United Hydraulic Services

National Labor Relations Board - Board Decisions

Jun 29, 1984

271 N.L.R.B. 107 (N.L.R.B. 1984)

UNITED HYDRAULIC SERVICES
United Hydraulic Services, Inc. and Perry Williams
and James O. Mills. Cases 9-CA-17643, 9-
CA-17692, and 9-CA-19166
29 June 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 8 August 1983 Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings,' findings, 2
and conclusions3 and to adopt the recommended
Order as modified.4
I The Respondent has excepted to the judge's admission of evidence
concerning incidents occurring 2-3 months and I year after the incidents
alleged in the complaint. Since the judge did not rely on this evidence in
making his decision, we need not determine whether the judge was cor-
rect in admitting this evidence
2 In sec. II of his decision, the judge inadvertently stated that Williams'
conduct on 27 December 1981, rather than on 21 December 1981. was
clearly concerted and protected. We agree with the judge that the Re-
spondent discharged Williams for his union activities, and find it unneces-
sary to pass on Williams' conduct on 21 December. See Meyers Industries,
268 NLRB 493 (1984). Member Dennis would affirm the judge's finding
that Williams was engaging in protected concerted activity on 21 Decem-
ber when he distributed copies of the complaint to other employees and
criticized the unlawful work rules. See Ontario Knife Co, v. ALRB, 637
F.2d 840 (2d Cir. 1980), cited with approval in Meyers.
We agree with the judge's conclusion that the Respondent violated
Sec. 8(a)(1) and (3) of the Act by promulgating certain work rules in re-
taliation against the employees' efforts to engage in union and/or con-
certed protected activities. We therefore find it unnecessary to pass on
the judge's conclusion that these work rules additionally were unlawful
because they were overly restrictive.
We further note that the Respondent presented testimony, not men-
tioned by the judge, that a Board agent at some time during the investi-
gation of the case told the Respondent to post "some" work rules. How-
ever, even accepting such testimony as true, we conclude that the Board
agent's advice is not binding on the Board and does not preclude a find-
ing that the Respondent violated the Act by promulgating the work
rules.
We adopt the judge's conclusion that the Respondent violated Sec.
8(a)(l) and (3) of the Act by discharging Williams for pretextual reasons.
In so doing, however, we do not rely on the judge's findings that the
Respondent would not have terminated Williams "but for" his union and
protected concerted activity. See generally Wright Line, 251 NLRB 1083
(1980), and Limestone Apparel Corp., 255 NLRB 722 (1981).
3 In Conclusion of Law 4, the judge inadvertently stated that the Re-
spondent violated Sec. 8(a)(1) of the Act by informing a "perspective"
employee that other employees were laid off because of union activity,
whereas the record reflects that the Respondent made such a statement
to an employee who had been hired. Therefore, we amend Conclusion of
Law 4 as follows:
4. By informing an employee that other employees were laid off be-
cause they attempted to bring the union into the shop, the Respond-
ent engaged in conduct violative of Section 8(a)(l) of the Act
4We shall modify the judge's recommended Order so as to pros ide
that the Respondent cease and desist from discriminating in regard to the
tenure of employment of the unlawfully laid-off and/or terminated em-
ployees.
271 NLRB No. 18
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United Hydraulic Services, Inc., Micco,
West Virginia, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 1(c).
"(c) Promulgating, posting, and maintaining
plant rules for its employees in retaliation for their
protected union and/or concerted activities."
2. Substitute the following for paragraph l(d).
"(d) Informing employees that other employees
were laid off because they attempted to start a
union."
3. Insert the following as paragraph l(e) and re-
letter the remaining paragraph.
"(e) Discriminating in regard to the tenure of
employment of employees because of their protect-
ed concerted and union activities."
4. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAl LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT question employees about their
union membership, activities, and sympathies and
the union membership, activities, and sympathies of
their coworkers.
WE WILL NOT threaten employees with the clo-
sure of our shop in the event that a union is select-
ed as their collective-bargaining representative.
WE WIL.. NOT inform any employees that we
laid off employees because they attempted to bring
a union into the shop.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL NOT discriminate in regard to tenure of
employment of employees because of their protect-
ed concerted and union activities.
WE WILL rescind the unlawful shop rules which
we put into effect 18 December 1981.
WE WIIL offer James Mills, Perry Williams,
Ricky Bradley, Melvin Lowe, Charles Smith, and
Ricky Tackett immediate and full reinstatement to
107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed and WE WILL compensate
them for any loss of pay suffered by reason of their
layoffs or discharges, less any net interim earnings,
plus interest. WE WILL also compensate any em-
ployee for monetary losses suffered by virture of
our canceling their health and hospitalization insur-
ance.
WE WILL notify each of them that we have re-
moved from our files any reference to their dis-
charge and that the discharge will not be used
against them in any way.
UNITED HYDRAULIC SERVICES, INC.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This
case was tried at Logan, West Virginia, on October 26,
1982, and Charleston, West Virginia, on March 16, 1983.
The pleadings allege violations of Section 8(a)(1), (3),
and (4) of the National Labor Relations Act (the Act).
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the brief, I make the following
FINDINGS OF FACT
1. JURISDICTION
At all times material herein, Respondent, located in
Micco, West Virginia, has been engaged in hydraulic
work and in servicing and repairing machines for various
coal mining companies. During the past 12 months, a
representative period, Respondent in the course and con-
duct of its operations performed services valued in excess
of $50,000 for various customers outside the State of
West Virginia, where Respondent is located.
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is engaged in the service and repair of hy-
draulic equipment which is employed at coal mines. Its
work is totally related to the coal mining industry and
generally not highly skilled. Paul H. Ballentine is Re-
spondent's president and Phillip D. Ballentine is a co-
owner with his brother Paul.
At the time the unfair labor practices are alleged to
have been committed, Respondent operated two shifts
with 12 employees, 6 employees on each shift. The Bal-
lentine brothers supervised both shifts. Charles Smith,
Melvin Lowe, Perry Williams, Ricky Bradley, Ricky
Tackett, and James Mills worked on the first or day
shift. On October 2, 1981,1 Respondent's first shift em-
All dates are in 1981, unless otherwise specified.
ployees took their break at the welding table inside the
shop, and discussed a need for union representation be-
cause they felt that Paul Ballentine's attitude had
changed. The consensus of opinion was that union repre-
sentation should be sought, although Mills replied that he
would have to talk to a union representative before de-
ciding. The testimony reflects diversity with respect to
whether Ricky Bradley, Paul Ballentine's stepson, who
was living with Ballentine at the time, agreed that a
union should be contacted, or whether Bradley did not
want to get involved because it was his "family."
The next day, the employees were off. Paul Ballentine
telephoned Tackett at home and asked him if he knew
anything that was going on at the shop. Tackett replied
negatively and Ballentine asked him if he was sure.
Tackett further responded that he did not know anything
going on at the shop and asked Ballentine why he was
questioning him. Ballentine responded that he was just
wondering. Later that day, Ballentine again telephoned
Tackett at a service station and told him to "forget their
earlier conversation."
On October 5, the beginning of a pay period, at the
completion of their shift, Paul Ballentine advised Wil-
liams, Smith, Lowe, and Tackett that they were being
laid off because of economic reasons. Mills had left early
and was not so informed. No employees on the second
shift were laid off. Bradley was not referred to in the tes-
timony.
That same evening, Mills received a call from Paul
Ballentine at his home. Ballentine told him that everyone
had been laid off except for two individuals. Mills asked
the reason for the layoff and Ballentine responded that it
was due to economic reasons.
Mills then called Phillip Ballentine at home. He told
Ballentine "it was pretty dirty about laying us off like
that." Ballentine replied, "It's pretty dirty going [trying]
to bring a union in here too." Mills replied that he had
not "started it" and Ballentine asked who had started it,
to which Mills stated that "it didn't make any differ-
ence." Ballentine replied, "It made a big difference."
Mills then asked if the employees had been laid off be-
cause of the Union and Ballentine replied that the layoff
was for economic reasons. Mills asked Ballentine when
he would call him back to work and Ballentine stated he
did not know. I have attempted to paraphrase the testi-
mony of Mills who, in an effort to relate the entire con-
versation, may have sequentially confused questions and
answers.
On the next day, October 6, George Spangler learned
from his "wife's father-in-law" that Respondent had laid
employees off. Spangler telephoned Paul Ballentine, in-
quiring about employment and Ballentine advised him to
come in on the next day. On October 7, Spangler was
hired to replace Lowe. Respondent avers that Spangler
was hired in case Lowe did not want to return. There is
no indication that Lowe ever advised Respondent that
he would not, if recalled, return to work. Spangler
worked for Respondent on October 7 and 8. On one of
these days, he overheard Paul Ballentine discussing the
recent layoff with his machinist. The discussion took
place in the shop, and Spangler wvas in close proximity
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UNITED HYDRAULIC SERVICES
because he was waiting for instructions for his next job.
Ballentine inquired of the machinist as to whether the
machinist was aware of how Ballentine knew who, and
who not, to lay off. The machinist replied he did not
know where Ballentine got his knowledge. Then looking
at Spangler as if to bring him into the conversation, Bal-
lentine made the statement, "If they're going to talk
about a union or have a union in my shop," he would
not stand for it, if he had to lay every one off. Then ac-
cording to Spangler's testimony Ballentine addressed him
asking, "What do you think of that?" and Spangler stated
that he agreed with him. On October 8 at the end of the
shift, Paul Ballentine came to Spangler, handed him his
check, and stated that Lowe, the welder, was returning
to work. Spangler inquired if there was anything else he
could do in the shop and Ballentine replied negatively.
Lowe and Mills returned to work during the week
ending October 9, the same week they were laid off, and
worked approximately 20 hours for the balance of that
week. They also worked overtime the following week.
Bradley was hired during the week ending October 9, to
paint Respondent's shop for a fee of $250. Bradley was
later recalled to work the next week and he also worked
overtime. During the pay period ending October 16, Re-
spondent hired Joe Neece to replace Tackett. During the
week ending October 30, Shawn Calloway was hired to
replace Williams. On the stand, Phillip Ballentine admit-
ted that after he learned of the employees' interest in a
union he spoke to Mills and probably all of the employ-
ees. He told them, "Before I let a union come in I'd
close the doors." Ballentine continued, "The reason
being because you can't hardly get men to work now
without them trying to tell you what to do, you just
have to pay it and everything else to get anything out of
'en [sic], and I just couldn't see no future in it." Ballen-
tine acknowledged that his pretrial affidavit was accu-
rate. It states, inter alia, "I did tell several employees
shortly after the layoff, including James Mills and maybe
another, that I would close down and go to work for
someone else, before I would go broke over a union. I
said there are so many shops in the area that people in
this area are slack on their work because they can
always go somewhere else and get a job if they are
skilled. I don't have to be aggravated with a union."
Williams testified that, on October 8, he went to the
shop to talk to Paul Ballentine about clearing up some
money problems. According to Williams Ballentine took
him into the shop and at that time proceeded to his
office so he could make out Williams' check. Williams
was talking to a machinist, Baisden. Williams testified
that Ballentine was in the office with the doors open and
that he, Williams, yelled in a loud voice to Baisden, be-
cause Baisden was running his machine. He wanted to be
sure that Ballentine heard him state that he, Ballentine,
had no reason to discharge all six men because Williams
was the one "personally that started talking about the
Union." The testimony of Williams in this regard is unre-
futed. The next day Mills and Lowe were recalled to
work.
On November 5, Williams filed unfair labor practice
charges alleging that the layoffwas unlawful. On No-
vember 24 and 27 Williams and Smith were recalled to
work. On December 4, Williams, Smith, and Fuller were
laid off again, allegedly due to lack of work. Williams
and Smith were recalled on December 10, and Fuller
was recalled on December 11.
Paul Ballentine testified that he did not need Williams
and Smith from the very beginning, but as a result of
pressure from the Board agent he recalled them to work.
Sometime before December 17, Paul Ballentine was ad-
vised by a Board agent that a complaint would issue
with respect to the unfair labor practice charges filed by
Williams. On December 17, Williams was laid off again,
allegedly due to lack of work. On December 18, Re-
spondent posted the work rules received in evidence as
General Counsel's Exhibit 3.
Also on the same day, December 18, Williams and Re-
spondent received copies of the unfair labor practice
complaint. Williams went to the United Mine Workers
headquarters and had copies made of the complaint.
On December 21, at approximately 9:30 a.m., Williams
went to Respondent's facility to distribute copies of the
complaint to Smith, Lowe, and Mills. At that time one
of the Ballentine brothers met Williams beside Mills'
worktable and asked Williams if he, had a copy for him.
Williams responded negatively, that he would be getting
his in the mail. Williams told Ballentine that the rules he
had posted were unfair and "that he was trying to run
the shop like a little Poland." Williams then left the
premises.
On December 22, water began to drain from Paul Bal-
lentine's property to the property immediately adjacent.
which belonged to Williams. Williams, who became un-
nerved and frustrated over this state of affairs, went to
Respondent's shop to confront Paul Ballentine. He angri-
ly demanded that Ballentine do something about the
water problem and Ballentine responded it was not his
fault, and he would do nothing about it. Williams admit-
tedly became angry, used some profanity, and threatened
to have Ballentine's shop closed down. Williams then left
Respondent's facility.
Paul Ballentine testified that he was advised by his at-
torney and the State Labor Board that he had every
right to fire Williams. After being so adivsed, Ballentine
telephoned Williams and told him that he was fired. Wil-
liams insisted that he was entitled to his paycheck imme-
diately. Williams went to Respondent's facility and Bal-
lentine gave him his paycheck. He asked Ballentine why
he was being terminated. According to Williams, Ballen-
tine led him to the bulletin board where the recently
promulgated rules were posted, pointed to the rule 2 and
said, "because of this ruling." Ballentine testified that ini-
tially Williams was laid off for economic reasons. As to
the final termination he testified that the "main reason"
was because Williams came into the shop and directed
profanity towards him in the presence of other employ-
ees. He also testified that he told Williams his failure to
obey the work rule was one other reason Williams was
fired.
2 See G.C Exh. 3, "there is to be no employee in the shop except
during his regular shift" or overtime without the permission of me [Paul
Ballentine]."
109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mills testified as a witness for the General Counsel, on
October 26, 1982, the first day of the hearing. The pur-
pose of his testimony was to support the allegations that
he was unlawfully interrogated about his union activities
and the union activities of his coworkers. Furthermore,
his testimony established Respondent's knowledge of the
union activities, and Respondent's union animus. The
next day, October 27, 1982, Paul Ballentine went to his
home and told him to return the keys to the shop, and
turn in his uniform. He further advised Mills that his
health insurance would be canceled. When Mills asked if
he were being discharged, Ballentine responded nega-
tively, that he was being laid off until further notice.
Mills testified further that in the past when he had been
laid off Respondent did not ask him to return the shop
keys or his uniform, and that his insurance had never
been canceled. The bulk of Mills' testimony remains un-
refuted.
Ballentine testified that the reason he asked Mills to
return the shop keys was because he no longer trusted
him; he felt that Mills lied when testifying at the hearing.
Another reason, although apparently not advanced as the
reason for the discharge, but rather for Ballentine's loss
of trust for Mills, was that Mills allegedly picked some
green beans one summer without paying for them. Bal-
lentine admitted that when an employee is laid off his in-
surance is not canceled until said employee has been laid
off in excess of 30 days. He advanced no explanation as
to why Mills' insurance was canceled approximately 5
days after he was laid off. Ballentine also testified that he
had no plans to recall Mills. He testified that since Mills'
layoff the work previously performed by him is now
done by Phillip Ballentine. The record also reflects that
other employees who were laid off subsequent to Mills
have since been recalled for work which Respondent
concedes Mills could have performed.
The Layoffs-Respondent's Defense
Respondent avers that the October 5, 1981 layoff was
occasioned by economic reasons. Ron Vance, Respond-
ent's certified public accountant, testified that in Septem-
ber Respondent contacted him with regard to assistance
in obtaining a loan, because of a lack of cash flow. Early
in his testimony on direct examination, Vance testified
that he recommended to the Ballentine brothers that
they should consider laying off some of the people be-
cause there was not enough money coming in. This oc-
curred during a discussion in September 1981. Later in
his testimony on cross-examination, Vance testified that
he did not tell the Ballentines that they should lay off as
soon as possible; rather, he told them he would recom-
mend them reviewing the situation for a possible layoff.
Prior to the October 5 layoff, after the second week of
September, Respondent increased the number of over-
time hours its employees worked. Less than 2 days after
laying employees off, Respondent hired replacements for
them. Moreover, Respondent recalled several laid-off
employees after they had been laid off for only a matter
of several days. Documentary evidence and testimony
reflect that the total number of overtime hours worked
by Respondent's employees in October increased from
that amount worked in the 2 previous months. The
record further reflects that Respondent's sales had been
on the upsurge since June, and in October increased ap-
proximately 45 percent over the month of September.
With respect to the December 4 layoff, Respondent
contends that there was a lack of work due to the gener-
al downturn in the coal industry. It is noted that Wil-
liams and Smith had been recalled on November 24, al-
though Respondent contends that this was as a result of
pressure by the Board agent, and they were not needed.
Significantly, no employees were laid off in July al-
though sales in November were greater. Moreover, em-
ployees worked overtime during the week in which Wil-
liams and Smith were laid off. Although Respondent
contended that it did not need Williams or Smith, it is
interesting to note that Williams worked 40 hours the
same week he was laid off. Williams and Smith were re-
called to work on December 10.
On December 17, Williams was the only individual
laid off, allegedly due to lack of work. The evidence re-
flects that most of the employees worked the normal 40-
hour workweek during the week Williams was laid off
and several employees actually worked overtime. Some
of the employees worked in some measure less than the
40-hour workweek.
Conclusions and Analysis
Independent 8(a)(l) Allegations
The record very clearly demonstrates that, in an Octo-
ber 5 telephone conversation, Phillip Ballentine coercive-
ly interrogated Mills. There was no effort on the part of
Ballentine to deny said conversation. Ballentine then in-
ferred that if Mills told him who instigated the Union it
might favorably affect his layoff status. Accordingly, I
find that Ballentine's conduct was in violation of Section
8(a)(1) of the Act.
Credible testimony establishes that Phillip Ballentine
told employees that Respondent would close its doors
before allowing a union in the shop. This was an unam-
biguous threat to close the facility if employees chose
union representation and, as such, violates Section 8(a)(1)
of the Act.
Spangler was particularly impressive as a witness. He
responded from out of state, at the conclusion of his mili-
tary basic training. He had no motive to fabricate his tes-
timony. His testimony glaringly establishes that not only
did Paul Ballentine reveal that he had specific knowl-
edge with respect to the identity of the union adherents,
but he also selected and effected employee layoffs on this
basis. Moreover, during the same conversation, he threat-
ened to lay off all employees before allowing a union in
the shop. Therefore I discredit Ballentine and conclude
that he engaged in conduct violative of Section 8(a)(1) of
the Act.
The October 5 Layoff
As set forth earlier, Respondent's activities were in-
consistent with a lack of cash flow and belie its represen-
tations. Overtime was significant, laid-off employees
were replaced, and some laid-off employees were called
back after only a few days. It is ominous that only union
110
UNITED HYDRAULIC SERVICES
adherents were laid off. Bradley, Paul Ballentine's step-
son,3 was hired to paint the shop thus mitigating the fi-
nancial impact of his layoff. The record is replete with
evidence of Respondent's union animus and overall hos-
tility towards the union adherents. The timing and the
abruptness of the layoff are highlighted by the fact that it
occurred during the first day of a pay period.
Accordingly, based on the evidence I find and con-
clude that the layoff was in violation of Section 8(a)(l)
and (3) of the Act.
The December 4 Layoff
By this time Respondent had woven a tapestry of in-
terrogation, threats, and layoffs based on union activity.
Williams and Smith were laid off on October 5, and not
recalled until November 24 and 27. Then, on December
4, Respondent laid off Williams, Smith, and Fuller.
Respondent's "lack of work" defense is specious. Wil-
liams had just completed working a 40-hour week and,
as set forth earlier, several employees worked overtime
subsequent to the layoffs of Williams and Smith.
In my opinion, this type of conduct engaged in by Re-
spondent is more insidious than a final permanent layoff.
It encourages employees to vacate their principles
and/or desires for union representation if they want to
regain and retain their jobs. It graphically illustrates Re-
spondent's intention and ability to control the destiny of
the employees dependent on their union sentiments.
It is my judgment that the evidence heavily prepon-
derates in favor of finding that Respondent violated Sec-
tion 8(a)(l) and (3) of the Act by the December 4 layoff.
The December 17 Layoff
Williams was recalled to work on December 10, and
he alone was laid off again on December 17. Respondent
again raises a "lack of work" defense and this layoff was
also summarily effectuated. I find this defense without
merit and Respondent's conduct a further effort to break
the Union and the spirit of the most active union adher-
ent. It is also noted that, on October 8, Williams loudly
proclaimed in the open shop, in the presence of Paul Bal-
lentine, that he was the union instigator.
Other employees continued to work the better part of
a 40-hour week after Williams' December 17 layoff, and
some worked overtime. In my opinion Respondent's
knowledge that the issuance of a complaint was immi-
nent precipitated the layoff of Williams. I therefore find
and conclude that it violated Section 8(a)(1) and (3) of
the Act.
The Work Rules
Record evidence demonstrates that the rules were pro-
mulgated during a time when the employees were en-
gaged in organizing efforts. Respondent did not present
any legitimate business justification for the rules. There is
no history that Respondent had ever before posted or en-
forced any written rules with respect to the conduct of
its employees. Respondent allows that the rules were
posted as a retaliatory measure for the Board's decision
I Bradley lived with his stepfather.
to issue a complaint. The rules, inter alia, limit free
access to the shop. I find and conclude that the rules are
both overly restrictive and promulgated to retaliate
against the employees and to frustrate their efforts to
engage in union and/or protected concerted activities.
Accordingly, by the promulgation and posting of these
rules, Respondent has engaged in conduct in violation of
Section 8(a)(1) and (3) of the Act.
The Termination of Williams on December 22
I have concluded that Respondent's work rules were
unlawfully promulgated. One of Respondent's multiple
reasons for discharging Williams was because he violated
one of the rules by entering the shop without permission.
Prior to this rule, employees were allowed entrance even
when off duty. I have found that the rule was retaliatory
in nature, therefore as a basis for discharge, Section
8(a)(1) and (3) of the Act are violated. Moreover, Re-
spondent contends that Williams' use of profanity, never
a sensitive area in the past or the basis for termination,
and his threat to close the shop, formed the basis for dis-
charge. Respondent did not communicate to Williams at
the time that these were the reasons for his discharge.
Furthermore, in his pretrial affidavit, Ballentine referred
only to Williams' appearance in the shop of December
21, when he distributed copies of the Board's complaint,
and criticized the new rules, as the bases for the dis-
charge. Williams' conduct on December 27 was clearly
concerted and protected.
Considering Respondent's treatment of Williams, spe-
cifically, the constant layoffs and the cavalier reception
accorded him when he complained about the water
draining onto his property, Williams' emotional reaction
was to be expected. I point out that Williams did not
have any history of overreacting, nor does the record re-
flect that he was a problem employee.
I therefore find that Respondent's discharge of Wil-
liams was pretextual and Respondent would not have
terminated Williams but for his union and protected con-
certed activity. Accordingly, I conclude that, by the dis-
charge of Williams, Respondent engaged in violations of
Section 8(a)(1) and (3) of the Act.
The October 27, 1982 Termination of Mills
Mills was discharged on October 27, 1982, the very
next day after he testified at the unfair labor practice
hearing herein. Paul Ballentine conceded his hostility to-
wards Mills, stating that Mills had lied in his testimony,
had stolen some green beans, and therefore he could no
longer trust him.
Although Respondent avers that Mills was laid off, the
record is clear that Respondent has no plans to call him
back to work and indeed Mills has not worked for Re-
spondent since October 22, 1982. Furthermore, the work
that Mills had previously performed was being per-
formed by Phillip Ballentine.
Respondent's previous practice was to allow employ-
ees to maintain their insurance coverage for 30 days after
being laid off, whereas in the case of Mills his insurance
was canceled approximately 5 days after his layoff.
111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based on the preponderance of the evidence I find and
conclude that Mills was discharged for filing charges and
testifying before the Board, in violation of Section
8(a)(1), (3), and (4) of the Act. His union activity served
as another basis for his termination.
CONCLUSIONS OF LAW
I. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. By interrogating employees about their union activi-
ties and the union activities of their coworkers, Respond-
ent has committed unfair labor practices in violation of
Section 8(a)(1) of the Act.
3. By threatening employees that it would close its fa-
cility if they engaged in union activities, Respondent vio-
lated Section 8(a)(1) of the Act.
4. By informing a perspective employee that other em-
ployees were laid off because they attempted to bring the
Union into the shop, Respondent engaged in conduct
violative of Section 8(a)(1) of the Act.
5. By promulgating and posting restricted plant rules
for its employees in retaliation for their union and pro-
tected concerted activities, Respondent violated Section
8(a)(1) and (3) of the Act.
6. By discriminating in regard to the tenure of employ-
ment of Bradley, Lowe, Mills, Smith, Tackett, and Wil-
liams because of their concerted and union activities, Re-
spondent has violated Section 8(a)(1), (3), and (4) of the
Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (4) of the Act, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
I shall recommend that Respondent be ordered to
offer the employees who were laid off-Bradley, Lowe,
Mills, Smith, Tackett, and Williams-immediate and full
reinstatement to their former or a substantially equivalent
positions if they have not already been reinstated, with-
out prejudice to their seniority or other rights and privi-
leges. Mills and Williams, who were discharged later,
shall also be offered full reinstatement to their former or
substantially equivalent positions without prejudice to
their seniority or other rights and privileges. In addition,
Respondent shall make all of these employees whole for
any losses they may have suffered by reason of the dis-
crimination against them, by payment to them of a sum
of money equal to that which they would normally have
earned from the date of their layoffs or discharges, less
net earnings during said period. Backpay shall be com-
puted according to F. W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in the manner prescribed
in Florida Steel Corp., 231 NLRB 651 (1977). (See gener-
ally Isis Plumbing Co., 138 NLRB 716 (1962).)
I further recommend that Respondent be required to
rescind the rules it unlawfully promulgated, posted, and
maintained on December 18, 1981, and that Respondent
be ordered to reinstate employees' health and hospitaliza-
tion insurance and make any employee whole who has
suffered as a result of having his insurance canceled.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 4
ORDER
The Respondent, United Hydraulic Services, Inc.,
Nico, West Virgina, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees regarding their
union membership, activities, and sympathies and the
union membership, activities, or sympathies of their co-
workers.
(b) Threatening employees that it would close its facil-
ity should the employees select a union as their collec-
tive-bargaining representative.
(c) Promulgating, posting, and maintaining restrictive
plant rules for its employees in retaliation for their pro-
tected union and/or concerted activities.
(d) Informing job applicants that employees were laid
off because they attempted to start a union.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Perry Williams and James O. Mills immediate
and full reinstatement to their former positions or, if such
positions no longer exist, to positions which are substan-
tially equivalent, without prejudice to any seniority or
other rights and privileges, and make them whole for
any loss of pay they may have suffered by reason of the
discrimination against them with interest as provided in
the section above entitled "The Remedy."
(b) Offer the laid-off employees Bradley, Lowe, Smith,
Tackett, Williams, and Mills, for the periods they were
laid off, immediate and full reinstatement if they have
not already been reinstated to their former positions or,
if such positions no longer exist, to positions which are
substantially equivalent, without prejudice to any seniori-
ty or other rights and privileges, and make them whole
for any loss of pay they may have suffered by reason of
the discrimination against them with interest as provided
in the section above entitled "The Remedy."
(c) Reinstate employees' health and hospitalization in-
surance and make any employees whole who suffered
monetary losses as a result of their insurance being can-
celed.
(d) Rescind the rules it unlawfully promulgated,
posted, and maintained on December 18, 1981.
(e) Respondent shall expunge from its files any refer-
ences to the discharges or layoffs of the employees
named in the amended consolidated complaints and re-
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
112
UNITED HYDRAULIC SERVICES
ferred to above, and notify them in writing that this has
been done, and that evidence of their unlawful layoffs or
discharges shall not be used as a basis for future person-
nel actions against them.
(f) Post at its facility copies of the attached notice
marked "Appendix." s Copies of the notice, on forms
provided by the Regional Director for Region 9, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
5 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other materi-
al.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
113