Puritech Industries, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1979

246 N.L.R.B. 618 (N.L.R.B. 1979)

I)E(ISIONS OF NATIONAIL I.ABO()R RLATlIONS BO()ARI)
Puritech Industries, Inc. and Carpenters' Local Union
No. 331, U.B.C., United Brotherhood of Carpenters
& Joiners of America, AFL-CIO-('LC. Case 5
CA 9962
November 30. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MlMBHliRS JIENKINS
AND MURPHY
On July 27. 1978, Administrative Law Judge Jose-
phine H. Klein issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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-
thoritv 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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order to the extent consis-
tent herewith.
We agree with the Administrative Law Judge's
finding that Respondent violated Section 8(a)(1) by
threatening to shut down its operation if its carpenter
employees chose the Union as their exclusive bar-
gaining representative and by threatening to dis-
charge employees if they should go on strike. We dis-
agree, however, with her finding that Respondent's
failure to recall certain carpenter employees from lay-
off was discriminatorily motivated.
Respondent is a subcontractor performing concrete
work for the construction of a water treatment plant
in Norfolk. Virginia. In early fall 1978,2 Respondent's
work had fallen behind schedule to the extent that it
reorganized its supervisory hierarchy and retained
Jax Concrete Company to direct the concrete work.
On September 7, Respondent laid off six of its carpen-
ters and, on September 18, it laid off all but three of
the remaining carpenters. It is undisputed that these
layoffs were occasioned by a shortage in materials
and Respondent's need to devise a practicable sched-
ule for completion of the work. Respondent resumed
its concrete work 2 weeks later, and began recruiting
carpenters through newspaper advertisements and
jobsite applications. Respondent did not recall any of'
the carpenters it had recently laid off. It did, however,
hire four laid-off carpenters who applied at the job-
site.
Respondent has requested oral argument. This request is herehb denied
as the record, the exceptions, and the brief adequately present the issues and
the positions of the parties.
2 All dates herein refer to 1978.
Respondent had no policy of' recalling employees
from layoff and had never done so. However, the Ad-
ministrative Law Judge concluded that this fact did
not reasonabl explain Respondent's hiring new em-
ployees rather than those laid off. The Administrative
l.aw Judge found that West, president of Jax ('on-
crete. had stated that the September 7 layoff was tem-
porary and that the employees would he recalled
when needed. She further found that, in the absence
of evidence to the contrary, the same intention ap-
plied to the September 18 lavoff. In addition, the Ad-
ministrative Law Judge noted evidence that Respon-
dent had encountered difficulty in obtaining
competent workmen following the layoff. She found
that the only reasonable explanation for Respon-
dent's failure to recall the laid-off carpenters was that
on September 20, after the layoffs, the Board had di-
rected a representation election in the unit. The Ad-
ministrative Law Judge concluded that Respondent
had abandoned its intention to recall the laid-off'car-
penters in order to avoid unionization.
Contrary to the Administrative Law Judge. we find
that a preponderance of the evidence does not estab-
lish that Respondent's failure to recall its laid-off car-
penters was discriminatorily motivated.
Despite Respondent's unlawful threats to shut
down its operations. it is undisputed that the Septem-
ber layoffs were solely the result of' economic consid-
erations. And Respondent in common with much
of the construction industry had no policy of recall-
ing laid-off employees. There is no allegation or evi-
dence that, in advertising for carpenters, Respondent
attempted to conceal either its identity or that it had
resumed operation. We also find it significant that
four laid-off' carpenters were hired upon applying at
the jobsite.' Indeed. if Respondent were attempting to
avoid hiring the carpenters it had laid off: the method
it chose for hiring employees after the layof's was not
particularly effective in obtaining that end. T'herefore,
unlike the Administrative l.aw Judge, we draw no
inference of discriminatory motive from the fact that
Respondent, when faced with a difficulty in hiring
competent workmen. failed to seek out the employees
on layoff and adhered to its consistent practice.
Nor do we agree with the Administrative Law
Judge's reliance on evidence that West, who was in
charge of the concrete work, stated the carpenters
laid off on September 7 would be recalled when
needed, and on her extension of that statement, West
'I he Admilnistrative aw Judge iound that Ivo laid-ofl carpenters at-
tempted to apply tot rehire but were told that Respondent was not hiring at
the tnle Hlowever. there is no e dence that Respondent had a need or
carpenters that da. and. theretore. we cannot conclude that these employees
ucre reitled ditlerenl from other applicanlts
246 NLRB No. 98
618
PULRITECH INDISTRIES. INC
had been on the job only I day and. therefore, it can-
not be readily assumed that he was familiar with Re-
spondent's contrary employment practice. In any
event, we are unable to conclude that West's single
statement establishes Respondent's intention to
change its practice and recall the carpenters.
Respondent's opposition to the Union-even
though exceeding lawful limits- did not obligate it,
upon lawfully laying off employees, to do that which
it would not have otherwise done. Following the lay-
offs, Respondent replenished its work force in the
same manner in which it had in the past and, in fact.
hired four laid-off carpenters who applied at the job-
site. In the absence of evidence sufficient to establish
that Respondent, contrary to its longstanding prac-
tice, intended to recall the laid-off carpenters, we can-
not conclude that Respondent did not recall them be-
cause of the Union.
Therefore, we shall dismiss that part of the com-
plaint alleging that Respondent discriminatorily
failed to recall the carpenters from layoff.4
AMENDED CNCt. USIONS OF LAW
Substitute the following for the Administrative
Law Judge's Conclusion of Law 4 and delete her
Conclusion of Law 5:
"4. The Respondent did not violate Section 8(a)(3)
of the Act by failing to recall certain of its carpenter
employees laid off on September 7 and 18, 1978."
ORDER
Pursuant to Section 10(c) of the National abor
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-
low, and hereby orders that Respondent, Puritech
Industries, Inc., Norfolk, Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph A,3, of
the recommended Order:
"3. In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act."
2. Delete paragraph A,4.
3. Delete paragraphs B.., and B,2, and renumber
the subsequent paragraphs accordingly.
4. Substitute the attached notice for that of the
Administrative Law Judge.
4Respondent's 8(a I) conduct alone does not warranl the hroad order
recommended b the Administrative .aL Judge. See Aowtll ;Food,. 1 .
242 NLRB 1357 1979)
A PPI N DIX
No H1(I: TO I 'i A)YI I!S
PosInl) BY OR)DER ()F 111-
NAIIONAI L.ABOR( R li.AIl()NS B.(ARI)
An Agency of the United States Government
After a full hearing, at which all parties had the op-
portunity to present their evidence, it has been found
that we have violated the National l.abor Relations
Act, as amended, and we have been ordered to post
this notice. We intend to abide by the following:
WE it11.1 NOI threaten employees that the
project on which they are working will be or may
be closed down if they choose to be represented
by Carpenters' Local Union No. 331, U.B.C..
United Brotherhood of ('arpenters & Joiners of
America. AFL-CIO CLC. or any other labor or-
ganization.
WE Wj.L. NOI threaten that employees will be
discharged if they go out on strike.
Wt WIIt. NOT in any like or related manner
interfere with, restrain. or coerce any employees
in the exercise of their rights guaranteed in Sec-
tion 7 of the Act.
All our employees are free to become or remain, or
to refrain from becoming or remaining, members of
Carpenters' Local Union No. 331. or any other labor
organization.
PURIIE(C INI ) SIRIIS, IN( .
DECISION
SIAIItMINI 01i 1111 (CASI
JosiinlsNi- H. KEIN, Administrative Law Judge: Pursu-
ant to a charge and two amended charges filed on October
2 and November 20 and 28. 19 7 8 ' respectively. hb Carpen-
ters' Local Union No. 331 (the Union). a complaint as
issued against Puritech Industries. Inc. (Respondent) on
November 28. alleging that Respondent. through its general
carpenter foreman. had (I) violated Section 8(at)(I) of the
Act2 by threatening that the project on which the, were
working would be closed down and the carpenters might be
discharged because of their seeking representation by the
Union. and (2) was in violation of Section 8(a)(3) h tailing
to recall and reinstate laid-off employees because of their
union activities.
Upon due notice, a hearing was held before me in Nor-
folk. Virginia. on March 26, 1979. All parties ere repre-
sented and were afolrded fiull opportunity to present oral
and written evidence and to examine and cross-examine
witness. The parties waived oral argument. Post-trial brietfs
have been filed on behalf of the General Counsel and Re-
spondent.
I :nless otherwlse specified, all dates herein ;ire in 1978
2 Naltinal lIahr Relations Act. as amended. 29 I St' l I t q
619
DE2CISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the whole record, careful observation of the wit-
nesses, and consideration of the briefs, I make the follow-
ing:
FINI)IN(iS () FA(T
I. I'RII.IMINARY FINI)IN(iS
A. Respondent, a Delaware corporation, with its princi-
pal offices in New York, is engaged in the construction and
expansion of a water treatment plant in Norfolk, Virginia.
During the preceding 12 months, a representative period,
Respondent purchased and received at the Norfolk project
materials and supplies valued in excess of $50,000 from
points located outside Virginia. Respondent is, and was at
all times material herein, an employer engaged in com-
merce within the meaning of Section 2(2). (6), and (7) of the
Act.
B. The Union is, and was at all times material herein, a
labor organization within the meaning of Section 2(5) of the
Act.
II. I'HI AIL.EiI) UNFAIR I.ABOR PRACI'ICES
A. Chronology
Around the beginnning of 1978. Respondent commenced
performance of the concrete work at a water treatment
plant in Norfolk, Virginia, as a subcontractor under Grum-
man ECOSYSTEMS, the prime contractor and Respon-
dent's parent corporation. Respondent employed princi-
pally laborers, cement finishers, and carpenters. Gilbert
(Pat) Driver. general carpenter foreman, hired the carpen-
ters. tie testified that a wage schedule had been established
by the Government and that, pursuant to instructions, he
showed that schedule to each carpenter when he was hired.
Driver informed the carpenters that the schedule rates
would apply "throughout the job."
In June, when the present saga begins, Driver worked
directly under William McClane. project superintendent.
There were then about 20 carpenters, in addition to Driver.
on the job.
Early in June a union organizing campaign began. lead-
ing to the Union's filing a representation petition on June
12. However, the Regional Director dismissed the petition
on August 15. On or about August 23, all 16 carpenters
signed a petition to the Board seeking reversal of the Re-
gional Director's dismissal.
Donald Anspacher, construction manager for ECOSYS-
TEMS, the prime contractor, testified that by August "se-
vere schedule slippage" had developed in the concrete op-
eration. In an attempt to correct matters, changes were
made in the supervisory hierarchy. McClane, who had been
project superintendent. "was given full charge of the job,"
and Driver remained general carpenter foreman. Larry El-
dridge was hired as McClane's assistant.
According to Anspacher the changes in management per-
sonnel did not solve the problems. Accordingly, he called in
Jax C'oncrete Company. Although it was stipulated that
Jax's role was simply that of a consultant, there is no ques-
tion that it assumed active direction of the operation. On
September 6 Richard West. Jax's president, arrived and
spoke with all the foremen. T'he next day,. pursuant to
West's direction, two carpenters were "laid off" from each
of the three crews.'
On hursda. September 14. Edward Wierbach began
serving as the new superintendent of concrete. By this time
many employees had become dissatisfied, principally be-
cause of the "layoffs." of September 7 and the concomitant
greater demands made on the remaining employees. Thus,
on Friday, September 15. a few carpenters and other craft
employees4 announced that they were quitting. However,
West persuaded them to remain on. However, on Monday.,
September 18. the next workday, all except three of the
contractors were summarily "laid off." The three carpenters
remaining were then joined by a fourth, whom Wierbach
had brought with him from Florida.
On September 20 the Board issued an order reversing the
Regional Director's order and directing an election. The
election was held on October 17. However, because there
were nine challenged ballots, no tally of ballots or certifica-
tion has ever been issued. The voters challenged apparently
were "laid off" carpenters, so the decision in the present
complaint proceeding may be determinative of the repre-
sentation proceeding.
Early in October Respondent began hiring carpenters.
placing newspaper advertisements in October and Novem-
ber and again shortly before the present hearing on March
26. 1979. At the time of the hearing Respondent had about
20 to 25 carpenters, 4 of whom had previously been laid offil
and later applied for rehire. Two other laid-off carpenters
made abortive attempts to be rehired. Respondent did not
seek out laid-off employees.
On October 2 the Union filed its original charge alleging
that Respondent violated Section 8(a)(3) and (I) on Sep-
tember 18 by terminating 15 named employees because of
their union activities. An amended charge, filed on Novem-
ber 20, made some changes in the list of alleged discrimi-
natees, concluding that 13 employees had been unlawfully
"terminated" on September 7 and 18. 'Ihe second amended
charge, filed on November 28. listed the same 13 employees
as having been "laid off" (rather than terminated), and
added a generalized allegation of Section 8(a)( I) violations
since May 15, The complaint, dated November 28, contains
allegations of two threats in violations of Section 8(a)( I)
and violation of Section 8(a)(3) by "failing and refusing to
recall" the 13 employees named in the amended charges.
The complaint does not allege that the layoffs of September
7 and 18 were violative of the Act, and at the hearing the
General Counsel expressly disavowed any such contention
B. 4 llcgcd (a)( I) 'io ltions
I. The evidence
The complaint alleges that during late June and/or July.
D)river threatened that the job would be closed down if the
employees chose to be represented by the Union and that
Respondent was "considering firing all carpenters and get-
I he record is eitrel> clear as io the prcic e number lo carpenters at that
time.
Apparently the whole crey working with (arpener Foreman Auhrey W.
H:anon
620
Pt RIII 1('1 IN)t SI RII.S. INC.
ting a new crew because I the emplo) ees selected the l nion
to represent them."
The evidence establishes thatl [)river, generally known to
he a longtime member of the nion. \vas friendl's with and
well liked by the carpenters on the job. or example, em-
ployee Paul Key, Ir., himself a union member for manis
years, testified that on the Puritech job he considered
Driver to be both "a member of management" and a fellos,;
employee and union member. Similarly, William (C. Sprin-
kle. who was in charge of' one crew working under l)river
testified that Driver "was more or less of mediator between
Ithe employees] and the superintendent of [the emplo'ees']
grievances ... lie was more or less a carrier of what Was
going on between the men and the superintendent." FIm-
ployee Robert Goldston referred to )river as '"rielldlN
and "a nice man."
The evidence is undisputed that D)river frequently dis-
cussed the Union with the carpenters, most often at lunch
in the carpenters' shack. Driver did not attempt to influence
the men either for or against the Union, consistently saying
that it was up to each man freely to make his own decision.
The evidence further establishes that McClane refrained
from seeking directly to influence the employees' conduct.
However, Driver's testimony belies any claim of aclual neu-
trality or lack of concern on McClane's part. At the outset
it should be noted that Respondent called L)river as a wit-
ness. In its brief. Respondent urges that [)river's testimon
be fully credited' While I do not entirely share Respon-
dent's unqualifiedly favorable opinion of l)river's credibil-
ity," his testimony is largely uncontradicted and is generally
credited. In appraising the evidence it is also important to
note that Respondent did not call Mc(lane, the alleged
source of the threats made by Driver.
Employee Key testified to two conversations in which
Driver in effect made threats. The first occurred late in June
or early in July, shortly after the first union organizalional
meeting. According to Key. at that time Driver said that
McC'lane "had considered firing the whole crew because of
the attempted union organization." In the second conversa-
tion. late in August. [)river said that Mc('lane "was angry
and that if he ever found out who signed the petition the
entire crew would he fired."' The "petition" referred to was
dated August 23. It was signed by all the carpenters and
sought, successfully, to have the Board reverse the Regional
Director's dismissal of the representation petition.
Similarly, Sprinkle testified that at one point Driver
"brought back to us that the superintendent of Puritech
[McClanel . . . was very upset about what was going on
about the union. That if he found out who was signing
cards, that they would be terminated." On redirect exami-
nation. Sprinkle placed this conversation at the end of Au-
The brief states: Respondent submits that he Administrative t.aw
Judge should credit the testimony of Pat Driver concerning the statements
made Dnver's overall testimony during the hearing was forthright and to
the point His testimony is consistent and revealing."
' For example, Driver al first denied that he had told employees "that it
the Union came n . the employer might close the job down" Howeser.
having been shown his pretrial affidavit, after some equivocaitin he con-
ceded that "at least" twice he told emplosiees that their nionimllion "may
cause a job shutdown
At another point, Key indicated that the threat was to discourage only
those employees who signed the petition Since all the carpenters signed the
petition. the slight variation in Key's testimony is iof no significance
gust. I tius l)rivrer was probahls refeirring. not to the sign-
ing of' atilhtri;atlion cards. but rather to signing the petition
to the Board, dated August 23.
1mploee" Auhbre W. Banton testified that I)river had
"said t as a good thing that we didn't sign that paper. Bill
Mlc('lante said to him that ift he knew who signed the paper
he would fire him whether he was a union man or not."
Nevertheless, Banton. like the other carpenters, signed the
petition to the Board.
llonias J. Robbins, Sr., testified that the petition had
been placed in open ves in his work area because he was
cetntratils located. lie further credibly testified that West
examined the petition and copied the names of employees
who had signed."'
In large part D)river corroborated and substantiated the
employee testimony. I)river indicated that, while Mc('lane
handled both union and nonunion jobs, if a job started out
as nonunion, he would not permit it to convert to a union
project. According to Driver McClane had told Driver
"that Puritech would not go union, under no conditions."
Driver "was under the impression that they were not going
union" because McClane told him so. [)river also testified
that he told the employees that "the union probably
wouldn't come in on that job because [he] knew field men of'
Puritech Industries." He also acknowledged that "at least"
twice he informed the carpenters that the advent of the
Union as the carpenters' representative "might result in the
job being closed down." He based this opinion on
Mc('lane's previous statement that under no conditions
would Puritech "go union."
Driver also specifically testified that when Mc('lane
learned, in August. that the carpenters were contemplating
going on strike. he told D)ri er that "any man who did not
show up he was as good as fired. "ll That they would be
replaced." I)river testified that he was "pretty sure" that he
passed this message on to the employees. His testimony
continued. in part:
Q. Did you use the word "replace" or did you use
the sord "fired?"'
A. Probably both because I told them ift' they didn't
show up. they were automatically fired; that they
would be replaced.
2. Discussion and conclusion
The evidence, including [)river's testimony as a witness
for Respondent. leaves no doubt that Driver did inform
carpenter employees that their choosing to be represented
by the Union might result in closure of the job and that any
employee going on strike would be automatically fired. It is
true that the evidence does not clearly show that such
threats were made in June and/or July. as alleged in the
complaint. However, it is clear that the threats were made
I Banton testified that he "was supposed to be a loreman" but was paid as
a "pusher"
9 Since West did not estify Robbins' testimon) was ncintradlcted
,0 Respondent's brief states that "river Instigated the petilon." Respon-
denl cites testimons ,t Robbins that "D)river said tr were getting up a
petition." (Emphasis supplied Robbins' subsequent tesuimon, establishes
that [)rlier did not help in preparing the peition and that he merels slid "ts
up to, the ind, idual If' they wanted toi sign it"
'l Apparently the carpenters had actal ils sited t strike. but then called II
off
621
I)t:('ISIONS OF NATIONAL LABOR RELATIONS BOARI)
during the summer of 1978 during the Union's campaign to
become the carpenters' bargaining representative. The mat-
ters were fully litigated, and much of the probative evidence
was provided by Driver, Respondent's witness. Thus, any
error or lack of precision concerning the dates is insignifi-
cant and nonprejudicial to Respondent.
Respondent also contends that the evidence fails to es-
tablish that Driver's threats were precisely the same as
those alleged in the complaint. For example, one of the two
Section 8(a)( 1 ) allegations accuses Respondent of threaten-
ing that it was "considering firing all carpenters, and getting
a new crew, because they selected the union to represent
them." Respondent contends that "the alleged statement
would not have been made ... because the Respondent's
carpenters have never selected the charging party union in
this case." Whatever the semantics involved, Respondent
could have made the threat if it believed the employees had
chosen union representation even if its belief was erroneous.
Such belief on Respondent's part would have been well jus-
tified. Since all the carpenters signed the August 23 petition
to the Board, and West had taken down the names of the
signers, it would be reasonable for Respondent to conclude
that at least a majority probably favored the Union. Addi-
tionally, the carpenters discussed the Union freely and
openly in D)river's presence. [)river thus undoubtedly knew
the employees' sentiments, and his knowledge as a supervi-
sor is attributed to Respondent. In any event, the complaint
was certainly sufficient to inform Respondent of the general
nature of the violations charged. Any variations between
the complaint and the evidence are insubstantial and do not
warrant ignoring violations that have been proved."
Respondent contends that Driver's statement that any
carpenter who went on strike would be automatically dis-
charged was nonviolative because it "accurately expressed
the state of the law as it effects [sic] the replacement of
economic strikers from the position of a layman." Respon-
dent says that Driver consistently testified that he used the
word "replaced" in speaking to the employees. However, he
testified that he also used the word "fired," and he quoted
McClane to the same effect.
Contrary to Respondent's argument, the concepts of
"discharge" and "replacement" are not interchangeable.
even "in Tidewater, Virginia. . ... i]n an industry which
relies on the day-hire concept, and where there are no recall
rights." Notwithstanding the absence of a recall practice,
under the Act, as implemented by The Laidlaw Corporation
171 NLRB 1366 (1968), and numerous subsequent deci-
sions, economic strikers have the right to immediate rein-
statement upon request at any time until they are actually
permanently replaced." Since Respondent maintains it
keeps no lists of former employees or potential new employ-
ees, it would appear improbable, if not impossible, for it to
replace strikers "immediately." The Board, with court ap-
proval, has consistently held that, while an employer may
notify employees that they are subject to being permanently
replaced if they go on strike, he may not lawfully' say that
they will be discharged or terminated if they go on strike.
" Since the only (aX 1) violations alleged are threats, no consideration is
here given to whether West engaged in unlawful surveillance in copying the
names of the carpenters who signed the petition.
13 And limited reinstatement rights even after having been permanently
replaced.
Buddies Supermarke.ts, In.. 192 NL.RB 1004. 1011 (1971).
enfd. 461 F.2d 847 (5th (ir. 1972): cf. Mlaxville Stone (om-
panv, 166 NL.RB 888, 890 (1967).
Respondent's major argument appears to be that Driver's
statements were not actually coercive. This contention is
based on the facts that Driver was very friendly with the
carpenters and his statements were made under casual and
friendly circumstances: that neither Driver nor McClane
expressed disapproval of unionization, but, on the contrary,
told the employees that each of them should make his deci-
sion freely. Additionally, union business agent Kenneth
Lancaster quoted McClane as having said he had no objec-
tion to unionization of the carpenters.
Respondent's argument is without merit. That McClane
paid lip service to the employees' statutorily protected right
to free choice does not negate an intention to prevent
unionization by any means, fair or foul. If this were his
intention, he could do nothing more effective than reveal
his intention to Driver, who was known to be friendly with
and trusted by the employees. It would be reasonable for
McClane to believe that Driver, out of friendship to the
carpenters, would warn them of the potential cost of choos-
ing union representation. McClane thus could achieve his
purpose without himself committing any unfair labor prac-
tices. Since McClane did not testify, it cannot be said that
he consciously engaged in such duplicity. But it is clear that
Driver was in an advantageous position to do Respondent's
dirty work.
That Driver was known as a veteran union member and
was friendly with the men under him made his statements
all the more coercive, since the carpenters could be ex-
pected to take very seriously any warnings given by [)river.
The Board and the courts have repeatedly recognized
that amicability between employees and their supervisor
may exacerbate rather than ameliorate the coercive ten-
dency of conduct by the supervisor. See e.g., .L.R.B. v.
Big Three Industrial (Gas & Equipment Co.. 579 .2d 304,
311 (5th Cir. 1978), where the court, distinguishing federal-
Mogul Corp. v. N.L. R.B.. 566 F.2d 1245 (5th Cir. 1978), on
which Respondent here relies, said:
[S]ocial relationships in themselves are not a sufficient
basis to lift acts of illegal interference from the scope of
the Company's responsibility. Friends can unlawfully
threaten their friends. Indeed, warnings of Company re-
taliation cast a flriendi' advice ron a filmiliar a.ssociate
might he more credible. hence, more offensive to Section
8(a)(l), than generalized utterances ht, distant Company
officials. To escape liability [Respondent] must estab-
lish that the specific contexts of union-chilling remarks
negated the Company's presumed authorization. [Em-
phasis supplied.l
Although there is no evidence that McClane affirmatively
"authorized" Driver's statements to the carpenters, there is
no evidence that Driver was ordered not to make such
statements. According to Driver's credited testimony, he
was accurately quoting McClane.
Respondent argues further that the fact that all the car-
penters openly signed the August 23 petition negates the
4 One employee. Thomas J Robbins, Sr., testified that McC in Respon-
dent's office, he spoke with an engineer employed bh an-
other subcontractor. The engineer did not know if Respon-
dent was then hiring and suggested that (Goldston return
later. ioldston did not return, presumabl) because he was
otherwise employed when Respondent advertised.
Thomas Robbins Sr.. visited the site on September 22.
He did not speak with Wierbach because he "couldn't get
past the front door in the office." lie spoke to l.arr EHl-
dridge. who served basically as Wierbach's assistant. Il-
dridge said that Respondent was not hiring carpenters at
J I Wrhilnes. N W'. Farley. and ( Samls s named n the complaint. along
with N1el11ie \ alur a.k aI Merrill oli a), named n the original charge hut
noir thereafter
623
DE'[ISIONS OF NATIONAL. IABOR RELATIONS BOARI)
that time. However. Robbins testified that he observed em-
ployees performing carpentry work.
Other employees testified, in effect, that they did not ap-
ply for reemployment by Respondent because they believed
they had been fired in September. For example, when asked
if he had returned to seek work with Respondent, Terr B.
Tucker replied as follows:
A. No, sir, I didn't. I figured I had been fired. That's
the way it was put.
Q. Who told you that you had been fired?
A. Well, if you get laid off and there is plenty of
work there; I mean, you know, you have work all
around you and you don't have too many men on the
job to do it, and they lay you off, then you've been
fired.
Similarly, Sprinkle testified that he did not seek reemploy-
ment because:
Once you're terminated you don't go back and ask
for your job back when you've been fired. You don't
go back and ask the man to change his mind.
And Banton testified that when a "man lays you off and
gets his pink slip, he's finished with you. ... If you're fired
then he's through with you."
Anspacher testified that there is no policy or general
practice in the construction industry to recall employees
who have been laid off. In this connection he testified:
... I have never had that practice in construction for
thirty years. It's not uncommon that you have certain
key individuals that you may selectively lay off be-
cause of material shortages, or something like that.
You may, and it is the exception not the rule, you may
keep their name and address and call them when there
is work involved, but as far as a set policy, no.
Wiebach testified that layoffs are common in the construc-
tion industry, but he could not remember any occasion in
his 25 years in the field on which laid-off employees had
been later recalled.
Employee Key testified that he had been employed on a
dozen or more construction jobs. He had been laid off fre-
quently and had never been recalled to the job from which
he had been laid off. As is stated in Respondent's brief, the
testimony concerning the absence of a recall refers only to
"the open shop construction industry."
Driver's testimony was more restricted. On direct exami-
nation by Respondent's counsel he testified:
Q. In your experience, Mr. Driver, is it typical in
the construction industry that someone who was laid
off would be recalled to that same contractor?
A. Well, under these conditions, no.
JuD);Ei K.ITIN: What do you mean by "under these
conditions?"
THE WITNESS: Well, for the simple reason. Mr.
West, he wanted-Well, what he wanted, actually, was
about ten times the amount of work a man could get.
In other words, the men were calling him the "Georgia
slave driver," and they didn't hardly know him....
Driver proceeded to testify to the men's complaints about
their pay and West's having promised increases, which did
not materialize.
Wiebach testified, in part:
Q. Did you think of finding out which of the laid off
carpenters were good carpenters'? And could be re-
called?
A. I had no way of doing that.
Q. Why not?
A. How was I to find out except by hiring them all
back and watch them all.
Q. There was nobody around the job who knew?
What about your prime contractor, wasn't he in [al
position to know who would have been good. or find
out from the prior superintendent'
A. I don't know ma'am. I guess I could have asked
him, but now, his opinion might be different from
mine, though.
Q.... Don't employers usually like to get back peo-
ple who have worked for them before and have worked
well?
A. If they work well, I suppose so.
The evidence also establishes that on union jobs employers
generally have, and exercise, the right to request specific
employees, by name, from the union's out-of-work lists.
2. Discussions and conclusions
As previously noted, the General Counsel does not con-
tend that the layoffs on September 7 and 18 were violative
of the Act. It is undisputed that, as Anspacher and Wier-
bach testified, the layoffs were made to enable Respondent
to remedy material shortages and devise a rational and
practicable scheduling for continuation and completion of
the job.
The General C('ounsel does not take issue with Respon-
dent's position, well supported in its brief, that nothing in
the Act imposes on employers an affirmative obligation to
recall employees who have been laid off. And it is clear
that, as Respondent argues, it is not the Board's function to
pass on the wisdom of an employer's practice or policy con-
cerning laid-off employees.
The General Counsel's argument is purely factual. He
contends that, when Respondent decided to lay off employ-
ees for legitimate business reasons, the layoffs were in-
tended to be purely temporary, only for the period neces-
sary to straighten out a confused situation so the job could
proceed in an orderly and efficient manner. According to
the General Counsel, it was only the obvious danger of
unionization that led Respondent not to recall the laid-off
employees but, on the contrary to accept the "layoffs" as
permanent.
There is an interesting irony in the parties' positions. Re-
spondent has consistently maintained that the carpenters
were not "fired" or "terminated." but rather were "laid off."
In a footnote to its brief. Respondent repeats this view. In
referring to the testimony of employees who said they had
not applied for reemployment because they believed they,
had been fired, Respondent's brief says: "Respondent laid
its carpenters off and has never maintained otherwise.
Clearly,. it cannot be bound by the subjective iew of its
employees, in light of undisputed evidence to the contrary."
624
t t
P RI It'('Fl INI)lSIRIl S, IN('
But at no time does Respondent undertake to define the
term "layoff" or to distinguish it from "termination." Ab-
sent any contrar\ explanation, it would appear reasonable
to conclude that a layofl" entails some continuing rights as
an employee, in contrast to a discharge. which ends the
enmployer-emplosee relationship and all the incidents
thereto.
In any event, the evidence in the present record estah-
lishes that. at least at the outset. Respondent anticipated
that the carpenters then being "laid-olt" would be recalled
as needed in the future. )river, whom Respondent consid-
ers a forthright and credible witness, testified that w hel the
first laofl' was made, on September 7. West specificall'
stated that the employees would be recalled it' needed iI the
future. Similarly, Anspacher testified that he and West dis-
cussed the fact that the layoffs were purely temporary.
Since West did not testify, it must he assumed that he con-
curred in Anspacher's understanding that the layoffs sere
temporary and that, in line with Driver's testimony, West
stated that the laid-off employees would he recalled when
needed. In this connection it should he noted that it ,vas
Wierbach, rather than West, who announced the second
layoff. Although Wierbach apparently did not specifically
say that the employees would be recalled. there is no evi-
dence from which it can be inferred that West, Wierbach's
superior, had changed Respondent's iew between the two
layoffls.
It is true that the evidence would warrant a finding that
Respondent had no general policy or practice to recall laid-
off employees. However, as quoted above. Anspacher ac-
knowledged that it is "not uncommon" to recall "certain
key' individuals" who are "selectively" laid off "because of
material shortages or something like that." The layoffs in-
volved in the present case were all due to material shortages
and similar problems.
There is no evidence that Respondent had ever before
been in a situation requiring temporary shutdown of an
operation. Thus, even if the record establishes that Respon-
dent had never previously recalled any laid off employees,
such fact would not be decisive here.
Accordingly. on all the evidence, I find that, the absence
of any general policy or practice notwithstanding, when the
carpenters were laid off, it was Respondent's intention to
recall them when the material and scheduling problems had
been resolved and the concrete operation was resumed. The
crucial question then becomes why Respondent failed to
carry out its original intention.
Not having testified directly to any change of position.
none of Respondent's representatives sought to explain it.
Although there is evidence that some of the employees were
dissatisfied with their wages and working conditions and
felt that the new management, under West, was making
excessive demands, there is no evidence that Respondent
failed to recall them because of any deficiency in their
work. On the contrary', on September 15 West actively dis-
suaded some employees from quitting. And Respondent
protests that it rehired every laid-off employee who applied.
Nor can it be argued that the laid-off carpenters here in-
volved were not needed on the job. Hiring of carpenters
began early in October, approximately 2 weeks after the
second layoff, and at the time of the present trial Respon-
dent had approximatel) 25 carpenters on the job. :urFther.
as C'rosbh disclosed, it wsas difficult to find satistactorN car-
penters some 30 having been hired and then fired after
resumption of the operation.
While, as stated above. it is not the Board's function to
pass on the strictly business udigment of an employer. the
wisdom of his conduct is one factor which might throw
light on the actual reason lor his conduct. Wierbach con-
ceded that employers probahbl would like to reemplo?
workers who have proved to be satisfactorN and, indeed, on
union jobs the employers generallS have the right to choose
specific employees on the aa;lilable list. without regard to
their positions on the list. In this case, when hiring of car-
penters was resumed. apparentl\ Mc('lane was still avail-
able to give an opinion on the desirabilit of indiidual
laid-off employees. And. as preCxousl noted. Respondent
had difficult in finding competent carpenters, having hired
and fired some 30 carpenters for incompetence or other de-
ficiencies. Uinder these circumstances, it is diffticult to under-
stand why Respondent did not seek out competent carpen-
ters who had been "laid off" erv recently.
It is important to note that Respondent did not hate any
polico against reemploying carpenters who had worked for
it before: all the evidence establishes is that Respondent
had no set policy or practice to do so. At the time of the
present layoffs. Respondent intended to recall the laid-off
employees. Respondent has failed to advance an', satisfac-
tory reason for not having carried out its intention. The
absence of any afirmative policy or practice barring recall
does not constitute a reasonable explanation for Respon-
dent's hiring of new, unknown employees rather than look-
ing first to known employees who had recently been tempo-
rarily laid off.
Respondent contends that the General Counsel was re-
quired to show either that a recall practice has been "sub-
verted" or that the discriminatees applied for rehire and
were turned down while less qualified applicants were
hired. But the crucial fact here is Respondent's failure to
follow its ad hoc intention recall the laid-off carpenters. By
that conduct Respondent discriminated against the laid-off
employees in favor of new applicants in order to discourage
union membership.
The only apparent reason for Respondent's changing its
mind is the union situation. It will be recalled that on April
23 all the carpenters had signed a petition seeking reversal
of the Regional Director's dismissal of the Union's repre-
sentation petition. The Board granted that petition on Sep-
tember 20. When Respondent started to hire carpenters ear-
ly in October, an election was scheduled for October 17.
Respondent had reason to fear that a majority of the laid-
off carpenters, as well as the three who had been laid off.
would vote bfor the Union. Undel these circumstances, ab-
sent any other credible explanation, it is a reasonable infer-
ence that Respondent failed to recall the laid-off carpenters.
as it had originally intended, in order to avoid unionization
of the carpenters on this "open shop" job.
One other matter requires comment. At trial I sustained
the General Counsel's objection, on the ground of rele-
vancy, to Respondent's attempt to elicit evidence concern-
ing the organizational history of' the laborers employed by
625
DI)l('ISIONS OF NATIONA. I.ABOR Rl.ATIONS BOARD
Respondent on the job here involved. The fact that the
laborers may have been certified after a Board-conducted
election" would have no tendency. in itself, to establish that
Respondent did not labor to prevent unionization. Presum-
ably it was on Respondent's motion that the Regional I)i-
rector dismissed the ('arpenters' Union's representation pe-
tition. It might well be that Respondent unsuccessfully
made similar attempts to avoid unionization of the laborers.
Even if it were to be said that the history of the unioniza-
tion of' the laborers employed by Respondent on the Nor-
folk job might have some slight tendency to show the ab-
sence of' antiunion animus, complete litigation of the
laborers' situation would be needed to establish the degree
of similarity to the carpenters' situation. Such extensive lili-
gation of a collateral issue would have unduly extended the
present hearing with very little, if; any, possible assistance in
deciding the present case.
In its brief Respondent says that: "T'he no recall policy
applies craft-wide. The laborers who were laid off contenm-
poraneously with the charging party carpenters . . were
not recalled either." Respondent also states that laborers
who were not recalled "subsequently charged that their dis-
charge and failure to recall was discriminatory. The Re-
gional )irector dlismissed the charge." Assuming the truth
of that statement it has no probative value in the present
case. That the General Counsel may have refused to issue a
complaint concerning Respondent's failure to recall labor-
ers, while he issued a complaint concerning the carpenters'
situation, suggests that the cases are not identical. If noth-
ing else, it appears that laborers' Union was certified,
whereas the Regional I)irector initially dismissed the Car-
penters' lnion's petition. Finally, it may be stated that if
litigation of the laborers' situation established facts identi-
cal with those concerning the carpenters, it would only
prove that Respondent committed unfair labor practices in
connection with the laborers. The Regional [)irector's dis-
missal of a charge involving the laborers would not bind the
Administrative Law Judge or the Board if the laborers' case
were to be collaterally litigated in the present case.
CoNIUSIONS oF LAW
I. Respondent, Puritech Industries, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union, Carpenters' Local Union No. 331, U.B.C.
United Brotherhood of Carpenters & Joiners of America,
AFL-CIO-CLC, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By threatening employees that the job on which they
are working might be closed down if the employees chose to
be represented by the aforesaid Union as their collective-
bargaining agent and that employees would be automati-
cally discharged for chosing such union representation, Re-
spondent has interfered with, restrained, and coerced its
I' Respondent offered to prove "that an election was held. that the labor
ers do hold a certification. and that not one laborer has ever been terminated
because of that." According to Respondent's counsel, such fact would show
that a carpenter "would have no realistic fear that he would he laid off lor
having signed an authorization card for the Carpenters' Union."
ie Respondent and the Laborers' Union have not executed a contract.
employees in the exercise of' the rights guaranteed in Sec-
tion 7 of the Act, and thereby has committed unfair labor
practices in violation of Section 8(a)( I).
4. Respondent has committed unfair labor practices in
violation of Section 8(a)(3) and (I) of the Act by failing to
recall the employees hereafter named when it hired carpen-
ters at the water treatment project in Nortolk. Virginia, in
October 1978 and thereafter. The employees rehrred to are
Robert King, Erwin Sellers. Jerry long. William Sprinkle.
Terry Tucker, Thomas Robbins. Sr., Ihomias Robbins. Jr..
A. W. Banton, Marion Bryan and Robert (Goldston.
5. Respondent has not unlawfulls i iled to recall em-
ployees J. Whitney, N. W. Farley, and (G. Saviss.
TI ii Rt:Nii t)'
Ha ing found that Respondent has committed unfair la-
bor practices. I shall recommend that it be required to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act, as is customary.
Since it has been found that Respondent inproperl\ failed
to recall 10 carpenters it had laid off: it will be recommend-
ed that Respondent be required to offer them reinstatement
with backpay, to be computed in accordance with the for-
mula and method prescribed in I.: It. ' l'oo/sorl ( npltv,
90 NLRB 289 (1950). with interest computed in accordance
with the formula and method prescribed in lorida Sicel
('orporalion, 231 NLRB 651 (19771. J~ The backpay liability
shall run from the dates on which Respondent hired the
first nine carpenters on or after October 2. 1978.
Since the Board has recently abandoned its prior policy
of issuing a broad cease-and-desist order for all violations
of Section 8(a)(3), it is necessary here to consider whether
Respondent's conduct warrants such action. Hicknlmo
Foods, Inc.. 242 NLRB 1357 (1979).
The threats by Driver alone would not warrant a broad
order, particularly since both he and higher echelon man-
agement consistently informed the employees of their right
to free choice. However. Driver's testimony establishes Res-
pondent's resolve to prevent unionization of its carpenters
on the Norfolk job at any cost. This testimony casts consid-
erable light on Respondent's failure to recall laid-off car-
penters, after having originally announced its intention to
recall them. Ten carpenters lost their jobs as a result of
Respondent's change of heart. And they were replaced
while the representation petition was pending and an elec-
tion had been directed.
Balancing all the considerations, it is my opinion that
Respondent's conduct toward the carpenters was suffi-
ciently serious and extensive to establish a proclivity to vio-
lative the Act and thus calls for issuance of a broad cease-
and-desist order. I shall so recommend.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
1" See, generally, Iis Plumbing & Heating Co., 138 NRB 716 (1962).
626
PIR 1(11' I I )S RI S. INC('
OR I).R '
The Respondent. Puritech Industries, Inc.. Norfolk. Vir-
ginia. its officers. agents. successors. and assigns, shall:
A. ('ease and desist from:
I. Threatening employees with possible discontinuance
of its operations at the water treatlment plant in Norfolk.
Virginia. and loss of jobs it thev choose to he represented h
('arpenters' ocal Union No. 331 . lB.C.. t :nited Brother-
hood of Carpenters & Jiners of America, AI. ('I10 CI(' .
or an, other labor organization.
2. Threatening employees with discharge if thes should
go on strike.
3. ailing and refusing to recall temporaril laid-off em-
ployees for the purpose of discourain g membership in and
support of the aboxe-named nion or an' other labor or-
ganization.
4. In an) other manner interfering itih. restraining, or
coercing employees in the exercise of the righis guaranteed
them in Section 7 of' the Act.
B. Take the following affirmallise action necessars to ef-
fectuate the policies of the Att:
I. Offer to Robert King. Errin Sellers, Jerry I.ong. Wil-
liam Sprinkle. Terry Tucker.' T'homas Robbins. Sr., Thomas
Robbins. Jr.. A. W. Banton. Mlarion Br;an. and Robert
IS In the een n exceptilon are iled as pro itded h Sec 102 41 t ihe
Rules and Regulations o the National La.bor Relahtion Board. the tindllig.
conclusions. and recommended Order herein hall. as pro, ded n Sec 1112 48
or he Rules and Regulations. be adopted bs the Bard and becomne it
findings, conclusions, andi Order. and all lhje llns l therelt hall be deemed
waived for ll purposes
(ioldston full and unconditional reinstatement to their for-
mer jobs or. if' those jobs no longer exist, to substantially
equivalent jobs. without prejudice to their seniority and
other rights and priileges,. and make them whole for anN
loss of earnings. in the manner set forth in the section
herein entitled "''The Remedl."
2. resere and make a ailahle to the Board or an of its
agents. upon request, all records necessar t analyze the
ailountt otf hackpay dtlue Ralph Simllon under the terms
hercotl.
3. IPot at its office and place of business in the Bronx,
New York. copies of the attached notice marked "Appen-
dlix. "'2 Copies of' said notice, t trms pl'ot.idecd ( the Re-
gional I)irector fr Region after hbeing dull signed hb
Respondennl's authorized representative. shall be posted hb
Respondent imIedl;Iltel ulipon receipt thlereofl anti he
mainia1nled bh it for (60() consecutxe das thereafter, in con-
slpicuous plIacs. inclulling ;all places where notices to e-
plosees are custoniarily posted. Reasonable steps shall he
taken h Respondent to insure that said notices are not
altered. defaced. or covered h\ ann other material.
4. Notif' the Regional I)irector or Region 5,. in writing.
v ithin 2() days from the date tof this Order. what steps Re-
spondent has taken to complN herewith.
II I I RIIII:R (RI) RI ) that the complaint be dismissed
insoflar as it alleges unfair labor practices other than those
specifically found herein.
i, I1 the eent that Ihis Order enforced bh a Judgment of a United
States ('Court of Appe.ls. he wwords in the notice reading "Po'led by Order I
the Nai onai l.abor Relatlln, Board" hall read "Posted ursuanl to a. Judg-
ttent of the t Illled Sta;lc ( urlll of Appeal, :n forcing ain Order 1,f the Na-
1ional I.abor Relationl, Board"
627