Thomas W. Moylan Co., Inc.

National Labor Relations Board - Board Decisions

Mar 14, 1962

136 N.L.R.B. 262 (N.L.R.B. 1962)

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Respondent has not violated Section 8 (a) ( 1) or ( 3) of the Act by discharging
M. D. Townley or William C. Cragg.
6. The aforesaid unfair labor practices are unfair labor , practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
St. Clair Lime Company and United Cement , Lime & Gypsum
Workers Local Union No. 396 , AFL-CIO , and United Cement,
Lime & Gypsum Workers International Union , AFL-CIO.
Case No. 16-CA-1430. March 14, 1962
SUPPLEMENTAL DECISION
On October 25, 1961, the Board issued its Decision and Order (133
NLRB 1287), in part requiring the Respondent to reinstate all unfair
labor practice strikers upon application.
Thereafter the Respondent filed a "Motion To Vacate Decision
and Order," in part on the ground that the reinstatement order de-
prived the Respondent of its right to establish picket line misconduct
as a defense to the reinstatement of specific strikers. The Union filed
a memorandum in opposition.
Our Order in this case is not to be construed as requiring reinstate-
ment of those not entitled to it. The Respondent is required to rein-
state only such strikers as are lawfully entitled to reinstatement if
and when they apply for reinstatement. In view of the facts in this
case we deem it advisable to defer to the compliance stage of the pro-
ceedings herein the opportunity, which the Respondent is entitled to,
for, the substantiation of its claims regarding the picket line miscon-
duct of strikers who may apply for reinstatement. If the issue is not
settled between the Respondent and the Regional Director, it may
be referred to, the Board for determination, by hearing if necessary.
In sum, however, we find the Respondent's motion raises nothing
not previously considered, and furnishes no ground to vacate our
above-mentioned Decision and Order.
Accordingly, we deny the motion.
MEMBERS FANNING and BROWN took no part in the consideration of
the above Supplemental Decision.
13,6 NLRB No. 27.
Thomas W. Moylan Company, Inc. and Sheet Metal Workers
International Association , Local Union No. 102, AFL-CIO.,
Case No. 5-CA-1915. March 14, 1962
DECISION AND ORDER
On December 13, 1961, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding,, finding that
136 NLRB No. 22.
THOMAS W. MOYLAN COMPANY, INC. 263
the Respondent has engaged in and is engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the Respondent
filed exceptions to the Intermedate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief I and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Thomas W.
Moylan Company, Inc., Kensington , Maryland, its officers , agents,
successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in Sheet Metal Workers Interna-
tional Association , Local Union No. 102, AFL-CIO , or in any other
labor organization of its employees , by laying them off or in any other
manner discriminating in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(b) Threatening employees with economic reprisals if they be-
come or remain members of the Union or if they assist or support it.
(c) Promising benefits or improvments in the terms and conditions
of employment if the employees refrain from becoming or remain-
ing members of the Union or from assisting or supporting it.
(d) Engaging in, or pretending to engage in, surveillance of union
meetings and activities.
(e) In any other manner interfering with, restraining , or coercing
their employees in the exercise of their rights to self -organization,
to form, join, or assist Sheet Metal Workers International Associa-
tion , Local Union No. 102, AFL-CIO, or any other labor organiza-
tion , to bargain collectively through representatives of their own
choosing , or to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain
'The Respondent's request for oral argument is hereby denied as the record, including
the exceptions and brief, adequately presents,the issues and the positions of the parties
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8(a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Terry Fenton, Jarvis Narron, Hontas Morris,
David Glaze, Howard Casto, James Sadler, Richard Vetter, and Larry
Slack for any loss of pay which they may have suffered by payment to
them of a sum of money equal to that which each of them would nor-
mally have earned from the date of the discrimination against him to
the date of his reinstatement, less his net earnings during said period
(Crossett Lumber Company, Inc., 8 NLRB 440), said backpay to be
computed on a quarterly basis in the manner established by the Board
in F. W. Woohvorth Company, 90 NLRB 289.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due under
the terms of this Order.
(c) Post at its offices and plant at Kensington, Maryland, copies of
the notice attached hereto marked "Appendix." 2 Copies of said
notice, to be furnished by the Regional Director for the Fifth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter in conspicuous
places, including all places where notices to its employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, you are notified that :
THOMAS W. MOYLAN COMPANY, INC. 265
WE WILL NOT discourage membership in Sheet Metal Workers
International Association, Local Union No. 102, AFL-CIO, or
any other labor organization of our employees by laying them
off or in any other manner discriminating in regard to their hire
and tenure of employment or any term or condition of
employment.
WE WILL NOT threaten employees with economic reprisals if they
become or remain members of the Union or if they assist or sup-
port it.
WE WILL NOT promise benefits or improvements in the terms and
conditions of employment if our employees refrain from becoming
or remaining members of the Union or from assisting or support-
ing it.
WE WILL NOT engage in, or pretend to engage in, surveillance of
union meetings and activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights of self-
organization, to form, join, or assist the aforementioned labor
organization, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of the
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL make whole Terry Fenton, Jarvis Narron, Hontas
Morris, David Glaze, Howard Casto, James Sadler, Richard
Vetter, and Larry Slack for any loss of pay which each of them
may have suffered as a result of our discrimination against them.
All our employees are free to become or to refrain from becoming
members of the Sheet Metal Workers International Association, Local
Union No. 102, AFL-CIO, or any other labor organization.
THOMAS W. MOYLAN COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 707 North Calvert Street, Baltimore 2, Maryland; Telephone
Number, Plaza 2-8460, extension 2100, if they have any question con-
cerning this notice or compliance with its provisions.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat. 519), was heard in Washington, D.C, on
October 9 and 10, 1961, pursuant to due notice. The complaint, issued on July 21,
1961, by the General Counsel of the National Labor Relations Board and based on
charges duly filed and served, alleged in substance (as amended) that Respondent
had engaged in unfair labor practices proscribed by Section 8(a)(1) and (3) of the
Act by specified acts of interference, restraint, and coercion (i.e., interrogations,
threats of reprisal, promises of benefit, and surveillance) and by laying off nine
employees on May 16, 17, and 18, 1961, because of their union membership or
activities. Respondent answered, denying the unfair labor practices.
The issues as litigated were: (1) Whether Edward Raymond, Respondent's sales
manager, was a supervisor and/or agent of Respondent in relation to its employees,
(2) whether Respondent engaged in interference , restraint , and coercion as alleged
in the complaint (except by interrogation, which was dismissed on motion, without
objection); and (3) whether Respondent's layoff of nine employees on May 16, 17,
and 18, 1961, was discriminatorily motivated or whether it was necessitated by an
unexpected shutdown of a job which was ordered by the general contractor.
Upon the entire record in the case i and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, a Maryland corporation engaged at Kensington, Maryland, in the
business of installing hot air heating equipment, is engaged in commerce within the
meaning of the Act through its receipt annually of shipments directly from extra-
state points valued in excess of $50,000, and through its performance annually out-
side the State of services valued in excess of $50,000.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union, Local Union No. 102, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; Respondent's officers and agents
Respondent is engaged in the business of fabricating and installing sheet metal
duct work for heating and air-conditioning systems, employing both shopmen, who
fabricate the duct work, and installation (field) men, who make the installations at
the jobsites. The Union conducted an organizational campaign among the em-
ployees in late April and early May 1961, holding various meetings of the employees,
including one on May 3. The Union won an election, held on May 12, and was
certified by the Regional Director on May 22. On May 16, 17, and 18, Respondent
laid off a total of 12 of the fieldmen, including the 9 who were litigated (Jarvis
Narron, Terry Fenton, Gerald Gooding, David Glaze, Howard Casto, Hontas
Morris, James Sadler, Richard Vetter, and Larry Slack), but it recalled all of them
after a few days.
Respondent's officers were Thomas W. Moylan, president, and Raymond F. Camp-
bell, vice president Its shop foreman was George Evanshaw and its outside fore-
man was Louie W. Jamison, both of whom were supervisors.
In issue is the status of Edward Raymond, Respondent's sales manager, to whom
a substantial part of the alleged unlawful conduct was attributed. The evidence
summarized in section B, infra, showed that Raymond openly exercised supervisory
authority over the fieldmen in making a number of the layoffs in Moylan's presence,
in recalling an employee after layoff , and in ordering the transfer of an employee
from one job to another. See Section 2(11) of the Act. Raymond also acted as
Moylan'^s spokesman in the shop meeting with the employees at which Moylan's
proposals for bypassing the Union were submitted to the employees. Aside from
Moylan's direct authorization of Raymond to "take over" (testified to by one wit-
ness and not denied), Moyland disavowed none of Raymond's conduct at the meet-
1 The transcript of the record Is hereby corrected pursuant to the joint motion of the
General Counsel and Respondent, filed with the Trial Examiner on November 3, 1961
THOMAS W. MOYLAN COMPANY, INC. 267
ing, which included statements that Moylan intended to discontinue certain benefits
and practices if the Union should come in.
Respondent, attempting no direct refutation of the foregoing, offered only Moy-
Ian's unsupported testimony that Raymond was without supervisory authority over
the employees, that he had not authorized Raymond to talk with the employees
concerning the union activity, and that Raymond was acting as the representative
of the employees in discussing their "gripes" with them and in attempting to
straighten out their complaints with management. As Moylan's testimony was
wholly inadequate to overcome the heavily preponderant weight of the undenied
evidence recited above, I conclude and find that Raymond was a supervisor within
the meaning of Section 2(11) of the Act and that he acted as Respondent's agent in
engaging in the conduct set forth in section B , infra.
B. The evidence
Some 14 of Respondent's employees (predominantly, if not entirely, fieldmen)
attended the union meeting on May 3. Though not invited, Shop Foreman Evan-
shaw also attended, and when his presence was noticed midway of the meeting, he
identified himself, was invited by the organizer to remain, took an active part in
the meeting, and signed the attendance register along with the employees, including
the nine who were subsequently laid off. Though Evanshaw testified that he
attended the meeting out of curiosity and not at Respondent's direction, he admitted
,that he later discussed with Raymond not only the fact of his attendance, but also
what went on at the meeting and how it was conducted. Though denying that he
told Raymond or Moylan or Campbell which men were present, Evanshaw ad-
mitted telling Raymond approximately how many men were there.
As there was undenied testimony (later adverted to) that Raymond represented
that he and Moylan had a list of all employees who were for the Union and as
Moylan testified that Evanshaw also told Campbell about having gone to the meet-
ing, I do not credit Evanshaw's testimony that he did not divulge the names of the
employees in attendance, particularly since it was evident from his admissions on
cross that he gave Raymond a full report of the happenings at the meeting. Aside
from the foregoing, Evanshaw's own knowledge as a supervisor was sufficient to
establish knowledge on Respondent's part of the identity of the participants in the
meeting. Cf. I Posner, Inc., 133 NLRB 1573.
Employees Vetter, Slack, Glaze, Narron, Casio, and Fenton gave undenied testi-
mony concerning occasions shortly before the election when Raymond came out
to the jobs on which they were working and made various promises and threats
as to what Moylan intended to do, according to whether the employees voted the
Union in or rejected it in the election.
Narron testified that Raymond stated that though he was sent by Moylan to
warn them not to vote Union, he was doing it for the employees, that he and Moylan
had a list of everyone who was for the Union, that they were not as strong as they
thought they were, and that even if they should win the election, they would lose,
"because you know how Mr. Moylan is . he will cut his nose off to spite his
face." Raymond continued that he was advising the employees not to vote for the
Union because things would be very hard for them. When the employees repre-
sented that their intention was nevertheless to vote for the Union, Raymond added
that he felt sorry for them and would guarantee that if they went Union, none
of them would have a job within 3 months.
Slack testified that Raymond told the employees they would be making a big mis-
take if they voted Union, because the Company was going to make a lot of changes
in the work, the positions, and salaries. Vetter testified that Raymond inquired
what the employee complaints were and stated he would talk with Moylan about
them and that he was sure he could get them all straightened out without voting the
Union in. Glaze testified that Raymond outlined "a deal" under which, if the
Union was not voted in,,a contract would be made up for each employee, and that
he would talk with Moylan about getting vacations and a wage raise for each man.
Fenton testified that Raymond stated the employees would have a better chance if
they did not vote the Union in because they could have a grievance committee to
take their grievances to Moylan personally and that Raymond would see to it per-
sonally that all of the employees would get their raises and vacations when due.
Casto testified that Raymond stated he would go back to Moylan to see about
drawing up a contract to offer to the employees; that he (Casto) commented that
the employees, having stuck their necks out, had to go all the way, i e., go Union,
because otherwise they would be laid off. Raymond agreed, stating, "Yes, you
would be laid off, knowing Tom Moylan. That is strictly off the record."
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was also undenied testimony concerning the happenings in a shop meeting
of employees which Respondent called shortly after Raymond's tour of the jobs
and which was attended by Moylan, Raymond, and Campbell.
Sadler testified that Moylan informed the employees that he had had a contract
drawn up which would give the employees "a better deal" than the Union if they
would vote the Union out and that everyone would get a substantial raise. Fenton
testified that Moylan stated among other things that if the Union came in, he
would go bankrupt within 3 months' time and that the Union would never get in.
Slack testified that after Moylan opened the meeting by stating he was offering a
contract with some changes in salaries and vacations, he turned over to Raymond
a handful of papers and directed Raymond to take over. Raymond thereupon ex-
panded on the details of Moylan's offer if the employees did not vote the Union in,
specifically mentioning wage raises, vacations, hospitalization, and profit sharing.
Raymond also informed the employees what would happen if the Union did come in,
stating that Moylan would not carry the employees through the wintertime, as he had
done previously, and that if the jobs slacked up, Moylan would lay the employees
off and would make it as tough for them as he could.
Glaze and Vetter testified similarly that Raymond stated what benefits Moylan
proposed to give if the Union were voted out, and Glaze testified that Raymond
stated that if the Union were voted in, the employees would lose their insurance
and that the existing profit-sharing plan would not be continued.
Narron, who was under the impression there were two meetings at the shop, testi-
fied that in one of them Campbell (as well as Raymond) advised the employees
against the Union, stating that things would be hard on them, that in his opinion
Moylan had been pretty slack with the employees, but that things would be a lot
different if they went Union.
It was also announced that if the employees cared to see what they would receive
under the proposed new plan, they should go into the office individually. A number
of the employees did so and were there informed either by Raymond or Moylan
or Evanshaw or Jamison what their new (increased) rates would be in the event
the Union did not go in.
Respondent reiterated its threats immediately after the election. Narron testi-
fied that when the results were announced, Campbell called for attention and stated
to the employees that things were going to be different and were going to be hard;
that they had asked for it, and now they were going to get it; that they were going to
be closely watched and checked on; that pay would not be delivered to the job any
longer, but that the employees would have to come to the shop for their pay; and that
hospitalization and the profit-sharing plan would be discontinued.
Slack also testified that Moylan refused him a loan following the election, under
the following circumstances: Slack had sought the loan some time before the election
and Moylan promised to make it when he got some money in. Slack renewed his
request shortly before the election and Moylan promised to make the loan if the
Union did not go in. When Slack renewed his request again after the election,
Moylan refused it, stating that as the Union was in, he was not lending anyone
money. Slack admitted that he informed Moylan he was against the Union and
was not going to join it, and he affirmed his prior affidavit to the Board, which
Respondent offered and which read in part as follows:
Later at a party at the Castle Inn that Moylan paid for, Moylan told me that
he would lend me $270 to pay for my traffic violations if the union was voted
out. After the election he refused to loan me money.
Moylan admitted that he had made many loans to employees, including several
to Slack, but testified he had stopped the practice for some 8 or 9 months. Ad-
mitting that Slack asked for a loan after the election (representing that he had not
voted for the Union), Moylan testified he informed Slack he had discontinued his
practice.
Slack's affidavit, offered for impeachment, tended rather to corroborate Slack's
testimony that Moylan promised to make the loan if the Union did not go in. Aside
from that, the other undisputed evidence as to Respondent's threats to discontinue
existing benefits and practices and to make conditions hard on the employees if
they voted the Union in, itself afforded general support and corroboration of Slack's
testimony. I therefore credit Slack's testimony over Moylan's concerning the re-
quested loan.
The General Counsel also offered evidence that, promptly after the election, Re-
spondent also set about effectuating its threats not to continue carrying employees
during slack periods if the Union was voted in. On May 16, 17, and 18, Re-
spondent laid off ^12 out of approximately 20 fieldmen, including the 9 who were
included in the complaint (all of whom had attended the May 3 meeting with
THOMAS W. MOYLAN COMPANY, INC. 269
Evanshaw ). None of the shopmen were laid off . The layoffs were made on the
dates and from the jobs shown below:
Date Job
Terry Fenton ---------------------------------------------- May 16-------- Prince Georges Plaza
Gerald Gooding------------------------------------------- -----do--------- Do
Jarvis Narron ---------------------------------------------- -----do--------- Marlow Overlook.
ITontas Morris--------------------------------------------- -----do--------- Do
David Glaze ----------------------------------------------- -----do.' ------- Do
11oward Casto--------------------------------------------- May 17------- Do.
James Sadler ----------------------------------------------- -----do--------- Do.
Richard Vetter--------------------------------------------- May 18------- Do
Larry Slack------------------------------------------------ ----- do.....---- Do.
The circumstances of those layoffs, as shown by the General Counsel's evidence,
were as follows:
Fenton testified that he and Gooding were called into the shop and were in-
formed by Moylan that he did not have enough work to keep them any longer, and
being that the Union was in, he did not have to carry them. Glaze testified that
he and Morris were sent to the shop were Campbell told them that work was slow
and that he did not need them anymore. Campbell also laid off Narron.
Glaze testified further that he returned to the shop during his layoff and talked
with Raymond, who stated that Glaze was stupid to vote the Union in and that if
it had not been for Glaze and Morris, the Union would not be in. Raymond added
that Moylan had kept them on all winter, but that he did not have to do so after
the Union came in.
Casto and Sadler testified that they were laid off by Raymond at the jobsite in
Moylan's presence. Sadler was told that the layoff was because Respondent did not
have any work. Casto testified that Raymond assigned no reason, stating only that
the layoff was temporary, and that he (Casto) inquired the reason of Jamison before
leaving the job. Jamison explained, "[Y]ou know that Tom Moylan is kind of mad
about this union. He is going to Boston for a few days, and I think we will be
able to get you back on."
Vetter testified that on the day before his layoff, Raymond informed him in Moy-
lan's presence that he was laid off "as of now," but that Moylan countermanded
the order. Vetter was sent to the office the next day, however, where Raymond
informed him again that he was laid off temporarily because of some question about
the furnace rooms not being sheetrocked.
Slack was at work on the Summit Hill job until May 16. He testified that Ray-
mond came to that job, informed him that since the Union was in, they were "sep-
arating the guys around and putting them on a certain job," and he ordered Slack
to report to the Marlow Overlook job.3 Having missed a ride to his new job, Slack
returned to Summit Hill, called Raymond, and inquired whether he could work the
day out there. Raymond refused permission , but Raymond and Moylan later
came to the job, and Moylan directed Slack to finish out the day. Raymond pro-
tested, urging Moylan not to let Slack work, and stating, "This Union is in.... We
are going to make it as tough on these guys as we can. If they can't get on the
job, they don't work."
Shortly after reporting to Marlow Overlook, Slack was sent to the shop, where
Moylan informed him the job was closed down and that he would be laid off until
it started up.
Turning now to Respondent's case, Respondent did not call either Campbell or
Raymond and it made no denial of the statements which were attributed to them.
Neither did Moylan make specific denial of the statements which were attributed
3 Though Glaze testified he was laid off "on or about " May 17, he was specific in fixing
the date as on a Tuesday ( May 16) Furthermore , Glaze testified that he, Narron, and
Morris were laid off on the same day
3 Though it might have been inferred that the transfer was a step in setting up Slack
for layoff along with other union supporters , it was later established that Moylan was not
directed by the general contractor to shut down the Marlow Overlook job until May 18
or 19 Furthermore , Fenton and Gooding were laid off directly from the Prince Georges
Plaza job
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to him, contenting himself with the general denial that he threatened anyone and
that he discussed the Union with the employees. Jamison, in turn, made no denial
of the statement which Casto attributed to him.
Respondent's case was based largely on Moylan's testimony (with corroborative
testimony on some points by Supervisor Jamison and Martin Anchor, Respondent's
accountant), which was chiefly to the effect that the layoff was necessitated by an
unexpected shutdown on the Marlow Overlook job, ordered by the general con-
tractor,4 and that the status of his other jobs was such that there was no other work
at the time to which the laid-off employees could have been assigned. Though con-
ceding that his former practice was to call fieldmen into the shop during slack periods
to make up stock, Moylan testified that he discontinued that practice in February
or March 1961, because too many changes were being made in furnace sizes or
layouts.
Concerning the shutdown at Marlow Overlook, Moylan testified on direct that
the construction superintendent ordered him to take his men off the job on a Thurs-
day or Friday, May 16 or 17. On cross-examination, however, Moylan affirmed,
after checking a calendar, that Thursday and Friday fell on May 18 and 19, and that
it was on one of those days that he was directed to shut down.5 When reminded
that the layoffs at Marlow Overlook had begun before the 18th, Moylan then claimed
that the earlier ones were due to the fact that there was not enough work because
"the last building was not ready." That explanation seemed not only patently im-
provised to cover Moylan's original misapprehension as to the date, but it was refuted
by Respondent's witness, Marvin E. Simmons, the lead mechanic.6
Simmons testified that though work slowed up on the job for a day or so, there
was plenty of work to be done on the "rough-in" and on some of the duct work,
and that when Sadler and Casto were laid off on May 17, for example, there was
available for them at that time other work such as rough-in and registers. Indeed,
Simmons' testimony squared with that of the General Counsel's witnesses that the
inspector's objections related only to the furnace rooms in the first two of five
buildings on the project, and that there was work to be done by Respondent's em-
ployees in the other buildings on the job (which was further demonstrated by the
fact that Simmons worked on the job during the period of the layoff). Simmons'
testimony also squared with that of the General Counsel's witnesses that it was the
Company's practice to carry employees during the winter months and slow periods,
though he testified that layoffs were sometimes made if the men could not work at
all because of bad weather.
Jamison, in turn, admitted that: Ordinarily when jobs slow down, the men are
transferred to other jobs; the Company has a hard core of employees who are steady
workers; and during the summer months the Company hires additional help, who
generally are those who are laid off in the winter months, although the Company
might keep on a new man if he is a better employee than an old one.
Though Respondent cites the latter testimony as supporting Moylan's claims as to
the method he followed in making the selection for layoff, Moylan's own testimony
was inconsistent. That seniority was not followed was apparent from Respondent's
records, which showed, for example, that Moylan retained at least three employees,
Edward Titus, John Morris, and William Coon, who were junior to Vetter (Titus
being the only one of the three who attended the May 3 meeting). In addition,
though Moylan explained Slack's transfer to Marlow Overlook on the basis of picking
the men he felt were more capable of finishing up the job, he testified he did not
put Slack back on his old job, because Titus was a better man.
Anchor's testimony related mainly to what Respondent's records showed concern-
ing the number of employees at work before (31) and after (19) the layoff, the num-
ber of hours worked, and the status of certain jobs as indicated by his billings. In
sum, his testimony was corroborative of Moylan's and Jamison's that work was
slack during the period of the layoff, but otherwise it threw no light on the question
of motivation. Anchor also testified that (in addition to the nine alleged discrimi-
4 Though Moylan also denied knowledge of the union membership and activities of the
affected employees, Respondent's knowledge was found above on the basis of Evanshaw's
attendance at the May 3 meeting and his reports to Raymond and Campbell
5 Jamison fixed the time only as in May. That the 18th was in fact the correct date
was also confirmed by the fact that it was on that date that Respondent first used the fur-
nace room situation in assigning a reason for the layoff
e Again Jamison's testimony furnished no support for Moylan as it related only to the
layoff as made after the contractor directed the job to be shut down
THOMAS W. MOYLAN COMPANY, INC. 271
natees ) Respondent laid off four other employees between May 18 and 25, including
John Littleford, who (according to other evidence) was the only one working at
Marlow Overlook.
C. Concluding findings
As seen from the foregoing summary, the evidence which the General Counsel
offered in support of the 8 (a) (1) allegations was largely undemed. I conclude and
find on the basis of the entire evidence that by the various promises of benefit and
threats of reprisal which Respondent made in relation to union membership and sup-
port and to the outcome of the election, Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights guaranteed by Section 7 of the
Act.
I further conclude and find that by Evanshaw's attendance at the meeting of May 3,
by his reports to Raymond and Campbell, and by Raymond's statement that he and
Moylan in fact had a list of all employees who were for the Union, Respondent en-
gaged in, and endeavored to create the impression that it was engaged in, surveillance
of union activities. The Jefferson Company, Inc., 110 NLRB 757, 771-772; Majestic
Metal Specialties, Inc., 92 NLRB 1854, 1855. By said conduct Respondent also inter-
fered with, restrained, and coerced its employees in the exercise of their Section 7
rights.
Turning to the 8(a)(3) allegations of the complaint and considering initially the
General Counsel's evidence, I find that the General Counsel plainly made out a strong
prima facie case of discrimination. Thus the layoff was confined to the fieldmen and,
initially, to nine who had attended the May 3 meeting with Evanshaw. Further-
more, not only did Respondent's various threats of reprisal before the election
specifically include the threat to do precisely what Respondent set about doing im-
mediately after the election, but they were followed during the layoffs by undenied
statements which showed that Moylan was in fact motivated by the outcome of the
election in failing to keep the employees at work during slack periods as he had done
previously (i.e., Moylan's statement in laying off Fenton and Gooding that since the
Union was in, he did not have to carry them, Raymond's similar statement to Glaze,
and Jamison's explanation of Vetter's layoff, that Moylan was "kind of mad about
this union").
We turn, then, to the question whether Respondent's evidence was sufficient to
overcome the weight of the General Counsel's case and to establish its defense, which
as stated in Respondent's brief was that "The basic cause for most of the layoffs was
,an unexpected shutdown by the prime contractor of a job known as "Marlow
Overlook."'
There were two obvious and glaring flaws in Respondent's case: (1) it ignored the
force of its unlawful conduct of restraint and coercion , including its undenied state-
ments which were confirmatory of discriminatory intent; and (2) it had made seven
of the nine layoffs complained of before Moylan was notified to shut down the
Marlow Overlook job. The latter fact showed plainly that Moylan, mistaken as to his
dates, had seized upon a later happening to furnish the alleged "cause" for a series
of layoffs which he was effecting in reprisal for Respondent's loss of the election.
Those fatal defects left the remainder of Respondent's case without substantial
weight in overcoming the case against it. Indeed, much that its witness, Simmons,
testified to corroborated the General Counsel's witnesses both as to Respondent's
practice of keeping employees at work during slack periods and as to other work to be
done at Marlow Overlook . Anchor's testimony and Respondent's records went only
to the point that work was slack for a few days, not reaching the crucial issue whether
Moylan made the layoff in retaliation against the employees for having voted the
Union in . Testimony as to the basis of Moylan 's selection was inconsistent and was
not supported by Respondent 's records , nor could it otherwise have availed Respond-
ent in the light of the strong and direct evidence of discriminatory intent . That Re-
spondent began recalling the employees after a few days also does not disprove such
intent. All the employees were given to understand their layoffs were temporary,
and Jamison 's explanation to Vetter indicated that Moylan 's ire might well be
short4lived.
Absent discriminatory motivation , an employer is free , of course , to lay off at will,
during slack period or otherwise , and regardless of what its past practice has been.
Here , however, I find on the basis of the entire evidence that Respondent , in the face
of a prior practice under which it normally carried its regular employees during slow
periods , deliberately made a layoff in retaliation for having voted the Union in. Cf.
Worth Manufacturing Company, 134 NLRB 444. By such conduct, Respondent
engaged in discrimination to discourage membership in the Union , within the mean-
ing of Section 8(a) (3) of the Act.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative action
of the type conventionally ordered in such cases , as provided in the Recommended
Order below , which I find necessary to remedy and to remove the effects of the unfair
labor practices and to effectuate the policies of the Act . Because of the broad scope
of Respondent 's threats of reprisal and its demonstrated disposition to carry out its
threats, and for reasons which are stated in Consolidated Industries, Inc., 108 NLRB
60, 61 , and cases there cited , I shall recommend a broad cease-and-desist order.
Gerald Gooding is being omitted from the usual backpay recommendation, the
General Counsel having disclaimed as to him.
Upon the basis of the above findings of fact and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. By interfering with , restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8(a)( I).
2. By laying off Terry Fenton , Gerald Gooding, Jarvis Narron , Hontas Morris,
and David Glaze on May 16, Howard Casto and James Sadler on May 17, and
Richard Vetter and Larry Slack on May 18, Respondent engaged in discrimination to
discourage membership in the Union , and thereby engaged in unfair labor prac-
tices proscribed by Section 8i(a) (3) and ( 1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7 ) of the Act.
[Recommendations omitted from publication.]
The Post Publishing Company and Appleton, Neenah & Menasha
Typographical Union No. 612, International Typographical
Union, AFL-CIO and Appleton Post-Crescent Craftsman's
Union , Party to the Contract . Case No. 13-CA-4242. March 15,
1962
DECISION AND ORDER
On November 20, 1961, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in other unfair labor practices and recommended dismissal of the com-
plaint as to them. Thereafter, the Respondent filed exceptions to
the Intermediate Report together with a supporting brief.'
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions and
1 The Respondent 's request for oral argument is hereby denied , as the record , including
the exceptions and brief, adequately presents the issues and the positions of the parties.
136 NLRB No. 23.