather the expediter during regular rounds, would copy down needed items from posted clipboards at specially situated work stations and deliver the needed items on his next round King testified that the new process was resisted by some employees who continued to go to the toolcrib rather than await delivery of needed items at their work stations Further King testified he found it necessary to ask employees at particular work stations if they needed additional materi als that they had not thought to enter on the work sta tion clipboards This solicitation process involved dis cussions with employees concerning needed materials while moving from work station to work station The record is clear that management thought that King took too much time speaking to employees about their parts and tool needs and failed to adhere to the planned prac tice of simply recording and filling the material requests entered at the work stations 3 Glenn Collins, the service parts manager, testified that after observing King and listening to complaints from foremen on the floor about him, he determined that King was spending too much time making his rounds primarily because he spent too much time speaking to employees Collins testified he would take these complaints to Dave McPherson, King s supervisor, and that, as a conse quence of these complaints, King s performance would improve for a few days but would then deteriorate Collins testified it was his decision to remove King from the new position of expediter and transfer him to what was, in effect, a parallel parts job that involved physically larger parts that were stored outside the facili ty Collins testified he reached his decision because of his unhappiness with King s work as expediter and because of the need to have the outside work done by someone with King s knowledge of parts, parts numbers, and re lated information Collins testified the decision to transfer King was his and was not made in conjunction with or at the request of any member of management Collins testified that he had begun thinking about removing King from the inside expediter position the first week Collins started and he began to received complaints about King s work The actual decision to move King in Collins testimony, was made no more than 2 days before his actual transfer Collins specifically denied either asking Steve Owens about the transfer or receiving any orders or instructions from Owens or other members of management to transfer King King testified he learned of his transfer from Dave McPherson soon after the morning management meeting on February 23 He testified that McPherson came to him and told him he was to be transferred to a new pose tion King was told to remain in his work area until his replacement, Ken Campbell then the outside parts person he was to replace arrived He was then to show Campbell the duties of the expediter job Later, pursuant to McPherson s instructions, King reported back to McPherson and was shown the duties he was to under take as parts man outside the facility He was explicitly instructed that he was to remain outside that they didn t want me inside King testified to a second con versation with McPherson regarding his transfer occur ring approximately a week or two after the event King testified he met with McPherson alone in McPherson s office King asked McPherson why McPherson thought he had been transferred McPherson replied, in King s recollection, that he knew that I pissed off somebody real bad But he wouldn t say who King then asked if McPherson meant Owens, but again, in King s recollec 3 Sometime during the period King held the new position of expediter z There had been a second leadman in the liner installation department but before February 23 King was instructed by management not to dis That individual lost his leadman position on February 1 for reasons un cuss union matters or union organizing while he was on company buss connected with the events in question From that time until Volland s ness circulating through the plant from work station to work station loss of the leadman position Volland was the sole leadman in the liner King testified that in response to this admonition he gave up discussing department union matters at the facility save on his own time COMET TRAILER CORP tion, McPherson would not respond in any manner to the question King asked McPherson how long his out side assignment would last and McPherson told him it was going to last indefinitely McPherson testified he had no recollection of a separate conversation with King re garding the reasons for King 's transfer to the outside po sition He further testified he had no recollection of making any suggestion to King that King had pissed somebody off Further McPherson testified he had no memory of any conversation with King involving Steve Owens McPherson did recall a conversation with King approximately a week after King was transferred in which he told King that he was transferred because his performance in the expediter job was "not working out as we anticipated because King was taking too much time going from section to section King also testified that when his new outside duties would infrequently require him to enter the building, McPherson would come up to him and tell him to leave the building at the soonest opportunity because McPher son was getting his butt chewed whenever King was seen in the building McPherson testified that following King's transfer, when he had occasion to see King in the building, he did not tell King to return outside because McPherson was going to get in trouble Rather McPher son testified he simply told King that as soon as he was done with his inside duties he was to 'go back out and resume his outside duties Kings wages and hours were not changed by his transfer Respondent notes, on brief, in essence, all that occurred was that Campbell and King switched a part of their jobs " King remained in his outside position as of the day of the hearing 3 The layoff of Larry Taylor and Byron Hahner In addition to its manufacturing operation, Respondent maintained a repair department where warranty and gen eral repair work on commercial trailers was undertaken In February three employees worked in the repair de partment Byron Hahner one of Respondents most senior employees hired in 1984 Larry Taylor hired in 1986 and Bruce Amston, a relatively new employee The repair department was located in the final Bay Area and until the change, occurring in March, was super vised by Jack Pendarvis There was no dispute that the repair department was running low on work and in early February, it became evident to management that there was not sufficient work to keep the repair department employees busy in trailer repair Pendarvis testified that, in the week pre ceding February 29, anticipating the end of available work in the repair department, he considered other places within his area of supervision where Taylor and Hahner could be transferred Pendarvis testified that he determined there was no logical place where the men could be put He testified further that he then talked to other foremen about the possibility of transferring the 1029 men to positions under others but that no openings exist ed 4 Larry Taylor testified that at 2 o'clock on the after noon of February 29, Jack Pendarvis came to him and told him he was sorry that he was going to have to let me go because they were closing down the trailer repair He said that he was sorry but this was not temporary A week later when Taylor returned to work to pick up his paycheck, he had a second conversation with Pendarvis in which Pendarvis told him that Tay lor's layoff was temporary Taylor testified he asked Pendarvis why he had been told the layoff was perma nent the week before but Pendarvis simply said he was sorry if the wrong impression had been conveyed but that it was `,lust a temporary layoff Byron Hahner tes tified that on the afternoon of February 29, Pendarvis came to him and told him they were closing down their repair shop and I was being permanently laid off He also told me to check in my tools that I had checked out through the tool room Pendarvis testified that he informed both Hahner and Taylor about their layoffs and was clear that the layoff was to be indefinite but that I couldn't give them an answer as to an exact date or any thing when they would be called back ' On the same day Bruce Amston was transferred to a welder position In preparing Respondents layoff `paperwork for Hahner and Taylor on February 29, Pendarvis filled out a "termination of employment' form for each individual in which he indicated the individuals had been laid off for lack of work and inability to absorb the employees into the rest of the work force With respect to both Hahner and Taylor, however, Pendarvis made a specific notation they were not recommended for reemployment Pendarvis testified he did this because he did not believe either Hahner or Taylor worked at a sufficient speed to justify his retention or recall Pendarvis conceded how ever that he had not expressly warned either employee or discussed either s work speed in a manner that would have conveyed the suggestion that his employment status was in jeopardy Both men were recalled to work the week of March 11 and recommenced repairing trailers at their previous wage rate The trailer repair department however, had been relocated and was no longer under the supervision of Pendarvis After February 29, Pendarvis had no re sponsibility for the repair department or the recall of laid off staff The General Counsel entered into evidence a docu ment prepared by Respondent counsel listing 12 individ uals hired or rehired by Respondent between the dates February 22 through March 3 for various unit jobs in cluding machine operator, assembler, and liner crew Testimony concerning the document suggested that the indicated hire date may in fact have been the new em ployees first day of employment and that, in that event the date of a decision to hire any given individual would have preceded the hire date to some degree * Pendravis testified that he spoke to Foremen Ken Cleveland Kenny Reeser and Roy Stempson These individuals did not testify at the hear ing 1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D Analysis and Conclusions 1 Arguments of the parties The General Counsels primary argument is that during his conversation with the handbillers on February 23 Owens became aware of the union campaign to orga nize the facility and, more importantly, of the four em ployees of Respondent engaged in handbilling activities who were the subject of this litigation The General Counsel argues that Owens went from his conversation with the union organizers almost immediately to the Feb ruary 23, 10 a m management meeting and there, at the very least initiated the decisions (1) to remove Vol land s leadman status, (2) to transfer King, and (3) either at that time or based on the additional provocation of the handbilling on the morning of February 29, to per manently layoff Hahner and Taylor More specifically the General Counsel argues that Owens, undeniably familiar with his own employees, was able to immediately identify the handbilling employees who were in close physical proximity to him dunng their handbilling and, even more directly, when they returned their undistributed handbills to the union organizers Re spondent denies that Owens gained knowledge of these employees union activities in this manner Steve Owens in his testimony specifically denied that he was able to tell which, if any, of Respondents employees were dis tributing rather than simply receiving handbills Thus, argues Respondent, Owens as a consequence of his con versations with the union organizers on the morning of February 23, knew only that a union campaign was un derway and not who if anyone, among his employees supported the Union The General Counsel relies heavily on the close timing of Volland s demotion and King s transfer each occur ring essentially immediately after the management meet ing on the morning of February 23 which meeting in turn occurred soon after Owens exposure to the hand billing In opposition to the General Counsel's evidence Respondent adduced the testimony of the supervisors in volved in taking the actions at issue that their actions were their own and were not made in response to or in consultation with Owens The supervisors also testified that at the time the events occurred, they were not aware of the union activities of Volland, Hahner or Taylor Finally, they testified that the actions taken were entirely motivated by business decisions free from any consideration of union activities of the employees Respondent also emphasized the paucity of evidence suggesting animus by Respondent against the Union or employees who supported the Union dunng the Union s campaign to organize Respondent Thus counsel for Re spondent noted (1) that the complaint was free of allega tions of independent violations of Section 8(a)(1) of the Act, (2) that there was no evidence of any kind of hostil ity to employees because of their union activities evident on the record and finally and (3) that the Employer simply chose to admonish King not to engage in organi zational activities with other employees during the course of his employment rather than discipline or termi nate him, thus showing a forgiving rather than retaliato ry attitude toward employees union activities The General Counsel argues the precipitous nature of the actions taken by Respondent show they were based on the handbilling incident Thus the General Counsel argues that, although Pendarvis testified he had been aware of Volland s leadman problems since 1984 he had not expressly discussed the matter with Volland nor taken any previous action about the matter despite 5 years of allegedly consistent disapproval of Volland s leadman activities until immediately after the manage ment meeting The General Counsel further argues that Volland s demotion occurred midmorning on a Monday in the middle of a payroll period-an unusual time for a long needed change The General Counsel asks Why was Volland not warned at any time preceding the hand billing? Why was his demotion necessitated midday and midweek? The General Counsel argues that King s transfer, like Volland's demotion, occurred essentially immediately after the February 23 morning management meeting without any convincing explanation of the close relation ship between Volland s demotion and the union handbill ing Second, the General Counsel emphasizes that King s transfer was designed not only to punish King but also to end or at least greatly reduce any contact between King and other unit employees within the facility 5 Respondents supervisors denied taking Kings union activities into account in making their decision to trans fer King They also specifically denied that Owens caused or initiated King s transfer Again business rea sons were asserted as justification for what was essential ly a transfer between King and another individual in their respective inside and outside expediter positions The General Counsel did not challenge the fact that Taylor s and Hahner s layoffs within the truck repair de partment were caused by lack of work Rather the Gen eral Counsels case is predicated on the notion that truck repair employees Taylor and Hahner were long expert enced employees in the repair of trailers and utilized skills that would have allowed them to be transferred to other positions within the facility rather than be laid off In this connection the General Counsel relies heavily on the fact that a significant number of new hires and re hires occurred during the relevant period Further the General Counsel notes that Pendarvis in laying off the employees indicated that they were not to be eligible for rehire In the General Counsels view, Pendarvis action, in effect, to terminate by refusal to recall two experienced employees on the basis of slow ness on their part is in fact evidence that Pendarvis was told to get nd of them and cover the true reason with a seemingly benign reason Respondent asserts that the lay offs were based on two simple propositions first the lack of work in truck repair and second the lack of nontruck repair positions for Taylor and Hahner Respondent 5 It is clear that at least Collins and McPherson knew of King s union activities prior to February 29 because they were the agents of Respond ent who earlier admonished him not to engage in union activities while working on companytime In the General Counsels theory either this in formation was ultimately communicated to Owens who thereafter caused King s transfer or the knowledge was not shared with Ownes who as a result of observing King s handbilling made his own independent discov ery of King s union activities and then caused him to be transferred COMET TRAILER CORP 1031 notes it never accepted Pendarvis notation that the two men not be eligible for recall and that in fact when truck repair work became available the men were re called Finally, the General Counsel argues that the conversa tions between the foremen and the alleged discrimina tees, as described above, reveal that the foremen were acting, not on the basis of independent business decisions that adversely affected the employees, but were rather acting, even if unwillingly, under orders and in further ance of Owens' determination to discriminate against the employees because of their union handbilling activities 2 Resolution of conflicting versions of events Both the General Counsel and Respondent on brief have marshaled in a persuasive manner the legal authori ties that govern analysis of discharge and adverse action cases under the National Labor Relations Act In my view however the resolution of this case is dependent not so much on an analysis of law as on a resolution of conflicting version of fact This case presents evidence marshaled by the General Counsel respecting timing, knowledge, probability, etc, opposed by the testimony of Respondents agents denying knowledge and asserting benign reasons for the adverse actions taken by Respond ent Further there are certain credibility issues concern ing disputed elements of conversations between the fore men and the adversely affected employees Respecting the General Counsels contention and Re spondent's denial that Steve Owens became aware of the handbilling activities of the alleged discrimmatees on the morning of February 23 I reject the position of the Re spondent and the testimony of Steve Owens and sustain the General Counsel Thus I find that the events de scribed by the witnesses as occurring on the morning of February 23 amply demonstrate that Owens was aware of the specific identity of Respondents employees who were taking an active part in the handbill distribution process In reaching this result, I have considered the testimony of Owens in which he specifically denies that he was able to make the identifications alleged On the basis of my determination that Owens demeanor was significantly less than persuasive during his testimony in this regard, I specifically find that Owens given the cir cumstances described above, could not have failed to specifically identify the four employees involved herein who were handbilling on the mornings of February 23 and 29 Thus, I discredit his denials It is completely beyond imagining that an individual such as Tiny Vol land, a giant of a man who was acknowledged to be per haps the largest individual working at Respondents facil ity, could have handed undistributed leaflets to a union organizer who was standing with Owens without Owens recognizing the employee as a member of the unit and as an active handbiller It is simply inconceivable that Owens would not have been both very interested in such an identification and have been able to identify all four employees involved Owens incredible denials do not withstand the strong contrary evidence The removal of Volland's leadman status and the lay offs of Hahner and Taylor call for an evaluation of the credibility of Pendarvis and the employees concerning the events as well as the testimony of Owens and Pen darvis denying that the actions were a result of Owens instructions I simply do not believe Pendarvis and Owens in their denials of any nexus between the hand billing events and the actions taken by Pendarvis against the employees involved First I find it totally incredible that Pendarvis should have endured as would be neces sary to believe if his testimony be credited 4 years of Volland's inadequate leadman duties before, entirely on his own motion, removing Volland s leadman s status hard after the management meeting on the morning of February 23 The fact that Pendarvis did not give Vol land warnings or notice of the potential for loss of his leadman s status and the fact that the demotion occurred in the middle of the workday and in the middle of a pay roll period together rise to the level of strong evidence that the demotion was an unanticipated implementation of a decision suddenly arrived at I found Volland to be a very credible witness who made every honest effort to truthfully describe the events as they occurred Based on my observation of Pendarvis as a witness, I have no such confidence in either the truth or the spontaneity of his testimony Crediting Volland over Pendarvis, I find that the postdemotion conversations with the differences de scribed supra, occurred as testified to by Volland I fur ther find Pendarvis testimony that he arrived at the de motion decision on his own without consultation con tact, or instruction by Owens is simply untrue Rather, I find that Owens either at the management meeting or at some other time between his observation of the handbill ing and the time Pendarvis spoke to Volland made it clear to Pendarvis that he must take adverse action against Volland because of Owens hostilities to Vol land s union activities I reach a similar conclusion respecting employees Taylor and Hahner There is no question and the Gener al Counsel does not challenge the evidence on this record, that work in the truck repair department was ex hausted on February 29 Taylor and Hahner however, were experienced employees who could fill in and had filled in in other positions at the facility Moreover the General Counsel has proved and I find that their layoffs came at a time when Respondent was hiring numerous employees in miscellaneous unit positions I find credit ing the employees over the contrary testimony of Pen darvis based again on his inferior demeanor as discussed supra, that Pendarvis in fact told employees Taylor and Hahner that they were permanently laid off and that he did this and further, marked their termination forms so that they would not be considered eligible for reemploy ment because of instructions from Owens that he should do so either simply on the basis of the authority of Owens or because they had engaged in the union activi ties described above Thus, on the basis of the record as a whole and his significantly inferior demeanor, I reject Pendarvis testimony that he did not inform the employ ees that they were permanently laid off The testimony by Hahner and Taylor both credible witnessess, as well as the undisputed events belie Pendarvis testimony in this regard I further reject his uncorroborated testimony that he consulted with other supervisors and that they in 1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD formed him there were no positions available for these individuals Because Pendarvis was attempting to ensure that the men would not be recalled by marking their ter mination papers not eligible for recall, it seems highly unlikely he would simultaneously try to place them in other departments in the plant In summary then I find that Pendarvis testified to a series of false reasons for taking the actions he did against employees Volland, Taylor and Hahner, and that the true reason in fact for the actions taken was the in struction of Owens to punish them for their handbilling activities at Respondents facility Respecting King, it is clear and I find, that he was transferred to the outside expediter position to punish him for his handbilling activities and to isolate him from other employees Respondent did not seek to justify King s transfer on the basis of his earlier arguably unpro tected discussion of union matters with employees on companytime Rather Respondent relied on the testimo ny of its agents that independent business reasons caused the transfer, that the transfer was undertaken completely without consideration of King s union activities and, fur ther, that the transfer was undertaken without suggestion or instruction from Owens King like Volland suffered his change in job status immediately after the manage ment meeting on February 23 Having rejected Owens testimony that he had nothing to do with the actions against other employees on the same grounds I reject it concerning King King was not informed of or warned about the likelihood of a transfer The testimony of McPherson and Collins suggesting that the transfer was not related either to Owens, the handbilling or the Feb ruary 23 management meeting was singularly unconvinc ing Rather I believe that they, like Pendarvis, were simply acting under instructions from Steve Owens to consummate his animus against King and the others be cause of their handbilling in support of the organizational efforts of the Union In this regard I explicitly credit King, who I found a witness with a persuasive demean or in his attribution, denied by McPherson that McPherson told him that his transfer was based on his having pissed off' an agent of management This con cession to King by McPherson like the concessions at tributed by Pendarvis and credited earlier even though denied by the foremen in question, suggests to me that the foremen were not willing participants in the antiun ion campaign but were rather acting under the instruc tions of superior authority Their unwillingness was in my view revealed to the employees in the credited coin ments attributed to them as described above and despite their denials at the hearing under the scrutiny of their su periors clearly reveals that Respondent's actions taken against the four employees were not benign or independ ently initiated actions on the part of the foremen 4 Conclusion In summary I have found that the General Counsel s factual contentions have been sustained in their entirety I have found that Respondents attack on the General Counsels case as to knowledge of union activity fails and Respondents defense of independent business justifi cation for the actions taken against the four employees is explicitly rejected as pretext designed to cloak the true motive for the actions taken Rejecting Respondents de fense primarily on the unconvincing demeanor of Re spondent s witnesses Owens Pendarvis, McPherson, and Collins I have found it clear that the actions taken against the employees were taken on Owen s instructions and because of their handbilling on behalf of the Union Given the above factual findings, Respondents actions against the four employees because of their distribution of union handbills is a clear violation of Section 8(a)(3) and (1) of the Act and I so find REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act With respect to the loss of Volland s leadman status, I shall recommend that Respondent restore his leadman s status and make him whole for any loss of earnings or other privileges and benefits he may have suffered by reason of Respondents discrimination against him I shall recommend that King be restored to his pre vious position of inside expediter and that he be made whole for any loss of earnings or other rights and bene fits he may have suffered by reason of Respondents dis crimination against him Inasmuch as the record reflects that Hahner and Taylor have resumed their work in truck repair, I shall restrict my recommended Order to a requirement that Respondent make whole these two em ployees for any loss of earnings and other rights and ben efits they may have suffered by reason of their wrongful layoff Backpay shall be computed in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950) with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987) interest on and after January 1 1987, shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ap proved prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) Respondent shall also be required to remove any reference to these adverse actions from the employees files and to notify the employees involved in writing that this has been done and that the adverse actions will not be the basis of any later action against them Sterling Sugars, 261 NLRB 472 (1982) CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 Respondent violated Section 8(a)(3) and (1) of the Act by engaging in the following acts and conduct in February (a) Removing the leadman status of employee Harold Volland because of Volland s activities in distributing handbills in support of General Teamsters Union Local COMET TRAILER CORP No 524, affiliated with International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (b) Transferring employee Richard King from the po sition of inside expediter that involved regular contact with other employees to the position of outside expediter involving essentially no contact with other employees because of his handbilling activities in support of General Teamsters Union, Local No 524 (c) Laying off employees Byron Hahner and Larry Taylor because of their handbilling activities in support of the Union 4 The above unfair labor practices affect commerce within the meaning of Section 2(2), (6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed6 ORDER The Respondent Comet Trailer Corporation, Selah, Washington, its officers agents successors, and assigns, shall 1 Cease and desist from (a) Demoting leadmen because of their union activities (b) Transferring employees because of their union ac ti vities (c) Laying off employees because of their union activi ties (d) In any like or related manner interfering with, re straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act 6 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 1033 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Restore employee Harold Volland to his position as leadman (b) Restore employee Richard King to his position as inside expediter (c) Make whole employee Harold Volland for all losses incurred as a result of Respondents unlawful de motion of him from leadman on February 23, with inter est as set forth in the remedy section of this dDecision (d) Make whole employees Byron Hahner and Larry Taylor for all losses incurred as a result of Respondent s unlawful layoff of them on February 29 until their recall in March, with interest as set forth in the remedy sec tion of this decision (e) Remove from King, Volland, Hahner and Taylor s files any reference to the adverse actions taken against them and notify each in writing that this has been done and that the unlawful adverse actions discussed above will not be used as a basis for future personnel actions against them (f) Post at its Selah, Washington facility copies of the attached notice marked Appendix ' Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by Respondents authorized representative shall be posted by Respondent immediate ly 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 Respondent to ensure that the notices are not altered, defaced or covered by other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply 7 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