L & J Equipment Co., Inc

652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L & J Equipment Company, Inc and United Mine Workers of America Cases 6-CA-14812 and 6-CA-15343 28 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 7 July 1984 Administrative Law Judge Leon ard N Cohen issued the attached decision The Re spondent and the General Counsel filed exceptions and supporting briefs and the Respondent filed a reply brief to the General Counsel 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 briefs and has decided to affirm the judge s rulings findings 1 and conclusions 2 and to adopt the recommended Order as modified 3 The General Counsel excepts to the judge's find ings that a seniority/layoff procedure existed as de scribed in the Respondent s postheanng brief and that the Respondent s adherence to the procedure was the reason it did not recall employee David Gilson from layoff For the reasons set forth below we find merit in the General Counsel s exceptions Contrary to the judge we find that the record fails to support the Respondent s claim that it had or followed an established seniority/layoff proce dure As the judge found, Respondent President James Filiaggi exercised great flexibility in deter ' The Respondent has excepted to some of the judge s credibility find ings The Board s established policy IS not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings In affirming the judge s dismissal of the allegation that the Respondent unlawfully changed Powley s lunch hour in order to segregate him from his fellow employees we do not adopt and find no evidence to support his assumption that the Respondent s policy regarding lunch hours had been ignored disregarded or overlooked by all employees The hearing officer s report in Case 6-RC-9124 issued 5 March 1982 not 15 March as the judge stated 2 In adopting the judge s conclusion that the Respondent coercively in terrogated its employees about their union activities Chairman Dotson and Member Dennis do not rely on PPG Industries 251 NLRB 1146 (1980) which the Board overruled in Rossmore House 269 NLRB 1176 (1984) 3 The judge found that the Respondent threatened to assign employee Spiker to the night shift because of his Involvement with the Union issued a written warning to and assigned management personnel to ob serve employee Powley because of his union activities orally reprimand ed Powley for tardiness because of his union activities promised employ ee Sholtis a job for life if he withheld support for the Union and inter fered with Board processes by telling an employee he need not comply with a subpoena but the judge failed to include these findings in the Conclusions of Law We conform the judge s findings of fact with the Conclusions of Law recommended Order and notice mining daily staffing requirements and production quotas at times retracting previously announced personnel changes and layoffs Filiaggi admitted in his 11 August 1981 4 conversation with employees Powley and Spiker that the layoffs and schedule changes were part of his scheme to lay off the work force gradually should the employees union activities continue and he retracted several of the previously announced personnel changes when em ployees decided to forgo the Union and deal di rectly with him to save their jobs In later conver sations with employee Powley, Filiaggi stated that he could lay off employees at any time there were no rules, and he just made them up as he went along and needed them In addition to the forego ing, the Respondent s layoff of Poling did not follow the asserted layoff procedure 5 Finally the Respondent had not previously reduced to writing its alleged seniority/layoff procedure Indeed one of the concerns that prompted the employees in terest in the Union was the Respondent s lack of a comprehensible seniority system that provided job security We thus disagree with the judge s finding that the Respondent s treatment of employee Gilson fol lowed an established seniority procedure, and we further find that the Respondent s failure to recall Gilson violated Section 8(a)(3) Filiaggi knew that Gilson attended the 5 August union meeting In early August, when Glisan s truck needed repair, Filiaggi instructed mechanic Sholtis to park the truck and order the needed parts On 6 August the Respondent informed Gilson that he was being laid off for lack of work On 17 August Filiaggi assured Gilson that he would be recalled in the future When Gilson s truck was ready for service 23 Sep tember Filiaggi assigned an unidentified driver whose vehicle was out of commission to drive it, instead of recalling Gilson In the past when Gilson was laid off while his truck was being repaired, the Respondent had recalled him when the repairs were completed The Respondent claimed that it was following an exception to its seniority procedure because recall ing Gilson would have required it to reinstate the insurance benefits for a driver already on layoff while at the same time continuing to insure a newly laid off employee We have found, however that the Respondent had no established seniority procedure Further, the Respondent failed to intro duce documentary evidence supporting its testimo 4 All dates are in 1981 unless otherwise specified 5 As the judge found Poling would have been retained under the claimed layoff procedure for two reasons he was a competent and versa tile utility employee and he was not the least senior of the highlift opera tors 272 NLRB No 104 L & J EQUIPMENT CO 653 ny that Gilson s insurance benefits had lapsed and it would have incurred extra cost by recalling Gilson, the record in fact contains evidence that Gilson s insurance benefits had not lapsed when his truck was repaired Finally, Filiaggi testified under cross examination that after an employee's insurance has lapsed, the Respondent incurs no additional ex pense when reinstating the benefits beyond the usual monthly premium, and that it had in the past recalled employees whose insurance had lapsed Because the Respondent knew of Gilson's union ac tivities, the overwhelming evidence of animus, and the Respondent s failure to support its claimed reason for not recalling Glisan, 6 we find that the Respondent s failure to recall Gilson 23 September violated Section 8(a)(3) AMENDED CONCLUSIONS OF LAW 1 Insert the following paragraphs after Conclu sion of Law 3(g) (h) Orally reprimanding employees because of their union activities (i) Threatening to impose more onerous work ing conditions on employees in retaliation for their union activities (j) Promising job security in return for employ ee assistance in discouraging union activity '(k) Interfering with an employee's compliance with a Board subpoena - 2 Insert the following paragraphs after Conclu slop of Law 4(b) (c) Assigning management personnel to observe employees because of their union activities (d) Issuing written warnings, to employees be cause of their union activities' 3 Substitute the following for Conclusion of Law 6 6 By failing to recall David Gilson 23 Septem ber 1981, Respondent violated Section 8(a)(3) of the Act ORDER' , t The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondent L & J Equipment Company, Inc , Masontown, Pennsylvania, its offi cers, agents, successors, and assigns shall 1 Cease and desist from 6 Other than its assertion that It followed an exception to its seniority procedure the Respondent offers no plausible explanation for not recall mg Gilson Although the police had cited Gilson earlier for driving with out a license and he had experienced prior mechanical problems with his vehicle in each instance prior to his union activities the Respondent had attempted to accommodate Gilson by assigning him to another vehicle or to different work , (a) Interrogating its employees as to their union activities, sympathies, and desires (b)Soliciting employees to ascertain and ■divulge to it other employees union membership, activities, sympathies, and desires (c) Creating the impression among its employees that their union activities are under surveillance (d) Threatening to liquidate and close its oper ations unless its employees cease engaging in union activities (e) Threatening to lay off employees unless the employees cease engaging in union activities (f) Informing employees that their union activity and the union activity of other employees were the reasons for their transfers, discharges,for layoffs (g) Soliciting employee grievances and impliedly promising benefits through correction of employee grievances t i' (h) Orally reprimanding employees because of their union activities (i) Transferring employees from one location to another location because of their activities on behalf of the Union (j) Laying off or discharging employees because of their union activities (k) Threatening to impose more onerous working conditions on employees in retaliation for their union activities (1) Assigning management personnel to observe employees because of their union activities (m) Issuing written warnings to employees be cause of their union activities (n) Promising job security in return for employee assistance in discouraging union activity (o) Interfering with an employee s compliance with a Board subpoena (p) Failing to recall employees because of their union activities (q) In any like or related manner interfering with, restraining or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act r 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Offer Gerald Wahler ., William McCartney Kevin Pike, David Poling, and David Gilson im mediate and full reinstatement to their former jobs or, if, those jobs no longer exist, to substantially equivalent positions without prejudice to their se niority or other rights and privileges place the name of Michael Zieglar on a priority list and give him first priority for recall in the event that the Respondent resumes operations of the coal crusher, make Wahler, McCartney Pike, Poling Gilson and Zieglar whole for any loss of earnings suffered as a result of the discrimination against them in the 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner set forth in the remedy section of the judge s decision (b) Preserve and, on request make available to the Board or its agents for examination and copy ing, all payroll records social security payment records timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (c) Post at all of its facilities in and around the area of Masontown, Pennsylvania, copies of the at tached notice marked Appendix 7 Copies of the notice on forms provided by the Regional Direc tor for Region 6 after being signed by the Re spondent s authorized representative shall be posted by the Respondent immediately upon re ceipt and maintained for 60 consecutive days in conspicuous places including all places where no tices to employees are customarily posted Reason able steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (d) Expunge from its files any reference to the unlawful transfers layoffs, discharges, and warn ings of Michael Zieglar Gerald Wahler William McCartney, Kevin Pike David Poling, David Gilson, and Keith Powley and notify each in writ ing that the Respondent has done so and that evi dence of these unlawful actions will not be used as the basis for future personnel actions against each (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the 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 Na tional Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join or assist any union To bargain collectively through representa lives 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 interrogate our employees as to their union activities, sympathies, or desires WE WILL NOT solicit our employees to ascertain and divulge to us other employees union member ship, activities sympathies, and desires WE WILL NOT create the impression among our employees that their union activities are under sur veillance WE WILL NOT threaten to liquidate and close our operations unless the employees cease engaging in union activities WE WILL NOT threaten to lay off employees unless the employees cease engaging in union ac tivities WE WILL NOT inform our employees that their union activity and the union activity of other em ployees were the reasons for employee transfers, layoffs, or discharges WE WILL NOT solicit employee grievances and impliedly promise benefits through the correction of such employee grievances WE WILL NOT orally reprimand employees be cause of their union activities WE WILL NOT transfer employees from one loca tion to another because of their union activities WE WILL NOT lay off or discharge employees be cause of their union activities WE WILL NOT threaten to impose more onerous working conditions on employees in retaliation for their union activities WE WILL NOT assign management personnel to observe employees because of their union activities WE WILL NOT issue written warnings to employ ees because of their union activities WE WILL NOT promise job security in return for employee assistance in discouraging union activity WE WILL NOT interfere with any employee s compliance with a Board subpoena WE WILL NOT transfer, lay off, discharge, or fail to recall our employees because of their union ac tivities t WE WILL NOT in any like or related 'Manner interfere with restrain, or coerce our employees in the exercise of the rights guaranteed them under Section 7 of the Act WE WILL offer Gerald Wahler William McCart ney, Kevin Pike David Poling, and David Gilson immediate and full reinstatement to their former positions or if those positions no longer exist, to substantially equivalent positions without prejudice L & J EQUIPMENT CO 655 to their seniority or any other rights or privileges previously enjoyed WE WILL place the name of Michael Zieglar first on a priority list for recall in the event that we resume operation of the coal crusher WE WILL make Michael Zieglar Gerald Wahler William McCartney Kevin Pike David Glisan, and David Poling whole for any loss of earnings or other benefits they may have suffered as a result of our discrimination against them, with interest WE WILL expunge from our personnel files and records the warning notice issued to employee Keith Powley on 10 December 1981 and expunge from our files any references to the unlawful trans fers, layoffs, and discharges of Michael Zieglar Gerald Wahler William McCartney, Kevin Pike, David Ulm]) Keith Powley, and David Poling, and WE WILL notify each of them in writing that we have done so and that evidence of this unlawful conduct WILL NOT be used as a basis for future personnel actions against them L & J EQUIPMENT COMPANY, INC DECISION STATEMENT OF THE CASE LEONARD N COHEN Administrative Law Judge This matter was tried before me on August 23 24 25 and 27 in Uniontown Pennsylvania and on September 29 and 30 1982 in Pittsburgh Pennsylvania pursuant to an order consolidating cases and consolidated amended complaint issued May 28 1982 by the Acting Regional Director for Region 6 of the National Labor Relations Board The consolidated amended complaint which was based on charges filed by the United Mine Workers of America herein the Union on August 13 1981 and March 9 1982 alleges that L & J Equipment Company Inc herein Respondent discriminatorily laid off and/or discharged seven employees discriminatorily transferred and segregated employees discriminatorily issued an em ployee a written warning refused to assign an employee overtime and imposed more onerous and rigorous terms and conditions of employment on that same employee all in violation of Section 8(a)(3) and in some instances Section 8(a)(4) of the Act In addition the amended con solidated complaint which was further amended at the hearing alleges numerous and vaned independent con duct violative of Section 8(a)(1) of the Act Respondent filed a timely answer in which it admitted jurisdiction and the labor organization status of the Union but denied the commission of any unfair labor practices All parties were given full opportunity to participate to introduce relevant evidence to examine and cross ex amine witnesses to argue orally and to file briefs Briefs which were filed by both the General Counsel and Re spondent have been carefully considered On the entire record of the case and from my obser vation of the witnesses and their demeanor I make the following FINDINGS OF FACT I THE UNFAIR LABOR PRACTICES—FACTS A An Overview Since its founding in 1957 Respondent a Pennsylvania corporation owned in equal shares by brothers James and Lawrence Filiaggi has been engaged in the surface mining of coal Overall responsibility for conducting Re spondent s business rests with its President James Fi liaggi 1 who directly supervises the day to day oper ations Richard Filiaggi Lawrence s son is Respondent s superintendent with Sam Newman Jr a strip foreman completing the small supervisory force 2 By the late summer of 1981 3 Respondent employed approximately 80 employees in various clasifications in cluding those of equipment operators truckdnvers and mechanics at one of the seven worksites located in the southwestern corner of Pennsylvania Respondent s head quarters are located at the Hatfield or Harley site in Ma sontown where a majority of the aforementioned em ployees regularly work in various functions including supplying recently mined coal to a large power plant also located on this site Respondent also maintains five satelite jobsites where coal is stripped These sites names and proximity to the Hatfield site are as follows Khe dive 2 miles Bridgeville 60 miles Kennedy 20 miles Dunbar 26 miles and Normalville 35 miles In addition Respondent maintains a Fort Martin site located approxi mately 2 miles from Hatfield where it is primarily en gaged in the limited operation of the removal and subse quent delivery of ash As will be detailed below in late July several employ ees of Respondent contacted the Union regarding possi ble representation This activity eventually lead to the September 1 filing of a representation petition in Case 6- RC-9124 On September 21 a representation hearing was held and on October 8 the Regional Director issued the Decision and Direction of Election pursuant to which an election was held on November 4 The tally was 39 votes for and 33 votes against with 11 challenged bal lots Thereafter Respondent filed timely objections to the election On January 15 1982 the Acting Regional Director ordered a hearing on Respondent s objections and six of the challenges 4 On January 27 and 28 a hear ing was held and on March 15 1982 the hearing officer issued his report in which he recommended that the challenges to the ballots of six individuals be sustained 1 Hereinafter James Filiaggi will be referred to simply as Filiaggi 2 Since 1977 Lawrence Filiaggi has managed National Ford an auto mobile and truck dealership located in nearby Uniontown Pennsylvania Like Respondent National Ford is owned entirely by Lawrence and James Filiaggi In recent years Lawrence Filiaggi has spent little time if any at mining sites and apparently does not take on an active role in the management of Respondent 3 Unless otherwise noted all dates are for 1981 , ' The five remaining challenged ballots were consolidated into and left for the instant proceedings 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that all but one of Respondent s objections be overruled and that the election be set aside on the Union s prom ised postelection victory dinner dance Both Respondent and the Union filed timely exceptions to this report and on April 16 the Acting Regional Director issued a Sup plemental Decision in which he adopted the hearing offi cer s report except for the recommendation that the elec tion be set aside The Acting Regional Director there fore certified the Union as the bargaining representative of the employees Thereafter Respondent filed a request for review which was denied by the Board on August 4 1982 5 B The Union Activity Begins In mid July several of Respondent s employees infor mally began discussing the possibility of organizing These conversations took place both at the worksites as well as at local beer halls or taverns Toward the end of July two employees David Poling and Michael Zieglar independently contacted a union business representative Pursuant to these calls a union organizing meeting was scheduled to be held in the evening of Wednesday August 5 at one of the local beer halls located near the Hatfield site Upon hearing at the scheduled meeting Filiaggi em barked on a course of conduct which the General Coun sel alleges not only constitutes separate and independent violations of Section 8(a)(1) but supplies evidence of Re spondent s unlawful motivation in making reductions and other changes in its work force As far as practical I will in the following subsection of this decision attempt to deal in chronological order with the events and con versations which the General Counsel alleges constitute such independent violations of Section 8(a)(1) The spe cific facts relating to the allegations of discriminatory treatment in violation of Section 8(a)(3) and/or (4) will be dealt with in some detail in the following subsections C The Alleged 8(a)(1) Conduct 1 Filiaggi s August 3 conversation with employee Spiker Jonas Spiker a welder at the Hatfield facility testified that on the afternoon of August 3 Filiaggi approached him and asked if he had heard anything about a meeting When Spiker responded by asking Filiaggi to what meet ing he was referring Filiaggi answered by stating the union meeting Spiker replied that he did not know at that time about any union meeting Filiaggi admitted having a conversation with Spiker about the meeting however Filiaggi not only placed this conversation as having occurred on August 4 1 day later than Spiker but further specifically denied mentioning the Union during this brief exchange 6 According to Fi 5 In Case 6-CA-15662 Respondent tested this certification On Febru ary 9 1983 the Board at 266 NLRB No 29 (1983) (unpublished) granted the General Counsel s Motion for for Summary Judgement finding that Respondent refused to bargain in violation of Sec 8(a)(5) 6 The significance of the date differences will be discussed infra with regard to Zieglar and Pike s layoffs liaggi at the time he spoke to Spiker on August 4 he had merely heard through rumor that the employees were having a meeting among themselves to discuss Re spondent s pension and profit sharing plans which had been a constant source of confusion and misunderstand ing in the past I credit Spiker s version both as to the date of the con versation and the content 7 2 Filiaggi s August 4 conversation with Powley Keith Powley a greaser 8 testified that on the morning of August 4 Filiaggi approached him while he was work ing near the coal crusher on the Hatfield site Filiaggi asked him if he knew anything about the meeting and Powley responded by merely stating that he knew that someone had offered to buy him a beer Filiaggi asked if he was going to attend and Powley said he would Fi liaggi then noted that while Powley had the right to go he did not think Powley should Filiaggi asked Powley who had set up the meeting but Powley refused to tell him At some point during the conversation Filiaggi asked Powley why the men needed a ,nion and Powley responded that it was necessary for job security Filiaggi answered that as long as Powley did his job he had job security Filiaggi did not specifically testify regarding this con versation He did testify however that he did not become aware that the scheduled meeting was in fact a union meeting until sometime during the day on August 5 I reject this assertion and instead credit Powley s testi mony that the entire underned conversation took place on August 4 3 Filiaggi s August 5 conversations with Martin On the morning of August 5 Filiaggi had a conversa bon with Charles Buddy Martin while the latter was transporting Filiaggi by helicopter from one jobsite to another 9 Filiaggi asked Martin if he knew there was going to be a union meeting that night When Martin an swered that he did '° Filiaggi asked if he knew what it was about Martin responded that he did not Filiaggi then asked if Martin had been asked to attend and Martin stated that he had been asked but he was not going At this point Filiaggi suggested that Martin go to Specific discussions of the credibility of the various witnesses will be left for following subsections Suffice it at this point to say that I found Spiker s testimony to be more reliable than Ftliaggi s 8 As a greaser Powley not only greased at all sites equipment used in Respondent s operations but also performed routine standardized maintenance as well This maintenance which Includes changing and/or checking of tires filters and batteries is referred to by all as TLC s (tender loving care) and are performed on regular Intervals based on the number of hours a particular piece of equipment has operated 9 Martin who reports directly to Filiaggi is employed at the Hatfield site as a utility employee In addition to his flying management between jobsites Martin picks up equipment and parts and performs lawn mamte nance The Regional Director in his Decision and Direction of Election rejected the Union s contention that because of his unique position within the Company he did not share a community of interest with unit employees 1 ° At some point dunng the day on August 5 a notice announcing a union meeting was posted at the Hatfield garage a location frequently visited by both Filiaggi and Richard Filiaggi L & J EQUIPMENT CO 657 the meeting and see what it was about Sometime follow mg this discussion Martin encountered employees Spiker and Powley at the Hatfield site and informed them of Fi haggi s suggestion that he attend the meeting On the evening of August 5 Martin went to the tavern where the meeting was to be held however be cause of his perceived special relationship with Filiaggi he was refused admittance On his way home from the meeting he passed the Hatfield site and on seeing Fihag gi s parked car stopped by the office for a few moments Filiaggi asked him who was at the meeting and Martin responded that he did not know since he was not al lowed inside Filiaggi then asked if there were a lot of people there and again Martin responded that he did not know Filiaggi persisted and asked if John Sholtis and Lenny Burns two other employees of Respondent were at the meeting When Martin responded that he had seen their cars parked nearby Filiaggi commented that that being the case Martin did not have to be present at the meeting Filiaggi in essence confirmed Martin s testimony re garding their two conversations on August 5 In Fihag gi s rather vague account his inquiries on the evening of August 5 were basically limited to finding out if employ ees from all the strip sites were involved Further Fi liaggi claimed that it was only during the latter conver sation on the evening of August 5 that he became aware that it was actually a union meeting I credit Martin s ac count of the conversations 4 Filiaggi s August 5 conversation with Sholtis John Sholtis a mechanic with Respondent for over 15 years testified that he received a telephone call from Fi liaggi after he got home from the union meeting on August 5 According to Sholtis when Filiaggi asked him who was at the meeting he specifically recalled mention ing the names of Mike Zieglar and Dave Glisan Filiaggi then asked if the ash truckdnvers from Fort Martin had been there and Sholtis answered that they had " When Filiaggi asked if Keith Powley had said anything about him at the meeting Sholtis answered that Powley had merely sat in the corner and listened to the meeting like the rest of them Filiaggi then inquired if they had thrown Lenny Burns out of the meeting and Sholtis re sponded that they had not that Burns had voluntarily gotten up and walked out on his own Filiaggi then asked if they had thrown Bud Martin out of the meeting and Sholtis responded that they had not even let Martin in the meeting because he was a company man Filiaggi admitted talking to Sholtis by telephone on the evening of August 5 According to his account prior to leaving work early that afternoon Sholtis informed him that he would call Filiaggi after he got home from the meeting Filiaggi stated that since he had not yet re ceived this telephone call by the time he was ready to leave the office he called Sholtis at his home According ii Earlier that same week alleged discriminatees Jerry Wahler and William McCartney as well as at least two other truckdn vers had Just started the job of cleaning a pond at the Fort Martin site Although It is not clear from this record it does not appear that the truckdnvers en gaged in cleaning a pond were the ash truckdnvers referred to by Fl haggi to Filiaggi Sholtis in response to a question regarding what went on that night simply stated that there had been a meeting and that everyone was there Filiaggi then recounted that he asked if the men from the Fort Martin site were there and Sholtis said they were In ex plaming why he asked about these employees Filiaggi explained that he merely wished to see how widespread the organizing interest was Filiaggi further testified that other than asking if Lenny Burns had been present at the meeting he did not recall asking or hearing any other specific names mentioned While I am generally satisfied that Sholtis recitation of the above conversation was as accurate recitation as far as it went I strongly suspect that Sholtis also men boned to Fillaggi without prompting names in addition to those of Zieglar and Glisan His incomplete testimony in this regard appears to be the result of a combination of pretrial preparation and the failure of counsel to ask if he or Filiaggi mentioned any other names In reaching this conclusion I note that Sholtis would have had no ap parent reason for mentioning Glisan s presence at the meeting since there is no evidence that Glisan said or did anything during the meeting of August 5 Moreover the evidence indicates that Zieglar s role at the meeting was not so particularly prominent as to warranting his being singled out 5 The layoffs On August 4 5 and 6 Filiaggi informed Kelvin Pike (truckdriver) Mike Zieglar (slate picker in the coal crusher) and David Glisan (truckdnver) respectively that they were being laid off Each of these actions is al leged to have been in retaliation for their union activity and will be treated in depth infra On Friday August 7 Respondent informed its employ ees by way of individual notices placed in their pay en velopes that additional personnel changes were being made 12 The form letter states L & J has bought a Manitowoc 6400 Dragline and as you can see by the enclosed notification from Anderson Equipment Company dated July 28 1981 it is ready to be placed in service With the addition of this piece of equipment a change will be made in the equipment and work schedules This machine will change our mode of operation Listed below is our work schedule changes In addition to the three earlier layoffs noted above the personnel changes announced through the August 7 letter were as follows Jonas Spiker changed from day shift to second shift Truckdnvers McCartney and Gerald Wahler laid off Dave Poling transferred to Bridgeville 12 Although Pike was initially informed on August 4 that he would be laid off he continued to work through Fnday August 7 when he re ceived written notification 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Like the layoffs or discharges of Pike Zieglar and Glisan the General Counsel alleges that each of these above mentioned changes were violative of Section 8(a)(3) Although the record is far from clear it appears that Respondent announced four other changes on August 7 Robert Hundyady a welder was notified on August 7 of his layoff employee Donald Brotherton an equipment operator was on the same day notified of a transfer to Normalville truckdriver Lenny Burns was transferred to a greaser position on the dragline and truckdriver William Clark was assigned a different type of coal truck to drive None of these four actions is al leged to be violative of the Act '3 6 August 8 comments by Lawrence Filiaggi On August 8 the day after he received notice of his layoff William McCartney a truckdriver was at the Na tonal Ford dealership in Uniontown when he had the following conversation with Lawrence Filiaggi Law rence Filiaggi asked him what was going on out at the mines and McCartney answered that the men wanted a union McCartney added that he had attended a meeting but had not said anyting Lawrence Filiaggi responded that there would never be a union they would shut down and work company personnel first Lawrence Fi liaggi then added that McCartney was making a big mis take and that they should think it over before it was too late Lawrence Filiaggi did not testify with regard to this conversation I credit McCartney s account 7 Filiaggi s August 10 conversation with Powley A second union meeting was scheduled to be held on the evening of Monday August 10 Sometime during that day Filiaggi approached Keith Powley and asked if he was going to attend the meeting Powley answered that he was and he had a right to his own opinion Fi liaggi merely replied that he did not think Powley should go Filiaggi did not testify regarding this conver sation and I credit Powley s uncontroverted account 8 Events of August 11 Early on the morning of August 11 Filiaggi once again approached Powley in the garage on the Hatfield site and brought up the subject of the organizing cam paign Before anything of substance was said Spiker joined the conversation 14 Filiaggi told them that their organizing efforts had to stop He then asked why the men wanted the Union When Powley and Spiker told him that the men wanted job security Filiaggi answered that he had followed company policy and that every thing he had done the prior week had been legal Fi liaggi explained that he had broken down the work force into classifications and that he had laid off the least senior man in each classification Filiaggi then stated that he would not permit his company to go union and that if forced to he would liquidate his equipment slowly and " No explanation was offered by the General Counsel as to why these changes which were made at the same time as the other changes were not also alleged to have been unlawful 14 The following account is based on a composite or an amalgam of the mutual corroborative testimony of Powley and Spiker cease operations Filiaggi added that he had four layoff slips already prepared in the office and if the organizing efforts did not stop he would not only lay off those four men that same afternoon but would lay off an additional man each day thereafter Filiaggi then told Powley and Spiker that the situation could be handled internally without resort to a union Continuing in this vein he suggested that the men could set up their own grievance committee of three employees one of whom he would appoint ' to discuss and resolve the employees work problems and concerns At some point during this morning conversation Law rence Filiaggi James brother paid one of his infrequent visits to the Hatfield site Despite the fact that Lawrence Filiaggi and Jonas Spiker knew each other personally for some years James Filiaggi introduced Spiker as a union fanatic Shortly after entering the conversation Law rence asked both Powley and Spiker if they had signed union cards Both declined to answer Lawrence then asked if anyone had signed anything and again they re fused to answer Later in the conversation both Powley and Spiker indicated that while they were interested in James Filiaggi s proposition about setting up their own grievance committee they would have to discuss the matter with the other men Filtaggt stated that that being the case they should by all means meet with the other men at the Hatfield site Soon after this discussion James Filiaggi had a brief discussion with Bud Martin Filiaggi related to Martin that he had just talked to Powley and Spiker and had suggested that the employees form their own grievance committee Filiaggi added that 1 as far as he was con cerned Respondent did not need a union and would not have one About noontime Powley and Spiker met with the ap proximately 11 employees including Martin working at the Hatfield site that day They related to those men what Filiaggi had said about both the prospect of con tinuing layoffs and other reprisals should they pursue the organizing iefforts as well as the suggestion made by Ft liaggi that they form their own grievance committee After some discussion a consensus was reached among the employees to try to deal directly with Filiaggi with out the assistance of the Union The employees further decided that they would approve the choice of Bud Martin as representing Filiaggi on the employee griev ance committee Immediately following the meeting Powley Spiker and Martin met again with Filiaggi 15 They informed him that in order to save their jobs the men had decid ed to forgo the Union and cast their lot with him Ft liaggi responded that he was confident that they could work out their problems without the necessity of further layoffs Powley then asked Filiaggi for the identity of the four employees who would have been laid off that day Filiaggi identified them as Jim Hartley Keith Miner John Glad and an unidentified slate picker in the coal crusher Powley then asked Filiaggi about bringing 15 The account of this conversation is based on a composite of the tes timony of Powley Spiker and Martin L & J EQUIPMENT CO 659 back Zieglar Pike Wahler and McCartney Filiaggi re sponded that he had wanted to get rid of them anyway and this just gave him an opportunity P ' illaggi added that Pike had an attitude problem that all Wahler and McCartney wanted to do was to keep their trucks clean and to talk on their CBs and that Zieglar had an insulin problem and could pass out or hurt himself or someone else Filiaggi added that while he would bring Zieglar back weighing trucks if this went through he did not see how he could bring back Wahler and McCartney since he was selling their trucks Filiaggi further stated that with the exceptions of Brotherton and Poling the schedule changes that had previously been announced were now unnecessary Fi liaggi explained that Brotherton was moved to Normal ville because there had been a breakdown and that Poling was sent to Bridgeville because he was needed to load coal and that he would stay down there only until the coal was exhausted and at that point he too would be laid off Spiker then asked Filiaggi if he was still sup posed to be switched to the night shift as he had been instructed in the memorandum dated August 7 Filiaggi replied Don t you understand what that was about9 Spiker responded that he supposed it was because he had gone to the union meeting Filiaggi did not answer but merely laughed At this point the discussion turned to the specifics re garding the grievance committee Filiaggi indicated that he wanted Powley to be one of the two members on the committee as the representative of the employees that he would accept Martin as his own representative and that he wanted the employees to select a third member from among their ranks Powley asked Filiaggi to set up a company meeting to get these matters out in the open Filiaggi agreed and suggested that Powley and the other employees get together and write down any grievances or complaints that they had and to give that list to Fi liaggi so the matters could be discussed at a future meet ing At some point during this second meeting Filiaggi brought out a sheet of paper allegedly showing current coal prices He attempted to explain to Powley Spiker and Martin that there was a big difference in the coal prices that companies who were union were getting as compared to those who were not and that that was one of the reasons Respondent could not afford to be a union company Although appearing as a witness at the hearing Law rence Filiaggi did not testify regarding the conversations at the Hatfield site on August 11 James Filiaggi s testi mony regarding the above discussions was exceedingly brief and as far as it went was basically corroborative of Powley Spiker and Martin s In this regard Filiaggi testified that during discussions with Powley on August 11 he indicated that he felt that the employees could handle their own problems in the Company without the help of any outsiders and that at this rather vague sug gestion Powley replied by requesting time to have a meeting with employees to see whether or not they wished to pursue the matter without further organizing efforts Filiaggi did not specifically deny making the threats or other comments attributed to him by Powley , Spiker and Martin 9 Meeting of August 21 On August 14 Respondent notified all employees by letter that there would be a meeting on Friday August 21 The letter further stated L & J is reviewing Company Policy and sugges lions can be made in ,wnting to either Keith Powley or Bud Martin They must be received by Wednes day August 19 1981 and must be signed by em ployee At the meeting which was conducted as scheduled the administrator of Respondent s profit sharing and pension plan addressed the employees and attempted to explain the plan s provisions and methods of operation 16 During the course of the meeting Respondent s attorney ad dressed the group and announced that because of the re cently filed unfair labor practice charge nothing could be discussed with regard to grievances or any other matter at that time 10 Lawrence Filiaggi s statements of November 2 Two days before the November 4 election Lawrence Filiaggi approached mechanic John Sholtis and told him the Company was having a lot of trouble and needed all the help they could get Lawrence then put his hands on Sholtis shoulders and told Sholtis that he wanted to keep the job going for Richard Filiaggi and Bobby Fi liaggi ' 7 and that Sholtis would have a job for life Lawrence Filiaggi did not testify regarding this con versation I again credit Sholtis uncontroverted account 11 August 19 1982 conversation by Filiaggi On Thursday August 19 1982 James Filiaggi had a conversation with Charles Martin about the instant hear ing which was scheduled to begin the following Monday Filiaggi asked Martin if he had been subpoe naed to appear on August 23 and Martin answered that he had Filiaggi then stated that Martin did mit have to go that his attorney had advised him that the subpoenas were not that important Filiaggi did not deny this conversation I credit Martin s account D The Alleged 8(a)(3) and/or (4) Conduct 1 The layoff of Mike Zieglar Mike Zieglar son in law of admitted Supervisor Sam Newman Jr commenced his employment with Respond ent as a slate picker in the coal crusher in October 1978 18 Zieglar worked in that classification without in 16 Since the plan s inception several years earlier there had been gen eral confusion among the employees regarding its operation This was at least the second occasion when the administrator met with the employees in an effort to put an end to the confusion " Bobby Filing' s relationship to the elder Fillaggi was not identified 'a Coal is dumped from hoppers onto a conveyor belt in the building housing the coal crusher The coal is then moved along a conveyor belt Continued 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cident until mid June 1981 when his ears became so in fected that an operation on his ears and nose was neces sary During the approximate 5 weeks of his incapacita tion he was told by his father in law that Filiaggi was not going to recall him back to work and that Filiaggi wanted him to sign up for unemployment Additionally Zieglar was telephonically given a similar message in late June from Betsy Burns Filiaggi s secretary Notwithstanding his receiving these messages Zieglar on Friday July 24 stopped by the Hatfield facility and dropped off a doctor s note releasing him for work While there Zieglar informed Betsy Burns that he would be reporting back for work on Monday morning July 27 The following Monday morning Zieglar went to the garage area about 7 a m and spoke to Filiaggi When Fi liaggi asked him what he was doing there Zieglar re sponded that he was reporting back to work Filiaggi then asked if both Burns and Newman had not previous ly relayed to him Filiaggi s message than Zieglar was not wanted back and should instead simply file for unem ployment Zieglar answered that he did not want to be laid off Filiaggi in turn responded that because of Zieg lar s health problems 19 he wanted him out of the coal dust environment prevalent at the coal crusher 20 Zieg lar then asked Filiaggi if Filiaggi had any complaints about his work Filiaggi answered no that Zieglar was a good worker At this point Zieglar stated that all he wanted was a chance to move up in the Company Fi liaggi asked him what he wanted to do and Zieglar an swered that he wanted to and was capable of driving a truck Filiaggi then apparently reconsidered the situation and instructed Zieglar to see Darwin Sproul] one of the coal crew leaders about Joining Sproull s four man strip mining crew 21 Fihaggi testified that he made it plain to Zieglar at this time that Zieglar s assignment to Sproull s crew was temporary in nature Filiaggi further testified that during the same conversation he again indicated to Zieglar his desire that Zieglar find employment else where Following this conversation Zieglar worked for the next 2 to 2 1/2 days on Sproull s crew before being re toward the crusher Normally two slate pickers remove large pieces of slate or any other foreign objects before the coal is crushed to a size of an inch and a quarter by the large metal teeth of the crusher " Zieglar suffers with diabetes In addition to his recent problems with his ears and nose Zieglar had at all times while employed worn thick glasses Fillaggi became aware of Zieglar s preexisting diabetes con dition early in 1981 20 According to Fillaggi s uncontrovefted testimony he had spoken to Zieglar on several occasions prior to June regarding the latter s employ ment On those occasions Filiaggi indicated to Zieglar that he did not believe that Zteglar should work near coal and/or strip mines and that he should seek employment in a healthier environment 21 Both Fillaggi and Newman testified that on one or more occasions during the time Zieglar was off from work due to his operation they dis cussed Zieglar s health situation Both testified that dunng these conver sations Filiaggi indicated that because of Zieglar s health and other phys Ica, problems which included diabetes a tendency to get infections and the need to wear thick glasses he did not wish to continue to employ Zieglar in his coal operations Newman asked Fillaggi dunng these same conversations that as a personal favor to consider giving Zieglar a job other than in the coal crusher turned to work at his old job in the coal crusher 22 Ac cording to Filiaggi he informed Zieglar at that time that his continued employment was extremely temporary in nature Filiaggi further testified that he explained to Zieglar that he would allow him to work a few more days but that was all and that he should find himself an other job Zieglar on the other hand specifically denied being told by Filiaggi or anyone else that his Job was in immediate Jeopardy In any event shortly after being returned to the coal crusher Zieglar contacted by telephone Union Business Agent Buck Swift Swift informed Zieglar that he should talk to employee David Poling who had coincidentally Just previously called him and that he and Poling should set up a date for an employee meeting with the Union Zieglar testified that on Sunday afternoon August 2 he informed his father in law Sam Newman Jr at the latter s home that he had contacted the Union and that the first meeting had been set up for the evening of August 5 Newman testified that while he could not recall Zieglar telling him about the Union prior to his layoff it is quite possible that they did indeed discuss the matter While Newman s testimony was exceedingly vague regarding what he and Zieglar discussed on August 2 or at any other date prior to August 5 it became quite certain with regard to what he and Filiaggi did not discuss In this regard Newman unequivocally denied telling Filiaggi anything about Zieglar s union ac tivities prior to Zieglar s layoff on August 5 About 4 p m on Wednesday August 5 Filiaggi called Zieglar into his office Upon his arrival Filiaggi told him that he was being laid off and that it was in Zieglar s best interest because of his health conditions Zieglar protested saying that he had been employed for over 3 years and asked why he was suddenly being laid off Ft haggi did not directly answer this question but instead stated that if Respondent opened up a new tipple he would give Zieglar a job at the scale house Filiaggi then handed Zieglar a layoff slip which indicated that Zteglar was being laid off for lack of work Zieglar signed the slip stating that he was doing so under protest since the reason given was not the real reason for his layoff Ft liaggi asked what he meant but Zieglar responded that he did not want to talk Just then The following morning Zieglar reported to work and waited for Filiaggi When Filiaggi came in shortly after 8 p m Zieglar told him that he was reporting for work and wanted to know if Filiaggi was going to let him work Filiaggi answered no Zieglar then asked if his layoff had anything to do with the fact that he tried to start a union or had attended the union meeting the night before Filiaggi answered by simply asking what meet ing Zieglar then replied that the meeting to get the Union in to represent the employees Filiaggi stated that he did not know what meeting Zieglar was talking 22 Zieglar testified that while on Sproull s crew his duties were limit ed to wiping off equipment Sproull unfortunately did not testify Rich ard Filiaggi Sproull s immediate supervisor credibly testified that Sproul] complained to him that Zieglar was unable to do the job and that that was the reason Zieglar was transferred back to the coal crusher Fi haggi confirmed his nephew s testimony L & J EQUIPMENT CO 661 about Filiaggi then denied that Zieglar s union activities had anything to do with his decision to lay him off Filiaggi did not testify regarding either of these two conversations with Zieglar on August 5 or 6 Filiaggi did however deny ever talking to Newman about Zieg lar s union activities prior to Zieglar s August 5 layoff Further Filiaggi denied possessing knowledge of any such activities by Zieglar as of the afternoon of August 5 Well into his direct examination Filiaggi for the first time indicated that an incident involving a damaged fire extinguisher actually precipitated Zieglar s August 5 layoff In this regard Filiaggi testified that several days prior to August 5 he was in the area near the coal crusher when he found a mangled and twisted fire extin guisher Filiaggi asked employee David Rishel about it Rishel who was in effect responsible for the coal crusher s operation told him that several days before while Zieglar had been on the conveyor belt a red fire extinguisher had apparently been allowed to get into the coal crusher Fortunately the fire extinguisher did not damage the crusher mechanism 23 Contrary to the testimony of Filiaggi and Rishel Zieg Jar testified that the incident with the fire extinguisher took place not in August 1981 but sometime during 1980 Zieglar further testified that no one in management at any time ever mentioned that incident to him Zieglar testified that sometime after his August 5 layoff he had a conversation with Sam Newman Jr in which Newman mentioned to him that Filiaggi had at some earlier unidentified point in time asked Newman if Newman knew anything about the union meeting Zieg lar testified that Newman recited that he had told Fi liaggi that Zieglar had mentioned it to him Zieglar fur ther testifed that in either this or a subsequent conversa lion with his uncle Newman made the statement that if Zieglar had kept his mouth shut he would still have been working Zieglar was recalled from layoff on December 27 1981 and worked for approximately 2 weeks until early January when a fire destroyed the coal crusher Zieglar was again laid off at that time and has not been recalled Before considering the legality of Zieglar s layoff it is necessary to resolve three main areas of conflict raised in the above cited testimony Those three areas are (1) whether Filiaggi put Zieglar on notice that his transfer to Sproul] s crew was temporary in nature and whether upon Zieglar s subsequent reassignment back to the coal crusher was he specifically warned by Fihaggi that his continued employment would be short lived (2) whether Zieglar informed Newman on August 2 of his activities on behalf of the Union and whether Newman subse quently passed on this information to Filiaggi sometime before August 5 and (3) whether Filiaggi discovered as he and Rishel claimed the damaged fire extinguisher Just days before Zieglar s August 5 layoff or whether as 23 Several years before a metal tooth from one of Respondent s high lifts had come off and had been permitted to go unnoticed into the coal crusher with the result that the shaft of the crusher broke That accident caused the crusher to be out of operation for repair for approximately 1 1/2 months No action was taken against either Zieglar or the other slate picker working at the time that incident took place claimed by Zieglar that incident actually occurred some time during 1980 I closely observed Filiaggi throughout his lengthy stay on the witness stand I did not find him to be an entirely candid nor convincing witness His testimony was at var ious times overly vague conclusionary and self serving This is not however to imply that I found him to be a totally untrustworthy witness At certain times during his testimony especially on those occasions when he was re lating his concern over Zieglar s health problems I found him to be quite credible Therefore his testimony when in conflict with the testimony of others cannot be entirely or automatically ignored but must be considered and evaluated in light of the circumstances of a particu lar conversation or event I have attempted to do so , throughout this decision 24 Zieglar impressed me as a diligent hardworking indi vidual ready to take on any task no matter how difficult onerous or physically demanding Unfortunately while his spint was willing his physical condition apparently impaired his ability to fully and safely perform in a dan gerous dirty and demanding environment I generally found him to be a trustworthy individual In answering the first of these questions I am con vinced that as so often happens the truth lies some where between the two conflicting versions offered by Filiaggi and Zieglar No other conclusion would be con sistent with both Filiaggi s previously voiced concern for Zieglar s health as well as Zieglar s basic honesty on the witness stand Accordingly based on these factors in eluding demeanor considerations and the inherent prob abilities of the situation I find that Filiaggi did indeed express to Zieglar on each and every conversation the two had between July 27 and August 6 his feelings that Zieglar should seek employment in another industry Further I find that during those same conversations Fi liaggi indicated to Zieglar that his continued employment with Respondent was temporary in nature I do not however find that Zieglar was ever specifically told by Filiaggi or anyone else that he was being reassigned to the coal crusher for a few more days only Instead I find that the length of Zieglar s continued employment was at all times up to the afternoon of August 5 left intentional ly vague In addition to Filiaggi two other witnesses Sam Newman Jr and David Rishel gave testimony relevant to the circumstances leading to Zieglar s layoff I am unable based on demeanor considerations and the record as a whole to credit their respective testimony when in conflict with that of Zieglar Newman delivered his testimony in a halting and un certain fashion He appeared much more interested in as sisting his employer than in honestly recalling what was discussed between him and Zieglar and subsequently be tween him and Filiaggi Thus I find that Zieglar in formed Newman on August 2 of his activities on behalf of the Union and that Newman at some time during the 24 See Edwards Transportation Co 187 NLRB 3 (1970) enfd 437 F 2d 502 (5th Cir 1971) 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following 3 workdays passed this information on to Fi liaggi Finally I find that Filiaggi and Rishel s testimony re garding the alleged incident with the fire extinguisher does not withstand scrutiny Even though Filiaggi alleg edly first found out about the damaged fire extinguisher just days prior to August 5 at no time prior to the in stant trial did he or anyone else in management ever even mention to Zieglar or apparently to anyone else that this incident had in fact precipitated his layoff Ad ditionally Filiaggi did not explain why if he found out about the damaged fire extinguisher at latest several days prior to August 5 he took no immediate action but in stead chose to wait until the afternoon of August 5 just hours before the scheduled union meeting And finally although this Incident allegedly occurred during the very brief time frame following Zieglar s reassignment to the coal crusher on or about July 29 Filiaggi failed even to mention it in passing in discussing Zieglar s deficiencies with Powley and the others on August 11 Either the in cident occurred as testified to by Zieglar in 1980 or if the incident did occur in July or August 1981 as testified to by Rishel Filiaggi either did not find out about it at that time or simply did not care The credible evidence supports any of those conclusions 2 The other 8(a)(3) and (4) allegations—matters of general consideration In defending its adverse personnel actions against Powley Poling Gilson Pike Wahler and McCartney Respondent argues that it was motivated in making these changes solely by economic A considerations and not the employees union activities While each of these individ ual cases involves facts unique to their own situations certain common elements to Respondent s economic de fense do exist In this regard Fihaggi testified that by mid 1981 the demand for and profit of newly mined coal had declined substantially from the highs reached in the prior decade However this testimony was conclusion ary in nature and was not supported by any documenta ry evidence or records Additionally Respondent points out that changes in its equipment requirements with re sultant decreases in personnel were contemplated well before the union activity commenced and that in making the layoffs alleged to be unlawful Respondent at all times appeared to follow the well established if some what convoluted seniority by job classification practice Since these two factors applied to and have some effect upon all the remaining personnel actions taken they will be dealt with in general terms first a Seniority system Much testimony was presented from both sides regard ing the operation of Respondent s seniority system prior to August 1981 While there was some confusion among the employees regarding its operation there does not appear to be any substantial dispute from the description offered by Filiaggi and corroborated in part by various employee witnesses The systems operation is accurately recited in Respondent s postheanng brief In view of the cumbersome and convoluted nature of the seniority system itself I hereby adopt as my own the limited fac tual recitation by Respondent s counsel ' Basically the layoff/recall system used by the Company is three tiered The first consideration is the job site temporarily closes down the employees regardless of length of service with the Company would be laid off Such a rule would apply to ev eryone on the job site including the job site fore man By the same token if and when work resumed at the job site employees would be recalled to that site regardless of the employees standing in relation ship to other laid off workers at other sites The second tier involves a specific job function or piece of equipment operated by an employee That is if an employee is assigned to a particular job and is neither qualified nor assigned to other work and the job is discontinued the employee will be laid off rather than transferred or given the right to move to a lesser paying job Similarly if an employ ee is assigned to a piece of equipment and that equipment breaks down is parked or sold the em ployee will be laid off without regard to his length of service with the Company An exception to this second tier may occur The variance relates solely to recall if the insurance ben efits of a laid off employee have lapsed which occurs thirty days after layoff and if another laid off employee whose insurance hasn t lapsed is available to do the work the first employee was doing the first employee will not be recalled Thus regardless of which employee typically drives a certain piece of equipment the laid off employee whose insurance policy had lapsed will not be recalled so long as an employee whose equipment is also down is qualified to do the same work and has insurance policy in force The third and final tier used in the layoff/recall system occurs when neither job site nor equipment assignment becomes a factor in the layoff The Company s need for a certain degree of flexibility within the highly deversified and geographically disbursed Company is satisfied by giving priority to those employees that have multiple talents and can be interchanged with others Thus given the choice between two employees one having the ability to perform a certain task and the other having the abil ity to perform numerous tasks the latter will gener ally be retained over the former b Purchase and installation of the draghne Sometime prior to the summer of 1981 Respondent or dered a large piece of equipment commonly referred to as the dragline The dragline removes the overburden (top soil rock and vegatation) of the area to be stripped and loads it into its rear holding portion for eventual dis posal The dragline which apparently can be operated by one employee replaces at least one and possibly two large high lift or digging vehicles and at least two rock and dirt hauling trucks L & J EQUIPMENT CO 663 Although ordered well in advance of the commence ment of the union activity the dragime was not deli/ ered to the Hatfield location until late July and was not ready to be put into regular operation until on or around Monday August 10 3 The layoff of Kevin Pike Kevin Pike had been employed by Respondent as a truckdriver since 1978 At the time of his layoff he was assigned to truck 15 one of the three small tandem coal trucks While his truck was licensed to haul over the road the majority of his time was spent during the summer of 1981 in hauling coal from the Hatfield strip down the hill to the Hatfield power plant Pike did not report to work due to illness on Monday August 3 That afternoon Pike s sister in law received a phone call from someone in Respondent s office request mg that she advise her brother in law that he had been laid off Despite being told of this message by his sister in law Pike reported to work on the following morning and was already making a run to the power plant when Fillaggi arrived on the scene Filiaggi stopped Pike on the road and informed him that he had already been laid off When Pike asked for a layoff slip Filiaggi told him to dump his load and then talk with him at the garage Shortly thereafter they met and had a brief conversa tion Filiaggi informed Pike that he was being laid off be cause his truck was too small to haul a large load and was simply not making enough money Pike argued that it was in fact making money and that even if it was not he had more time on the job than half the drivers and that he could drive another truck Filiaggi answered that it was his truck that Filiaggi was getting rid of and when it went the driver went Filiaggi then added that Pike always complained about his job and spoke too much in beer gardens A dispute arises between Pike s and Filiaggi s version of what was said at this point in the conversation regard ing Pike s continued employment According to Pike Fi liaggi told him that since he was already there to simply go ahead and continue to work and that Filiaggi would let Pike know before the end of the day what his ultimate plans were Pike further testified that sometime that same afternoon Richard Filiaggi stopped him while at work and informed him that James Filiaggi had decid ed that Pike could work the following day August 5 Pike as instructed worked on Wednesday August 5 He received no further instructions regarding his schedule and he therefore reported to work on both Thursday August 6 and Friday August 7 when on the latter date he received written notification of his immediate layoff Filiaggi testified on the other hand that he informed Pike during the conversation on the morning of Tuesday August 4 that since Pike was already there and working he should go ahead and work until the end of the week but that that was all he would then be finished Richard Filiaggi did not testify regarding Pike s situa tion In this particular instance I choose to credit Pike s ac count over Filiaggi s I do so based on both demeanor considerations which in the instant case are not insub , i- stantial and the probabilities inherent in the version of each Pike attended the first union meeting on August 5 During this meeting if Pike spoke out and complained about the Company s Working conditions opportunities for advancement and lack of a seniority system According to both Pike and Filiaggi the two had had several run ins about Pike s complaining in the year and a half preceding Pike s layoff Filiaggi testified that Pike was always complaining whenever he was assigned to do a job other than to drive his coal truck and that Pike frequently voiced the opinion that he knew how to run the Company better than did Filiaggi Filiaggi further stated that while Pike constantly complained he was in actuality no better than a below average employee Pike admitted that he and Filiaggi clashed on several occa sions over the way in which Pike performed his job Ac cording to Pike Filiaggi never, seemed satisfied with the work that Pike did 25 Pike was recalled from layoff in late January 1982 He worked for 3 days only when he was again laid off alleg edly for lack of work Pike has not worked for Respond ent since 4 The layoff of David Glisan Three individuals Filiaggi Sholtis and Glisan himself testified with regard to Glisan s employment and the events leading up to his August 6 layoff Unfortunately the testimony of each on this particular subject matter is not entirely reliable Filiaggi s faults have already been noted His deficiencies with regard to details are even more glaring when discussing Glisan Sholtis an other wise trustworthy witness appeared unsure of himself when attempting to place dates on the mechanical diffi culties he discovered with Glisan s truck vis a vis Gil san s final assignment aim was an even less impressive witness As will be noted infra Glisan appears not to have told the truth to either Filiaggi during his employ ment in 1981 or to the court regarding the status of his driver s license This apparent fabrication renders his entire testimony as highly suspect In sum none of the three can be totally credited Only by piecing together their testimony can one determine what actually took place in early August Accordingly the following recita tion is based on the credible portions of the testimony of each Glisan was originally hired by Respondent in 1979 as a truckdriver however he voluntarily quit his employ ment during that same year In late 1980 Glisan was again hired by Respondent and on this occasion he was assigned to drive truck 30 a large tractor trailer licensed for over the road work During the first half of 1981 it appears that the majority of his time was spent in trans 25 Pike testified that a week prior to his layoff he and Richard Fillaggi had a conversation when his truck got stuck in the mud On that occa sion he had complained to Richard Fillaggi that he was not being treated fairly and that there was too much dust on the road used for hauling According to Pike Richard Fillaggi responded that if Pike did not like It he should get another job There is no indication that Richard Fillaggi informed his uncle of this incident 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porting coal from the Hatfield and Bridgeville strip mine sites to the Hatfield power plant 26 Sometime during June Glisan informed Sholtis and perhaps Filiaggi himself that he had loaned his driver s license to his brother and thay they had been caught in this subterfuge by the police with the result that his li cense had been suspended for 30 days Rather than laying Glisan off Filiaggi assigned him for the suspen mon period to drive truck 10 an off the road vehicle used exclusively in transporting coal from the Hatfield strip to the Hatfield power plant Approximately 30 days later Glisan informed Filiaggi that he had his license re instated and at that point Glisan was reassigned to drive truck 30 27 At some point during 1981 most probably during the summer Respondent contracted with various local man ufactunng concerns to mine and deliver stoker coal a small soft type of coal used in the manufacturing of steamed heat This particular coal was mined exclusively at the Bridgeville site and for the most part was to be delivered directly to Respondent s customers by inde pendent contractor drivers rather than by Respondent s own employees Towards the end of July or the beginning of August Filiaggi decided to permanently assign Glisan and his truck 30 to the Bridgeville operation to work alongside the drivers delivering the stoker coal to Respondent s customers In explaining this decision Filiaggi credibly testified that by this time the demand for coal at the Hat field power plant had decreased substantially and it was now more economical to use Glisan for the stoker coal delivery Filiaggi elaborated on this decision by explain ing further that prior to the spring United Mine Workers strike Respondent had been attempting to deliver as much coal as possible to the Hatfield power plant to stockpile its reserves and that following the strike addi tional deliveries of coal were needed to refurbish the power plant s supply This refurbishing was completed by the end of July Therefore pursuant to his previously noted decision, Filiaggi instructed mechanic John Sholtis to inspect Glisan s truck 30 to assure that it could oper ate safely and efficiently at the distant Bridgeville site In early August Sholtts inspected Glisan s truck and discovered that it had a serious mechanical problem which would require at least 2 to 3 weeks of downtime for the ordering and delivery of replacement parts When Sholtis informed Filiaggi of the problem Filiaggi instructed Shollis to park the truck to order the needed parts but only repair it in his spare time 28 26 A United Mine Workers nationwide strike had the effect of shutting down Respondent s entire operations from the end of March 1981 to early June of that year During this 8 to 9 week period Gilson like most of Respondent s other employees was on layoff status 27 Glisan testified that while he currently had a valid dnver s license he did not have it with him at the hearing On the final day of hearing Respondent produced evidence that Glisan s driver s license had been re yoked in January 1979 and that it had not as of the time of the heanng ever been reinstated Glisan was not recalled 28 Sholtis displayed an obvious uncertainty and confusion over when the stoker coal contract at the Bridgeville site was finished Although he maintained that the contract expired prior to August 1 he also testified that shortly after the union meeting of August 5 Filiaggi told him for the first time to inspect Gilson s truck so that it could be assigned to work In explaining why he gave such low priority to the repair of truck 30 Filiaggi stated that it was going to be used at the Bridgeville site only to in essence observe the stoker coal deliveries by the independent truckdnv ers and was thus not truly needed He further explained that the trucks delivering coal to the Hatfield power plant were old and were constantly breaking down and therefore more in need of Sholtis limited time On the afternoon of Thursday August 6 Glisan was informed that he was being laid off until further notice for lack of work On August 17 Glisan went to Re spondent s office and had a conversation with Filiaggi He asked Filiaggi if he was going to be called back to work and Filiaggi answered that he would When Glisan asked when Filiaggi responded by stating that he could have fired GIB= for knowingly running his truck with its mechanical problems Glisan explained that he had at some earlier point told Richard Filiaggi about the prob lems and that Richard Filiaggi merely told him to con nnue to run the truck while watching for the problems At this point Glisan asked James Filiaggi if the reason he was not being called back was because he went to the union meeting Filiaggt answered by asking What about the Union/ Glisan merely replied that Filiaggi knew as much about the Union as he did Filiaggi ended the con versation by again indicating that GI's= would at some future time be called back to work Despite Filiaggi s assurances of August 17 Ulm has not been called back to work Truck 30 was out of serv ice for approximately 1 1/2 months When it was ready to go back into service Fillaggi testified that he merely put onto truck 30 another unidentified driver whose own truck was out of commission In explaining the switch of drivers Filiaggi stated that since Glisan s hospitalization coverage had already expired it was to the Company s financial benefit to leave the initial man on layoff status and retain the second driver To have done otherwise Filiaggi continued would have required Respondent to reinstate the health benefits for a driver already on layoff while at the same time continuing to insure a newly laid off employee 5 The layoffs of Gerald Wahler and William McCartney , Both Gerald Wahler and William McCartney began their employment with Respondent as truckdnvers in 1975 and each was at the time of his layoff on August 7 assigned to drive one of the five large Ford tri axle over the road coal trucks The majority of their time during and before 1981 was spent in transporting coal from one or more of the strip mine sites to the Hatfield power plant However on or about August 3, each was as signed along with several other drivers to the Fort Martin site to assist in cleaning a pond a job that would require this complement of trucks approximately a month to complete Three other nearly identical Ford tn axles were driven by William Clark Marshall Morris and Lenny Burns Although it is not clear it appears the stoker coal contract at the Bridgeville site Clearly based on the entire record it appears that Shollis is mistaken as to both dates L & J EQUIPMENT CO 665 that these drivers and their trucks had like their counter parts Wahler and McCartney also been temporarily as signed to the Fort Martin job in early August On Friday August 7 Filiaggi ordered that the Ford tn axles driven by Wahler McCartney Clark and Burns be moved to Filiaggi s National Ford dealership in Un iontown to be sold 29 At that same time Wahler and McCartney were laid off for lack of work Burns was transferred to the greaser classification to work on the dragline and Clark was permanently transferred to Fort Martin to drive an ash truck 3° Filiaggi explained that his decision to sell the Ford tn axles was based solely on economic considerations and was in no way prompted by the union campaign started earlier that same week In support thereof he pointed to his longstanding and well publicized dislike of these par ticular trucks In this regard the evidence demonstrated that in 1979 National Ford purchased the trucks from the manufacturer for resale Unfortunately for Respondent their arrival coincided with the general and steady de cline in the demand for coal When National Ford was unable to sell the trucks James Filiaggi agreed with his brother Lawrence to use the trucks in Respondent s op eration in order to regain some return on their purchase price From the start Filiaggi exhibited an intense dislike for the trucks and especially their Cummings engines which he routinely described as junk Filiaggi made no secret of his feelings about the trucks and from early on made it clear to their drivers as well as mechanics and greasers that he intended to use the trucks only until he was able to sell them Filiaggi testified that the event or incident which caused him to finally take action with regard to pulling the trucks out of service was a report he received from John Sholtis over tthe weekend of August 1 and 2 Ac cording to Filiaggi Sholtis informed him that either Keith Powley or George Bailey another employee had discovered metal fillings in the oil filters while perform ing TLC s on both Wahler s and McCartney s trucks This finding indicated to Filiaggi that the engines had bearing failures that might require a total engine replace ment At that point Filiaggi testified he decided to go ahead and park not only Wahler s and McCartney s trucks but Clark s and Burns as well Filiaggi did not explain nor was he asked why he chose that time to park the latter two trucks since he had not received similar reports about problems with their particular engines In explaining the decision to lay off Wahler and McCartney while retaining and transferring Clark and Burns Filiaggi credibly testified that Wahler and McCartney could essentially do nothing but drive coal trucks while both Clark and Burns had performed other jobs in the past and could do so again 31 Further Clark was senior to both Wahler and McCartney 32 Filiaggi 29 McCartney s truck was sold in November 1981 No evidence was offered as to when the other three trucks were sold 30 Clark apparently replaced an unidentified ash truckdnver who had been discharged for stealing a 1 The difference in dirving a coal truck and an ash truck was not ex plicated in the record Presumably different skills are required 32 Although the four personnel actions taken on August 7 were a direct result of the same allegedly unlawfully motivated decision to sell did not explain nor was he questioned as to why he per mitted Morns to continue to drive the fifth Ford tn axle 33 Both McCartney and Wahler were recalled to work on a regular basis driving over the road coal trucks in mid December 1981 and were employed at the time of the hearing Both attended the union meeting of August 5 however it does not appear that either took an active part in the early organizing effort Sholtis was not questioned regarding any conversa tions he may have had with Filiaggi during the begin ning of August regarding the condition of the Ford tn axles Powley however specifically recalled having just such a conversation with Filiaggi on August 6 the date he performed a TLC on McCartney s truck 24 Powley stated merely that on that date he told Filiaggi that he had found metal filings in the oil of truck 24 34 Powley further testified that earlier in the summer of that same year he found similar metal filings in the motor oil of Wahler s truck 17 According to Powley the resultant bearing problem in Wahler s truck was corrected at that time while the engine was still under warranty 35 I credit Powley s partially corroborated testimony when in conflict with Filiaggi s unsupported assertions 6 The transfers and layoffs of David Poling36 Poling was hired in 1976 as a miscellaneous laborer and during the next 5 years of his employment per formed various jobs including assisting the greaser run ning of fuel truck helping mechanics clean parts and as sistmg the driller By the summer of 1981 Poling had sat isfactonly progressed to the point that he was operating a high lift with some proficiency During the first half of 1981 Poling was assigned to a four man coal crew composed of Darwin Sproull a high lift operator Danny Lee and Allen Sholtis both labor ers and himself working primarily at the Hatfield loca non 37 Following the union strike Filiaggi informed Poling that he was making him head of his own two man coal crew and at that time Poling and Danny Lee were sent to the Khedive site to mine coal Poling and Lee re mained at the Khedive site until the cut they were work ing on was exhausted in late July at that point they were returned to the Hatfield jobsite where they rejoined Sproul] s crew On August 7 Poling was notified by letter that because of the installation of the new dragline he was being transferred to Bridgeville to assist George Liston in the the four Ford tn axles as noted supra the General Counsel does not con tend that the transfers of either Clark and/or Burns violates the Act 33 Martin who was responsible for ordering truck parts simply noted that Moms truck was more maintenance free than the other four 34 McCartney testified that earlier that year truck 24 was down for re pairs to the bed of the truck He was apparently unaware of any engine problem in August 35 Wahler appears to corroborate Powley s statement that any engine problems he expenenced with his truck had been corrected by August 1981 36 The following account is based on mutual corrobative accounts of Poling and Fillaggi 37 A coal crew can consist of anywhere between one and five mem bers 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD digging and loading of coal This transfer in work loca tions proved to be of some inconvenience to Poling 38 Despite this inconvenience Poling worked the week of August 10 without incident Approximately 1 week later on August 17 the coal cut at Bridgeville was ex hausted At that point in time George Liston told him that there was no more coal to be dug and that Poling was being laid off until further notice This was the first occasion that he had ever been laid off during his term of employment when a coal cut was exhausted On Sep tember 11 Poling was recalled back to the Bridgeville lo cation where he worked with Liston for approximately 2 months On October 13 he was transferred to the Khe dive site where he was to work by himself Poling worked for approximately a month by himself digging at Khedive until he was once more transferred back to Bridgeville and again placed on a two man coal crew with Liston Poling remained there until December 3 when that cut at Bridgeville was exhausted and he was once more laid off Poling has not been recalled to work since December 3 Poling s activities with regard to the Union were open and notorious Poling was the first individual to contact the Union regarding organizing and he was one of the three employees selected by the employees to be a member of the union in house bargaining committee Ad ditionally Poling gave an affidavit to the Board on August 18 and testified as a witness in the representation case on September 21 Finally Poling testified at the Board hearing on objections to the election in January 1982 On October 13 the first day that Poling was sent to work by himself at the Khedive jobsite Filiaggi came out to the site and they had the following heated conver sation Filiaggi first indicated that Poling was fortunate that Filiaggi had not come to Bridgeville on August 10 since if he had he would have shot Poling Filiaggi then accused Poling of partially burning and writing the word scab across the tailgate of a company truck assigned to management trainee Camille Mihalik Poling denied burning the truck and Filiaggi responded that if he had Filiaggi would take similar action against Poling s truck Again Poling denied that he had anything to do with the burning of Mihalik s truck Filiaggi then asked him if he believed that the truck had been burned becuase of the Union Poling answered no Filiaggi then added that he was going to assign Poling to work alone at the Khedive location so that he could personally come over and do him in if he found out that Poling in fact burned the truck This ended that confrontation In explaining Poling s initial transfer of August 10 to Bridgeville as well as his subsequent transfers and the layoffs of August 17 and December 3 Filiaggi stated that because of the installation of the dragline along with the decreased demand for coal he simply could not use or afford a second coal lift operator In this regard 38 Poling lives in Morgantown West Virginia which is located ap proximately 20 miles from both the Hatfield and the Khedive sites and some 60 miles from the Bridgeville location The letter notifying him of his transfer stated that transportation would be made available to him It specified that he could meet George Liston at a particular location at 4 am in order to report for work at 6 am Filiaggi pointed out that Sproull was both more experi enced and more competent than was Poling While Poling was admittedly more experienced and competent than either Allen Sholtis Danny Lee and/or Danny Newman all of whom were retained on Sproull s crew Poling s additional experience was according to Filiaggi an unnecessary expense In this regard he noted that Allen Sholtis Lee and Newman were earning only ap proximately $5 an hour while Sproull as a high lift op erator was earning $11 an hour Although it appears from this statement that Filiaggi was indicating that Poling was like Sproull also earning at or near $11 an hour this fact was never established in the record 7 The layoff of Keith Powley As set forth in subsection 1 C 8 above from early on in the union campaign Powley became the employees chief spokesman in dealings with Filiaggi These activi ties included inter aim serving on Filiaggi s three man in plant grievance committee appearing at the represen tation case hearing on September 21 acting as union ob server at the November 4 election appearing as a wit ness at the objection hearing on November 20 and being named specifically as an alleged discrimmatee in unfair labor practice charges Powley was employed in 1975 as a greaser At no time during the 6 years prior to the advent of the Union had he ever been disciplined On December 10 1981 howev er he received a copy of a memo from Richard Filiaggi to James Filiaggi informing the latter that Powley s per formance was not up to standards Specifically the letter referred to a November 24 incident where a machine for which Powley had allegedly been responsible had been found to have three tires with extremely low air pres sure This notice further stated that after checking the machines that Powley had just serviced it had also been found that there was low battry water in each The letter concluded by stating that if Powley s performance was not brought up to standards Richard Filiaggi would rec ommend Powley s dismissal When Richard Filiaggi gave Powley a copy of this letter Powley responded that it sucked Richard Filiaggi answered that it was all part of the game Powley specifically recalled the November 24 incidents that are referred to in the disciplinary letter According to Powley s uncontroverted and credible recollection he had earlier in the month of November complained to James Filiaggi Richard Filiaggi and Sam Newman Jr regarding his need for additional plastic containers in which to carry battery water As of the time of his receiving the warning letter in December he had not yet received the requested containers Addition ally Powley stated that the machine referred to in the letter had not been serviced by him and that its operator had not complained to him regarding the tire pressure 39 Following his receipt of the December 10 letter Powley began noting on the back of his timecards the in spections that he performed on particular equipment On 39 On the day following his December 10 warning Powley received a 25 cent an hour raise in his paycheck The record does not reflect wheth er this raise was an across the board raise given to all employees L & J EQUIPMENT CO 667 December 15 Filiaggiitold Powley that he did not care about written reports that he wanted to know verbally if anything was wrong with the equipment Powley replied that he was not always able to get in touch with Filiaggi and that he was going to make notations on the back of his timecard so that somebody would know about it Powley added that he believed that Filiaggi was trying to build a legal case against him so that he could lay him off Filiaggi answered that he did not need to do that that he could lay him off at any time On January 11 all minesites were closed due to cold weather By the morning of January 19 the weather had warmed and Powley reported back for work He was told to go home and not come back until he was called by Respondent On March 3 he received a phone call from Respondent instructing him to report for work at 8 a m on March 4 On the morning of March 4 Powley reported for work as instructed That morning James Filiaggi approached him and informed him that henceforth Camille Mihalik a management trainee would be working with him Fi ling' explained that this was required in order to keep Powley from teanng, up any equipment or neglecting anything Filiaggi further told Powley that he was to take his lunch at 1 p m so that he could grease the trucks during the operators lunch hour Filiaggi added that Powley was to spend his spare time in cleaning his truck which was dirty and a disgrace Filiaggi further stated that Powley was to work 8 hours a day and no overtime Prior to this time Powley testified that he had fre quently worked overtime and with the exception of the December 10 letter had never been accused of either ne glecting his duties or tearing up any equipment Finally Powley stated he had in the past always taken his lunch hour at the same time as the equipment operators On March 5 Powley reported for work at 8 a m On that morning Filiaggi approached him and asked Powley why he was late Powley answered that he was not late or at least he did not know he was late Fihaggi stated that Powley was supposed to have started work at 7 a m Powley answered that he was not a mind reader 40 At this point Filiaggi stated that he did not want any of the shit and jumped out of his truck When Powley an swered that he was just abiding by the rules Filiaggi shouted that there were no rules that he just made them up as he went along and needed them Filiaggi added that henceforth he only wanted two remarks from Powley yes sir and no sir Shortly after this conversation Powley discussed the matter with the Union and new charges were filed over Filiaggi s conduct On March 11 Filiaggi drove into the garage area where Powley was standing Filiaggi had a document in his hand with the letter head of the Nation al Labor Relations Board He asked Powley what Powley was trying to prove When Powley said nothing Filiaggi asked him how he had ever discriminated 40 Powley had been instructed to report for work at 8 a m on the pre mils day March 4 Sometime dunng that workday he asked Filiaggi what time he was supposed to report the following day Fillaggi told him that he would get back with him on that but never did It appears that his normal reporting time over the years had been 7 a m against Powley or coerced him Powley replied that he had been recently laid off and that since the start of the union campaign Camille Mihalik had been assigned to ride with and watch him Powley further pointed out that he had heard a rumor that he was supposed to be teaching Mihalik his job so that he could be laid off Fi liaggi answered with the question is that right and Powley responded that he did not know but that Fi liaggi was in a position to deny it Filiaggi merely stated that he did not want to talk about it any more On Friday March 12 Powley asked Richard Filiaggi about working the upcoming Saturday Filiaggi an swered no not for you Powley testified that in the past he had worked Staurdays Powley also did not work the following Saturday when at least some of Re spondent s mechanics did Respondent offered no evidence regarding Powley s receiving a written warning on December 10 Likewise Filiaggi did not deny having any of the above recited conversations with Powley Respondent did however offer some evidence in defense of the complaint allega- tions that Powley s January 19-March 4 layoff was un lawful and that Respondent unlawfully refused Powley overtime work and otherwise unlawfully imposed more onerous and rigorous terms and conditions of employ ment on him Directing our attention first to Powley s 6 week layoff in early 1982 Filiaggi testified that due to cold weather and the continued use of the dragline there were fewer pieces of equipment in operation during this period Thus there was a substantial decrease in the amount of equipment needing greasing and service performed pur suant to the TLC schedules Filiaggi explained that for some years Respondent has had a service contract with Beckwith Machinery under which Beckwith supplied Respondent with a full time fully qualified resident me chamc for which Respondent reimbursed Beckwith by payment of the fixed monthly sum irrespective of the amount of work actually performed by the mechanic In view of this fixed monthly cost and the need for Re spondent to keep its own mechanics fully employed Re spondent merely shifted during this slow period Pow ley s routine greasing and TLC servicing to its own me chanics and to the Beckwith mechanic The General Counsel argues that Respondent merely seized upon the defense of cold weather as a pretext to mask its unlawful motivation In this regard the General Counsel points to Powley s uncontroverted and credible testimony that he had worked every other winter since his original hire without layoff irrespective of cold weather further that he had never been laid off in the past when there was not sufficient greasing or TLC serv ices required On those occasions including the two times that Respondent had shut down its mining oper ations for up to several months due to UMW strikes Powley was kept busy for his 8 hours a day by assisting one of the mechanics or performing other odd jobs at or on the facility We now move to the complaint allegations of alleged mistreatment of Powley upon his return from extended layoff status With respect to assigning maintenance 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trainee Camille Mihalik to ride with and accompany Powley Filiaggi testified that he wanted Mihalik to learn every job connected with the coal operation Since MI halik already knew how to grease this assignment would serve the dual function of permitting Mihalik to learn how to perform the TLCs while at the same time assur ing that the TLCs did not stack up With regard to the subject of overtime Filiaggi simply testified that if in fact Powley did not receive overtime as alleged it was sloley because Respondent did not need the TLCs to be performed on Saturdays No evi dence was offered by either side to show the frequency of overtime worked by any classification of employee during the period following April 1982 Finally with regard to the lunch hours Filiaggi testi fled that it was a well established past practice for the greasers to work between 12 and 12 30 the time that the equipment operators normally took their lunch break Fi liaggi explained that it was especially important that the greaser service the high lifts during the operators lunch period so as to avoid subsequent downtime Filiaggi testi fled that shortly after Powley s return from layoff he ob served Powley taking his lunch hour along with the op erators Filiaggi testified that he in essence merely in structed Powley to follow established procedures and practices Although he was not asked the question direct ly it appears that Powley disputes Filiaggi s contention that any such past practice had ever existed Unfortu nately neither side called any impartial witnesses to shed light on this subject II UNFAIR LABOR PRACTICES—CONCLUSIONS As set forth above Respondent at trial offered little if any evidence regarding the various 8(a)(1) complaint al legations In fact on brief Respondent s counsel conced ed that the record evidence establishes that Filiaggi vio lated Section 8(a)(1) in the following manner [S]olicited and offered to resolve grievances, in formed key union organizers that if they didn t stop he would liquidate the company advised employees not to go to Union meetings changed or threatened to change work schedules interrogated employees as to their participation in the union activities in formed employees that he made the rules and that he would not change introduced one employee as a Union fanatic and told employees that if they didn t like the company policies they could quit Respondent does not however concede that any of this unlawful 8(a)(1) conduct when viewed in its proper perspective evidence an unlawful motivation on Filiaggi s part with respect to any of the 8(a)(3) and (4) allegations of the complaint In advancing this argu ment Respondent points to the uncontroverted evidence that Filiaggi has over many years exhibited a old school management style in which he was quick to speak his mind and held nothing back Further Filiaggi s history of reacting angrily to any adverse news by issu ing but never carrying out threats of immediate dis charge and site closure dissipates the value that can be attached to his words when evaluating the alleged un lawful discharges and other adverse personnel actions Stated another way Respondent argues that since the employees clearly did not take Filiaggi seriously when he frequently issued threats that dire economic conse quences would befall them before the advent of the orga nizing campaign any subsequent threats issued by him and tied to the organizing campaign were likewise given no credence by his employees Thus the argument continues since the employees knew that all Filiaggi s threats were meaningless no nexus has been established between Filiaggi s unlawful statements the employees protected concerted activities and the adverse personnel actions taken As will be discussed infra this argument has no basis in fact or law A The 8(a)(1) Allegations In view of both the nature of the evidence set forth in great detail above and counsel for Respondent s recogni non that such misconduct violates Section 8(a)(1) I will not here burden this already lengthy decision with any further discussion of the clear and convincing evidence regarding each complaint allegation Accordingly with the exeeption of the allegation contained in subparagraph 7(a) of the amended complaint 41 I find that the General Counsel has established that Respondent through its agents James and Lawrence Filiaggi has as alleged co ercively interrogated its employees about their union ac tivities 42 solicited employees to ascertain and divulge the union activities of other employees 43 created the im pression among its employees that their union activities were under surveillance 44 threatened to lay off and/or close its operations if the employees did not cease their activities on behalf of the Union 45 informed employees that the union activities of their fellow employees were a reason for their layoff 46 verbally reprimanded an em ployee because of his union activities 47 solicited em ployee grievances and impliedly promised to correct them48 and interfered with an employee s compliance with a Board subpoena 46 and that this conduct inter fered with restrained and coerced its employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act B The Alleged 8(a)(3) and (4) Violations The Board in Wright Line 251 NLRB 1083 (1980) set forth the applicable test in all disciplinary cases alleging violations of Section 8(a)(3) which turn upon the em ployer s motivation First the General Counsel is re quired to make out a prima facie showing sufficient to support the inference that the protected conduct was a motivating factor in the employer s decision Once that 41 No evidence was presented regarding any unlawful conduct by Ft liaggi as early as late July 42 PPG Industries 251 NLRB 1146 (1980) 43 El Rancho Market 235 NLRB 468 (1978) 44 General Electric Co 255 NLRB 673 (1980) 45 NLRB v Gissel Packing Co 395 U S 575 (1969) 48 A & B Janitorial Service 253 NLRB 508 (1980) 42 Colorado Forge Corp 260 NLRB 25 30 (1982) 48 First Data Resources 241 NLRB 713 722-723 (1979) 48 Bobs Motors Inc 241 NLRB 1236 (1979) L & J EQUIPMENT CO 669 is established the employer must assume the burden of demonstrating that the same actions would have taken place even in the absence of the protected conduct Fur ther if it is shown that the grounds advanced by the em ployer were pretextual it necessarily follows that the employer has not met this burden Limestone Apparel Corp 255 NLRB 722 (1981) On June 15 1983 a unanimous Supreme Court con cluded that the Board s shifting of the burden of proof to a respondent to make out an affirmative defense was not an impermissible construction of the Act NLRB v Transportation Management Corp 462 U S 393 (1983) Respondent demonstrated strorig union animus when coupled with the timing of the initial layoffs and trans fers of the seven known union adherents occurring within days of the start of the union campaign creates a strong suspicion of Respondent s unlawful motivation This suspicion is reinforced by virtue of Filiaggi s corn ments to employees Powley Spiker and Martin on August 11 (sUbsec I c 8) First Filiaggi while maintain ing that the personnel actions of August 7 were lawful nonetheless threatened to slowly sell off the equipment and eventually cease operations entirely if the union ac tivity did not end To impress this point upon the spokes men of the employees Filiaggi added that he had four additional layoff slips already prepared and that he would not only make those layoffs that very day but would lay off one additional employee for each day thereafter that the union activity continued Faced with the prospect of additional immediate lay offs and the eventual closing of all operations the em ployees not surprisingly chose to abandon their organiz mg effort and instead attempt to work through a gnev ance committee sponsored by Filiaggi himself 50 On being informed of this decision Filiaggi not only retracted his earlier threat to lay off four additional em ployees whom he then identified by name but also stated that some of the previously announced schedule changes would no longer be necessary When Spiker sought clan fication on his announced move to the second shift Fi liaggi by his words and conduct indicated that Spiker s transfer to the second shift had been in retaliation for his union acitivities and was now as a result of the employ ees actions that day revoked Finally and perhaps most significantly Filiaggi dis cussed during this same meeting the layoffs of Zieglar Pike Wahler and McCartney While noting each one s alleged work related deficiences Filiaggi stated that he had wanted to get rid of each anyway and that this just gave him an opportunity In making these final corn ments Filiaggi at the very least sought to capitalize on the layoffs of the previous week His purpose was clear—to thwart at its very beginnings the burgeoning union campaign Thus the four elements customarily re quired to establish a prima facie case under Wright Line union acitivity employer s knowledge of such activity 60 That the employees chose to take Filiaggi s threats of August 11 se nously enough to forgo their statutory right to organize clearly demon strides the spurious nature of Respondent s argument that since Filiaggi routinely uttered threats in the past which were not acted on his threats with regard to the Union were likewise not taken senously by the em ployees suspicious timing of the employer s actions and union animus on the part of the employer—are all present here In defense of these allegations Respondent, first, con tends that the decisions to lay off Zieglar and Pike were based solely on proven legitimate business considerations and were in any event made and communicated to the affected employees prior to Filiaggi s gaining knowledge of their union activities Respondent next argues that the decisions to lay off Wahler McCartney and Gilson were the direct result of the discovery of serious mechanical problems with each one s truck and further that those mechanical problems coincided with a reduced need for truck drivers Likewise Respondent contends that the several transfers of Poling and his subsequent layoffs were due to a reduction in the need for high lift opera tors and that none of these actions was taken in retalia non for Poling s union activities Finally Respondent contends that Powley s layoff was due simply to a re duced need for the type of work he was capable of per forming and that no new conditions or restrictions were placed on him upon his return from layoff status In advancing these defenses Respondent points to the presence of the following factors (1) the economic de dine in the coal industry generally and the decline in its business specifically during the latter half of 1981 ,(2) the installation of the dragline with the resultant reduction in the need for several employees (3) the fact that it laid off all employees in accordance with its established se monty procedures and (4) that the layoffs in question constituted only a fragment of the unit wide layoffs made during the fall of 1981 and the first month of 1982 Unlike the Board decision relied on heavily by Re spondent in its postheanng brief 51 Respondent here of fered little testimony and virtually no documentary evi dence as to the economic causes of the layoffs and/or tranfers Further IRespondent here again unlike the em ployer in the case it relied on did not in any meaningful fashion establish that the layoffs in question constituted only a fraction of the overall employment picture On the contrary it appears that the layoffs in question actu ally amounted to almost all the layoffs that were made unitwide during the latter half of 1981 Moreover and perhaps most importantly the entire record demonstrates that Filiaggi frequently exercised wide discretion and ex treme flexibility in determining both the daily production quotas and staffing requirements This discretion or flexi Way gave Filiaggi the freedom to retract previously an nounced layoffs solely on the affected employees per sonal appeals revoke on the spot previously announced shift changes for nonlegitimate business considerations and preemptively cancel again for unlawful reasons ad ditional layoffs amounting to up to approximately 5 per cent of its entire work force Thus the size and distnbu tion of Respondent s work force depended at any given moment in a very large degree on how Filiaggi subjec tively viewed the entire situation With these thoughts in mind I now turn to the specifi cally alleged unlawful personnel actions Buncher Co 229 NLRB 217 228 (1977) 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1 Mike Zieglar For at least several months prior to August 1981 Ft liaggi believed that Zieglar was impairing his own health by working at the coal crusher Filiaggi made this point and his accompanying desire that Zieglar should volun tartly quit on several occasions dunng the first half of 1981 to Zieglar Zieglar s father in law Sam Newman Jr and coworker David Rishel When despite this prod ding Zieglar gave no indication that he would ever vol untanly agree to quit his employment Filiaggi decided to take the decision out of Zieglar s hands Accordingly in late June or early July Newman and Filiaggi s secre tary were both instructed to inform Zieglar that Filiaggi did not want him to return to work following his recu peration from surgery Zieglar however refused to accept the words of Filiaggi s intermediaries and imme diately on his release from the doctor s care went to the jobsite to personally argue his case directly to Filiaggi In the meantime Sam Newman also made a personal appeal to Filiaggi on behalf of his son in law Newman on one or more occasions prior to July 27 personally asked Filiaggi that as a favor to him to please consider giving Zieglar a job outside the environs of the coal crusher Thus on July 27 Zieglar met with Filiaggi and pleaded that rather than being laid off from his job at the coal crusher he be allowed to work at another job in Respondent s operation Despite his belief that Zieglar could not adquately perform any other job then current ly available in his operation Filiaggi agreed to try Zieg lar out on the coal crew Filiaggi s misgivings were quickly proved correct when after only 2 1/2 days Zieglar was removed from the coal crew on coal crew leader Sproul] s request At this point in the middle of the last week of July Filiaggi again acting with no small measure of compassion agreed to allow Zieglar to tern poranly return to his former job at the coal crusher While it was Filiaggi s express desire in allowing this re assignment that Zieglar continue working only until he could secure alternative employment elsewhere there is simply no credible evidence that Filiaggi at that time placed any outside limit on the length of Zieglar s stay Less than a week after Zieglar s reassingment to the coal crusher Filiaggi was informed of Zieglar s activities on behalf of the Union On receipt of this information Filiaggi for the first time defined the limits of Zieglar s temporary stay—he could be permitted to remain no longer This conclusion is buttressed by Filiaggi s candid remark to Powley and the others on August 11 that he had wanted to get rid of Zieglar anyway and that the union campaign merely gave him that opportunity That Filiaggi would have eventually and perhaps even relatively quickly reached the same decision even in the absence of Zieglar s protected conduct is no more than rank speculation and conjecture For as shown Filtaggi had both a proven propensity for changing his mind and was not unsympathetic to Zieglar s plight Further any uncertainty in this regard is the direct result of Respond ent s own wrongdoing Accordingly I find that Re spondent violated Section 8(a)(3) when it laid off Zieglar on August 5 as alleged 2 Gerald Wahler and William McCartney The credible evidence establishes that Filiaggi was not Informed of the presence of metal findings in any motor oil until August 6 the day after the union meeting The credible evidence also establishes that when the problem was brought to his attention he was told only that it ex isted in McCartney s truck While it is true that the in stallation and operation of the dragline eliminated the need for up to two coal trucks no evidence was offered that the dragline was designed for or could efficiently re place the function of these rather large coal trucks In any event just 2 days prior to the August 5 union meet ing Filiaggi had assigned both Wahler and McCartney to take their trucks to the Fort Martin location to assist sev eral others in the cleaning of a pond At the time they received their August 7 layoff notices this Fort Martin project which was in no way connected to or directly affected by the dragline was less than 25 percent corn pleted Further it must be recalled that Filiaggi in his phone conversation with Sholtis on the night of August 5 showed a special Interest in determining whether the Fort Masan employees had attended the union meeting Filiaggi was quit candid in explaining his purpose for seeking this information he wanted to see how wide spread the union activity was From the time the five Ford tri axles had been put into operation Filiaggi made no secret of his dislike for them and his eventual plans to rid his operation of them How ever despite his awareness that the dragline would at some point in late summer or early fall be put into oper ation Filiaggi never mentioned even to his closest associ ates or confidants that he planned to phase out the Ford tn axles upon the installation and operation of the drag line Despite Filiaggi s longstanding negative feelings about these Ford tri axles he was nonetheless willing to con tinue to put up with their continued use until the end of the first week in August At that point he found out that at least two of the drivers assigned to these trucks Wahler and McCartney had attended the union meeting Only then did Filiaggi decide that he could tolerate the trucks use no further That the decision to attempt to sell the trucks in th late summer of 1981 may have been a sound business judgment is not the question Likewise it is not disposi tive of the issue I must resolve that once the decision to park the trucks was in fact made Respondent strictly followed its own established seniority procedures The question that must be answered however is whether Re spondent has demonstrated that it would have made the same demon to park the trucks in the absence of the union activities of its drivers Based on the above factors as well as Filiaggi s oft mentioned remark of August 11 I am not persuaded that Respondent has met this burden As the Supreme Court noted NLRB v Transportation Management Corp 462 U S 393 403 (1983) The employer is a wrongdoer he has acted out of a motive that is declared illegtimate by the staute It is fair that he bear the risk that the Influence of legal and illegal motives cannot be separated be L & J EQUIPMENT CO 671 cause he knowingly created the risk and because the risk was created not by innocent activity but by his own wrongdoing Accordingly I find that the August 7 layoffs of Wahler and McCartney were as alleged violative of Section 8(a)(3) of the Act 3 Kevin Pike The credible evidence establishes by 2 30 on the after noon of Monday August 3 Filiaggi had already found out about his employees organizational activities and was aware that a meeting had been arranged for the evening of August 5 (See I C 1 above ) Approximately one half hour after committing his first unlawful mterro gation Filiaggi instructed his office personnel to notify Pike that he was henceforth laid off The General Coun sel contends that the timing of this phone call to Pike was no coincidence but was instead the direct result of Filiaggi s assumption that if union activity were going on Pike a frequent complainer about working condi tons was probably heavily involved In support of this theory the General Counsel points to two comments made by Filiaggi which reveal his unlawful motivation First Filiaggi in discussing the layoff told Pike that he was always complaining about his job and spoke too much in beer gardens It is fair to infer that in making this latter remark Filiaggi was acknowledging that he was aware that Pike also voiced his complaints about work to other employees away from the worksite Sec ondiy we gain return to Filiaggi s all too familiar op portunity comment of August 11 I view Repondent s defense to the highly suspicious timing arguments as unconvicing In this regard Filiaggi testified that when the coal business was booming in the early 1970s it was economical to purchase and use small er trucks such as the one Pike drove However by late summer 1981 the coal business had declined to such an extent that it was time to park them they were no longer valuable to me Despite Filiaggi s obvious awareness of the financial condition in the coal business he offered no evidence as to why he specifially chose the afternoon of Monday August 3 to make his determination to lay Pike off In view of the above I find that Pike s layoff was in viola ton of Section 8(a)(3) as alleged 4 David Glisan The credible evidence establishes that in late July Fi haggi determined that since the need for coal to be de livered to the Hatfield power plant had been reduced Glisan could be more efficiently used at the Bridgeville operations in assisting with the delivery of stoker coal to Respondent s customers Pursuant to this decision reached even before the advent of the organizing cam paign Filiaggi requested that mechanic Sholtis inspect Glisan s truck and make sure that it could efficiently op erate away from the Hatfield facility In early August Sholtis inspected the trucks and determined that it was in dangerous condition and in need of immediate repair which could not even commence for several weeks until new parts were orderd and received On being told this news Filiaggi instructed Sholtis to order the necessary parts but to repair the truck in his spare time Since Gil san s truck was thus down for extended repairs Filiaggi adhering to the established seniority system temporarily laid Glisan off When Glisan s truck was repaired Glisan was not called back to work but instead another driver whose own truck was in need of repairs was assigned to Gil san s truck Again in making this decision to retain an other driver rather than recall a laid off employee whose hospitalization coverage had already lapsed Respondent was following its established seniority procedures de scribed above In these circumstances and for the reason set forth above I conclude that Respondent has established that it would have taken the same action with regard to Glisan even in the absence of Glisan s protected conduct Ac cordingly I recommend that the allegations relating to Glisan s layoff should be dismissed 5 David Poling ) In defense of the allegations regarding Poling Re spondent contends that when business was good follow mg the UMW strike Poling was promoted to head his own two man coal crew at the Khedive site but that when business declined shortly thereafter he was trans ferred to work on George Liston s crew at Bridgeville Poling was thereafter laid off after only 1 week and not recalled until September 11 From that point until early December when Poling was again laid off due to lack of work he was assigned to work with Liston at both the Khedive and Bridgeville sites Respondent further con tends that Poling s initial transfer of August 11 his first layoff and the second and final layoff were all made in accordance with its established seniority procedures in eluding a proscription against allowing employees to change positions and bump other employees I find the evidence regarding this economic defense sparse unsup ported by any documentary evidence and generally un convincing As of the late summer of 1981 Poling a competent versatile utility employee had been employed almost ex elusively as a high lift operator Although Respondent at this time employed approximately 10 high lift operators Poling was apparently the only one of this group select ed for transfer and/or layoff While he was clearly junior and therefore less experienced than some of these other high lift operators the record evidence simply does not establish that Poling was in fact the least senior of this group Moreover as Respondent so accurately pointed out (see I d above) the third and final tier used by Respond ent in the layoff/recall system involves giving priority to those employees that have multiple talents and can be interchanged with other employees Without ques ton Poling met this test In these circumstances and es pecially in view of the total lack of documentary evi dence to support its positions regarding the decline in business I find that Respondent has not met its burden of rebutting the strong prima facie case that its conduct in transferring Poling from Sproull s crew at Hatfield on 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 7 to Liston s crew at Bridgeville laying off Poling on August 17 until September 11 subsequently reassigning Poling on October 13 to work alone at the Khedive site and permanently laying off Poling on De cember 3 were violative of Section 8(a)(3) and (1) of the Act The General Counsel further alleges that in segregat mg Poling on October 13 and in laying him off on De cember 3 Respondent also violated Section 8(a)(4) of the Act This argument in essence rests on the inference that can be drawn from the fact that Poling testified on behalf of the Union/Petitoner at the September 21 repre sentation case hearing and that the Regional Director issued his Decision and Direction of Election in that matter on October 8 Just 5 days prior to the date Poling was assigned to work by himself at Khedive While these facts create some suspicion I am not con vinced that this suspicion is sufficient in these circum stances to create an inference that Respondent violated Section 8(a)(4) as alleged A review of the conversation between Filiaggi and Poling on October 13 indicates that Filiaggi stated that his only concern was with whether or not Poling and/or the Union had been involved in the burning of his truck I have further found that a purpose in assigning Poling to work alone was his unlawful desire to prevent Poling from having access to other employ ees I do not however view this conversation or any other record evidence as indicating a desire on the part of Filiaggi to retaliate against Poling because of his testi mony at the representation case hearing as opposed to his earlier activities in attempting to organize Respond ent s work force Poling was not the only employee to testify on behalf of the Union/Petitioner at the hearing in question Moreover no evidence was established that his testimony served as the basis for any finding by the Re gional Director on any particular point against the inter ests of Respondent Finally had Filiaggi truly resented Poling s testifying at the representation case hearing it is more likely that he would have retaliated against Poling at or near that time rather than waiting the approximate ly 3 weeks until the Decision and Direction of Election issued Accordingly I recommend that the 8(a)(4) allega tions relating to Respondent s treatment of Poling be dis missed 6 Keith Powley The complaint alleges that Respondent violated Sec tion 8(a)(3) and (4) in its following treatment of employ ee Keith Powley a December 10 1981 written warning a January 19 to March 4 1982 layoff a refusal from March 4 onward to assign him overtime and the imposi tion on March 4 of more onerous and rigorous terms and conditions of employment I shall first deal with the 8(a)(3) aspects of each of these allegations Respondent offered no evidence whatsoever in defense of the December 10 warning The basis for the issuance of this warning appears as exactly as Powley assumed it to be at the time—an attempt on the part of Respondent to build a case against him because of his union activi ties Thus there can be little doubt that the issuance of this warning had no legitimate underpinning and there fore violated Section 8(a)(3) of the Act We now turn to Powley s January 19 to March 3 layoff A thorough review of the entire record with spe mai attention to Respondent s Exhibit 3 (a computation of the timecards for the period January 1-April 30 1982) demonstrates that Respondent was operating with a substantially reduced work force During this period over 30 employees were placed on temporay layoff status for substantial periods in at least either the latter half of January or the entire month of February Unlike the situation which occurred in the latter half of 1981 this large group was not composed almost exclusively of known union adherents but instead appears to be a broad crosssection of Respondent s entire work force With this substantial reduction in the work force it would naturally follow that there would be a concomi tant reduction in the operating time for Respondent s equipment In these circumstances I credit Filiaggi s ex planation for his failure to recall Powley during the 6 week period in question and I further find that this deci mon was based on legitimate considerations Thus I am satisfied that Respondent has met its burden under Wright Line Little evidence was offered by either side on the re mauling complaint allegations of whether Powley was denied overtime upon his March recall from layoff and whether at the same time that he was recalled Respond ent imposed more onerous and rigorous terms and condi lions on his employment The sum of the General Counsel s case is the testimo ny of Powley During a March 4 meeting with Filiaggi Powley testified that Filiaggi informed him that hence forth Camille Mihalik a management trainee would be working with him to prevent his tearing up or neglect ing anything Further Powley testified that Filiaggi added that from then on that Powley would be required to take his lunch one half hour after the equipment oper ators Finally Filiaggi told him that he would work 8 hours a day and no more Approximately a week later Powley inquired of Rich ard Filiaggi whether he would be working overtime the upcoming Saturday Despite the fact that he had worked overtime in the past and knew that at least some of Respondent s mechanics would be working overtime Richard Filiaggi answered simply not for you Al though this complaint paragraph appears to allege that Powley has continued to be denied overtime since his March recall no evidence whatsoever was offered with regard to any overtime worked by anyone after May 1 Finally Powley in the briefest of testimony stated that in the past he had always taken his lunch hour at the same time as the equipment operators In answering these charges Filiaggi explained that he assigned Camille Mihalik to ride with Powley for the dual purpose for both assuring that the TLCs would be performed in the timely manner as well as enabling MI halik to learn how to perform the TLCs These reasons not only appear inconsistent on their face but are in direct contrast to the uncontroverted evidence that Mi halik performed little work while riding with Powley Moreover it is highly suspect that Powley would have been chosen as the individual to act as Mihalik s mentor L & J EQUIPMENT CO 673 This is especially so in view of Filiaggi s expressed opin ion that Powley was both neglectful and had previously torn up equipment Thus I reject Respondent s defense and find that Respondent s assignment of Camille Miha Iik to ride with Powley for this two plus month period was for the dual purpose of both intimidating Powley in the performance of his duties because of his prior union activities and for the purpose of preventing him from freely discussing protected concerted activities with his coworkers Both purposes are unlawful On the denial of overtime allegation Filiaggi simply testified that if Powley was denied overtime it was merely because TLCs were not required to be performed on Saturdays No other witness to these proceedings tes tified in any relevant fashion with regard to the subject of overtime during March 1982 and beyond Respondent did introduce as noted earlier time records for all em ployees covering the first 4 months of 1982 These records seemed to raise as many questions as answers For instance approximatley 26 employees worked 2 or more Saturdays or Sundays in both March and April Additionally approximately 15 other employees worked 2 or more Saturdays or Sundays in March alone Includ ed in this latter group is Powley himself Powley worked Saturday overtime on April 3 and May 1 52 Considering the entire record I am not persuaded that the General Counsel has established this complaint alle gation by a preponderance of the evidence Accordingly I recommend that the allegation relating to the denial of Powley s overtime be dismissed Finally I turn to Respondent s defense to the allega tion that it unlawfully segregated Powley from his fellow employees by allegedly changing his lunchtime so that it would no longer coincide with the lunch hour of the equipment operators Filiaggi testified that it has always been Respondent s past practice to have the greasers do their greasing work when the drivers were taking their lunch and that sometime in the spring of 1982 he ob served that Powley was not following this procedure On that occasion he merely corrected Powley and in structed him to follow the established practice Counsel failed to offer any evidence from any other witnesses to either corroborate their own witness or to discredit the opposing witness This failure is difficult to understand in view of the clear credibility conflict raised at the hearing between the respective versions offered by Powley and Filiaggi on this point Throughout this decision I have generally though with exception chosen not to credit Filiaggi s testimony when in conflict with the testimony of others On the other side of the coin I have generally chosen to credit Powley s testimony when in conflict with the testimony of certain management officials including Filiaggi him self However I am not satisfied that in blindly doing so in this instance the truth will be served It is my belief that the truth on this issue actually lies somewhere be tween the two truncated versions Filiaggi s explanation that Respondent had an established practice to require 52 Powley also worked on Saturday March 6 however since he had not been recalled until Wednesday of that same week this Saturday work would not be considered as overtime greaasers to work on equipment while the equipment op erators were taking their lunch breaks makes such emi nent business sense that I cannot conceive that someone as intelligent and experienced as Filtaggi would have failed to recognize this fact On the other hand Respondent s operations are spread throughout many jobsites and work locations on the same jobsite Filiaggi spends the majority of his time away from Respondent s main office at the Hatfield loca tion which includes the garage area where Powley per forms much of his work I have little doubt that during Filiaggi s frequent lunchtime absences from the Hatfield site the policy regarding lunch hours has been ignored disregarded or overlooked by all employees This prac tice is no doubt also ignored when greasers and/or r me chanics find themselves working at isolated worksites during lunch hours There is no evidence however that Filiaggi was ever aware that his policy was not being ad hered to Thus in these circumstances I do not view Fi liaggi s credited statement to Powley reaffirming this policy as violative of the Act Accordingly I would dis miss this allegation To summarize the credible record evidence establishes that Respondent unlawfully issued a written warning to Powley on December 10 and unlawfully assigned man agement trainee Camille Mihail& to ride with and ob serve Powley for the 2 months following Powley s recall from layoff I do not however find that the credible record evidence establishes that in committing these same acts Respondent also violated Section 8(a)(4) of the Act As with Poling before there is simply no evidence that Respondent committed these acts because Powley participated in all of the Board s representation case pro cedures Accordingly I would recommend that all 8(a)(4) allegations relating to Powley be dismissed III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE v The activities of Respondent set forth in section I above occurring in connection with Respondent s oper ations also described in section I above have a close in timate and substantial relationship to trade traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce IV THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative actions designed to effectuate the policies of the Act It having been found that Respondent unlawfully issued a written warning to Keith Powley on December 10 1981 I shall recommend that Respondent expunge the warning from its personnel files and records It having been further found that Respondent unlaw fully laid off employees Mike Zieglar Gerald Wahler William McCartney Kevin Pike and unlawfully trans ferred and on two separate occasions laid off employee David Poling I shall recommend that with the excep tion of Zieglar Respondent offer each immediate and 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD full reinstatement to their former positions or if those positions no longer exist to substantially equivalent posi bons without prejudice to their seniority they enjoyed 53 With regard to Zieglar I recommend that his name be placed on a priority list and that he be given first priori ty for recall in the event that Respondent resumes oper anon of the coal crusher I shall also recommend that Respondent make whole each of the above named five employees for any loss of earnings or other benefits suf fered by reason of Respondent s unlawful conduct The loss of earnings shall be computed as prescribed in F W Woolworth Co 90 NLRB 289 (1950) with interest there on to be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 54 It is further recommend ed that Respondent expunge from its files and records any reference to the above named unlawful layoffs On the basis of the foregoing findings of fact and the entire record in this proceeding I make the following CONCLUSIONS OF LAW 1 L & J Equipment Company Inc is an employer en gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 United Mine Workers of America is and has been at all times a labor organization within the meaning of Sec tion 2(5) of the Act 3 By the following conduct Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act (a) Coercively interrogating its employees about their union activities sympathies and desires 53 The findings with regard to Pike and Poling the only two of this group who were not recalled does not of course preclude Respondent during the compliance stage of these proceedings from asserting by way of affirmative defenses that either Pike and Poling would have subse quently been either permanently or temporarily laid off See Midwest Hanger Co 221 NLRB 911 (1975) 54 See generally Isis Plumbing Co 138 NLRB 716 (1962) (b) Soliciting employees to ascertain and divulge to it the union activities sympathies and desires of other em ployees (c) Creating the impression among its employees that their union activities are under surveillance (d) Threatening to liquidate and close its operations unless its employees ceased engaging in union activity (e) Threatening to lay off employees unless the em ployees cease engaging in union activities (f) Informing employees that their union activity and the union activity of others was the reason for their lay offs (g) Soliciting employee grievances and impliedly promising benefits through the correction of their griev _ ances 4 By the following conduct Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act (a) Laying off Mike Zieglar Gerald Wahler William McCartney and Kevin Pike on or about August 7 1981 (b) Transferring on or about August 7 and on or about October 13 1981 David Poling and laying Poling off on September 17 1981 until October 11 1981 and subse quently permanently laying Poling off on December 3 1981 5 Respondent did not violate Section 8(a)(4) in any matter as alleged 6 Respondent did not violate Section 8(a)(3) of the Act when it laid off David Gilson on or about August 6 1981 7 Respondent did not violate the Act when it laid off Keith Powley from January 19 through March 4 1982 8 Respondent did not violate the Act as alleged in any other manner 9 The aforesaid labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication ] 1