Heat Research Corp.

National Labor Relations Board - Board Decisions

Jun 2, 1979

243 N.L.R.B. 206 (N.L.R.B. 1979)

I)I:('ISIONS OF NATIIONAL L.ABOR RLA IIONS BOARD
Heat Research Corporations and United Steelworkers
of America, AFL-CIO. Case 16 CA 7557
June 29, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANI) MIEMBERS PENLI.()
ANI) TRIrESI)AI.E
On February 2. 1979, Administrative Law Judge
Peter E. Donnelly issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.' Both General Counsel and
the Charging Party filed brief's in support of the Ad-
ministrative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and bries
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.' as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
' Respondent has requested oral argument. his request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues and
the positions of the parties.
Respondent also has filed a motion to reopen the record and to abate
proceedings before the Board in an effort to introduce into evidence the
testimony of Peter von Wlesenthal, Respondent's president, as well as certain
documents not presented at the hearing. Respondent asserts that such evi-
dence supports its defense of economic necessity in laying off and discharg-
ing employees. The General Counsel filed an opposition to Respondent's
motion and a motion to strike the "statement of evidence to be presented"
attached to Respondent's motion. In iew of the fact that Respondent has
not demonstrated that such evidence is newly discovered or that it was un-
available at the time of the hearing, Respondent's motion to reopen the
record is denied. Wisconsin Rubber Products. Co.. Incr 160 NLRB 166. 167
(1966). The General Counsel's motion to strike is also denied.
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence cons inces us that the
resolutions are incorrect. Standard Drs' Wall Products Inc., 91 N.RB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 19511. We have carefulls examined the
record and find no basis for reversing his findings.
Additionally, we are satisfied that Respondent's contention that the Ad-
ministrative Law Judge was biased is without merit. In our opinion. there is
nothing in the record to suggest that his conduct at the hearing. his resolu-
ltons of credibility, or the inferences he drew were based on either bias or
prejudice.
We have modified the Administrative L.aw Judge's recommended Order
to include the full reinstatement language traditionally provided by the
Board. We also modify the proposed notice to conform with the provisions
of the recommended Order.
low, and hereby orders that the Respondent, Heat
Research Corporation, ongview, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order, as so modified:
1. In paragraph 2(a) insert "without prejudice to
their seniority or other rights and privileges previ-
ously enjoyed," after the words "to substantially
equivalent jobs."
2. Substitute the attached notice fr that of the
Administrative Law Judge.
APPEN[)IX
NO ll(C. To EPI OYIEES
PosrEi[) BY ORDER OF E1
NAIIO()NAI. LABO()R RI.I.Al'IONS BOARD
An Agency of the United States Government
W: Wll.. N coercively interrogate employ-
ees concerning their union membership or activi-
ties.
W w.VII.. NO solicit employees to establish
employee committees to represent employees
concerning working conditions.
Wl. wVi.. N threaten employees with dis-
charge for engaging in lawful union solicitation
of employees.
WI; WIl. NO'I create impressions of surveil-
lance of employees' union activity.
WE II.L. NO' threaten employees with loss of
contracts unless they cease their union activities.
Wi WIl.L. N()I request employees to retrieve
signed union authorization cards f'rom other em-
ployees.
WE WII.I. NoIr attribute layoffs and/or termi-
nations to the union activity of employees.
W}! wii.., NO1 lay off and/or terminate em-
ployees thereby discriminating in regard to their
hire and tenure of employment in order to dis-
courage membership in United Steelworkers of
America, AFL-CIO, or any other labor organi-
zation.
WE wll. NO' in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights guaranteed in Section 7 of
the Act.
WE WIl.l. offer the following employees imme-
diate and full reinstatement to their former jobs.
or if they no longer exist, to substantially equiv-
alent jobs, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and make them whole for any loss of pay they
may have suffered as a result of our discrimina-
tion practiced against them.
Joe B. C(lark
A. Crayton
W. C. Deason
G. Rodriguez
J. Silverman
A. Vona
243 NLRB No. 33
206
HEAT RESEARCH CORPORATIONS
T. P. Dillingham
B. E. Edwards
R. Garcia
J. R. Hammond
C. Haney
R. Howard
William Hughes
Jimmy Ivy
C. C. Johnson
A. L. Jones
T. Kuhn
T. A McCann
A. L. Nutt
J. Palmer
L. N. Perkins
H. Q. Phung
Steve L. Allen
Tony Bankston
Steven R. Hogg
Donald R. Mangum
John Minchew
H. A. Wallin
F. L. Wells
C. A. Williams
C. Beatty
A. D. Boyd
W. D. Echols
M. C. Denman
K. L. Fields
E. L. Gammons
B. Jeter
E. Mayo
J. R. Pomeroy
S. W. Proctor
T. J. Vail
J. W. Weaver
Quy Pham
Joe C. Smith
James H. Teague
Mike Weidman
Paul Self
FINDINGiS OF FA(UI
1. EMP.()OYReS BHSINESS
Employer is a corporation organized under and existing
by virtue of the laws of the State of Delaware. maintaining
a production operation in Longview. Texas, where it is en-
gaged in the manufacture of transfer systems and container
vessels. During the past 12 months Respondent purchased
goods valued in excess of $50.000 which were shipped di-
rectly to it from points located outside the State of Texas to
its plant in Longview. Texas. Based upon these facts. I con-
clude that the Employer is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
11. ABOR OR(iANIZAHON
The complaint alleges. at the hearing Respondent stipu-
lated. and I find, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
All our employees are free to become, remain, or
refrain from becoming or remaining members of the
above-named union or any other labor organization.
HEA I RESEARCH CORPORA HON
DECISION
STAIEMENI O() IlE CASEI
PETER E. DONNIi,.Y, Administrative Law Judge: The
charge herein was filed on October 13, 1977,'1 by United
Steelworkers of America, AFL-CIO, herein called the
Union or Charging Party. An amended charge was filed on
October 17 and a second amended charge on October 25. A
complaint thereon was issued on November 29 alleging that
Heat Research Corporation, herein called Respondent or
Employer, violated Section 8(a)(I) and (3) of the Act by
unlawfully coercing employees' and by unlawfully termi-
nating and/or laying offemployees. 3 An answer thereto was
timely filed by Respondent.4 Pursuant to notice a hearing
was held before me on April 5 and 6. May 9, 10, I . and
June 6. 1978. Briefs have been timely filed by the General
Counsel, Respondent, and the Charging Party which have
been duly considered.'
All dates refer to 1977 unless otherwise indicated.
2 Par. 7(b) was amended to add an allegation of unlawful solicitation by
Foreman Roy Lee on October I I.
3Par. 8 was amended at the hearing to add the name of Joe B. Clark as
laid off and/or terminated on October 10.
4 Respondent's answer was amended at the heanng to aver that W. H.
Hardwicke voluntarily terminated his employment on or about October II.
at the hearing Respondent introduced evidence to show that C. Holloway
was actually off the payroll due to a physical disability under workmen's
compensation, and the General Counsel takes no position as to them. In
these circumstances I cannot conclude that the General Counsel has met its
burden of proof to show that they were part of the general layoff and/or
terminations, and I shall dismiss the complaint as to them
5No opposition thereto having been filed, the General Counsel's motion to
correct record is hereby granted. except as to item 20, which is hereby cor-
rected to read "8(aX I)" and item 24, which did not appear at that location in
the record.
III. A .EGED() UNIFAIR I HABOR PRA( 11( i.S
A. Fct.l
1. Employer's operations
Respondent operates a production facility in l.ongslew.
Texas. engaged in the tilbrication of furnaces and heaters in
the petrochemical industry. The basic process involves
structural fabrication and coil fabrication. Structural fhbri-
cation is the construction of a steel box or container. Coil
fabrication is the assembls of pipe or coil going into the
box. The completed product is known as a confection box.
These operations utilize welders as basic craftsmen. with
coil fabrication requiring the more skilled workers.
2. Supervisor status of leadmen
At all times material. Respondent's Longvie k plant has
been under the overall supervision of a general manager.
Coy Moreland; Roger C(hurchman was the plant superin-
tendent. responsible to Moreland. General freman of the
structural department was William Miller. Roy Lee was the
coil department superintendent and assistant plant superin-
tendent. The supervisory status of these individuals is not in
issue: however, the supervisory status of certain other em-
ployees is in issue and must be resolved since certain 8a)( I)
violations have been alleged as to them. These individuals
' There is conflicting testimony regarding the 8a} I) alleg.litins of the
complaint as well as relevant incidents concerning the uniavlul lasoff termi-
nation allegations, including Minchew's discharge. In resolsing these con-
flicts I have taken into considerallon Ith apparent interests of the witnesses:
the inherent probabilities: the probabilities in light of other events corrobo-
ration or lack of iit and consistencies and inconsistencies within the testl-
mon) of each witness, and between the testimony of each and that of other
witnesses with similar apparent interests. In evaluating the iestlmony of each
witness I reb specifically upon his demeanor and have made mli findings
accordingly. While apart from considerations of demeanor, I hase taken into
account the above-noted credibhilit considerations: my failure to detail each
of these is not to be deemed a Ftilure on m? part to have fulls considered it.
Bishop and Mala',. Inc. d/h a 'alkcirs, 159 NI.RB 1159. 1I6l H1166)
207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are Carroll }arber and Muriel Williams in the coil depart-
ment, Donnie Goss and Gerald Moore in the structural
department. and William Agnor in the yard.
a. Carroll Harber and Muriel Williams
At the beginning of October the coil department em-
ployed about 30 employees under the overall supervision of
Roy Lee. Under Lee, with the title of leadmen, were Harber
and Williams. There were no foremen in the coil depart-
ment. The record indicates that both Harber and Williams
exercised substantial control over the assignment of tasks to
be performed by employees in the coil department on a
day-to-day basis, and also that they had the authority to
change the work assignments of employees. In those in-
stances when employees needed time off: the requests were
made to Harber or Williams who issued to them gate passes
to leave the plant. Further, it appears that at various times
when the coil department worked on Saturdays Lee would
not be present, and the operational control of the coil de-
partment resided in Itarber and Williams. Respondent ar-
gues that like the other employees, both punched timecards.
are hourly paid, and there are some welders in the coil
department who make a higher hourly rate. Further. nei-
ther has the authority to hire or fire other employees and
any authority exercised by them in directing the activities of
other elmployees is routine, not requiring the use of in-
dependent judgment. However, a careful review of the en-
tire record convinces me that the supervisory authority ex-
ercised by both of them in directing the work of other
employees is substantial, and that they both exercise suffi-
cient indicia of supervisory authority so as to constitute
them supervisors within the meaning of Section 2( 1 ) of the
Act.
b. Gerald Moore
Gerald Moore was the sole leadman in the layout divi-
sion of structural department. In early October layout em-
ployed some 23 employees under the general supervision of
Foreman Billy Jones to whom Moore reported. The entire
record herein, particularly the testimony of layout em-
ployee Steve Hightower, shows that Moore assigned work
to the employees within the layout division, and that he had
the authority to move employees from one assignment to
another. Moore also wrote work orders for maintenance
repairs within the division. It appears that Moore spent
very little time doing layout division work and was paid
substantially more than any other employee in the division.
When overtime was worked, in at least some instances,
Moore made the selection of employees to perform it. He
also had the authority to grant time off to employees at
least on a daily basis. Based upon these facts and the entire
record, it is my conclusion that Moore's supervisory author-
ity was more than routine, and that he exercised sufficient
indicia of supervisory authority to find, as I do, that he was
a supervisor within the meaning of Section 2(1 1) of the Act.
c. Donnie Goss
In early October Goss was employed as one of the two
leadmen in the fitting division of the structural department.
The fitting division employed about 30 employees and was
supervised by Foreman Charles Chromer to whom both
leadmen were responsible. It appears that Goss had the
authority to assign work to employees as well as the author-
ity to grant time off to employees as to both leaving early
on a daily basis and the granting of days off. Employees
who punched out early had their timecards signed by Goss,
who also issued gate passes for them to leave the plant. The
basic facts are not disputed since neither Chromer nor Goss
testified at the hearing. In these circumstances I am con-
vinced that Goss' duties constituted him a supervisor within
the meaning of Section 2(11) of the Act.
d. William Agnor
Agnor was employed in early October as one of two lead-
men in the yard under the general supervision of Jeff Rowe.
Both leadmen were paid more than any other yard em-
ployee. The record discloses that Agnor had the authority
to assign work to the yard employees and to reassign em-
ployees from one job to another, and that he normally per-
formed little manual work himself. On Saturdays yard op-
erations were supervised by the leadmen when Rowe was
not present. Agnor appears to have had the authority to
enforce discipline in the plant, and in at least one instance
he issued a written reprimand to an employee for damaging
plant equipment. Agnor had the authority to select employ-
ees for overtime work when the number of volunteers for
such work exceeded the demand. These facts and the entire
record indicate that Agnor's authority was not routine, and
that his duties constitute him a supervisor within the mean-
ing of Section 2( 1 ) of the Act.
3. 8(a) 1 ) allegations
a. lnlerrogatlion
Brad Edwards. an employee in the coil fabrication de-
partment, testified that on or about October 4 while he was
at work he was approached by Muriel Williams who told
him that a man had been seen passing out union cards that
day and described the man as tall with black hair. He asked
Edwards "off the record" if he were the man. Edwards de-
nied it. telling Williams that he did not know what he was
talking about. Williams denied any interrogation of em-
ployees but did not testify specifically as to this incident,
and I credit Edwards that he was so questioned.
In another incident on about October 4 while he was
working, yard employee Jeff Palmer testified that Agnor
asked him if he had signed a union card. Palmer denied
having done so although in fact he had. Agnor told him
that he was aware that some of the employees had signed
union cards and that he had better not sign one "that I'd
probably be fired." Later in the conversation he alluded to
earlier efforts to organize the plant and told Palmer that
management would close down the plant before they would
let a union in. On about October 7 Agnor again asked
Palmer if he had signed a union card, expressing the hope
that he had not and said that "they" were getting up a list
of people who had signed cards, remarking that those who
had would probably get fired.
208
HEAT RESEARCH CORPORATIONS
Agnor denies having asked the questions or made the
statements attributed to him by Palmer, but I find his deni-
als unconvincing and credit Palmer as to the substance of
these conversations. I also find that the queries made by
Williams and Agnor constitute unlawful interrogation in
violation of Section 8(a)(1) of the Act. Further. I find that
Agnor's remarks about the maintenance of a "list" of em-
ployees by Respondent constitute an unlawful impression
of surveillance as to the activity of employees in the solicita-
tion of union authorization cards. I also deem as unlawful
the threatening remarks made by Agnor to the effect that
union card signers would probably be fired, and that the
management would close the plant before allowing it to be
organized by the Union.
b. Solicitation of employees to establish an employee
grievance committee
On about October 4, according to Edwards, he was ap-
proached by Williams who suggested to him that the em-
ployees start their own organization and approach the
Company. On October II, the day after the first group of
terminations and layoffs, Williams told J. C. Smith, to coil
department employee, that the employees were crazy for
trying to unionize the plant, and when asked what could be
done about it, Williams suggested that he talk to the men
and "try to get them to get a committee together and orga-
nize a company employee relations type union."
Another incident occurred in the afternoon of October I I
in the layout department. Steve Hightower testified that
Gerald Moore met with a group of employees at the plant
and read to them a letter to the effect that the Company
was forming a committee of representatives from each de-
partment "to meet on a regular basis to discuss safety, job
classifications, rates of pay, any complaints any of the men
had." Each employee was asked to sign the letter. Hightow-
er testified that he asked to read the letter and after doing
so signed it. Some days later Moore polled the employees
who selected Donnie Bell to represent them. Hightower's
account of the incident is not disputed by Moore who actu-
ally corroborates the basic elements of Hightower's testi-
mony.
Similarly in the coil department, on October I I Roy Lee
met with the employees and suggested to them that they
elect an employee to represent them in discussing their
problems with management. A vote was taken among the
employees by Lee. Paul Self was elected as the coil depart-
ment representative. The essential elements of these ac-
counts are undisputed, and I credit the testimonies of the
General Counsel's witnesses in concluding both that the
incident occurred, and that such solicitation violated Sec-
tion 8(aXl) of the Act. Clearly, in these circumstances
where the Union is actively engaged in an organizational
effort, the Employer is not privileged to interfere with the
employees' organizational rights by attempting to establish
employee committees. It is apparent that such conduct by
an employer has the effect of demonstrating to the employ-
ees that a union is not necessary in order to solve their
problems. House of Mosaics, Inc., Subsidiary of Thomas In-
dustries, Inc., 215 NLRB 704 (1974).
c. ,o.-sohcitation rule
Brad Edwards testified that during a conversation with
Williams on October 4 he was told that employees could be
fired for distributing union cards "anytime on the jobh. on
company property, during our lunch periods- lunch break.
morning breaks, anytime we could be fired." In the same
vein, J. C. Smith testified that he was among a group of
employees told by Williams that employees could not pass
out union cards at various times including breaktimes and
lunch. Williams denies telling employees that they could
not pass out union cards during lunch or breaktime. but
concedes that he did discuss the matter of distributing
union cards. Williams testified, "I did discuss with a num-
ber of them that you know back in the days I had been in
the union many many years and back in the days that I was
in the union it just wasn't kosher to pass them out on com-
pany time and as advice, I said I didn't think it was a good
idea." I find the testimonies of Edwards and Smith to be
more persuasive, and I credit them over the denials of W\Vil-
liams. I also conclude that the remarks were coercive and
constitute interference with the rights of employees. In sub-
stance, they constitute a threat of discharge for engaging in
lawful solicitation. However. I do not conclude that these
remarks constitute oral promulgation of an invalid no-so-
licitation rule, absent more substantial promulgation to
substantiate a finding that the remarks were, in fact. a
"rule" of any significant general application.
d. Impression of surveillance by Williams
The General Counsel contends that certain statements
made by Williams created the impression that Respondent
was exercising surveillance over the union activities of its
employees. To support this contention the General Counsel
presented testimony from certain employees. Edwards testi-
fied, as recited above in paragraph 3(a), that on about Octo-
ber 4 Williams told him about a man he had seen passing
out union cards and described the man, asking if it were
Edwards. J. C. Smith testified that on October 4 he was told
by Williams, "Now. I know that you haven't got enough
signed union cards to pull off an election, you know get an
election out here, but anyway you need to get some of those
back. Get some of the signed union cards back." On about
October 10, according to employee Steve Hogg, in conver-
sation with Williams he was told by Williams that the em-
ployees were "crazy as hell" for trying to start a union and
that he knew everyone who has signed a card. Williams
denied having made any such statements to employees, but
I deem the testimonies of the General Counsel's witnesses
to be more reliable, and I credit them to the effect that the
statements were made. I further conclude that the state-
ments did convey to employees the impression that their
union activities were being surveyed by Respondent and
thus interfered with their organizational rights guaranteed
by Section 8(a)(1) of the Act. Kraco Enterprises. Inc.. 226
NLRB 22 (1976).
e. Williams' solicitation of employees to vwithdraw support
from the Union
J. D. Smith credibly testified, as noted above, that on or
about October 5 he was told by Williams to get some of the
2()
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed union cards back. On about October 10, sometime
before the terminations on that date, Williams went to em-
ployee Steve Hogg and, according to Hogg. said "a lot of
these guys listen to you and you can talk to them. You can
tell them to get their cards back." Hogg asked why he
wanted to get the cards back, and Williams replied, "To get
rid of them, because this company will close down and
move to another state before we'll let them go union." Em-
ployee J. Bruce Vona testified to a conversation on about
October I 11 in which Williams asked him and another em-
ployee Freddie Waits, "He asked us if we had any influence
over the men out there on the floor or could talk to them
about pulling their cards until at least we got some work in
there. We told him there was nothing we could do about the
Union." Williams denies having made such statements, but
I find his denials unconvincing, and I credit the testimonies
of the General Counsel's witnesses. I further conclude that
such solicitations to induce employees to solicit the retrac-
tion of signed authorization cards constitutes interference
with the 8(a)(I) rights of employees.
f. Attribution of Williams of the layoffs and terminations to
union activity
On about October 14, according to Vona, he asked Wil-
liams who was going to be laid off next, and Williams said
that "as long as the front office didn't hear any more Union
talk there wouldn't be anybody else." When Vona said
"Well, I raised as much hell as the next man, I've made as
many mistakes, why am I still here." Williams responded
that if he had anything to do with the Union he was over-
looked, not caught. Again I find Vona's testimony to be the
more reliable, and I credit it. I further conclude that such
remarks do have a coercive effect upon the organizational
rights of employees and constitute interference within the
meaning of Section 8(a)(1) of the Act.
4. Group layoffs and/or discharges on October 10 and 14
The Union's effort to organize Respondent's employees
began about September 26 when coil department welder
John Minchew made a telephone call to John Thomas, a
staff representative of the Union. Thomas was not available
at the time but later returned Minchew's call and set up a
meeting for September 29 to discuss organizing Respon-
dent. The meeting was attended by Minchew and coil de-
partment employees Edwards and Smith. The methods of
establishing a union were discussed, and a general meeting
with employees was set for October 3 which was attended
by 14 coil department employees. The matter of organizing
methods was discussed, and authorization cards were given
to Minchew for distribution to employees, which Minchew
accomplished. This distribution took place in the plant dur-
ing the week of October 3 by employees Minchew, Ed-
wards, and Smith.
On October 6 Coy Moreland held a meeting for all coil
department employees. At this meeting Moreland advised
the employees, inter alia, that there was no assurance that
they would obtain the coil work on a certain large Shell Oil
job involving 14 furnaces.7 and that Respondent was not
I Respondent was currently working on the structural portion of the Shell
Oil job.
the low bidder on the coil portion of the work. Moreland
told them that he was concerned that they would not get
any of the coil work on any of the 14 furnaces, but that
there was hope of getting at least a portion of' the coil work
on those furnances. Moreland also alluded to the fact that
their competitor for the work had to a renegotiate a union
contract, and that the stability of the Respondent's work
force would favor the possibility of obtaining some of the
work. At this point, according to Edwards, Carroll Harber
said, "In other words boys, if you don't stop this union
business we are going to lose the Shell contract." Moreland
disavowed Harber's comments. saying that was not the pur-
pose of the meeting.'
The first of the two group terminations and/or layoffs
occurred on October 10 when 39 employees were termi-
nated, 34 in the structural department and 5 from the coil
department. It is undisputed that the employees received no
advance notice of the terminations, and that they took
place on a Monday. I day before the end of the normal
payperiod.
It appears that despite the layoffs and terminations Re-
spondent did hire some employees during this time; 3 em-
ployees were hired in October, and 2 began work on the
date of the first terminations, October 10; 3 more were
hired in November, and II were hired in December.
Churchman explained that Respondent was always in need
of first class fitters and welders and would hire them any
time.
It is significant to understand how the Employer func-
tions. It is physically located at three separate locations,
operating as separate cost centers under the control of Von
Weisenthal. The offices in New York and Houston perform
sales and engineering work, while the plant as Longview,
Texas, is the production facility. Once a job comes into the
New York or Houston office, Longview is advised of the
details and told when it will have an opportunity to bid on
the production work. This information is provided to a Mr.
Jordan in Longview who prepares a "probable work" sheet
therefrom (Resp. Exhs. 57, 58, and 59t. Most of the work
performed at Longview is intracompany work, and suffi-
cient information is provided to Longview to enable it to
win the bid. However it may not always perform the work
even if it is intracompany work if a better price can be
obtained elsewhere, even from a competitor. As Moreland
testified, "they can't afford to pay a higher price for fabrica-
tion just because we have got a plant. So we have to com-
pete and whether or not we, you know, we adjust our price
even if it might be losing money to accept the work depends
on the need for that work in the shop in order to maintain
a shop load. Of course we can get and do get all the work
that we need as long as it is intracompany to keep our shop
busy. Price, we get a chance to modify our price but some-
times we have to accept a price less than what we would
like to have it at in order to be competitive." With respect
to intracompany work, Moreland testified that Longview
would also do some work below cost in situations where the
market was low because "the worst thing that can happen
to a manufacturing operation is to operate below the break
I Despite Moreland's disavowal I find that the remarks were made by
Harber, and that they were coercive in violation of Sec. 8(aX ).
210
HEAT RESEARCH CORPORAIONS
even situation so it is much better to book work at a loss
than it is to run at such a low level that ou hardly under-
absorb your expenses." The Shell Oil coil job was an excep-
tion to normal intracompany bid procedures, providing for
a sealed bid so that Longview had no better opportunity to
obtain this work than any competitor.
Respondent's witnesses recited the following accounts to
justify the terminations. Respondent claims that the Long-
view plant had not been a profitable operation: it showed
increasing losses through September 1977. In July 1977 Re-
spondent booked the large fabricating job with Shell Oil, as
noted above. The abnormally low bid on the Shell job re-
quired that the job be done cost efficiently, but Respondent
anticipated several large jobs which it looked forward to
receiving. These prospective jobs were for Arco-Dupont (a
joint venture of Arco Chemical Company and Dupont
Company), the TVA, and Pimex Company. These jobs
show as "probable" on work projections introduced by Re-
spondent (Resp. Exh. 57). The Shell Oil structural work was
undertaken largely to maintain the work force for this an-
ticipated work.
On about October 4, according to Respondent. these
large anticipated jobs for Arco-Dupont. TVA, and Pimex
"evaporated." The TVA job was lost when Arco dropped
out of the joint venture to build a petrochemical plant. as
shown by a newspaper article in the Wall Street Journal.
(Resp. Exh. 2). According to Moreland, he learned of the
dissolution of the joint venture on October 5 when the pres-
ident of the Company, Peter Von Weisenthal, visited the
plant. According to Moreland, the two met and discussed
the failure of the joint venture as well as the fact that Re-
spondent was not low bidder on the Shell coil work. How-
ever, at this time they still hoped to get perhaps half of the
coil work on the 14 Shell furnaces. In addition, they dis-
cussed the TVA job in view of the fact that TVA had re-
opened the bidding on the work, which eliminated the pos-
sibility of any immediate TVA work. In view of the loss of
this work it was decided by Von Weisenthal and Moreland
on October 5 that the work force would be cut immediately,
and the Shell structural job would be stretched out over a
longer period.' The Pimex job, which apparently involved a
contract with the Mexican Government. was lost when the
Mexican Government exercised its contractual option to
have the work performed in Mexico. The probable work
schedule was changed while Von Weisenthal was at the
plant on October 5 to reflect the loss of all this work.
A memo to this effect was sent by Moreland to Church-
man on about October 7, ordering a reduction in force be-
ginning with the less productive employees and setting Oc-
tober 17 as a date for further discussion. Later in the day on
October 7, according to Moreland, Von Weisenthal called
and told him instead to accomplish the reduction as soon as
possible. Moreland called Churchman and told him to have
a list of terminations ready on Monday, October 10, in the
amount of about 25 percent.
After getting these instructions, Churchman went to Wil-
liam Miller, the general foreman of the structural depart-
ment. Together Miller and Churchman evaluated the em-
ployees in the structural department and decided on a list
Von Weisenthal did not testify at the heanng.
of terminations. In the coil department RoN Lee. after re-
ceiving instructions from Churchman, made evaluations
and selections of employees tfor termination in that depart-
ment: none of the other fIremen or leadmen were consulted
on the selections.
On October 10 some 39 employees were terminated. Five
were terminated in the coil department and 34 in the struc-
tural department, all without prior notice to the employ-
ees.'' After these laoffs. according to Moreland. on about
October 12 he Asas advised b the Houston office. "prob-
ably Mr. Bozak," director of engineering,'' that the, had
lost the bid on the Shell coil work. Thereupon Moreland
instructed Churchman to get with Lee and reduce the man-
power in the coil department to only what was needed to
complete the work already in the plant since there was little
backlog and no immediate prospect of new work. Once
again Churchman and Lee made the selections tfor termina-
tion. Lee testified that the selection of welders for discharge
was made according to seniority. Ability as cited as the
basis for selecting the others. A total of seven employees
were terminated on Friday. October 14, in the coil depart-
ment.
5. John Minchew's discharge
John Minchew was a welder in the coil department: he
was described by coil department Foreman Lee as the best
welder he ever had. He was also, as noted above. the initia-
tor of the Union's organizational effort at the l.ongviesw
plant and was thereafter active in the union cause. In addi-
tion, these union sentiments were known to management.
Minchew credibly testified that on October 7 during a con-
versation with Williams about the Union Minchew invited
him to a union meeting; Williams declined the offer. Some-
time between October 4 and October 7 he also asked Carrol
Harber to sign up for the Union. but Harber declined.
With respect to the discharge incident, it appears that
near the end of the workday on October 14 Minchew was
called into the office of C'oy Moreland. Lee and Churchman
were also present. He was told by Moreland that he (More-
land) had information that Minchew had threatened the
family of another employee, and that he was therefore
being terminated. Minchew asked who it was that he was
supposed to have threatened, and Moreland refused to tell
him, saying that he did not want to disclose the identity of
the individual. Minchew was given the option of quitting
and being given a favorable recommendation or of being
discharged and getting a poor recommendation. Minchew
maintained that he had not threatened anyone and declined
to quit. Moreland fired him. Lee was not consulted about
the discharge and knew nothing about it until he went into
Moreland's office. Minchew was given no opportunity to
defend himself, and it is undisputed that the decision to
discharge him had been made prior to the time of the meet-
ing. Moreland testified that he did not ask Minchew for any
explanation of the matter because he did not want to iden-
tify the man who had been threatened out of fear for his
safety. Minchew was not aware until the time of the hearing
"0 Despite these layoffs want ads for production employees appeared in
several local papers from October 2 through 7. GC. Exhs. 6. 7, and 8.
11 Bozak did not testify.
211
I)ECISIONS OF NATIONAL, LABOR RELATIONS BOARD
who it was that he allegedly had threatened, an employee
named Ben Haden, and at the hearing he specifically de-
nied ever having threatened Haden.
Haden, however, testified that on October I in the plant
he was told by Minchew that if he did not watch out things
could happen to him or his family. Haden could recall
nothing else that was said and did not respond to Minchew,
but he took the rest of the day and the following day off to
check the welfare of his family. Haden testified that when
he returned to work 2 days later he complained in general
terms to Churchman about the incident but did not identify
Minchew. One or 2 days later Churchman called him into
his office, asked about the conversation, and asked if he
would identify the person who made the threat. At first
Haden demurred, saying that he did not want to get in-
volved, but then he agreed and named Minchew.
B. Anavsis and Discussion
Layoffs and terminations of October 10 and 14
It is the position of the General Counsel and the Charg-
ing Party that Respondent made the terminations and lay-
offs on October 10 and October 14 in order to thwart the
Union's organizational effort, and that the reasons offered
by Respondent to justify them were, in fact, pretexts de-
signed to disguise the real motivation.
Respondent, on the other hand, contends that the layoffs
and terminations were necessitated by the Company's fail-
ure to obtain certain large contracts. In my opinion, the
General Counsel and Charging Party must prevail. First of
all, let us examine the matter of the lost work, particularly
the Arco-Dupont, TVA, and Pimex jobs. With respect to
the Arco-Dupont job, Moreland testified that he was ad-
vised by Von Weisenthal that they had "lost" the job, pre-
sumably because the joint venture between Arco Chemical
Company and Dupont Company had dissolved. But to clas-
sify this as "probable" work appears to me to be unduly
optimistic. The record discloses that work on that job was
still far from being a viable possibility. It is undisputed that
Respondent had no contract to perform the job and had not
even bid on it. Nor is it clear from the record why Respon-
dent expected to obtain the Arco-Dupont work except that
it has a close association with the engineering construction
firm for whom it has historically performed production
work.
As to the TVA job, Moreland testified that he learned
from the sales company that they were working with that
the TVA was requiring the general contractors to rebid the
job, and that the performance of the entire project was in
doubt. Respondent had no contract to perform this work,
and apparently no contract had been let even to any gen-
eral contractor at the time of the hearing.
As to Pimex, Moreland testified that he learned sometime
after the first of the year that the Mexican Government
intended to exercise its contractual option to have the struc-
tural fabrication work performed in Mexico. 2 It is undis-
puted that Moreland was aware of this option but re-
12 The Pimex contract was not introduced into evidence.
mained'3 "hopeful" that its Longview plant would get a
chance to perform this work.
As to the Shell coil work, which Respondent relies upon
as necessitating the layoffs in the coil division on October
14, Moreland testified that he was aware during the discus-
sions with Von Weisenthal on October 5 that Respondent
was not the low bidder on the Shell coil work.' However.
despite this Moreland testified that he was hopeful of get-
ting part of the work anyway because they had performed
their last job efficiently for Shell. However, according to
Moreland, he was advised on or about October 12 by the
Houston office, apparently by a Bozak,.' that the Longview
plant would get none of the Shell coil work.
I do not believe that the work force was reduced because
of the failure of Respondent to obtain these jobs. The abil-
ity to secure these jobs was less than probable, essentially a
mere hope. It stretches credulity beyond reasonable limits
to conclude that Respondent made important business deci-
sions grounded upon such remote contingencies.
There are other compelling factors which convince me
that the layoffs and terminations were discriminatory. The
layoffs were made precipitously, the day prior to the end of
the normal payperiod. just after the Union's initial in-plant
organizational effort began. There was no advance notice
whatever to the employees and no consultation with any of
them, nor were their immediate supervisors consulted con-
cerning the layoffs and terminations.
Again, during the period in which the layoffs and termi-
nations took place, Respondent was advertising in newspa-
pers for employees and, in fact, did hire several, one even
while the layoffs were going on.
Finally, one cannot overlook the substantial 8(a)(1) and
(3) violations herein which evidence a strong antiunion
mentality on the part of Respondent, which I deem relevant
in reaching the conclusion that the layoffs and terminations
of October 10 and 14 were discriminatorily motivated.
Vada of Oklahoma, Inc., 216 NLRB 750 (1975).
C. Minchew's Discharge
General Counsel contends that Minchew was fired be-
cause of his union activity. Respondent, on the other hand,
contends that Minchew was fired for threatening another
employee. My evaluation of the evidence convinces me that
the General Counsel and Charging Party should prevail.
It is undisputed that Minchew was the moving force be-
hind the effort to organize Respondent's plant. This activity
1i These three jobs along with other smaller jobs are listed on the "prob-
able work" listings of Respondent. In reviewing the probable work listings
for August 25 (Resp. Exh. 56), of the 15 jobs listed in the structural depart-
ment, 6 were not performed by Respondent and I was partially performed.
In the coil division, out of eight jobs listed four were not done and two were
partially done.
'' Unlike most intracompany jobs the Shell coil work was a sealed bid
affair.
15 Bozak, like Weisenthal, did not testify, nor did any other managerial
representatives outside the plant itself. Therefore this record lacks substan-
tial and available documentation for the failure of Respondent to obtain the
Arco-Dupont. TVA, Pimex, or Shell coil jobs. Such testimony would have
been significant since Moreland was not privy to the basic discussions or
their ramifications but only advised that the work had been "lost." Nor were
any contracts introduced to support any of Respondent's positions as to the
Shell coil or Pimex jobs.
212
HEAT RESEARCH CORPORATIONS
is outlined in some detail above. It is also clear that Re-
spondent, through its agents. was aware the Minchew was
engaged in union activity on behalf of Respondent. The
Union's organizational activity was common knowledge by
the time Minchew was fired on October 14. But more par-
ticularly, as noted above, both leadmen in the coil depart-
ment, who are supervisors, knew that Minchew was a union
activist since he had approached them both, asking Wil-
liams if he would like to join a union and Harbor if he
would like to sign up.
Respondent attempts to justify this discharge by arguing
that Minchew was fired because he threatened another em-
ployee and his family. However, in this regard however I
note that while Haden did complain about an alleged
threat, the matter was thereafter pursued not by Haden but
by Churchman, who induced Haden to identify Minchew.
As to the substance of the threat. I credit Minchew's de-
nial that the threat was made: but even assuming that such
a threat was made, I would still conclude that it was not the
threat but Minchew's union activity which prompted his
discharge. In this regard I note that Minchew was Foreman
Lee's best welder. Against this background of Minchew's
unquestioned competence, I am asked to believe that he
was called in and discharged by the plant manager summa-
rily, without consulting Lee, and without so much as being
given the opportunity to explain his position, which basic
fairness would seem to require. Indeed, he could not have
done so since Moreland refused even to identify the alleged
victim of the threat. In these circumstances I conclude that
Minchew was discharged because of his activities on behalf
of the Union in violation of Section 8(a)(3) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent as set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section 1, above, have a close and inti-
mate relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged and is en-
gaging in certain unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act. I
have found that Respondent unlawfully laid off and/or ter-
minated 37 employees on October 10, 1977, and unlawfully
laid off and/or terminated 10 employees on October 14,
1977, including John Minchew. I shall therefore recom-
mend that Respondent make these employees whole for any
losses of pay which they may have suffered as a result of the
discrimination practiced against them. The backpay pro-
vided for herein, with interest thereon, to be computed in
the manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). '6
Upon the basis of the foregoing findings of fact and con-
'See, generally. Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
clusions and upon the entire record in this case, I hereby
make the following:
CONCI.USIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and 7) of the Act.
2. United Steel Workers of America, AFL-CIO. is a la-
bor organization within the meaning of Section 2(5) of the
Act.
3. By interfering with. restraining. and coercing employ-
ees in the exercise of the rights guaranteed them in Section
7 of the Act, Respondent has engaged in and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. By laying off and/or terminating employees named
below on October 10, 1977, in order to discourage member-
ship in the Union, Respondent has violated Section 8(a)(3)
of the Act.
Joe B. Clark
A. Crayton
W. C. Deason
T. P. Dillingham
B. E. Edwards
R. Garcia
J. R. Hammond
C. Haney
R. Howard
William Hughes
Jimmy Ivy
C. C. Johnson
A. L. Jones
T. Kuhn
T. A. McCann
A. L. Nutt
J. Palmer
L. N. Perkins
H. Q. Phung
G. Rodriguez
J. Silverman
A. Vona
H. A. Wallin
F. L. Wells
C. A. Williams
C. Beatty
A. D. Boyd
W. D. Echols
M. C. Denman
K. L. Fields
E. L. Gammons
B. Jeter
E. Mayo
J. R. Pomeroy
S. W. Proctor
T. J. Vail
J. W. Weaver
By laying off and/or terminating the employees named
below on October 14, 1977, in order to discourage member-
ship in the Union, Respondent has violated Section 8(a)(3)
of the Act.
Steve L. Allen
Tony Bankston
Steven R. Hogg
Donald R. Mangum
Mike Weidman
Quy Pham
Joe C. Smith
James H. Teague
Paul Self
John Minchew
5. Respondent did not violate Section 8(a)(3) of the Act
as to employees C. Holloway and W. H. Hardwick.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
National Labor Relations Act as amended, I hereby issue
the following recommended:
ORDER 7
The Respondent, Heat Research Corporation, Longview,
Texas. its officers, agents. successors, and assigns shall:
11 In the event no exceptions arc filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
(Continued)
213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union membership or activities.
(b) Soliciting employees to establish employee commit-
tees to represent employees concerning working conditions.
(c) Threatening employees with discharge for engaging
in lawful union solicitation of employees.
(d) Creating impressions of surveillance of' employees'
union activity.
(e) Threatening employees with loss of work contracts
unless they cease their union activities.
(f) Requesting employees to retrieve signed union autho-
rization cards from other employees.
(g) Attributing layoffs and/or terminations to the union
activity of employees.
(h) Laying off and/or terminating employees thereby
discriminating in regard to their hire and tenure of employ-
ment in order to discourage membership in United Steel
Workers of America, AFL-CIO, or any other labor organi-
zation.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which I find is
necessary to effectuate the policies of the Act:
(a) Offer to the following employees immediate and full
reinstatement to their former jobs or. if those jobs no longer
exist, to substantially equivalent jobs and make them whole
for any loss of pay which they may have suffered as a result
of the discrimination practiced against them in the manner
set forth in the section of this Decision entitled "The Rem-
edy."
Joe B. Clark
A, Crayton
W. C. Deason
T. P. Dillingham
B. E. Edwards
G. Rodriguez
J. Silverman
A. Vona
H. A. Wallin
F. L. Wells
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
R. Garcia
J. R. Hammond
A. D. Boyd
R. Howard
William Hughes
Jimmy Ivy
C. C. Johnson
A. L. Jones
T. Kuhn
'. A. McCann
A. L. Nutt
J. Palmer
L. N. Perkins
H. Q. Phung
Steve L. Allen
Tony Bankston
Steven R. Hogg
Donald R. Mangum
John Minchew
C. A. Williams
C. Beatty
C. Haney
W. D. Echols
M. C. Denman
K. L. Fields
E. 1.. Gammons
B. Jeter
E. Mayo
J. R. Pomeroy
S. W. Proctor
T. J. Vail
J. W. Weaver
Quy Pham
Joe C. Smith
James H. Teague
Mike Weidman
Paul Self
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security records and reports, and all other
records necessary to analyze the amounts of hackpay due
herein.
(c) Post at its production facility in Longview. Texas,
copies of the attached notice marked "Appendix."l8 Copies
oi' said notice, on forms to be provided by the Regional
Director for Region 16, after being duly signed by Respon-
dent's authorized representatives, shall be posted by Re-
spondent immediately upon receipt thereof; and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 16. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
ts In the eent that this Order is enforced by a Judgment of a United
States court of appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
214