Equitable Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1970

185 N.L.R.B. 574 (N.L.R.B. 1970)

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Equitable Equipment Company, Inc. and New Or-
leans Metal Trades Council. Case 15-CA-3595
August 27, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On February 25, 1970, Trial Examiner Jerry B.
Stone issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint
and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision and
a supporting brief. The Respondent filed cross-excep-
tions to the Decision and a brief in answer to the
General Counsel's exceptions and in support of the
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are here-
by affirmed. The Board has considered the Tnal
Examiner's Decision, the exceptions and cross-excep-
tions, the briefs, and the entire record in this case,
and hereby adopts the findings, conclusions,' and
recommendations of the Trial Examiner.
ORDER
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B STONE, Trial Examiner-This proceeding under
Section 10(b) of the National Labor Relations Act, as
amended, was tried pursuant to due notice on November
4, 1969, at New Orleans, Louisiana
The charge was filed on July 22, 1969. The complaint
was issued on September 22, 1969
The issues are whether the Respondent has engaged
in acts violative of Section 8(a)(3) and (1) of the Act.
More specifically the issues concern questions of interroga-
tion, threats, and the discharge of Clifton Stone on July
10, 1969.
All parties were afforded full opportunity to participate
in the proceeding. The General Counsel and the Respondent
filed briefs and they have been considered
Upon the entire record in the case and from my observa-
tion of witnesses I hereby make the following.
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER'
Respondent, a Louisiana corporation with its principal
office and place of business in New Orleans, Louisiana,
is now, and has been at all times material herein, engaged
in the manufacture of marine products at its New Orleans
and Madisonville, Louisiana, facilities
During the 12 months ending September 22, 1969, which
period is representative of all times material herein, Respond-
ent, in the course and conduct of its business operations
as described above, purchased and received goods valued
in excess of $50,000 directly from points located outside
the State of Louisiana. During the same representative
period, Respondent sold and shipped goods valued in excess
of $50,000 from its Louisiana facilities directly to points
located outside the State of Louisiana
Based upon the foregoing and as conceded by the
Respondent, it is found that the Respondent is now, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby adopts as its Order the Recom-
mended Order of the Trial Examiner, and orders
that the complaint be, and it hereby is, dismissed
in its entirety.
Ii. THE LABOR ORGANIZATION INVOLVED'
New Orleans Metal Trades Council, the Union , is, and
has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
' The General Counsel excepted, among other things, to the Trial
Examiner's failure to make any findings, conclusions, or recommendations
with respect to the Respondent's alleged violation of Sec 8(a)(4) of
the Act by the termination of Clifton R Stone For the same reasons
that led the Trial Examiner to find a lack of discriminatory motivation
in the layoff of Stone on July 10, 1969, and, accordingly, no violation
of Section 8(a)(1) and (3) of the Act, we also conclude that the evidence
is insufficient to establish that the Respondent violated Sec 8(a)(4)
of the Act by the layoff of Stone on July 10, 1969 Consequently, the
complaint allegation relating to Sec 8(a)(4) is also dismissed
Preliminary Facts'
The following named individuals are now, and have
been at all times material herein, supervisors of Respondent
within the meaning of Section 2(11) of the Act:
The facts are based upon the pleadings and admissions therein
' The facts are based upon the pleadings and admissions therein
' The facts are based upon the pleadings and admissions therein
185 NLRB No. 42
EQUITABLE EQUIPMENT CO 575
H M Bourgeois
Harold Hebert
Frank Thrasher
A The Alleged Violations of Section 8(a)(1)
1. The General Counsel's complaint alleged, in paragraph
7, that Respondent's Supervisor Harold Hebert, on or about
June 16, 1969, orally interrogated an employee about his
union activities, sympathies, and desires
The evidence concerning this issue consists of the credited
aspects of the testimony of Stone which was to the effect
that the event involved occurred approximately a couple
of weeks before his layoff on July 10, 1969. What occurred
is revealed by the following credited excerpts of Stone's
testimony-
A In the back yard, near the No. 2 Gantry I went
and asked him for a raise, and he flatly refused me
for a raise . I told him I couldn't make it for the
money I was making, everything was going so high,
and I even asked for the raise for myself and Mr.
Thrasher. And he said no. He said I would have
to find some other way to get the raise, to get work
or get money He said, "I guess you are going back
with the Union, it seems every time you need a raise
or money, you join up with the Union "
Considering the foregoing, and in connection with the
clear facts revealed by the background evidence that Stone
in the past had gone to the Union about various complaints,
it is concluded and found that the evidence is insufficient
to reveal that the Respondent engaged in coercive interroga-
tion as alleged. Rather, the reasonable interpretation of
the event would be that Stone himself would realize that
it was not an inquiry but a comment by Hebert. Accordingly,
it is recommended that complaint paragraph 7, insofar
as alleging a violation of Section 8(a)(1), be dismissed
2. The General Counsel's complaint alleged, in paragraph
8, that Supervisor H M. Bourgeois, on or about July
10, 1969, orally advised an employee that his termination
was based upon his union activities
Stone testified with reference to a conversation with
Bourgeois on the occasion of July 10, 1969, that Bourgeois
notified him of his layoff. Stone testified to this effect
as is revealed by the following excerpts from his testimony-
A Oh, I had a card I wanted to put on the board
My baby passed away and they sent cards and I
handed it to him and asked him if he would put
it on the bulletin board He took my hand and shook
my hand and said he wished me good luck on my
union job.
And then he went up the steps and he said, "Stone,
you would have still been here if you hadn't took
sides."
The General Counsel's brief, although setting forth certain of the
facts, including testimony relating to the foregoing allegation, does not
specifically address itself to the 8 (a)(1) allegations , excepting to move
to withdraw complaint paragraph 8 Because of the stage of litigation
and the nature of the testimony concerning this issue , I find it more
proper to dispose of this issue upon the merits
Bourgeois testified to the effect that, after the trial
of an unfair labor practice case (Cases 15-CA-3345 and
15-RC-3888) in January 1969,5 Respondent's attorneys had
advised him to be careful of whatever he said to Stone,
that he had a conversation concerning the death of Stone's
baby shortly after the baby's death and before July 10,
1969, and that he did not tell him on July 10, 1969,
at the time of Stone's layoff, that he would still be here
if he had not taken sides.
Considering the foregoing, the demeanor of the witnesses 6
and the logical consistency of the facts, I discredit Stone's
testimony to the effect that Bourgeois stated to him on
July 10, 1969, at the time of his layoff notification, that
he would still have been there if he had not taken sides.
It follows that the evidence is insufficient to support a
finding of violation, insofar as alleged, as to complaint
paragraph 8 Accordingly, it is recommended that complaint
paragraph 8 be dismissed.
3. The General counsel's complaint paragraph 9 alleges
that the Respondent, by Frank Thrasher, on or about
July 10, 1969, orally advised an employee that his termina-
tion was based upon his union activities.
The facts concerning the event in contention are revealed
by the following credited aspects of Stone's testimony.
Q. What happened on July 10 that caused you to
leave Equitable Equipment?
A. That evening, about 3 15, Frank Thrasher, the
supervisor, came aroung with some layoff slips and
called me to the side and told me he hated to do
this, that it wasn't up to him. It was Mr Hudson
Bourgeois, Harold Hebert and Johnny Koepp all had
a Board meeting and decided to let me go. It was
out of his hands.
Considering all of the foregoing, it is concluded and
found that the evidence does not support a finding of
violative conduct, insofar as alleged in complaint paragraph
9 Accordingly, it will be recommended that complaint
paragraph 9 be dismissed.
B The Alleged Discriminatory Layoff of Clifton Stone on
July 10, 1969
The relevant facts for consideration as to whether or
not Respondent laid off Clifton R. Stone on July 10, 1969,
for discriminatory reasons may be summarized as follows:
1. Stone had worked in the same shipyard location for
different employers for most of the years from 1951 to
July 10, 1969.
2. Stone had worked for the Respondent from the date
of its acquisition of the shipyard involved, December 10,
1965, to July 10, 1969.
3 From early 1966 until about July 1968 Stone had
worked under a job classification of pipefitter leadman.
On or about July 1968, said classification, in title, was
changed to that of "Foreman Grade 1." Stone continued
' See Equitable Equipment Co, etc 178 NLRB No 50
I found Bourgeois to appear to be a more frank, forthright, and
truthful witness while testifying than I found Stone to be while testifying
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter under such classification until the date of his
layoff on July 10, 1969 It is undisputed that either "pipe-
fitter leadman" or "Foreman Grade 1" refers to a "leadman"
type classification and that such classification is not a
classification of a supervisor within the meaning of the
Act.
4. During the time 1966 to July 10, 1969, the Respondent
had had two or three occasions of general layoffs.
5. On none of the occasions of layoffs prior to July
10, 1965, did the pipefitting work need decrease to such
an extent that there existed no need for pipefitting leadmen.
This, however, does not establish that a need existed on
such occasions for the services of Stone as a "pipefitting
leadman."
6. Stone was never laid off on any of the prior occasions
referred to nor was Stone ever reduced at any time from
a "pipefitter leadman" or "Foreman Grade 1" classification
with respect to rates of pay.
7. In 1967 at the time of a layoff Stone was assigned
work as a shipfitter for about 4 or 5 weeks on a Kerr-
McGee project. After 4 or 5 weeks Stone was assigned
to pipefitting work The facts reveal that at such time
there was a "lot" of pipefitting work to be done on such
project. It would appear therefore that Stone at such time
resumed his duties consistent with his "leadman" classifica-
tion. I t would also appear that at the time of utilization
of Stone as a pipefitter that there was knowledge of an
anticipated future need for many employees for pipefitting
work
8. On several other occasions prior to July 10, 1969,
Stone was not reduced in classification at the time of
layoff of others but was assigned ordinary pipefitting work,
working with tools, not consistent with the classification
of leadman r Apparently, the type of work was of mainte-
nance or repair nature
9. 8 Stone, as an employee, engaged actively in 1968
(apparently from circa July 1 to September 12, 1968, and
thereafter) in union organizational activity among Respond-
ent's employees in behalf'of New Orleans Metal Trades
Council
10.9 Respondent's supervisors and Stone engaged in vari-
ous conversations during the period of July 1 through
September 12, 1968. In such conversations Stone made
it clearly known to the Respondent that his interests and
sympathies were with the New Orleans Metal Trades Coun-
cil
11. Prior to an election in Case 15-RC-3888, held on
July 10, 1968, the Respondent engaged in conduct which
interfered with Stone's rights under Section 7 of the Act,
as is revealed by the following excerpts of the Trial Examin-
er's Decision in Cases 15-CA-3345 and 15-RC-3888
(adopted by the Board as its decision on August 29, 1969):10
The only specific job referred to was that concerning work on
a Houston contractor 's barge
The facts are based upon a composite of the credited testimony
of Stone and official notice of the Board's decision in Equitable Equipment
Co, 178 NLRB No 50
The facts are based upon official notice of findings in the Board's
decision in Equitable Equipment Co, 178 NLRB No 50
10 EquitableEquipment Co, 178 NLRB No 50
I credit the testimony of Stone, Pruett, and Kersh.
I find that, on the dates set forth in Stone's testimony
Hebert interrogated the former as to his union sympa-
thies and desires; instructed Stone to interrogate other
employees concerning their voting preference in the
upcoming election; warned Stone that if the Union
were successful Respondent would not only refuse to
grant a wage increase but would instead reduce the
employees' wage scale, solicited from Stone the names
of employees who had attended a union meeting, direct-
ed Stone to vote against the Union on pain of losing
his job, ordered Stone to inform his fellow employees
that they must reject the Union in the forthcoming
balloting if they wished to retain their employment
with Respondent, threatened Stone with unspecified
reprisals if he failed to wear Respondent's campaign
buttons, promised Stone and his cohorts wage increases
after the election if the Union were defeated; threatened
Stone that Respondent would terminate its operations
if the men voted for the Union and directed him
to convey this information to his fellow employees;
and told Stone that he had forfeited a promotion
to foreman because he sided with the Union.
Griffith and Stone impressed me as candid witnesses
who earnestly sought to speak the truth. By contrast,
Thresher was an evasive witness who was in frequent
need of testimonial rehabilitation Although Thresher
at the outset of his testimony denied that, in his
discussion with Stone on July 16, he "cut back" Stone
because of his union sympathies, he acknowledged
that Stone's visit to the Board on that date "would
have" had something to do with the Union. I credit
the testimony of Griffith and Stone and find that,
on or about July 3, and again on or about August
15, Thresher interrogated Griffith as to whether the
latter intended to vote for the Union I also find
that, on approximately July 1, Thresher interrogated
Stone as to the latter's inclinations toward the Union
and his desires regarding collective representation. I
further find that, on July 16, Thresher threatened
to demote Stone from his position as a leaderman
because Stone had sided with the Union. Finally, I
find that Thresher threatened Stone on or about July
1 that Captain Levy would curtail operations at the
shipyard in the event the Union won the election
conducted on July 10. By the foregoing conduct, when
taken in conjunction with the findings hereinafter made,
I conclude that Respondent interfered with, restrained,
and coerced its employees within the meaning of Section
8(a)(1) of the Act
12. Prior to the second election in Case 15-RC-3888,
held on September 12, 1968, the Respondent also engaged
in conduct that interfered with Stone's Section 7 rights,
as is revealed by the following excerpts of the Trial Examin-
er's Decision (in Cases 15-CA-3345 and 15-RC-3888)
adopted by the Board as its decision on August 29, 1969."
Based on Stone's credited testimony, I find that,
prior to the first election, Bourgeois questioned Stone
" Equitable Equipment Co , 178 NLRB No 50
EQUITABLE EQUIPMENT CO. 577
as to his reasons for making common cause with
the Union and suggested that Stone should seek employ-
ment elsewhere if he desired collective representation.
I further find that, during this episode, Bourgeois
promised to promote Stone to a supervisory position
at some future date if he abandoned his interest in
and support of the Union Moreover , I find that,
before the second election, Bourgeois threatened Stone
that when the balloting was concluded he and his
fellow union adherents would be severed from Respond-
ent's employment rolls. I conclude that , by Bourgeois'
statements , Respondent violated Section 8 (a)(1) of
the Act
Neither Chauffe's demeanor nor candor on the stand
was impressive I therefore credit the testimony of
Stone and find that, shortly before the second election,
Chauffe threatened that Respondent would close its
shipyard facilities in the event the employees voted
for the Union I conclude that , by Chauffe's threat,
Respondent violated Section 8(a)(1)
13. Stone testified at the unfair labor practice hearing
in Cases 15-CA-3345 and 15-RC-3888,12 held on January
14 and 15, 1969, in support of contentions adverse to
the Respondent.
14 On May 13, 1969, Trial Examiner Rosenberg issued
his Decision in Cases 15-CA-3345 and 15-RC-3888,
basing a substantial number of findings in whole or in part
upon the credited testimony of Stone Some of such
findings were based upon credibility resolutions wherein
Stone's testimony was credited over the testimony of
Respondent ' s supervisors and officials Among such
Respondent ' s officials whose testimony was involved was
H M. Bourgeois.
15. Around May, June, and July 1969, the Respondent
was involved in production for Government contracts on a
mattress barge, on an aluminum boat line, and on a lash
barge program Because of the stages of completion , certain
disputes as to acceptability of quality of finished products,
repair costs at shipyard as a result of a hurricane , cost of
certain equipment in preceding months, enlargement of
shipyard, and new type of production lines, the
Respondent ' s financing for its operations was adversely
affected to such an extent that management economies in
its operations were warranted 13
16 Around the first of June 1969 Executive Vice
President Koepp spoke to Hudson Bourgeois, assistant vice
president and general superintendent of production What
Koepp said is revealed by the following credited excerpts
from Bourgeois ' testimony
" Equitable Equipment Co, 178 NLRB No 50
" The problem was not a long range problem related to ultimate
profit and loss but was one related to having the necessary current
funds for operations
A Yes, sir, in the early part of June Mr. Koepp
called me and said he would be down at my office,
and he wanted to have a meeting with me and a
few minutes later he came into my office and said
to me, "Hudson," he said, "I want you to listen
to what I have to say to you very carefully We
are experiencing a heavy financial loss on the mattress
barge and the other jobs in the yard. I want you
to take action just as fast as you possibly can. I
want to cut down all the people I possibly can that
we are unable to utilize to the best advantage and
cut our supervision down to the bare minimum "
He said, "I realize the target that you have to
meet is pretty rough, but as soon as possible, I want
you to evaluate this and cut this down to a bare
minimum."
17. In the latter part of June 1969, Bourgeois again
spoke to Koepp as is revealed by the following credited
excerpts from Bourgeois' testimony
A. Yes, sir I called Mr Koepp on the telephone
and I told him in regard to our telephone conversation
the early part of June, we were now approaching
the period where we would have to do some laying
off
I said to him, "Now, in this layoff, it's going to
be the Pipefitting Department first because all the
major piping systems are now installed in the barge
and they have been hydrostatically tested In this layoff,
Mr. Clifton will be laid off. I thought I would bring
this to your attention since we have had many claims
by Mr. Stone and you may want to seek legal advice "
Q. What did he say?
A He said, "I will be back in touch with you in
a few minutes."
Q Did he get in touch with you?
A. Yes. He came up to my office in person and
sat down alongside my desk and he said, "Hudson,
I have evaluated everything you told me and I want
you to proceed with your plans "
Q. Who actually made the decision to include Stone
in the layoff?
A I did.
Q. Why did you check with Mr Koepp9
A Because of the past experience we had with Mr
Stone, he had taken different interpretations of what
people said and preferred charges against the
Company.
18. A June, July, and August, 1969, picture of the
Respondent's employment and termination of employees
on the "mattress barge," where Stone worked, is revealed in
Respondent's Exhibit 1, as follows
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
EMPLOYEES ON MATTRESS BARGE
Rate Classification Date Hired Date Terminated
0
Painters and Laborers
Anthony, C. 2.00 5/30/69
Kelley, E. L. 3 34 5/30/69
Brown, F. L. 2 25 6/2/69
Hall B. G. 2 00 6/2/69,
Hewitt, M. E. 2 00 6/2/69
Holden, F. L. 2.00 6/2/69
Leon, P. 2 00 6/2/69
Morris, L 2.25 6/2/69
Stewart, W. 2.00 6/2/69
Johnson, J. O. 2.00 6/5/69
Washington, E. 2 00 6/5/69
Lafitte J. F. 3 22 6/18/69,
Lenaris S 2.25 6/18/69,
Smith, J. L. 2.25 6/18/69
Douse, V S. 2.00 6/20/69
Jacobs, T. J. 2.05 6/23/69
Wade, E. R. 2 05 6/23/69
Bordere, I. J. 2 00 6/25/69
Edwards, G. D. 6/26/69
Clark R. 2.05 7/16/69,
Beasley, J. L. 3 46 7/23/69
Lindley, J. W. 3.46 7/23/69
Holtzclaw, B. R. 3.22 7/24/69
Freche, E. J. 3.58 7/31/69
Hill, J. J. 2.81 7/31/69
Patterson, W. P. 3 22 7/31/69
F. J.Bello 2.86 8/1/69,
Douser, M. W. 3.51 8/1/69
J. PGrant 3.46 8/1/69,
Hamann , F. L 3.39 8/1/69
Hollis, B. 3.39 8/1/69
Thomas, R. 3.51 8/1/69
C. M.Wallace 3.51 8/1/69,
Williams, E. 2.81 8/1/69
LoCicero, J. D. 2 25 8/4/69
BaiaYnonte, T J. 3.46 8/5/69
Farrar R. E. 3.58 8/5/69,
R.Gorofalo 3.27 8/5/69,
Green, J. 2.00 8/5/69
Hairston, M. E. 3.58 8/5/69
Murphy, W. J 2.25 8/5/69
Nelson, R 2.25 8/5/69
Phelps, A. J. 2.37 8/5/69
Schmolke, J. R. 2.81 8/5/69
Thibodeaux, L. 3.58 8/5/69
Thompson, J. D. 3.05 8/5/69
Arena, E. V 3.91 Foreman 7/21/69
Triana, J. G. 3.91 Foreman 8/4/69
Machinists
Kindel, W. C. 3 75 6/2/69
Sherlock, G 2 93 6/6/69
MSpringer 2.81 6/18/69,
DeWailly O. E 3.34 6/25/69,
Williams, J. C. 3.58 6/27/69
Ahern J. J. 3.58 7/25/69,
Marshall, C. E. 3.58 7/25/69
Praet G. 3.58 8/1/69,
Leer, A. E. 3.21 8/5/69
EQUITABLE EQUIPMENT CO 579
Rate Classification Date Hired Date Terminated
Rupp, L. C. 3.58 8/5/69
Olivier, C. 3.91 9/4/69
General Hull Foreman (coordinator of all crafts)
Robert Jackson 4.01 8/15/69
Pipefitters
Armstrong, A. 3.75 Pipefitter 1st Class 5/29/69 6/13/69
Carroll, R 3.75 Pipefitter 1st Class 5/12/69 8/11/69
Carlisle, C. 3.75 Pipefitter 1st Class 5/29/69 6/3/69
Carter, B 3.75 Pipefitter Ist Class 7/15/68 7/10/69
Dietzway, J. 3.05 Pipefitter 2nd Class 5/28/69 7/10/69
Eitman, J. 3.75 Pipefitter 1st Class 2/17/69
Gray, A. 3.05 Pipefitter 2nd Class 5/22/69 7/10/69
Healy, C. 3.75 Pipefitter 1st Class 5/23/69 8/11/69
Heckler, J. 2.51 Pipefitter 3rd Class 5/28/69 7/10/69
Loup, Jr., P. 3 75 Pipefitter 1st Class 12/12/66 7/25/69
Reeves, B. 3.22 Pipefitter 1st Class 5/19/69 6/24/69
Rome, F. 3 22 Pipefitter 1st Class 3/11/69 7/10/69
Stone, C. 3.91 Foreman 7/10/69
Trasher, F. 4.01 Pipefitter Dept. Head
Verrett, C. 3.05 Pipefitter 2nd Class 5/27/69 6/4/69
Other employees on Mattress Barge who have been retained:
Anthony, M.
Anthony, S.
Knight, W. H.
Blackwell, J
Bardwell, P. L.
Blackwell, W. L.
Hebert, M.
Mervin, E.
Aalestad, W.
Jarrell, R.
Knight, A D.
Larpenter, G L.
Desmond, G.
Easley, B. R.
Gordon, D.
Hamann, V. A.
Head, O. R.
Engle, H
Pendarvis, 1.
Stringer, L. D.
Kennedy, H.
Begnaud, F F.
Biggers, C H.
Larpenter, E.
Shipfitter
Shipfitter
Shipfitter
Shipfitter
Shipfitter
Rigger
Tacker
Crane Operator
Welder
Welder
Crane Operator
Shipfitter
Shipfitter
Shipfitter
Shipfitter
Shipfitter
Welder
Welder
Welder
Welder
Welder
Shipfitter
Shipfitter
Foreman
Respondent also, however, had a crew of men, supervised
by Foreman Norman Bourgeois, working on the mattress
barge prior to completion of the same on August 8, 1969
The testimony did not reveal the exact type of work per-
formed by Bourgeois' crew It appears clear, however, that
Bourgeois' crew was not engaged in pipefitting It appears
likely that the type of work engaged in by Bourgeois'
crew was that of shipfitting Around the time of completion
of the mattress barge job, Bourgeois and his crew were
returned to Repondent's Madisonville facility where Nor-
man Bourgeois and such crew normally worked
Bourgeois' credited testimony was to the effect that
approximately 40 employees were laid off from the mattress
barge during the time involved. Considering this testimony
in relationship to his credited testimony that pipefitters
Carroll and Laup resigned on August 11, 1969, and July
25, 1969, respectively, and that pipefitter Healy was dis-
charged for absenteeism on August 11, 1969, and in connec-
tion with the statistical picture set forth above, it appears
that terminations before July 10, 1969, were for reasons
unrelated to the specific layoffs involved herein.
Around the time of completion of the mattress barge,
on August 8, 1969, the Respondent transferred a number
of employees engaged in shipfitting on the mattress barge
to shipfitting on the lash barge program.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emory Larpenter, the foreman for the shipfitters who
had been working on the mattress barge, took a 2-week
vacation after the completion of the shipfitting work on
the mattress barge. After Larpenters' 2-week vacation he
was transferred as foreman to the lash barge program
replacing Foreman Armand Price who was then laid off.
The transfer of Larpenter and the layoff of Price was an
effectuation of Respondent's plan to reduce supervision
costs and a desire to utilize Larpenter's 25 years of
supervisory experience in shipfitting.
19. Bourgeois credibly testified to the effect that the
layoff of July 10, 1969, was determined as follows: There
were nine pipefitters working at the time. Carter, one
of the pipefitters, was not considered for retention because
he had indicated that he was going to resign It was
therefore decided that he would be laid off on July 10,
1969 Of the eight other pipefitters, it was decided that
Carroll, Eitman, Healy, and Laup were best qualified to
do the type of work required (testing and pipe work)
because their special knowledge of the systems they had
worked on would be useful in the testing of such systems.
The statistical data submitted is corroborative of the fact
that the four employees retained were the best qualified
of the eight remaining pipefitters.
2014 The facts are clear that Respondent 's need for
pipefitters as of July 10, 1969, was limited . Essentially,
the Respondent had a need for four pipefitters to complete
the testing and contract work on the mattress barge, and
a need for several pipefitters for maintenance work. As
to the maintenance work it appears that the Respondent
had in its employ two pipefitters doing maintenance work.
The facts reveal that the Respondent did not consider
Stone for retention as a regular pipefitter because it did
not consider its need for supervision to warrant his retention.
The Respondent did not consider Carter for retention
because he had indicated he was going to quit Of the
eight pipefitters remaining , the Respondent considered Eit-
man, Carroll , Healy, and Laup to be the best qualified
for the testing and controlling work because of their specific
work on the systems involved."
21 On July 10, 1969, the Respondent laid off pipefitters
Dietzway, Gray, Carter, Heckler, and Rome. At the time
Respondent laid off Foreman First Class16 Stone. Each
was given a layoff slip indicating that their layoff was
"reduction due to the fact of large government contract
completion."
" The facts are based upon Bourgeois ' credited testimony, the exhibits
in the record, and the logical consistency of all the facts
" The General Counsel contends and Stone testified to the effect
that others of the pipefitters had done some of the installations and
testing and that the pipefitters retained were new with the Respondent
Since the Respondent retained all first-class plumbers, excepting Rome
who had a lower pay scale, it appears that the Respondent's selection
of first-class pipefitters for the reasons indicated indicates nondiscriminato-
ry selection
16 A company designation indicating use in a supervisory category
but not within the statutory meaning of supervisor
Contentions and Conclusions
The General Counsel essentially contends that the facts
reveal a basis for discriminatory motivation and that this
coupled with the failure to retain Stone as in the past
reveals that Stone was discriminatorily laid off. The
Respondent contends that its layoff of Stone was based
upon nondiscriminatory considerations.
The facts do reveal a background basis for discriminatory
motivation, but I am not persuaded that the facts surround-
ing the layoff of July 10, 1969, reveal that Respondent
was discriminatorily motivated in its layoff of Stone on
July 10, 1969.
Ignoring the background facts related to the prior unfair
labor practice case, the selection of employees and supervi-
sors for layoff appears to have been on a nondiscriminatory
basis. Thus the issue essentially boils down to a consideration
of why Stone had been retained in the past and was
not retained as an employee on July 10, 1969. Considering
all of the facts, I am persuaded that the Respondent with
regard to the current layoff was more concerned with
cost cutting than it had been in the past Thus, although
Respondent laid off employees in the past and retained
Stone, at supervisory wages, there is no indication that
extreme cost economy problems were present at such time
as they were at the July 10, 1969, occasion Further, the
evidence as to past layoffs indicated an anticipated near
future need for the pipefitting services of Stone as a supervi-
sor. There is no such indication with respect to the July
10, 1969, layoff. Thus I am not persuaded that Respondent's
past temporary usage of Stone, at supervisory wages, as
a, regular pipefitter or shipfitter, reveals discriminatory moti-
vation in the failure to so use him after July 10, 1969.
Similarly, I find no evidence to warrant his retention after
July 10, 1969, over other supervisors retained. Nor do
I find the evidence to persuade of improper motivation
because the Respondent failed to retain Stone for nonsupervi-
sory work. In the past the economic picture was not of
the same tight retrenchment program. Therefore, retention
for temporary nonsupervisory work at supervisory wages
was not a problem On July 10, 1969, this economic problem
of a severe type did exist. Furthermore, the evidence does
not persuade that the failure to retain Stone for nonsupervi-
sory work at reduced wage rates reveals discriminatory
motivation. Stone's past conduct had revealed that he would
have been unhappy with a wage cut I have considered
the background evidence of Respondent's antiunion animus,
the threats related to Stone, the existence of reason for
possible discrimination against Stone, and all of the forego-
ing. In my opinion the totality of the facts reveals that
Stone was laid off on July 10, 1969, for nondiscriminatory
reasons."
I-, I have considered the fact that Healey, a plumber first class, retained on
July 10, 1969, was discharged on August H, 1969, for chronic absenteeism
The evidence does not reveal when such absenteeism occurred Assuming
an absenteeism problem prior to July 10, 1969 with respect to Healey, it very
well may not have been severe it is understandable as the need for pipefitters
decreased that the standard of conduct imposed in selectivity would
increase, In this regard the question of the effect of a pay cut on Stone and of
comparison of Healey's abilities with other regular pipefitters would indicate
a reasonable basis for the July 10, 1969, retention of Healey
EQUITABLE EQUIPMENT CO 581
Accordingly , it is concluded that the evidence is insuffi- RECOMMENDED ORDER
cient to establish that Respondent violated Section 8(a)(1)
and (3 ) of the Act by the layoff of Clifton R Stone Based upon all of the foregoing, it is recommended
on July 10, 1969 that the complaint in this matter be dismissed in its entirety