A. J. Schmidt Co.

National Labor Relations Board - Board Decisions

Mar 28, 1984

269 N.L.R.B. 579 (N.L.R.B. 1984)

A. J. SCHMIDT CO.
A. J. Schmidt Company; and Wm. A. Schmidt and
Sons, Inc. and Sheet Metal Workers Union
Local No. 19, affiliated with Sheet Metal Work-
ers International Union. Cases 4-CA-1270 and
4-CA- 12471
28 March 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 April 1983 Administrative Law Judge
Norman Zankel issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed cross-exceptions
and a brief in response to the General Counsel's ex-
ceptions.
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, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the complaint is dismissed.
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In affirming the judge, we do not rely on his finding, in sec. Il,D,2(a),
par. 7 of his decision, that it is reasonable to infer from the timing of the
layoffs that the Respondent had knowledge of the union activity.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge. These
cases were heard before me on August 31 and September
1, 1982, and January 18, 1983, at Philadelphia, Pennsyl-
vania.
The cause came before me upon an order consolidat-
ing cases, consolidated complaint and notice of hearing
issued by the Acting Regional Director for Region 4 of
the Board on November 25, 1981.1 In substance, the con-
solidated complaint, as amended at the hearing,2 alleges
I All dates hereinafter are in 1981 unless otherwise stated.
2 After oral argument in which all parties participated, I granted the
General Counsel's motion to add allegations that the Employers engaged
in a variety of independent activities violative of Sec. 8(aXl) of the Na-
tional Labor Relations Act (the Act). The Employers, in their posthear-
ing brief, request reconsideration of that ruling. Upon such reconsider-
269 NLRB No. 104
that the A. J. Schmidt Company and Wm. A. Schmidt
and Sons, Inc.3 violated Section 8(a)(3) and (1) of the
Act by discriminatorily laying off employees Gregory
Woods, Swen Soring, and Anthony Garzia on October
1, 1981; and that the Employers independently violated
Section 8(a)(1) of the Act on various dates between Sep-
tember 1981 and March 1982 by making promises of
wage increases and other benefits contingent upon rejec-
tion of the Union, interrogating employees concerning
their union activities, threatening employees with layoff
and/or plant closure, and creating an impression of sur-
veillance of employees' union activities.
The Employers filed a timely answer which admitted
certain matters 4 but denied the substantive allegations
that they had committed any unfair labor practices.
All parties appeared at the hearing. Each was repre-
sented by counsel and afforded full opportunity to be
heard, to introduce and meet material evidence, to exam-
ine and cross-examine witnesses, 5 to present oral argu-
ment, and to file briefs. Counsel for the General Counsel
and the Employers' counsel submitted posttrial briefs, the
contents of which have been carefully considered. 6
On consideration of the entire record, the briefs, and
my observation of the witnesses and their demeanor, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Jurisdiction is uncontested. The Employers are Penn-
sylvania corporations engaged in the business of custom
steel fabrication. They manufacture tanks, duct work,
and miscellaneous fabricated parts at two facilities, one
situated in Chester and the other in Eddystone, Pennsyl-
vania.
Each corporate Employer admits that during the year
immediately preceding issuance of the consolidated com-
plaint it sold and shipped products valued in excess of
$50,000 from the locations in Pennsylvania directly to
points outside of that Commonwealth. Each corporation
admits it is engaged in commerce within the meaning of
the Act.
Based on the foregoing, and the record as a whole, I
find the Employers are and, at all material times, have
been employers engaged in commerce within the mean-
ing Section 2(2), (6), and (7) of the Act.
ation, I reaffirm the prior ruling which permitted the amendments (see
official Tr. 8-40). I am satisfied, in all the circumstances, that the Em-
ployers have not been prejudiced or deprived of substantive rights. Al-
though the Employers were offered the opportunity to request time to
prepare their defense evidence on the new allegations, no such request
was made. Instead, the record reflects that each of the allegations added
by the General Counsel's amendment was fully litigated.
3 The Employers' names appear as amended at the hearing.
4 For purposes of this litigation only, the Employers admitted they
constitute a single employer within the meaning of the Act.
I All witnesses were sequestered by agreement of counsel, except al-
leged discriminatee Woods, Union Organizer Jack Bush, William (Bill)
Schmidt Sr., William (Drew) Schmidt Jr., and Lou D'Alonzo.
8 After the hearing closed, the General Counsel filed a "Motion to
Amend Record" in which it was asserted (in part) that all parties agreed.
That motion, to date, has been unopposed. Accordingly, the motion is
granted.
579
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The answer admits, the record reflects, and I find that
the Union is and, at all material times, has been a labor
organization within the meaning of Section 2(5) the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The recitation of facts below is based on the composite
of the credited testimony of all witnesses, unrefuted oral
testimony, supporting documents, and careful consider-
ation of the logical consistency and inherent probability
of events.
Not every bit of evidence, or every argument of coun-
sel, is discussed. Nonetheless, I have considered all such
matters. Omitted material is considered irrelevant or su-
perfluous. To the extent that testimony or other evidence
not mentioned might appear to contradict the findings of
fact, that evidence has not been overlooked. Instead, it
has been rejected as incredible or of little probative
worth. Bishop & Malco, Inc., 159 NLRB 1159, 1161
(1966).
Credibility resolutions, wherever necessary, have been
based on my observation of witness demeanor, the
weight of the respective evidence, established or admit-
ted facts, inherent probabilities, and reasonable inferences
which may be drawn from the record as a whole. North-
ridge Knitting Mills, 223 NLRB 230 (1976); V & W Cast-
ings, 231 NLRB 912 (1977); Gold Standard Enterprises,
234 NLRB 618 (1978).
The Employers' admitted managerial hierarchy con-
sists of William A. Schmidt Sr. (herein Bill Schmidt),
president of both corporations;7 John Roberts;8 William
A. Schmidt Jr. (herein Drew Schmidt), vice president;
Jay Schmidt, purchasing manager; Robert Mayfield, Ed-
dystone plant manager and vice president; Charles
O'Connor, quality assurance manager; Marty Kascavage,
accountant; Joe Young and Nick Guiffre, drafting and
design work; and Lou D'Alonzo, shop superintendent at
the Chester location. Mayfield functions as shop superin-
tendent at Eddystone. The supervisory status of Tommy
DeVites is disputed.9
The Employers' operations include personnel classified
as mechanics, welders, helpers, and leadermen. The me-
chanic classifications contain two subclasses, first and
second, who are grouped according to ability. Also,
there are different kinds of welders, identified as MIG,
TIG, submerged arc weld, stick weld, and stainless and
light gauge. The abilities of welders range from those
who can perform all types to those who can perform
only one type of welding. Helpers, considered the lowest
level work classification, have general laborers duties.
For pay purposes, mechanics receive the highest rates of
pay, and helpers receive the lowest. There are approxi-
mately 10 leadermen who work as mechanics, helpers,
? The Employers' brief designates Bill Schmidt as "chairman of the
Company," but the answer admitted he was president. The distinction is
not critical. Whatever his title, Bill Schmidt is an admitted supervisor
within the meaning of the Act.
I The parties' briefs attribute differing titles to Roberts. Those distinc-
tions, however, do not affect the Employers' acknowledgment that he is
a supervisor within the meaning of the Act.
9 DeVites' supervisory status is considered separately, below.
and welders approximately 70-90 percent of their work-
time. '
On approximately September 14 or 15, 1981 (accord-
ing to Union Business Representative Jack Bush), the
Union initiated an organizational drive. Bush's first con-
tact with this Employer's employees was with Erhard
Burkhardt at a "submarine" shop located, in Bush's
words, "up the street" from the Chester location. He met
there informally with Burkhardt and employees Gregory
Woods, Emilio Charis, Swen Soring, Dave Williams, and
Tony Garzia within a day or two of his first contact
with Burkhardt. They discussed possible unionization
and agreed other employees should be invited to meet
with Bush on September 22.
The first such meeting was conducted on September
22. About 10 or 11 employees were present. Another
meeting was held on September 28. Approximately 21
employees attended that meeting. On September 30 Bush
met with Woods, Soring, Charis, and another employee,
Dick Patten. In addition to discussing the efficacy of un-
ionism, some of the employees signed authorization
cards. Woods and Soring attended all three meetings.
Garzia was absent from the third.
On Thursday, October 1, Woods, Soring, Garzia to-
gether with employees Harris and Elsawy (the latter at-
tended the September 28 meeting) were laid off. Office
employee Bruce Johnson, who performed layout work,
also was laid off that date.
On November 19, the Union filed a petition for a rep-
resentation election (Case 4-RC-14929). A Board-con-
ducted election was held March 11, 1982. The Union
lost. Objections were filed by the Union and, on Decem-
ber 16, 1982, the Board ordered a second election. (See
265 NLRB 1646.)
B. Credibility
Credibility of the respective witnesses is the founda-
tional element for resolution of the alleged unlawful in-
dependent 8(a)(1) violations. Moreover, witness credibil-
ity impacts on the element of employer knowledge of the
union activities and, in part, to the economic defense
against the allegation that the October I layoffs were un-
lawful.
In addition to the factors cited above which I stated
were used as a basis for credibility resolutions, I have
carefully weighed all the testimony, bearing in mind the
general tendency of witnesses to testify as to their im-
pressions or interpretations of what was said rather than
attempting to give verbatim accounts. The record is re-
plete with instances of witnesses for each litigant provid-
ing testimony in direct opposition to that presented by
those of opposing litigants. I shall not discuss completely
all of the conflicts in testimony, for to do so would
unduly lengthen this decision. On the other hand, I have
not ignored all such testimony, nor the arguments of
counsel upon it. While the truth may rest in the testimo-
ny of one side in a given respect and of the other side in
another, the overall impression of credibility with respect
10 The remaining work of leadermen will be described, below, within
the discussion concerning DeVites' status.
580
A. 1. SCHMIDT CO.
to each witness does not allow for such distinction
where virtually every critical element has been placed in
issue by contradictory testimony.
In the credibility contest between the General Coun-
sel's witnesses and those of the Employer, I conclude a
fair assessment of their testimony persuades me it is the
Employer's version of events which is most reliable.
Generally, the Employer's witnesses presented their
testimony in direct, candid, certain, clear, and precise
terms. In contrast, the testimony of the General Coun-
sel's witnesses was more generalized, confused, vague,
and less forthright.
Overall, I find the General Counsel's witnesses' testi-
mony flawed in material respects regarding the alleged
independent 8(a)(l) violations. These matters are dis-
cussed with particularity below.
Finally, with respect to credibility it is noted that no
party called DeVites to testify. That fact does not alter
my overall finding that the Employer's witnesses were
the most reliable. As earlier stated, DeVites' supervisory
status is disputed. Hence, it is understandable why nei-
ther party would want to risk making him its witness.
Accordingly, I make no adverse inferences from De-
Vites' failure to appear as a witness.
C. Interference, Restraint, and Coercion
All of the 8(a)(1) violations, except a single incident
contained in complaint paragraph 6(a), are alleged to
have occurred in February and March 1982 within a few
weeks or days of the March 11, 1982 representation elec-
tion.
The record reflects that at least Bill and Drew
Schmidt made a point of speaking to the employees to
persuade them not to vote for the Union. The Employer
had participated in earlier representation campaigns over
the years. The Schmidts clearly knew that the law pro-
scribes preelection promises based on election results.
Against this backdrop, the following evidence was
presented on the 8(a)(1) allegations by the witnesses
identified below.
1. Clarence Pedrick testified, for the General Counsel,
that in September 1981 Bill unlawfully promised him a
raise (complaint par. 6(a)); in March 1982, Bill unlawful-
ly threatened to close the plant (complaint par. 6(d)); and
also that Drew, in March, unlawfully promised increased
insurance and pension benefits.
Pedrick vacillated. First, he claimed Bill conditioned a
wage increase upon rejection of the Union during a con-
versation between them in the summer of 1981. Later,
Pedrick claimed the date of the conversation was after
the organizational meetings which ended September 28.
Finally, Pedrick said the alleged unlawful promise was
made after the October I layoffs. 1 1
Normally, discrepancies in recall of dates is of little
significance in making credibility resolutions. However,
when coupled with other elements of Pedrick's narra-
tions and the surrounding circumstances, these alterations
tend to diminish his reliability. Thus, during cross-exami-
I 1 Apparently based on Pedrick's last assertion, complaint par. 6(a)
was amended to change the time of the event from "in or about Septem-
ber" to "in or after September."
nation, Pedrick altered his direct testimony of the alleged
unlawful promise. Pedrick admitted that he was told the
Employer could not promise anything. The apparent
self-contradiction is exaggerated when one considers the
probabilities of events. Pedrick's original assertion that
Bill made a promise of a wage increase in September (or
even October) is not plausible. As earlier noted, no rep-
resentation petition had been filed before November 19.
Moreover, the record reflects the Employer's officials
engaged in a concentrated oral campaign in February
and March 1982, a few weeks before the scheduled elec-
tion. Bill and Drew Schmidt acknowledged they en-
gaged employees in conversation during that campaign.
In this context, I find it unlikely that Pedrick would
have heard Bill make any statement conditioned on elec-
tion results as early as the time claimed by Pedrick.
There are other reasons I find Pedrick an unreliable
witness. First, Pedrick's account of the alleged promise
was selective. He merely testified Bill "just told me after
the Union was over he was going to give me a raise and
it wasn't going to be no quarter." Bill candidly acknowl-
edged speaking with Pedrick during the course of the
Employer's campaign in 1982. Bill denied making the
promise and continued to relate the full context of the
conversation. Specifically, Bill testified that he accused
Pedrick and Pedrick's friend and coemployee, Bobby
Frye, of making earlier and frequent efforts to entrap Bill
with "side deals." Bill further recalled he explicitly
denied he could make any promises. Frye was not called
as a witness, nor was Pedrick called to rebut either Bill's
accusation or that Pedrick had tried to make any "side
deals." As an example of such a "deal," Bill testified that
Pedrick had offered to return his authorization card to
the Union if Bill would grant Pedrick a raise. Bill testi-
fied he answered Pedrick by saying that he could not
comply with Pedrick's wishes. As indicated, Pedrick did
not seek to rebut this part of Bill's testimony.
That Pedrick was less than candid is shown by his ac-
count of a second conversation with Bill a couple of
days before the election. Then, according to Pedrick,
Frye was present. During this discussion, Pedrick's
direct testimony was that Bill said, "if the Union got in,
he'd shut the doors." Pedrick once again changed his tes-
timony during cross-examination. He agreed that Bill ac-
tually said that if business does not pick up, the Compa-
ny would continue to lay off its employees. 1 2
Pedrick's testimony was self-contradictory in another
respect. He also testified that Drew, speaking to a group
of employees a couple of days before the election, prom-
ised increased benefits. During cross-examination, how-
ever, Pedrick admitted Drew said he could not promise
the employees anything.
During his cross-examination, Pedrick admitted having
been convicted of forgery within the past 5 years. The
General Counsel argues that there is testimony which
corroborates Pedrick's and that his versions are support-
ed by the Employer's literature which the Board found
I' Layoffs had been occurring since July 1981. That issue will be dis-
cussed below in further detail.
581
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objectionable. 3 I do not base my findings that Pedrick is
an unreliable witness on his prior conviction. The above-
cited examples of self-contradiction and selective direct
testimony, compared to the more comprehensive and
forthright accounts of Bill and Drew Schmidt, are the
basis of my findings relative to Pedrick. I do not find
any credible testimony from other witnesses to corrobo-
rate Pedrick. Indeed Frye, who might have corroborated
Pedrick's account of the alleged second conversation
with Bill, did not testify.
Finally, there are two reasons I consider the Board's
findings regarding the objections are of little probative
value in resolving the 8(a)(l) issues. First, Bill's uncon-
tradicted testimony shows the literature was prepared by
agents of the Employer, none of whom is implicated in
any of the 8(a)(1) allegations. Second, objectionable con-
duct does not necessarily rise to the status of an inde-
pendent 8(a)(1) unfair labor practice.
As to the allegation that Drew promised increased in-
surance and pension benefits, the totality of the direct ex-
amination on this subject appears as follows on pages
257-258 of the official transcript.
Q. Did you have any conversations concerning
the election with Drew Schmidt?
A. Yes.
Q. When was that?
A. A couple of days before the union vote.
Q. Where were you?
A. In front of Bob Spell's (unidentified) desk.
Q. And who else was present?
A. A lot of people around. There was a lot of
people around but nobody up to hear what we said.
Q. What was your conversation with Drew
Schmidt at that time?
A. Somebody asked him what he was going to
do and he said that he was going to try to maybe
get a pension plan and pay all the insurance.
Q. Was there anything else said at that time?
A. Not that I remember.
The cross-examination regarding Drew's remark was
quite brief. However, during that cross-examination, Pe-
drick agreed that Drew had said he could not make any
promises.
Drew did not recall any conversation regarding pen-
sion and insurance. He testified that he was "very guard-
ed about what we said and if a question came up as to
what the Company was expected to do, my answer
would be I can't promise you anything." I credit Drew.
Pedrick's testimony concerning Drew contains two
patent self-contradictions. First, Pedrick claimed no one
else but he could have heard what Drew allegedly said.
This is inconsistent with Pedrick's claim that it was a dif-
ferent employee who had asked a question to which
Drew had responded. Second, Pedrick's acknowledg-
ment that Drew disclaimed he could make promises is in-
consistent with the alleged unlawful promise. Even if
Drew uttered the words attributed to him by Pedrick,
13 Neither the Board's decision in 265 NLRB 1646 (1982), nor the ob-
jectionable literature is in evidence. However, I take official notice of the
those documents.
they are sufficiently generalized and ambiguous to negate
a connection to the outcome of the election.
Upon the foregoing, I find Pedrick's testimony an un-
reliable source on which to make findings of 8(a)(1) vio-
lations.
2. Erhard Burkhardt, the General Counsel's witness,
testified that in February, D'Alonzo unlawfully threat-
ened layoffs (complaint par. 6(b)), and that Bill, in
March, threatened to close the plant (complaint par.
6(d)). Burkhardt was still an employee of the Employer
when he testified.
During direct testimony, Burkhardt said that D'A-
lonzo told him that (in Burkhardt's words) "in case the
Union would come in, that a lot of people would get laid
off, and that Bill said (again, in Burkhardt's words) "like
if the Union would come in, the Company would phase
work out, maybe eventually go out of business."
I found Burkhardt insecure during cross-examination.
He could not recall whether he had more than one con-
versation with Bill. He did not recall what he said to
D'Alonzo during their conversation. Moreover, Burk-
hardt was rather susceptible to counsel's suggestions in
framing answers to cross-examination questions. I do not
find Burkhardt intentionally strayed from the truth.
However, my analysis and observations lead me to con-
clude his testimony was imprecise, especially compared
to that of Bill and D'Alonzo.
D'Alonzo recalled speaking to Burkhardt. He present-
ed a more comprehensive and fluent account. Thus,
D'Alonzo freely admitted mentioning layoffs. In that
connection, D'Alonzo credibly claimed he "always told
the [employees] that regardless of the outcome of the
union election there will be layoffs because [he] could
see the projection [of available work] was very bad." As
will be discussed further, below, D'Alonzo was designat-
ed as the managerial official to compile the first layoff
list in July 1981. A succession of layoffs followed. The
alleged unlawful conversation took place in late Febru-
ary 1981. I find D'Alonzo's version more consistent with
the surrounding circumstances. It was made in the very
midst of ongoing layoffs. At that time, records in evi-
dence show a consistent diminution in the Employer's
work. To attribute possible future layoffs to the election
outcome is implausible in this context.
As to Bill's alleged threat to close, Burkhardt di-
gressed from his version on direct examination. When
asked to be more specific as to what Bill said, Burkhardt
testified Bill actually opined if the Union demands high
wages, the Company could not afford them and, if the
Company could not afford to pay those wages, then it
would have to phase out. I conclude what Bill actually
said is more a legitimate prediction than an unlawful
threat.
As to the critical facts, I find Burkhardt's accounts less
specific and precise than those of Bill and D'Alonzo. I
have considered the fact that current employees' testimo-
ny is entitled to great weight. Burkhardt is not discredit-
ed. However, on balance, I find the testimony of Bill and
D'Alonzo more probative.
3. Clifford Mays, a laid-off employee whose layoff is
not alleged as unlawful, testified as a General Counsel
582
A. J. SCHMIDT CO.
witness to alleged threats of plant closure and layoffs
which, according to him, were made by Bill, Drew, and
D'Alonzo in February and March 1982 (complaint pars.
6(b), (c), and (d)).
Mays testified, during direct examination, in strong
and positive terms that the alleged threats were made.
He said that about 2 weeks before the election "Bill said
that he wouldn't tolerate a union . . . and that if he had
to, he would . . . lay off individuals." During this con-
versation, Mays claimed Bill asked how he would like it
if Bill came into his house and told Mays' wife she
should not be doing the dishes. Bill recalled mentioning
layoffs, but denied he linked them to unionization. In-
stead, Bill testified he said the Company would have to
continue layoffs if business conditions did not improve.
Bill admitted comparing the business with Mays' home
but said this was to emphasize the theme he readily ad-
mitted conveying to all employees that he personally did
not believe a union should be in his plant. Arguably,
Bill's testimony is sufficiently similar to Mays' to justify
finding Mays' account of their discussion the more accu-
rate. I do not so hold, however, for two reasons. First, I
find Bill's version wholly consistent with his testimony
regarding the other incidents in which he was implicated
and also consistent with the type of self-styled entrepre-
neur evoked by his testimonial demeanor. Though Bill
sometimes appeared evasive, I attribute that to his ram-
bling style of discourse and not to a desire to distort the
truth. Throughout his testimony, he left no doubt of his
belief that a union should not be in his plant. In that con-
text, it is easy to conclude that Bill would not "tolerate"
a union. But that does not mean Bill used those words.
No other witness claimed Bill used such strong language.
It is more likely that Mays was interjecting his own con-
clusionary words while testifying. This likelihood is en-
hanced by the fact that he had given the Board no pre-
hearing affidavit and testified he had not even spoken of
his testimony until the week before the first hearing date.
That was at least 5-1/2 months after the alleged events.
Bill's spontaneous, straightforward, and inherently con-
sistent testimony was an impressive indicator that he was
telling the truth. His denials of wrongdoing are con-
firmed by the factual backdrop.
Second, as will be shown below, Mays changed criti-
cal aspects of his direct testimony relative to the threats
allegedly made to him by Drew and D'Alonzo.
Mays testified Drew spoke to him about 3 weeks
before the election. According to Mays, Drew said, "he
didn't know how I would vote for the Union, and that if
it got in, there might be layoffs." However, during cross-
examination, Mays changed his testimony so that Drew's
layoff comment omitted any reference to the Union or to
the election. Drew did not recall mentioning layoffs in
any respect to Mays. However, Drew conceded that, if
he had spoken of layoffs, it would have been to tell
Mays what he said to every employee with whom lay-
offs were part of a preelection conversation, that "re-
gardless of what happens (referring to the election) we
may have to lay some people off."
Mays' direct testimony was similarly altered relative to
his assertions of the alleged threats to him by D'Alonzo.
During direct examination, Mays claimed D'Alonzo
spoke to him about 3 weeks before the election and said
Bill "was not going to put up with a union . . . if the
Union got in, there would be layoffs." D'Alonzo also is
supposed to have said that he had once worked at a
company which closed up after a union came in. During
cross-examination, however, Mays agreed that D'Alonzo
did not say if the Union got in that it would cause lay-
offs. He said simply, "there would be layoffs."
D'Alonzo recalled mentioning layoffs to Mays. D'A-
lonzo claimed he told Mays regardless of the election's
outcome there would be layoffs. He claims he told Mays
things were very bad. He steadfastly maintained he did
not link layoffs to the election.
Another factor considered, but not dispositive, in eval-
uating Mays' credibility is the failure of his brother,
Mark Mays, a potential corroborating witness to the con-
versation with Bill, to testify. According to Mays, his
brother who lives in Chester, was present during the al-
leged threat by Bill. Though it is improper for me to
base a credibility finding against Mays on the failure to
produce a corroborating witness, I consider that omis-
sion one of the elements on which an overall finding may
be made.
The testimony of Drew and D'Alonzo was internally
consistent, supported by available documentary evi-
dence,' 4 and was substantially corroborated in material
respects by the General Counsel's witnesses, including
Mays, after they had changed the damaging versions of
their direct testimony. I find each more reliable than
Mays and the other witnesses discussed.
4. Emilio Charis, a current employee of the Employer
at the time of the hearing, was presented by the General
Counsel to show Mayfield and Bill promised him in-
creased economic benefits, conditioned on rejection of
the Union (complaint pars. (f) and (g)).
Charis impressed me as the most candid of the General
Counsel's witnesses. His testimony was the most compre-
hensive. 15 Nonetheless, I adopt the versions presented
by Mayfield and Bill because Charis' testimony reflects a
clear tendency to recount what was said to him broadly
and in inconsistent conclusionary terms rather than with
precision, while Mayfield and Bill were direct, certain,
and consistent when describing the substance of specific
critical conversations. For example, during direct exami-
nation on the allegation that Bill unlawfully promised
benefits, Charis testified Bill said it was, in Charis'
words, "hard" for Bill to promise anything for anybody.
At first, during cross-examination, Charis interjected a
threat (not alleged in the complaint as having been made
by Bill to Charis) of layoffs. Thus, Charis testified that
A1 The General Counsel claims D'Alonzo's credibiity is diminished by
his failure to produce the July 1981 layoff list which he purportedly pre-
pared. I disagree. D'Alonzo credibly explained the "list" consisted of
notes in a looseleaf book he maintains for a variety of purposes and that
the salient pages were destroyed long before the hearing. Inasmuch as the
layoffs had been implemented and the charge herein not filed until after
that time, there was no apparent reason for D'Alonzo to have retained
the "list."
i" The comparatively staccato presentations by the other General
Counsel witnesses, whom I have found unreliable, are not a basis of my
credibility resolutions. That aspect of their testimony is attributed in part
to trial counsel's tactics in presenting the elements of her prima facie
case.
583
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bill said if the Union gets in, there would be "a lot of
layoffs." Later, when pressed, Charis agreed that Bill ac-
tually said, "if the Union got in, and the Union demand-
ed wages higher than he could afford to pay, that he
might have to lay off more people." Still later, during
cross-examination, Charis explained (as to the alleged un-
lawful promise) that Bill told him, "it was a tough
moment to promise anything to anybody." In evaluating
Charis' testimony, I have taken into account his obvious
difficulty in articulating responses to interrogation in
fluent English. He exhibited no difficulty comprehending
the questions, however. On balance, Charis' direct testi-
mony is rendered less reliable than Bill's because of the
variations noted and because ultimately his description
substantially comports with Bill's.
Other deficiencies exist in Charis' testimony as to the
alleged threats by Mayfield. Charis' account of their con-
versation contains numerous qualifications and is impre-
cise. Al§o, Charis interjected a threat to close not alleged
to have been made by Mayfield to him. Thus, Charis
claimed, during direct examination, that Mayfield said,
"the Union getting in to the Company, maybe it was no
good for anybody. Because the Company . . . would close
down." (Emphasis added.) On cross-examination, Charis
explained what Mayfield actually said was "if the Union
wins, maybe the Company would be closed because the
Company is too small for what the Union is asking for." Fi-
nally, Charis admitted his memory about the conversa-
tion was incomplete.
In contrast, Mayfield's account was direct, sure, and
precise. He readily admitted to having some discussion
concerning insurance, pensions, and wages which are the
subject of the alleged unlawful promises of benefits in
complaint paragraph 6(f). Mayfield was uncontradicted
in his assertion that the dialogue between him and Charis
was friendly, the subject of a wage increase was initiated
by Charis, and Mayfield's response that Charis was soon
due for an increase was unconnected to the election.
Viewed in their totality, I accept Mayfield's accounts as
the more accurate of what occurred between him and
Charis.
When Charis testified Mayfield spoke of pensions,
Charis said Mayfield told him that even management
does not have a pension plan; that such a plan was being
worked on for a long time. Charis agreed that Mayfield
said, "I don't know if we are going to get it [the pension
plan] or when we're going to get it. It's hard to say."
Mayfield admitted saying that the Employer had been
looking into a pension plan for the entire Company for a
long time but denied connecting the pension plan to the
outcome of the election. The entire context of Mayfield's
discussion with Charis leads me to conclude that his pen-
sion comments, though arguably an implied promise of
benefit, comprise part of an enumeration by Mayfield to
Charis of the existing conditions of fringe benefits and
not proscribed conduct.
In complaint paragraph 6(g), Bill is also alleged to
have created an impression of unlawful surveillance of
union activities. In salient part, Charis testified that, on
the day before the election, Bill said "that somebody told
him that I tried to get him to vote for the Union." The
General Counsel sought to elicit some meaning to that
testimony. Thus, Charis was asked, "did he [Bill] say
anything to you as to whether he believed what he had
heard about your involvement?" Charis answered, "well,
yeah, he said everything that comes to him, you know."
Bill was not asked to deny the allusion to what may
have been reported to him by another employee. I find
Charis' total testimony on this issue vague and somewhat
confusing. However, even if Bill were found to have told
Charis someone reported Charis had solicited a vote for
the Union, I am not persuaded that comment, alone, rises
to the stature of proscribed surveillance. The remark
itself easily is understood to be an apparently unsolicited
report to Bill by an unidentified employee. I find it diffi-
cult to declare the comment implies the existence of a
programmed effort by the Employer to spy on the union
activities of its employees. Accordingly, I find no merit
to that part of complaint paragraph 7(g) which alleges
the creation of unlawful impressions of surveillance.
Charis also testified that Bill "said stay away from the
Union, that it would be better for me because every time
I go to my country,'" you know, he gave me a couple
of weeks off, and when I come back from there I still
have my job." As indicated, complaint paragraph 6(g) al-
leges unlawful promises. There is no allegation of threats,
express or implied, of withdrawal of any benefits. Bill
unequivocally denied threatening to refuse time off to
Charis to visit his country if the Union were elected the
employees' representative. Bill admitted speaking to
Charis to induce him to vote against the Union. In that
context, I consider the words Charis ascribed to Bill a
reminder of the benefits Charis received without a union.
In view of Charis' earlier reported acknowledgment that
Bill cautiously disclaimed he was making any promises, I
find it unlikely that Bill would have suggested any bene-
fits would be withdrawn. The complete context of the
conversation between them, in my view, tends to negate
the requisite tendency to coerce required by the Board
for an 8(a)(1) violation.
Finally, Charis testified Bill said if "I want to go to
school, Bill would pay for my school." Bill unequivocal-
ly denied making such a promise. He testified a policy
existed for approximately 10 years which afforded em-
ployees an opportunity to go to school at the Employer's
expense. Charis further testified that during their conver-
sation, Bill "told me that if I wanted to make more
money, you got to go to school where I can read blue-
prints, and do a job like a mechanic and welder togeth-
er."
I find that Bill's comments regarding school do not
amount to a promise of benefits conditioned on the elec-
tion's outcome. He simply reiterated the existing benefits
and, in the context his electioneering, reminded Charis
that opportunities to enhance his employment position
were already in place if he wished to take advantage of
them.
Conclusion
On all the foregoing, I find no credible evidence exists
to support the allegations contained in complaint para-
'6 Charis is foreign born.
584
A. J. SCHMIDT CO.
graphs 6 (a)-(g) by a preponderance of evidence. Ac-
cordingly, I shall recommend their dismissal, in toto.' 7
I have considered the comment of Judge Marvin Roth
(Michigan Products, 236 NLRB 1143, 1146 (1978)), adopt-
ed by the Board without comment that "It is immaterial
that an employer professes that he cannot make any
promises, if in fact he expressly or impliedly indicates
that specific benefits will be granted. Westminster Com-
munity Hospital, 221 NLRB 185 (1975); American Medi-
cal Insurance Company, Inc., 224 NLRB 184 (1976)." My
findings that no independent 8(a)(1) violation occurred
are based on my conclusion that the record as a whole
does not show that the conversations on which the alle-
gations are predicated occurred as the General Counsel
asserts. Though the Board's findings that certain of the
Employer's campaign literature arguably shows a pro-
clivity to impose on employees' rights to an untram-
meled election atmosphere, I decline to substitute that
factor in place of more direct credible evidence that the
individuals implicated in the allegations before me show
those particular individuals made the alleged proscribed
statements.' 8
D. The Discrimination
1. The facts
a. DeVites' status
A threshold question is presented regarding the alleged
8(a)(3) violations. DeVites' supervisory status must be
determined. The prima facie element of employer knowl-
edge of union activity among its employees rests on
whether such knowledge may be imputed to it by virtue
of information which may have been conveyed to De-
Vites. Thus, alleged discriminatee Woods testified with-
out contradiction that he invited DeVites to the first or-
ganizing meeting held on September 22 among the em-
ployees. According to Woods, DeVites said other labor
organizations had been unsuccessful in the past at this
Employer, and commented a union might be good for
the younger employees, but not for him. I credit this part
of Woods' testimony. 1g
The General Counsel contends, and the Employer
denies, that DeVites is a statutory supervisor. The opera-
tive facts relating to this issue are substantially undis-
puted.
DeVites is classified as a leaderman. As such, he is a
group leader of three or four employees. He and the
other leadermen report directly to D'Alonzo. Leadermen
are hourly paid, as are other production personnel. They
receive the same fringe benefits, such as vacations and
insurance, as other hourly paid employees. Conceded su-
1" The part of par. 6(b) which avers D'Alonzo engaged in unlawful
interrogation is not separately discussed because I can find no record evi-
dence to support it.
*s Even assuming I were to have found that some or all the 8(aXl)
violations occurred, this would not affect my conclusion, discussed
below, that the Employer did not discriminate against its employees in
violation of Sec. 8(aX3).
19 To the extent this credibility resolution conflicts with others, such
division of credibility findings is permissible. A trier of fact is not re-
quired to believe the entirety of a witness' testimony (Maximum Precision
Metal Products, 236 NLRB 1417 (1978)).
pervisors receive different vacation and insurance bene-
fits. Although leadermen sometimes receive bonuses,
such payments are also made to other hourly personnel,
such as grinders or welders, as rewards for meritorious
job performance.
Leadermen are responsible for ensuring continuity of
work flow. In that connection, DeVites routinely trans-
fers employees among jobs. He also lays out the work of
employees in his group, and is charged with seeing to it
that each employee has work to do. DeVites spends ap-
proximately between 70 and 90 percent of his time doing
manual labor.
Leadermen have no authority to hire or fire employ-
ees. Woods and alleged discriminatee Soring testified
they consulted DeVites when they wanted time off.
Their testimony reflects they simply told him they in-
tended to take time off, and that DeVites responded,
"okay."
Leadermen can recommend wage increases. It appears
such recommendations are subject to independent deter-
mination by the admitted supervisors. DeVites has appar-
ent authority to resolve employee grievances. Thus,
Soring testified he spoke with DeVites regarding his
wages and that DeVites said, "he would take care of it."
Also, when Soring had problems regarding vacation ben-
efits, it was DeVites who brought the problem to Drew's
attention.
Leadermen sometimes recommend individuals for hire,
but such recommendations are accepted from other em-
ployees as well. The admitted supervisors attend regular-
ly scheduled management meetings. Leadermen are ex-
cluded. Leadermen voted in the March 11, 1982 repre-
sentation election.
In September-October 1981 there were approximately
140 shop employees. Among them were 10 to 12 leader-
men.
This issue is not free from doubt. On balance, especial-
ly the high ratio of employees to supervisors if the Em-
ployer's position were to prevail (Pennsylvania Truck
Lines, 199 NLRB 641, 642 (1972)), I conclude there is
sufficient evidence to warrant a finding that DeVites is a
statutory supervisor under the theory that he responsibly
directs the activities of other employees (Custom Bronze
& Aluminum Corp., 197 NLRB 397 (1972)).
The record shows that D'Alonzo cannot possibly be in
direct touch with all production employees for most of
each workday. That factor is a persuasive indicator that
any other finding is unrealistic and illogical. A contrary
finding would subject the employees to operating with-
out on-the-spot supervision.
In making his work assignments to other employees,
DeVites evidently uses independent judgment (Sumco
Mfg. Co., 251 NLRB 427, 432 (1980)). The fact that indi-
viduals may spend "much of their time performing duties
similar to those performed by others within their respec-
tive areas" (Liquid Transporters, 250 NLRB 1421, 1425
(1980)) does not preclude a finding of supervisory status
where the (disputed) individuals also schedule and assign
work and move employees from one job to another.
585
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That leadermen voted in the election is not dispositive
of the supervisory issue (King Trucking Co., 259 NLRB
725, 729 fn. 12 (1981)).
Various criteria exist by which the Board determines
supervisory status. It is not necessary that an individual
possess all the indicia identified in Section 2(11) of the
Act. The statute is disjunctive. Possession of any indica-
tion of supervision makes one a statutory supervisor
(NLRB v. Metropolitan Life Insurance Co., 405 F.2d 1169
(2d Cir. 1968)); Great American Insurance., 176 NLRB
474, 475 (1969)). DeVites' leaderman title, also, does not
resolve the issue (Golden West Broadcasters-KTLA, 215
NLRB 760, 762 fn. 4 (1975)).
On all the foregoing, I find that, at all material times,
DeVites was a supervisor within the meaning of the Act.
b. The layoffs
As earlier described, a total of six employees were laid
off on October 1. The Union's three organizational meet-
ings all had been held within the span of the 8 days im-
mediately preceding the layoffs.
Three of the six employees are alleged as discrimina-
tees. They are Woods, Soring, and Garzia. Extensive evi-
dence was presented relative to Woods and Soring.
Garzia did not appear at the hearing. As to him, the
record simply reflects that he attended some of the orga-
nizational meetings and signed a union authorization card
dated September 22.
Woods had two periods of service; first as a trade
school student in 1973 and 1974, then as a welder from
January 1981 until the October 1 layoff.
Soring, a welder-fitter, also had two periods of em-
ployment. First, from September 1975 until he resigned
in September 1977; and again from October 1980 until
the October 1 layoff.
Woods, Soring, and Garzia became involved in the
organizational activities on the first day or two of the
Union's advent. They, in addition to other employees
(Charis, Burkhardt, and Dave Williams) issued oral invi-
tations to other employees to attend the organizational
meetings. Woods, Soring, and Garzia signed authoriza-
tion cards before their layoffs. Union Business Represent-
ative Bush considered Woods, Soring, Garzia, Charis,
Burkhardt, and Williams his organizing committee.
As indicated earlier, Woods invited DeVites to the
first organizational meeting. In addition, I find that
Soring spoke to DeVites about the Union shortly after
that meeting. Soring's uncontradicted testimony is that
he told DeVites there would be another organizational
meeting and discussed with DeVites the "benefits of
having a union."
There is no evidence that any of the alleged discrimin-
atees had been the subject of formal discipline during
their employment. However, certain incidents during
their employment are relevant, as they form a part of the
reasons asserted by the Employer for layoff selection.
Thus, D'Alonzo credibly testified Soring quit in July
1981 over a dispute concerning vacation pay, breached
working hours by reporting late and leaving work early,
and frequently expressed discontent with his salary.
Woods, too, absented himself from work with Soring,
did not become qualified to perform specialized types of
welding such as "MIG" and "TIG," and also made fre-
quent wage complaints. D'Alonzo credibly testified
Garzia had a problem with drug or alcohol abuse, would
not wear protective equipment, and had actually been
warned that he might be discharged because of intoxica-
tion.
The Employer had a policy regarding wage increases.
Under that policy, an employee's performance is re-
viewed approximately each 6 to 9 months. If merited,
wage increases of 25 cents are granted. In September,
Soring requested an increase, and was granted a 25-cent
raise by Drew. Woods also received a wage increase in
September. His raise came after Woods told Drew he
was dissatisfied with his wage rate. Previous to the Sep-
tember raises, Soring and Woods were granted increases
at approximately the intervals specified in the Employ-
er's policy. 20 In Woods' case, his September raise was
approximately 6 months since an automatic increase
granted at approximately his first 30 days of employment
in 1981. Woods complained he was not satisfied with the
25-cent September increase.
It was D'Alonzo who laid off each of the alleged dis-
criminatees on October 1. That morning, Soring had
been assigne:d by DeVites to work on a new job. In the
afternoon, D'Alonzo told Soring work was slow and he
was being laid off. Soring informed DeVites he had been
laid off. DeVites exclaimed, "I can't believe the son-of-a-
bitch did it." DeVites told Soring he did not know how
he would get the work out.
Shortly after, Woods was called into D'Alonzo's office
and laid off. Woods asked D'Alonzo if the layoff had
anything to do with the Union. According to Woods,
D'Alonzo said, "I can't talk about it." D'Alonzo testified
he told Woods, "I don't know anything about that [the
Union]. We are short of work." I credit D'Alonzo's ac-
count. It is consistent with what he said to Soring. It is
internally consistent with the Employer's overall defense
which, as seen below, I shall credit. Moreover, it is con-
sistent with Woods' own apparently self-contradictory
testimony that D'Alonzo told him he had the dirty job of
laying people off and that work was getting slow.
None of the alleged discriminatees had been recalled
to work at the time of the hearing.
2. Analysis
a. The applicable legal principles-the General
Counsel's prima facie case
The parties agree disposition of the allegations of the
discriminatory layoffs is governed by the principles of
Wright Line, 251 NLRB 1083 (1980). In Wright Line, the
Board declared that in dual-motive cases the General
Counsel first must prove the existence of a prima facie
case showing the alleged unlawful termination was moti-
vated by unlawful considerations. Thereafter, the Board
20 The General Counsel argues that two 25-cent increases granted
Soring on January 25 and February 8, 1981, respectively, diminish the
Employer's contention that Soring was a below-par employee. I agree
that situation presents a suspicious circumstance. However, I find it of
little probative worth. Those increases were granted 7 months before the
union activity and were reasonably explained.
586
A. J. SCHMIDT CO.
held that the burden of proof shifts to a respondent to
demonstrate it would have taken the alleged unlawful
action even in the absence of an employee's protected
activity.
The Third Circuit Court of Appeals, the circuit in
which the instant case arose, disagrees that the burden of
proof shifts on a prima facie showing to the Respondent
to exonerate itself. The Third Circuit holds that the Gen-
eral Counsel retains the burden of proof by a preponder-
ance of evidence. Behring International v. NLRB, 675
F.2d 83 (3d Cir. 1982).
Under any analysis, I conclude the General Counsel
has not met the burden of establishing that protected
conduct was "a motivating factor" in the Employer's
October I layoffs. See Mini-Industries, 255 NLRB 995 fn.
2 (1981).
The prima facie case consists of proof that the employ-
ees engaged in protected activity, the employer had
knowledge of that activity, and the layoffs were motivat-
ed by antiunion considerations and had the tendency of
discouraging or encouraging the employees' union activi-
ty.
Each of the alleged discriminates, particularly Woods
and Soring, had engaged in union activity. Thus, each
signed an authorization card and played a prominent role
in the Union's organizing efforts by functioning as mem-
bers of the organizing committee.
The knowledge of the union activity imparted by
Woods' and Soring's invitations to him to attend the or-
ganizational meetings and discussion of the efficacy of
unionism, I conclude, is imputable to the Employer by
virtue of DeVites as a statutory supervisor. It is true that
there is no direct evidence that DeVites expressly re-
layed his knowledge to superior management officials.
However, rarely is such direct evidence available.
Another factor militates in favor of making an infer-
ence that the Employer possessed knowledge of the
union activity. That factor is the timing of the layoffs.
The layoffs occurred only 3 days after the third organi-
zational meeting. They occurred on the heels (within 2
weeks) of the beginning of the union activity. In this
context, it is reasonable to infer the Employer had
knowledge of the union activity.
Nonetheless, I conclude the prima facie element of un-
lawful motivation is lacking. The General Counsel relies
on a variety of factors as proof of such motivation.
These factors are: The alleged independent 8(a)(1) con-
duct; the Board's findings of unlawful threats in the Em-
ployer's campaign literature; timing of the layoffs; De-
Vites' assignment of new work to Soring on the layoff
date; the fact that three of the five October I layoffs in-
volved employees working under a single group leader,
DeVites; the fact that Soring and Woods had been ap-
parently considered satisfactory employees until the
union drive (as exhibited by their wage increases); and
the fact their shortcomings and poor attitude were coun-
tenanced by the Employer for a lengthy time before the
layoffs.
I concede this portrayal of events normally provides a
basis for the inference of an underlying unlawful motive.
However, the record as a whole, reduces their potency.
They are neutralized by other factors. Thus, I have
found, above, there is no merit to the 8(a)(1) allegations.
I have found the Board's conclusions in the representa-
tion case unpersuasive on the instant allegations of dis-
crimination. The timing of the layoffs will be found
(within the discussion of the Employer's economic de-
fense) to be coincidental to the union activity; the impact
of Soring's assignment of new work by DeVites is negat-
ed by the fact the record clearly demonstrates DeVites
took no part in the deliberations on the decision to lay
off employees at any time; the timing of the wage in-
creases was consistent with the Employer's outstanding
wage policy and D'Alonzo and Drew provided credible
explanations as to how the layoff criteria were applied
and the Employer's efforts to convert Woods and Soring
to more satisfactory employees; and the reason given by
D'Alonzo to both Woods and Soring simultaneous with
their layoff is consistent with the Employer's contentions
the layoffs were due to reduced labor requirements.2 '
The Employer may have acted unreasonably, and even
arbitrarily, in its selection of Woods and Soring for
layoff. That alone is not the equivalent of unlawful dis-
crimination (International Computaprint Corp., 261 NLRB
1106 fn. 4 (1982).
b. The economic defense
If my analysis of the inadequacy of the General Coun-
sel's prima facie case is imprudent, and it is found the
record establishes a prima facie case, I would nonetheless
recommend dismissal of the 8(a)(3) allegations. As noted,
I conclude the evidence requires dismissal under both the
Board's shifting burden analysis and also the Third Cir-
cuit's continuing burden on the General Counsel to
prove a prima facie case. Neither would the preponder-
ance of evidence support a finding that the layoffs were
discriminatory nor that the layoffs would not have oc-
curred in the absence of union activity. This is so be-
cause I am persuaded the layoffs were motivated by the
Employer's perceived need to effect layoffs for economic
reasons and that the October I layoffs were purely coin-
cidental to the Union's organizing efforts.
The Employer's extensive economic defense was ad-
duced virtually without contradiction. In the beginning
of 1981, there were approximately 140 production em-
ployees. Two of the Employer's major customers,
Boeing and Westinghouse, had told the Employer to
defer work on some of their previously placed orders.
Summaries of records in evidence show the Employer's
backlog of work orders to be performed in July had
dropped to its lowest level of 1981; and its backlog was
then considerably below the figures for the previous
July. Drew credibly testified it was evident that "a
crest" had been reached and that a business change was
occurring which forecasted "that there was going to be
hard times ahead."
Thus, in July, D'Alonzo was instructed to prepare a
list of employees to be laid off. The uncontradicted testi-
mony shows the Employer is labor intensive; that labor
XI With regard to the fact that most of the October I layoffs occurred
within DeVites' group, I note that Charis, Burkhardt, and Williams, also
members of the Union's organizing committee, had not been laid off,
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
costs are the Employer's greatest expense. D'Alonzo's in-
structions were to establish a list of 15-20 employees for
potential layoff. D'Alonzo credibly testified the criteria
for compiling the list were employees' attitude, perform-
ance, and absenteeism. Seniority was not a significant
factor.
Using those criteria, D'Alonzo drafted the layoff list
and showed it to Drew in July. Four employees were
immediately laid off on July 24. All four were welders.
Two more welders were laid off on August 12. By early
September, one more welder and one helper were laid
off. Thus, seven welders and one helper were laid off be-
tween July 24 and early September. The General Coun-
sel does not at all address these pre-October layoffs.
Thus, the General Counsel's theory of violation, I find, is
predicated on a falacious premise because it is taken out
of context.
In the last week of September, the Employer's ac-
countants reported on their fiscal yearend (August 31)
audit. Drew received an oral report that "it was not a
good picture at all and that we better do something to
change what we've been doing." Drew testified he im-
mediately told D'Alonzo to proceed with additional lay-
offs. At that time, only five names remained on D'Alon-
zo's layoff list presented in July. As reported, eight em-
ployees had been laid off. The balance of employees on
the original list had quit or were discharged. D'Alonzo
immediately effected the layoffs on October 1 which was
the first regular payday after he was told to implement
those layoffs late in September.
D'Alonzo explained in detail how he applied the layoff
criteria to each of the five employees laid off on October
I. Though the General Counsel made inroads as to some
of those factors, to explain each here would unduly
lengthen this decision. It is sufficient to note that I con-
clude such inroads amounts to no more than suspicious
circumstances. They constitute an attack on managerial
judgment.
As noted, when D'Alonzo laid off Woods and Soring,
he told each the layoffs were due to reduced work.
There is no evidence what he told the other two em-
ployees in his control whom he laid off. Drew testified
without contradiction that the fifth employee, Johnson
(the office employee), was laid off due to business condi-
tions.
The General Counsel challenges the assertion that the
records support the oral testimony presented by the Em-
ployer's witnesses. Thus, the General Counsel claims the
Employer's "documents showing backlog and sales fig-
ures at the time of the layoffs do not support its claims as
to the (coincidental) timing of the layoffs." (Emphasis
added.) It is true, as the General Counsel avers, the
records show that sales reached a low point on July 1,
and rose for several months thereafter; that sales were in-
creasing on October 1; and that new employees had been
hired even during July and August, the lowest sales
months. However, Drew explained, without contradic-
tion, that the increased backlog was attributable to the
fact that customers had informed the Employer to defer
working on orders that were already placed. As to the
new hirings, the records reflect that of the 10 new em-
ployees hired, only I was a welder and 9 were helpers.
The former, as earlier noted, were paid at higher rates
than the latter. The records and relevant testimony actu-
ally reveal that the helpers were needed to replace indi-
viduals who had been temporary summer employees.
I consider the General Counsel's analysis based on
records to be only superficially appealing. It is based on
a sampling of statistics which are limited in time. Thus,
the General Counsel's statistical theories culminate in
October. Such limitation is, in my view, too narrow in
scope to provide a realistic and accurate base for the
evaluation required by the parties' contentions. It pre-
sents a distorted view of the Employer's operations. It
ignores the fact that the backlog in November and De-
cember dropped to a level considerably lower than any
backlog figures for 1980. Moreover, at the end of calen-
dar year 1981, the total 1981 backlog had dropped by ap-
proximately 20 percent from the total for 1980, and con-
tinued to drop in 1982 to 32 percent of the 1980 figures.
In the long range, the Employer's sales figures show a
similar pattern. In 1980, average monthly sales were
$504,000. In 1982, average monthly sales declined to
$356,714. Finally, the employee complement over the ex-
tended time period also significantly declined. As noted,
there were approximately 140 employees at the begin-
ning of 1981. By year's end, there were 125 employees,
and by the end of 1982, only 83 employees remained.
Inasmuch as the Employer's records, over what I con-
sider to be a more representative time than used by the
General Counsel, show that the Employer's perception
in July and September that its business condition was de-
teriorating was correct, I credit the evidence by which
the Employer claims the layoffs which began in July
were dictated and motivated by economic considerations.
Accordingly, I find that the October I layoffs would
have occurred even in the absence of the union activity.
In so concluding, I am mindful of the fact that other
members of the Union's organizing committee were still
employed on the hearing dates, notwithstanding the fact
that several months had elapsed since October I and the
Employer continued layoffs among a substantial number
of its employees. This is a significant factor to be consid-
ered in assessing the Employer's motivation (see Interna-
tional Computaprint Corp., supra at 1106).
On all the foregoing, I find there is no merit to the al-
legations that Woods, Soring, and Garzia were laid off in
violation of Section 8(a)(3) of the Act on October 1.
On the basis of these findings of fact and on the entire
record in this proceeding, I make the following
CONCLUSIONS OF LAW
1. A. J. Schmidt Company and Wm. A. Schmidt and
Sons, Inc. are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Sheet Metal Workers Union Local No. 19, affiliated
with Sheet Metal Workers International Union is a labor
organization within the meaning of Section 2(2) of the
Act.
3. The Employers did not violate Section 8(a)(1) of the
Act in any of the respects alleged in complaint para-
graphs 6(a)-(g).
588
A. J. SCHMIDT CO.
4. The October 1, 1981 layoffs of Woods, Soring, and
Garzia were not discriminatory within the meaning of
Section 8(a)(3) and (1) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2 2
2 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
ORDER
The complaint herein is dismissed in its entirety.
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
589