Eastman Kodak Co.

National Labor Relations Board - Board Decisions

Nov 17, 1971

194 N.L.R.B. 220 (N.L.R.B. 1971)

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eastman Kodak Company ; 1 Caddo Construction
Company; 2 Hychem Constructors, Inc.; and Hud-
son Engineering Corporation3 and Plumbers and
Steamfitters Local Union No. 301 , United Associa-
tion of Steamfitters , Pipefitters, Plumbers and
Apprentices, AFL-C10.4 Case 16-CA-2799
November 17, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 20, 1970, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding finding that Respondent Hudson-Hy-
chem had engaged in and was engaging in certain
unfair labor practices within the meaning of the
National Labor Relations Act, as amended, and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent Hudson-Hychem
had not engaged in certain other alleged unfair labor
practices and recommended dismissal of those allega-
tions of the complaint. The Trial Examiner further
found that Respondent Eastman-Caddo, as successor
of Hudson-Hychem, was responsible for remedying
certain unfair labor practice violations of the Act
engaged in by Hudson-Hychem, as set forth in the
Trial Examiner's Decision. Thereafter, the Respon-
dents and the Charging Union, Local Union No. 301,
filed exceptions to the Trial Examiner's Decision
together with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegat-
ed its powers in connection with this case to a three-
member panel.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
1. The Trial Examiner found, and we agree, that
Respondent Hudson-Hychem violated Section 8(a)(1)
of the Act by interrogating employees about their
union activities and threatening reprisals for such
activities.
2. We agree with the Trial Examiner's finding that
the layoff of September 16 was prompted by econom-
1 The name of this Respondent has been amended by deleting the
prefatory descriptive reference to its division , Texas Eastman Company,
which is not a legal entity.
is considerations. We do not agree, however, with his
further finding that there is sufficient circumstantial
evidence in the record to establish that the attendance
of the five alleged discriminatees at the union meeting
held the night of September 15 was a factor in their
selection for the layoff.
The record shows that throughout the existence of
Hudson-Hychem's contract with Eastman layoffs
occurred numerous times depending on the level of
work orders Hudson-Hychem received from East-
man. As for the layoff at issue, the Trial Examiner
found with record support that they were "merely an
integral part of a retrenchment program initiated on
September 9, when 30 men, including 20 pipefitting
employees, were separated" and that but for physical
limitations which precluded the processing of more
than 30 at one time, an additional 9 men would have
been laid off at that time. It is against this background
of record facts that we disagree with the Trial
Examiner's conclusion that those laid off on Septem-
ber 16 were discriminatorily selected in violation of
Section 8(a)(3) of the Act.
The record is devoid of any evidence which would
indicate that the Employer at the time it prepared the
list of employees to be laid off on September 16 had
any knowledge of the identity of the employees who
had attended the union meeting the night prior to the
day of the layoff. The Trial Examiner's statistical
analysis of the layoff based on the signed attendance
record showing that there were 20 employees at the
union meeting, 7 of whom were included in the layoff,
is certainly circumstantial evidence which if not
explained by other record facts would create suspi-
cion that the employees' union activity may have been
a factor in their selection for layoff. But as we have
found, in agreement with the Trial Examiner, the
layoff was prompted by economic consideration, we
cannot conclude that on the record before us the
circumstantial evidence is sufficient to support the
conclusion that there was discrimination in the
selection of the employees for layoff. Moreover, the
General Counsel stipulated at the hearing that the
attendance record on which the Trial Examiner relied
does not actually reflect the true attendance at the
meeting because of the known fact that employees
were reluctant to sign union attendance records.
Thus, the basis for the Trial Examiner's conclusion is
further weakened. Nor can we accept his conclusion
that the selection for layoff was a last minute change
by the Employer to include the employees who had
attended the union meeting of September 15. The
record facts do not support this conclusion.
Since a preponderance of the probative evidence on
2 Hereinafter collectively referred to as Eastman-Caddo.
3 Hereinafter collectively referred to as Hudson-Hychem.
4 Hereinafter referred to as Local 301.
194 NLRB No. 27
EASTMAN KODAK COMPANY 221
the record as a whole does not establish that the
layoffs were in violation of Section 8(a)(3) of the Act,
we shall dismiss that allegation of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents,
Hychem Constructors, Inc., and Hudson Engineering
Corporation, Houston, Texas, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating their employees about their union
activities or those of their fellow employees.
(b) Threatening employees with loss of jobs or other
reprisals if they become members of, or assist,
Plumbers and Steamfitters Local Union No. 301,
United Association of Steamfitters, Pipefitters,
Plumbers and Apprentices, AFL-CIO, or any other
union.
(c) In any like or related manner interfering with,
restraining, or coercing their employees in the exercise
of their rights guaranteed in Section 7 of the Act,
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Mail forthwith to each of their former employees
copies of the attached notice marked "Appendix."
Copies of said notice, on forms to be provided by the
Regional Director for Region 16, shall be duly signed
by the said Respondents' representatives.
(b) Notify the Regional Director for Region 16, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our former employees at Longview,
Texas, that:
The law gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representa-
tive of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all of these things.
WE WILL NOT do anything that interferes with
these rights.
WE WILL NOT ask our employees whether they
favor Plumbers and Steamfitters Local Union No.
301, United Association of Steamfitters, Pipefit-
ters, Plumbers and Apprentices, AFL-CIO, or any
other union.
WE WILL NOT threaten our employees with loss
of jobs or any other reprisals if they become a
member of that Union or any other union.
All our employees are free to join or not to join
Plumbers and Steamfitters Local Union No. 301,
United Association of Steamfitters, Pipefitters,
Plumbers and Apprentices, AFL-CIO.
HUDSON ENGINEERING
CORPORATION HYCHEM
CONSTRUCTORS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 8A24 Federal Office Building, 819 Taylor
Street, Fort Worth, Texas 76102, Telephone
817-334-2921.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The original charge
herein was served on Hudson Engineering Corporation and
Hychem Constructors, Inc., herein called Hudson-Hychem,
on September 19, 1966,1 and a copy of the first amended
charge was served on Eastman Kodak Company on
December 12, as well as on Hudson-Hychem.2 The instant
complaint issued on July 3, 1969, and the case was heard
thereafter on September 30 and October 1 and 2. After the
hearing briefs were received from all Respondents and
from the General Counsel. The issues litigated related to
alleged interrogation , threats of reprisals , and discriminato-
ry layoffs.
Upon the entire record,3 including observation of the
witnesses' demeanor , the following findings and conclu-
sions are adopted.
1. THE RESPONDENTS
Hudson Engineering Corporation , hereinafter sometimes
referred to as Hudson , is a corporation organized under
1 All dates are in 1966, unless otherwise indicated.
2 A second amended charge and a third amended charge were
admittedly served upon Hudson-Hychem on February 12 and April 4,
1968, respectively . Texas-Eastman denied receiving the second amended
charge but admitted receipt of the third amended charge There is no need
to resolve the issue thus raised as to service of the second amended charge.
3 For corrections of the record and certain rulings on evidence , see the
order of December 5, 1969.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas law, with a principal office in Houston, Texas, and is
engaged in engineering and construction work. It annually
secures from out-of-state sources supplies valued in excess
of $50,000 and annually performs services for out-of-state
clients in the value of more than $50,000. Hychem
Constructors, Inc., hereinafter sometimes referred to as
Hychem, is a Texas corporation and a wholly owned
subsidiary of Hudson, and, in accordance with the finding
of the Board in a related representation case,4 and the
admission in their answer herein, it is found that both firms
constitute a single employer for the purposes of this case.
Between 1960 and May 1, 1967, Hychem engaged in
construction and maintenance work under a subcontract
with Hudson at the plant of Eastman Kodak Company in
Longview, Texas. During the 12 months preceding May 1,
1967, Hychem performed services valued in excess of
$50,000 pursuant to the foregoing subcontract.
Eastman Kodak Company herein sometimes referred to
as Eastman, is a New Jersey corporation. At its plant in
Longview, Texas, referred to above, it is engaged in the
manufacture and sale of petrochemical products. It has
annually shipped to out-of-state points from its Longview
plant products valued in excess of $50,000. Caddo
Construction Company, hereinafter sometimes referred to
as Caddo, is a Texas corporation and a wholly owned
subsidiary of Eastman. Caddo has a principal office at
Longview, where it has since May 1, 1967, been engaged in
construction work at the foregoing Eastman plant, and it
annually performs services for Eastman in the value of
more than $50,000. In accordance with the Board's finding
in the aforecited representation case and the admission in
their answer in the case at bar, it is found that Eastman and
Caddo constitute a single employer for the purpose of this
case. Such employer is herein referred to as Eastman-
Caddo.
It is concluded that Respondents Hudson-Hychem and
Eastman-Caddo are employers engaged in commerce
within the meaning of the Act.
and maintenance work there under contract with Eastman
until 1960, when the work was assigned by Hudson to its
wholly owned subsidiary, Hychem. This arrangement
continued until May 1, 1967, when it was terminated by
Eastman and the same work was thereafter performed by
Caddo, a wholly owned subsidiary of Eastman. During the
period of Hychem's activity at the jobsite, Hychem and
Hudson were the joint employers of the instant employees,
and of the various supervisors referred to below.
In August 1966, while Hudson-Hychem was still
performing the construction and maintenance work at the
plant, the Union began to organize the welders, pipefitters,
and pipefitter helpers employed in such work. In August
and September, several meetings were held by the Union, at
which cards were signed. On September 9, Hudson-
Hychem laid off 30 individuals, including a number of
pipefitters and pipefitter helpers. On September 16, the day
after a union meeting, nine more men were laid off, of
whom eight had attended that meeting. None of the eight
has been rehired or replaced. All of them, except for Hester,
who was a supervisor, are the subject of the instant
proceeding and are hereinafter referred to as the
"claimants." Charges filed on their behalf on September 19,
and December 12,1966, were held in abeyance pending the
outcome of a representation proceeding instituted by the
Union on October 20, 1966.5 That proceeding was
prolonged by the need for resolving problems as to the
appropriateness of the unit and as to the identity of the
employer both before and after the termination of Hudson-
Hychem's contract on May 1, 1967. It was not until April
28, 1969, that the Board entered its final decision in the
representation case,6 in which it affirmed a prior finding as
to the appropriateness of the unit sought by the Union, and
in which it determined that Eastman and Caddo had since
May 1, 1967, been joint employers of the employees in such
unit, displacing in that role Hudson-Hychem. An election
was held on May 21, 1969.7
B. Discussion
if. THE UNION
Plumbers and Steamfitters Local Union No . 301, United
Association of Steamfitters , Pipefitters , Plumbers and
Apprentices , AFL-CIO, is a labor organization under the
Act.
III. THE UNFAIR LABOR PRACTICES
The pleadings raise the following issues:
1. Whether Respondents violated Section 8(a)(1) of the
Act by interrogation and threats?
2. Whether Respondents violated Section 8(a)(3) and
(1) by laying off seven union adherents?
A. Sequence of Events
The plant here involved, at Longview, Texas, is owned
and operated by Eastman. Its construction was begun in
1951 by Hudson, which continued to perform construction
4 Case 16-RC-4475.
5 Case 16-RC-4475
6 Texas Eastman Company, 175 NLRB No. 105.
1. Threats and interrogation
Pate testified that early in the afternoon of September 9,
while working at the instant plant with Murray, he
overheard a conversation between Murray and his father-
in-law, Brown, a supervisor,8 in which Brown stated he had
heard that Murray had gone to a union meeting, and asked
if that was true. Pate added that, when Murray admitted
that he had gone to the meeting, Brown declared that
Hychem "was not going to stand for any Union guys out
here, they'll give us trouble . . . if it goes Union Hychem
won't be in here any more." Murray substantially
corroborated the foregoing testimony.
Brown's version was that he remarked to his son-in-law
that he heard he had a union card, that the latter answered
that he had applied for one, and that, while Brown then
attempted to portray the disadvantages of unions in terms
of their affinity for strikes and the employer's right to
replace strikers, he did not utter the warning ascribed to
7 The Union was rejected by a substantial margin.
8 He was general pipe foreman for Hudson-Hychem.
EASTMAN KODAK COMPANY
him by Pate and Murray. However, I credit them on the
basis of demeanor as well as the mutually corroborative
nature of their testimony.9
It is found that by the foregoing interrogation of Murray,
in the presence of Pate, and by the warning that Hychem
would not put up with union adherents Hudson-Hychem
violated Section 8(a)(1) of the Act.10
Porter, one of the claimants herein, testified that early in
September Brown asked him if he had heard anyone say
they would "buy them a Union book,"" that the witness
answered that several had indicated they intended to do so,
that Brown then inquired who had "started all this," and
that, when Porter demurred at answering, Brown asserted,
"Well, we're going to get to the bottom of it one way or the
other, and anyone that is affiliated with the Union any way
at all will be immediately terminated." Brown's version was
that he merely asked Porter what he knew about the Union
and that Porter rejoined that the men were going to try to
organize.
The warning here imputed to Brown that all union
adherents would be discharged was not far different from
that which, as found above, was delivered by Brown about
the same time to his son-in-law. The circumstances of that
incident establish that Brown had no qualms about giving
currency to such a warning nor about entering a false
disclaimer at the hearing. That he would do so on the one
occasion makes it easier to believe that he would do so
again. In view of these considerations, as well as demeanor,
I credit Porter as to such warning, 12 as well as the related
interrogation, which was partially admitted by Brown, and
it is found that, after attempting to ascertain from Porter
who the union adherents were and who had instigated the
union movement, Brown threatened that there would be a
thorough investigation of the employees' union activities
9 Respondents stress ( 1) the close personal relationship between Brown
and Murray as negating any intimidation of Murray , (2) and the fact that
the conversation was not intended for Pate 's ears. However, as to the latter
point , one cannot escape responsibility for the effect of his words on
another, who, although not directly addressed, is standing, as here, only
several feet away. As to the former point, the fact that it was his father-m-
law rather than a stranger who warned him that Hychem would not "stand
for" any "Union guys" could hardly have given Murray any reason to
discount such warning. On the contrary, coming from a friendly source, the
warning would presumably have carried even more weight than otherwise.
On the issue of credibility, it is true that neither Pate nor Murray was
likely to be favorably disposed to the Respondents. Pate had been laid off
on September 9, and Murray had quit because of some pique over a job
assignment However, in order to discredit them it would be necessary to
assume that Murray was willing to fabricate testimony adverse to that of
his father-in-law, with whom he was still on friendly terms , even though, so
far as the record shows, Murray could derive no material benefit
therefrom.
Under all the circumstances, I do not regard the matters cited by
Respondents as sufficiently cogent to overcome the considerations favoring
the credibility of Pate and Murray.
10 Respondents contend that such warning was neutralized, in any
event, by Brown's alleged remark to Murray in the same conversation that
there was no objection to employees having union cards but only to their
interfering with work by talking Union . Brown so testified, and neither
Pate nor Murray was specifically asked about this. However, even if such a
remark was made, it was clearly inconsistent with Brown 's warning, as
related by Pate and Murray, to the effect that Hychem would not be
favorably disposed to union adherents, and the situation would be one
where an employer takes conflicting positions with respect to union
activity, leaving it to the employees to guess at their peril what his true
sentiments are. Since the employees in such a situation would be likely to
conclude that they would be safe from reprisals only if they abstained from
223
and those involved would be discharged. By such threat, as
well as the related interrogation , Hudson-Hychem violated
Section 8(a)(1).
Porter added that on September 16, Brown came to him
at the end of the workday and asked if he had attended the
union meeting the night before, and that, when Porter
answered that he had, Brown notified him that he was being
laid off. According to Brown, all that occurred on that
occasion was that, when told of his layoff, Porter charged
that it was because of the Union, which Brown denied.
As I have found him more credible than Brown
elsewhere, I credit Porter here. By such interrogation,
Hudson-Hychem further violated Section 8(a)(1).13
T. Barrett, who was among those laid off on September
16 and a claimant herein, testified that a few days before
such layoff he was asked by Ables, an area supervisor,
whether he had a "book," that Barrett replied that he had
asked for one, that Ables inquired how strong the Union
was, and that Barrett answered that quite a few had applied
for books. Ables denied that there was any such
conversation, and Barrett admitted that he had omitted any
reference thereto in an affidavit given by him to a Board
agent about a month after the event, and failed to offer any
satisfactory explanation for such omission. Accordingly, I
do not credit Barrett and find no violation here.
2. The layoffs
On September 16, nine men were ostensibly laid off. All
worked in the pipefitting department. One of them was
Jody Hester, a supervisor. As to another, C. M. Robins, the
record shows that his inclusion in the layoff list was merely
union activity , it follows that the net effect of the employer's remarks in
such a case would be to inhibit any union activity . I so find here.
11 This expression, which recurred throughout the record, evidently had
reference to joining the Union.
12 Respondent cites testimony by Brown that he did not ordinarily use
such terms as "affiliated" and "terminated," although he admittedly knew
what the terms meant. Brown held an intermediate supervisory position
and appeared to be far from illiterate . Moreover , even if the language
ascribed by Porter to Brown was not typical of him, that would not
preclude crediting Porter. Brown could have lapsed into more formal
phraseology in order to add solemnity to his warning or Porter's rendering
of that warning at the hearing might have reflected Porter's recollection of
the sense of the warning rather than its exact wording.
13 Porter testified that on the morning of the 16th he overheard a
remark by Millwright Foreman James , an admitted supervisor, to several
of the millwrights, which attributed to Construction Superintendent Wilson
a threat that all union adherents would be laid off and not recalled . James'
denial was corroborated by the millwrights . Wilson denied that he made
such a threat . While Porter appeared to be sincere , so did at least some of
the millwrights. The burden of proof was on the General Counsel Under
the circumstances , it is found that he has not discharged that burden with
regard to the foregoing incident.
At the hearing there was struck an allegation of the complaint that
Respondents solicited a promise from prospective employees that they
would refrain from union activity. The only evidence in support thereof
was certain testimony by Doonan that about September 1, 1966, he applied
to Supervisor Bortzfield for assistance in obtaining reemployment as a
pipefitter and that, after questioning him about his union affiliation,
Bortzfield advised him to tell Construction Superintendent Wilson that he
was not a union member. Bortzfield denied that there was any such
conversation . The incident was not alleged as an instance of interrogation,
and as no useful purpose would be served in any event by resolving the
foregoing conflict, I do not pass on the matter.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a matter of form, as he had already given notice that he was
quitting on the 16th.14
The remaining seven employees (the instant claimants)
are alleged by the General Counsel to have been selected
for layoff because of their attendance at the union meeting
held on September 15. All seven (as well as Foreman
Hester) had in fact attended that meeting. It thus becomes
relevant to determine whether the layoff reached a
disproportionate number of the employees who were at the
meeting. In making this determination it seems appropriate
to compare the total number of such employees with the
total number of pipefitting employees.15 So far as appears
from the record, on September 15, there were 142 such
employees 16 of whom only 20 had attended the meeting.
On this basis, it was to be expected that, all other things
being equal, the layoff would reach no more than one or
two of the employees attending that meeting, and not, as
was actually the case, that all seven employees adversely
affected by the layoff 17 would have been among those
attending the meeting. Moreover, it seems strange that, of
the 11 pipefitter foremen still employed on the 15th, the one
selected for layoff was Hester, who was the only 1 of the 11
who had attended the meeting on the 15th.
By way of contrast, it may be noted that of the 11
pipefitting employees shown to have attended the union
meeting on September 7, only 1 (Lacey) 18 was included in
the September 9 layoff, although it affected 20 pipefitting
employees.
In addition, the General Counsel points to such union
animus as Brown's warnings to Murray and Porter of
reprisals against union adherents and to certain utterances
by Wilson, who was Hudson-Hychem's construction
superintendent, and who at the hearing assumed the
ultimate responsibility for the layoff action on September
16. Thus, although asserting that he had in his employ a
number of men, including Porter, who had long been
known by him to be members of various unions, Wilson
admitted at the hearing that he preferred not to have to deal
with unions; and, Cobb, a supervisor, who was, himself,
laid off on September 9, testified that on September 2,
when, in response to a query by Wilson about the progress
of the union campaign, Cobb disclosed that many of the
men, including the witness, were "buying books," Wilson
flushed and declared that somebody was going to "get hurt
bad" and there was nothing that Wilson could do about it.
14 Although initially denying that Robins had given such notice, Wilson
later confessed that he did not know why Robins was selected for layoff
and that he might in fact have quit, and Brown acknowledged that he
understood that Robins had been planning to quit on the 16th.
Is Although all those laid off were in the pipefitting department, which
was the sole target of the Union's campaign, I do not give any weight to
this coincidence, there being no effective contradiction of Wilson's
testimony that the September 16 layoff was confined to the pipefitting
employees because at that time there was a surplus of such employees.
Accordingly, comparison is made in the text only between the number at
the meeting on the 15th and the total number of pipefitting employees
rather than the total number of all employees.
16 The record shows that about a month after the September 16 layoff
there were 134 such employees, and that there had been no change in the
size of the pipefittmg complement during that month. In arriving at 142, I
have added 8 of the 9 men who were separated on the 16th, omitting
Hester, since he was not an employee but a supervisor.
17 Although there was no evidence that Robins attended the union
meeting on the 15th, it has already been found that he was not in fact laid
Wilson admitted his interrogation of Cobb on that
occasion, but denied that he uttered the foregoing warning.
On the basis of demeanor, as well as the circumstantiality
of his testimony, I credit Cobb.19 Accordingly, it is found
that, while he had in the past employed members of the
various construction trades unions, Wilson was averse to
dealing with unions, and, when the instant Union launched
a campaign for recognition, he became concerned about
the success of that campaign and, as Cobb testified, warned
of reprisals against those who were supporting the Union.
As for Respondent's defense, the following explanation
for the layoffs emerges from a synthesis of the testimony of
Wilson, Brown, the general pipefitter foreman, C. Harris,
an area supervisor, and Soap, a pipefitter foreman:
The layoffs on the 16th were merely an integral part of a
retrenchment program initiated on September 9, when 30
men, including 20 pipefitting employees, were separated.
An additional 9 men would have been laid off at that time
but for physical limitations, which precluded the processing
of more than 30 layoffs at one time. As in the case of all
prior layoffs, selections were made without regard to
seniority, the only consideration being ability, and on this
score Wilson relied entirely on the recommendations of his
supervisors and did not, himself, put forward any names.
The selection process began on the 13th, and "quite a few"
names other than those of the claimants were discussed by
Wilson with his supervisors.20 Wilson made tentative
selections before the 16th, but did not reach a final decision
until that date. On the morning of the 16th, Brown for the
first time proposed the names of J. Fountain, F. Wimberly,
P. Burks, and M. Malone. The layoff of the last two had
been previously suggested to Brown by Soap. On that
occasion, Brown also discussed with Wilson for the first
time the selection of Porter. The names of the two
remaining claimants, R. Harris and T. Barrett, were
proposed by C. Harris.
It thus appears from the testimony of Respondent's own
witnesses that, while a tentative selection was made before
the 16th from a list of names submitted to Wilson by his
supervisors, which list included employees other than the
claimants, the names of five of the claimants were not
submitted to Wilson until the morning of the 16th.21 It
follows that the inclusion of those five claimants in the
layoff list represented a last-minute change. That such a
change should have been made only the morning after the
off but left voluntarily.
18 Although his name is not listed on the September 9 layoff notice in
evidence, it is clear from Resp. Exh. 8 that he was laid off on that date.
Is Although his testimony seemed at some points to be colored by
partisan interest, it was not uniformly favorable to the General Counsel.
See discussion below regarding T. Barrett.
20 Wilson so testified . Elsewhere , he asserted that the names of those
actually laid off on the 16th were the only ones proposed to him. I do not
credit such testimony, as it was more obviously self-serving than the
version given above in the text.
21 Brown insisted that he first recommended the layoffs of Burks,
Malone, Fountain, and Wimberly on the morning of the 16th. As to Porter,
Brown testified only that his name was first "discussed" by him with
Wilson that morning, and since Wilson's own testimony fails to show any
discussion of Porter's name with any supervisor other than Brown, and
Wilson denied that he, himself , proposed any names, it is inferred that
Porter's name was submitted to Wilson by Brown, and that this happened
in the morning of the 16th, when, as Brown insisted, he was first consulted
about the layoffs.
EASTMAN KODAK COMPANY 225
five had attended a union meeting is a striking coincidence.
It is also coincidental that the change was suggested by
Brown, who had warned Porter that Hudson-Hychem
would "get to the bottom" of the employees' union activity
and discharge those involved therein.
As to the reasons for the selection of particular
individuals, Wilson and Brown agreed that, although he
was one of the most senior welders, Porter had become one
of the least productive, refusing to do any work that
involved climbing, and that Fountain was less productive
than any of the welders that were retained. As to Wimberly,
while conceding that he was a good welder, Wilson ascribed
his selection to the fact that, having worked on pipelines in
the oil fields where wages were higher, he could not be
relied on to stay on the job, if and when such other work
became available. However, Brown, upon whose advice
Wilson based the selection of Wimberly, explained that
selection solely on the ground that Wimberly was not as
productive as those who were retained. It thus appears that
the selection of Porter, Fountain and Wimberly was
justified either on the basis of subjective appraisals of their
relative capabilities or, in the case of Wimberly, on
conflicting grounds.
With respect to Burks and Malone, Foreman L. C. Soap
testified that about 3 weeks before the September 9 layoff
he recommended to Brown that he avail himself of the first
opportunity to dispense with the services of Burks, Malone,
and H. L. Davis, the last because of his incompetence and
the others because of their excessive absenteeism. Corrobo-
rating Soap, Brown added that he regarded Burks as "least
productive." While Wilson also ascribed the selection of
Burks and Malone to absenteeism, he did not seem to share
Brown's opinion of Burks' productivity, and expressly
conceded that Malone was a good worker.
Burks did not dispute that he had been guilty of
absenteeism,22 and acknowledged that he was reprimanded
therefor 3 to 5 months before his layoff, but opined that his
attendance improved thereafter. Malone, too, acknowl-
edged that he had been guilty of absenteeism, but insisted
that the last instance of this occurred early in 1966; that he
last worked under Soap in April 1966 when he was laid off;
that he did not return to the instant job until August 8; that
between that date and September 16 he worked under
Pipefitter Foreman Robins and not under Soap; and that
he did not miss any time under Robins. Respondent's
records confirm that Malone's last period of employment
began on August 8, and Robins was not called to contradict
Malone's testimony that during that period Robins, and not
Soap, was Malone's supervisor and that his attendance was
regular during that period. In any event, even if Soap be
credited that he recommended to Brown that Burks and
Malone, as well as Davis, be included in the next layoff, it is
clear that such recommendation was followed only as to
22 Burks' own testimony was that he "probably" had the worst record of
absenteeism among the pipefitters. The General Counsel after the hearing
submitted a proposed stipulation purportedly based on Respondent's
records, which showed that during Ins last 3 months of employment five
other pipefitters had been absent as often as, or more often than, Burks
(and that Malone had not been absent at all during his last period of
employment). The General Counsel requested that such document be
received in evidence or that, in the alternative, the record be reopened to
take testimony regarding the matter Eastman-Caddo objected to the
foregoing tender on the ground, inter alga, that it was entitled to show
Davis, who was in fact laid off on September 9, and that, so
far as the record shows, no consideration was given to
laying off Burks and Malone until Brown submitted their
names to Wilson in the morning of the 16th. Thus, it
appears that Brown, contrary to Soap, did not regard their
absenteeism as sufficient reason to dispense with their
services until after the Union meeting on the 15th.
Respondents point to the absence of any direct evidence
that Brown or Wilson knew who attended that meeting.
Both, in fact, denied that they had any information on that
score. Wilson added that about September 1, when he first
learned that the Union was conducting organizing
meetings, he instructed his supervisors not to discuss the
Union with the employees and to report to him "if they
heard anything." When asked what he meant by this
instruction, Wilson explained that he intended only that the
supervisors relay to him information about "what kind of
activity was going on," and, when asked (by the Examiner)
whether he thereby had reference to union activity on the
job, he agreed that this was the only thing he had in mind.
However, he did not claim that he made this clear to his
supervisors, denying only that they did report to him about
union meetings. Soap admitted that about noon on
September 16, Burks (voluntarily) disclosed that he had
attended the union meeting the night before. While Soap
denied that he reported this to anyone, such report would
seem to have been required by Wilson's foregoing
unqualified instruction to his supervisors. In the case of
Porter, it has been found above that Brown notified him of
his layoff immediately after eliciting from him an admission
that he had attended the union meeting the night before.
This suggests either that Brown was seeking verification of
Porter's attendance at the meeting before deciding whether
to lay him off or that Brown asked the question only as a
means of notifying Porter by indirection that he was being
laid off because of such attendance.
In any event, even absent any direct evidence of
knowledge of the claimants' attendance at the meeting on
the 15th, there is sufficient circumstantial evidence that
such attendance was a factor in their selection for layoff,
namely, the coincidence in timing; the fact that of the 142
employees and 11 foremen then in the pipefittmg
department the only ones laid off were 7 of the 20
employees and the 1 foreman who had attended the
meeting on the 15th; Brown's avowed determination to get
to the bottom of the matter and terminate all union
adherents; and Wilson's veiled warning to Cobb of reprisals
against union adherents, as well as the efforts of Brown and
Wilson to ascertain through interrogation of Porter and
Cobb, respectively, the identity of such adherents and the
progress made by the Union.23
It is found, therefore, that, by laying off Porter, Burks,
Malone, Fountain, and Wimberly because of their
various matters in rebuttal. In view of such objection, I rejected the
stipulation . I also denied the General Counsel 's alternative motion to
reopen, since, in view of the ultimate disposition herem of the cases of
Burks and Malone, no useful purpose would be served by litigating the
issue of their comparative absenteeism at this time.
23 As to the propriety of inferring from circumstantial evidence
employer knowledge of an employee's Union activity, see Sunshine Food
Markets, Inc., 174 NLRB No. 76, and N.L.R.B. v. Lawson Printers, Inc.,
408 F 2d 1004 (C.A. 6)
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attendance at a union meeting, Hudson-Hychem violated
Section 8(a)(3) and (1) of the Act.
There remain to be considered the cases of R. Harris and
T. Barrett. Both had attended the union meeting on the
15th, and it is inferrable from the circumstances related
above that Wilson was aware of that fact. However, in their
cases, unlike those of the other claimants, there is no
evidence that their selection represented a last-minute
change in the layoff hst.24 As already noted, their names
were proposed by Area Supervisor C. Harris. Both he and
Wilson agreed that R. Harris, a pipefitter, was selected
because he had lost considerable time from work due to
illness, and could not climb but could work only on the
ground, and that Barrett, also a pipefitter, was less versatile
than those who were retained. R. Harris admitted that he
had been absent from work early in 1966 due to surgery and
that he preferred to work on the ground. Cobb, who had
been Barrett's supervisor, and whose testimony was
otherwise generally favorable to the General Counsel,
vacillated somewhat in his appraisal of Barrett's ability, his
final position being that he was only as good as the average
pipefitter. Under the circumstances, there is no preponder-
ance of evidence that the reasons assigned for the selection
of Barrett and R. Harris were meretricious.
Accordingly, while the matter is not free from doubt, it
will be recommended that the allegations of discrimination
against R. Harris and T. Barrett be dismissed.25
IV. THE REMEDY
The fashioning of a remedial order herein is complicated
by recent changes in Board policy with respect to the
liability of successors for remedying the unfair labor
practices of their predecessors. In Symns Grocer Co., 109
24 In fact, C. Hams' testimony seems to imply that he proposed the
names of R . Harris and Barrett before the 16th, and, hence, before either
C. Hams or Wilson could have known who attended the union meeting the
night of the 15th.
25 The instant complaint did not allege that the decision to effect a
layoff on September 16 was discriminatorily motivated but only that the
selection of the claimants for layoff on that date was discriminatory (and
that Respondents had failed and refused to reinstate them because of their
union activity). In view of this, I construed the complaint as attacking not
the decision to effect a layoff but only the basis on which the claimants
were selected. However, at the hearing the General Counsel sought to
introduce evidence not only of improper selection, but also that there was
no economic justification for the layoff and that the only purpose thereof
was to discourage union activity. It was pointed out to him that the latter
evidence seemed to go beyond the scope of the complaint and he was
placed on notice that it would not be entertained unless he amended the
complaint. When he failed to amend, further evidence along that line was
excluded. In his brief, the General Counsel seems to renew the contention
that there was no economic justification for the September 16 layoff.
However, upon the present record, the matter not having been sufficiently
litigated, it would be inappropriate to pass on such contention.
Also, in his brief, the General Counsel for the first time expounded still
another ground for rehef-namely, that, even if the September 16 layoff
was in all respects lawful, it was converted into a discriminatory lockout by
reason of the fact that after the layoff Eastman assigned to another
contractor (Brown & Root) work that otherwise would have been given to
Hudson-Hychem, the sole reason therefor being to prevent the rehiring of
the claimants. While the complaint alleges a discriminatory refusal by
Respondents to rehire, such allegation was readily construable as related to
the immediately preceding allegation of a discriminatory selection for
layoff, and not as an independent, alternative allegation, and nothing was
said at the hearing to cause Respondents to think otherwise. In fact, the
Examiner repeatedly indicated at the hearing that he regarded Eastman
NLRB 346, the Board had held that a bona fide
successor-that is, one who was not merely an alter ego or
disguised continuance of the predecessor-was not respon-
sible for remedying the violations of his predecessor.
However, this rule was modified in Perma Vinyl
Corporation.26 From analysis of that Decision and related
cases, principally Thomas Engine Corporation,27 the follow-'
ing principles emerge:
1. A bona fide successor will be required to remedy its
predecessor's unfair labor practices to the extent indicated
below, but only if, (a) at the time of taking over its
predecessor's operations, the successor had notice of the
unfair labor practice charges against its predecessor and (b)
the successor continued the business in "basically un-
changed form."
2. In lieu of posting, the predecessor will be required to
mail a notice to its former employees containing the usual
pledges (a) not to repeat its past violations and (b) to take
the affirmative action-required by the Board's Order. The
successor will be required to post a notice setting forth only
such affirmative action as it is required by the Board to
take.
3. The predecessor's liability for backpay to a discrimi-
natorily discharged employee will be limited to earnings
lost from the date of discharge to the date he obtains any
substantially equivalent employment or an offer thereof
from the successor or any other employer. The successor
will be jointly and severally liable with the predecessor for
the discharge of the latter's backpay obligation as defined
above, at least with respect to the period after the takeover,
provided that it sufficiently appears that the successor
would have hired the discriminatee had he been in the
predecessor's employ at the time of the takeover.28
(and Caddo) as involved in the proceeding only because of the possibility
that, as a successor of Hudson-Hychem, it might be required, under Perma
Vinyl Corp, 164 NLRB No. 119, to remedy any violations of the Act found
to have been committed by the predecessor. The General Counsel did not
take issue with this view, and the foregoing statement in his brief is the first
clear indication that he intended to prove a substantive violation by
Eastman. Under these circumstances, it is found here, too, that the matter
was not adequately litigated.
Moreover, while the record shows that after the layoff work was
assigned by Eastman to another contractor that might have been done by
Hudson-Hychem, the General Counsel cites no evidence in support of his
claim of discriminatory motivation for such assignment other than the fact
that Hudson-Hychem worked on a cost-plus basis whereas the other
contractor received a fixed contract price. The General Counsel would
have the inference drawn from this, that it would have been cheaper for
Eastman to use Hudson-Hychem and that the only reason for not doing so
was to obviate any need for rehiring the claimants. I do not believe that the
foregoing difference in the mode of compensation, without more, would
warrant such an inference.
26 164 NLRB No. 119, affd. 398 F.2d 544 (C.A. 5)
27 179 NLRB No. 165. See also Gustin Bacon Manufacturing Co., 173
NLRB No. 56, and Emerson Electric Co., 176 NLRB No. 98.
28 Absent an adequate showing to that effect, the Board will apparently
treat the case, from the standpoint of the successor's backpay habihty, like
one where backpay is tolled by the happening of an event which would
have required the discharge of the discriminatee for lawful reasons. That
seems to be the effect of the treatment of this matter in Thomas Engine,
suprq where the Board exonerated the successor from any backpay liability
because of a substantial reduction in force at the time of the takeover,
which rendered it doubtful that the discriminatees would have been
employed by the successor, even if they had not previously been unlawfully
terminated. However, for reasons not explained in that decision, the Board
did not there terminate the predecessor's backpay liability as of the date of
EASTMAN KODAK COMPANY
However, such liability will not in any case be imposed on
the successor with respect to any period before May 24,
1967, when the decision in Perma Vinyl issued.
4. The successor alone will be required to offer
reinstatement, and it alone will be liable for any wages lost
as a result of its failure to comply with that requirement.
The applicability of the foregoing principles to the instant
case will now be considered seriatim.
1. As to 1(a), it is here conceded that Eastman-Caddo
was fully aware on May 1, 1967, of the pendency of the
instant proceeding; 29 and, as to 1(b), it was found by the
Board in the representation case, and the instant record
amply shows, that on and after May 1, 1967, Eastman-
Caddo continued to perform the same work as had
formerly been done by Hudson-Hychem at the plant site,
with the same supervisors and employees. Thus, in that
respect, the situation was comparable to that which
obtained in Perma Vinyl.
2. Application of the rule stated above would require
that Hudson-Hychem mail to its former employees at
Longview the usual form of notice, and that Eastman-
Caddo post at the Longview plant a notice setting forth
only such obligation as may be imposed on it by the Board
with respect to backpay and reinstatement. It will
accordingly be so recommended.
3. (a) Hudson-Hychem contends that any liability
imposed on it for backpay should end as of May 1, 1967,
when its operations at Longview ceased. However, under
the rule stated above, such liability continues to the date
that the discriminatees obtain from another employer
substantially equivalent employment or an offer thereof. As
explained by the Board, the reason for this is that it will be
presumed that, absent their prior unlawful discharge, the
discriminatees would have been retained by the successor.
This presumption will be indulged in not only where, as
here, the successor took over virtually intact the predeces-
sor's entire work force,30 but even where there was
substantially less than a total transfer of the work force 31
Accordingly, it will be recommended that Hudson-Hychem
be required to pay backpay to the discriminatees from the
date of their layoff to the date that they obtain, or are
offered, substantially equivalent employment elsewhere.32
(b) Eastman-Caddo opposes the imposition upon it of
any liability for accrued backpay on various grounds.
Initially, it contends that, unlike the situation in Perma
Vinyl (and Thomas Engine), Eastman-Caddo did not buy
the transfer of ownership, but presumably left it to compliance proceedings
to determine whether the discriminatees would have lost their jobs, in any
event, at the time of the takeover, because of the reduction in force that
occurred at that time. Moreover, while the possibility of a nondiscnmmato-
ry elimination of the discriminatees' jobs at the time of the takeover was
deemed to relieve the successor of any obligation for accrued backpay, that
possibility was not thought to affect the successor's obligation to offer the
discnminatees reinstatement or placement on a preferential hiring list.
29 Eastman had in fact been named as one of the Respondents in the
first amended charge, which was served on it on December 12, 1966, and
was named in the first amended complaint, which issued on March 14,
1967.
30 American Auto-Felt Corp, 158 NLRB 1628; Emerson Electric Co., 176
NLRB No. 98; Perma Vinyl Corp., supra.
31 Thomas Engine, supra
32 To the extent indicated below, such backpay liability shall be joint
and several with that of Eastman-Caddo.
33 This consideration was stressed also in Thomas Engine, supra
227
anything from Hudson-Hychem but merely replaced it as a
contractor upon the expiration of its contract. According to
Eastman-Caddo, the significance of this distinction is
highlighted by the weight given by the Board in Perma
Vinyl to the fact that a successor's "potential liability for
remedying the unfair labor practices [of his predecessor] is
a matter which can be reflected in the price he pays for the
business or he may secure an indemnity clause in the sales
contract which will indemnify him for liability arising from
the seller's unfair labor practices." Eastman-Caddo urges
that the foregoing justification is not available here, since
there was no price paid and no sales contract. However, the
foregoing were not the only considerations cited by the
Board. In addition, the Board observed that the successor
becomes the "beneficiary of the unremedied unfair
practices" of the predecessor.33 In this connection, it may
be noted that Eastman-Caddo shared Hudson-Hychem's
aversion to dealing with unions and used Wilson, the chief
architect of Hudson-Hychem's unfair labor practices, as the
vehicle for conveying its antiunion sentiments to the
employees.34 Eastman-Caddo contends, further, and prop-
erly so, that it is entitled to the amnesty granted by the
Board in Perma Vinyl, to successors with respect to backpay
liability for the period antedating the Board's Decision in
that case, which issued on May 24, 1967. As to the period
after that date, Eastman-Caddo argues as follows:
Following the Perma Vinyl decision on May 24, 1967,
what was Texas Eastman expected to do, liquidate
Caddo after substantial expenditures of time and
money incident to its formation and search for an
alternative way to continue scheduled construction or
else face the new liability created by Perma Vinyl?
It would seem that the obvious answer to the foregoing
question is that all that Eastman-Caddo had to do to
forestall any backpay liability was to offer reinstatement to
those claimants who had been laid off for discriminatory
reasons 35 Accordingly, with respect to backpay for the
period after May 24, 1967, it will be recommended that
Eastman-Caddo be held jointly and severally liable with
Hudson-Hychem.
4. With regard to reinstatement, it is clear that for
reasons of geography, if for no other reason, Eastman-
Caddo is in a better position than Hudson-Hychem to offer
the discriminatees, upon their application, reinstatement to
their former or substantially equivalent jobs.36 It will,
accordingly, be recommended that Eastman-Caddo be
34 See G. C. Exh. 8. Wilson occupied essentially the same position with
Eastman-Caddo as he had held with Hudson-Hychem.
3s There seems to be implicit in Eastman-Caddo's position the
contention that, since it did not, itself, make the layoff selections, it had no
way of knowing whether the instant 8(a)(3) charges were meritorious, and
should not be "penalized" for inaction under the circumstances. However,
in view of the close working relationship between Eastman and Hudson-
Hychem, as shown by the record, it is proper to infer that Eastman-Caddo
was either aware of Hudson-Hychem's motives for selecting the claimants
for layoff or could readily have ascertained the facts through investigation.
While they do not suffice to render Eastman or Caddo responsible for the
instant discrimination , these considerations militate against accepting any
plea of ignorance as a basis for excusing either of them from liability for
accrued backpay.
36 The record shows that, here, unlike the situation in Perma Vinyl and
Thomas Engine, the principal predecessor (Hudson) is not defunct but is
still carrying on extensive operations at various points in Texas and
neighboring States. However, at the time of the hearing none of these
(Continued)
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required to make such an offer, and' that it be held solely
liable for any backpay accruing with respect to the period
beginning 5 days after the date on which any of the
discriminatees applies for reinstatement to the date of a
proper job offer by Eastman-Caddo 37
As in - all other cases, backpay will be measured by
earnings lost as a result of the discrimination found herein,
after deductmg net interim earnings, and will be computed
in accordance with the formula prescribed in F. W.
Woolworth Company, 90 NLRB 289. Interest will be added
at 6 percent annually as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. Hudson Engineering Corporation and Hychem
Constructors, Inc., herein called Hudson-Hychem, consti-
tuted a single employer, which was the employer of the
instant employees at all material tunes before May 1, 1967.
2. Since May 1, 1967, Eastman Kodak Company and
operations appeared to be within reasonable commuting distance from
Longview If, due to a change in circumstances, or for any other reason, it
believes it can show that Hudson-Hychem is in a position to offer
substantially equivalent employment to any of the discrunmatees,
Eastman-Caddo may apply to the Board for leave to make such a showing
and for appropriate modification of the Board's remedial order in the light
thereof
37 Nothing herein should be construed as precluding Eastman-Caddo
from making, in advance of any application, such job offers as it deems
necessary to toll its joint and several backpay liability, as defined above,
nor as precluding Hudson-Hychem from making such offers as it believes
Caddo Construction Company, herein called Eastman-
Caddo, have operated as a single employer, performing
work of the same nature as that formerly done by Hudson-
Hychem, and using the same work force at the same
location.
3. Both Hudson-Hychem and Eastman-Caddo are
employers under the Act.
4. By interrogating employees about their union activity
and threatening reprisals for such activity, Hudson-Hy-
chem has violated Section 8(a)(1) of the Act.
5. By laying off Jack Porter, Pete Burks, Malcolm
Malone, James Fountain, and Fredrick Wimberly because
of their attendance at a union meeting, Hudson-Hychem
has violated Section 8(a)(3) and (1) of the Act.
6. Eastman-Caddo was not responsible for any of the
foregoing violations, but, as successor of Hudson-Hychem,
is responsible for remedying them to the extent indicated
above.
[Recommended Order omitted from publication.]
necessary and appropriate to toll its own responsibility for backpay. (The
record shows that, when laid off, the claimants were encouraged by
Hudson-Hychem to apply for employment at other projects of Hudson,
and that in most , if not all, cases no such application was made. It is not
contended, and there is no evidence, that such encouragement constituted
a firm offer of employment, nor that the other jobs were substantially
equivalent to those at Longview. At any rate, the effect, if any, to be given
to the failure of the claimants to seek work at such other projects as
mitigating liability for backpay is a matter to be determined in compliance
proceedings.)