Hawes Electric Co.

National Labor Relations Board - Board DecisionsNov 4, 1968

173 N.L.R.B. 544 (N.L.R.B. 1968)

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hawes Electric Co. and Jimmy Lee Grubb. Case 9-CA-4452 November 4, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On June 24, 1968, Trial Examiner Laurence A. Knapp issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel filed "limited excep- tions" to the Trial Examiner's Decision and a brief in support thereof. The Respondent also filed excep- tions to the Trial Examiner's Decision and, subse- quently, a reply brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated 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, with the additions and modifications set forth below. 1. We agree with the Trial Examiner's findings that the Respondent interfered with, restrained, and co- erced its employees in violation of Section 8(a)(1) of the Act by the conduct of its supervisors Thorne and Fisher, as fully described in the Trial Examiner's Decision.' 2. We also agree with the Trial Examiner, for the reasons stated by him, that the Respondent did not violate Section 8(a)(3) of the Act by eliminating its second shift operation on September 15, 1967. For, as found by the Trial Examiner, the decision to reduce the Respondent's work force to a single shift, resulting in the layoff of nine employees, was based ' The General Counsel contends that the Trial Examiner erred in recommending dismissal of other 8(a)(1) allegations involving statements allegedly made by C&O Inspector Duff, and Assistant C&O Inspector Oppenheimer . In view of our 8 (a)(1) findings , above, however , we find it unnecessary to determine the agency or supervisory status of Duff and solely upon legitimate economic considerations, and was made before the employees' union organizing campaign began. We also agree with the Trial Exam- iner that, in selecting six of these employees for layoff, the Respondent did not discriminate against them because of their union activities. Rather, the record shows and the Trial Examiner found, that the employees were selected for layoff on the basis of their seniority. Thus, except as noted in footnote 14 of the Trial Examiner's Decision, all nine of the employees who were laid off on September 15 were, in fact, junior in tenure to employees who were not laid off. However, we are unable to agree with the Trial Examiner's further finding that employees Grubb and Dillow were selected for layoff in order to rid the Respondent of two known union instigators. The Trial Examiner reasoned that Thome was instructed to make the layoff in accord with seniority "as far as practical" and hence was free to depart from senior- ity. In the context of our previous findings, and in the absence of a showing that in the normal course these two men would have been retained and other em- ployees would have been laid off instead, it is insufficient basis to find a violation merely because the two men were active in the Union and the Employer was opposed to the organization of its employees. For, nearly all employees favored the Union and, as stated above, both Grubb and Dillow had less seniority than employees who were not laid off Nor does the fact that the Plant Superintendent had threatened to discharge the union instigators, thereby violating Section 8(a)(1) of the Act, require a different conclusion.' Accordingly, we conclude that the Respondent did not unlawfully discriminate against Grubb and Dillow by laying them off on September 15, 1967. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that the Respondent, Hawes Electric Co., Russell, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified 1. Paragraph 1 is. hereby amended by deleting subparagraph (a) and relettering the remaining subparagraphs accordingly. Oppenheimer, with respect to the Respondent since their alleged unfair labor practice conduct, even if found, would merely be cumulative and, therefore, could not affect our remedy herein 2 Traveleze Trailer Company, Inc, 163 NLRB No. 43 (layoff of Cuevas). 173 NLRB No. 91 HAWES ELECTRIC CO. 2. Paragraph 2 is hereby amended by deleting subparagraphs (a) and (b) and relettering the remain- ing subparagraphs accordingly. 3. The appendix, entitled "Notice To All Em- ployees" is hereby amended by deleting the first and last indented paragraphs. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LAURENCE A. KNAPP, Trial Examiner. Following the usual pretrial procedures, I heard this case in Huntington, West Virginia, on January 23-25, 1968.1 At the hearing, Local 1633, International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO (herein usually called "the Union"), was granted leave to intervene in the proceeding. I have considered briefs filed on behalf of the General Counsel and Respondent. The issues presented in the case are whether, in response to union organizational activity among Respondent's employees occurring in September 1967,2 Respondent, through its agents, engaged in various forms of coercive conduct and, on September 15, discharged eight employees because of their union activities. 1. THE BUSINESS OF RESPONDENT, THE LABOR ORGANIZATION INVOLVED Under a lease from the Chesapeake & Ohio Railway Company or a subsidiary thereof (herein referred to as the "C & 0"), Respondent operates at Russell, Kentucky, some 25 miles from Huntington, West Virginia, a plant at which it is engaged primarily in the welding of new and used railroad rail into single rail "strings" of upwards of 1440 feet in length. The C & 0 is Respondent's sole customer. The complaint alleges and the answer admits that in the 12 months preceding issuance of the complaint goods valued in excess of $50,000 were shipped from Respondent's "Hunting- ton, West Virginia, place of business to points outside the State of West Virginia." This allegation is incorrect, since, as the uncontradicted evidence shows and I have noted above, the welding plant Respondent operates is located, not at Hunting- ton, West Virginia, but at nearby Russell, Kentucky. However, at the hearing I granted the customary motion of the General Counsel to conform the pleadings to the proof, and this action is sufficient to treat the complaint as thereby amended so as to correct this formalistic error. Accordingly, I find that during the 12 months preceding issuance of the complaint, there was shipped from Respondent's plant in Russell , Kentucky, direct- ly to points outside the State of Kentucky goods valued in I Respondent was served with the charge and an amended charge on October 3 and 27, respectively, the complaint issues on November 30, 1967, and Respondent answered on December 13, 1967. 2 Except as otherwise indicated , all dates used hereinafter refer to the year 1967. 3 The bulk of the rail Respondent processes is used on the C & 0 lines, on occasion , however, the C & 0 provides to Respondent rail which the C & 0 has independently undertaken with others, such as its affiliate the Baltimore & Ohio Railroad and third parties, to weld. 4 The first shift works from 7 a in . until 3:30 p .m., the second shift hours are from 3 . 30 p.m. until about 11 p.m. 5 Under its agreement with Respondent , the C & 0 has the power, on notice , to terminate welding operations In practice , it utilizes this power to bring about a reduction to one -shift operations by oral 545 excess of $50,000; and conclude that Respondent is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. On the evidence, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 11. THE ALLEGED UNFAIR LABOR PRACTICES Respondent's business is a relatively small operation. A shift of employees consists of about 11 personnel, including, apparently, the shift foreman, when a full shift is at work (which, apparently, is not always the case), and Respondent as indicated- below, utilizes either one or two production shifts variously as business warrants, as more fully described below. As previously noted, the C & 0 is Respondent's sole source of business, the rail welded in the plant is either that needed by the C & 0 or is provided by the C & 0 under welding agreements it makes with third parties. In consequence, the amount of the welding performed at the plant and the period of its performance is largely determined by the C & 0. The C & 0 is likewise the owner of the plant and equipment, and as such aims to keep it in operation for as much of a calendar year as possible. It requires considerably less than a year's time to satisfy the C & O's own welding needs, which, accounts at least in part, for the C & 0's practice of soliciting welding business from other sources. In recent years these variable factors have been chiefly responsible for the fact that the plant has operated for some considerable period in the fore part of the year on a two-shift basis, and then, at some point of time determined by the balance of welding scheduled for com- pletion that year, been reduced to operation on a one-shift basis (allowing for a period of shutdown at the end of the year for annual repair and renovation of plant and equipment). In 1966, the reduction to one shift took place at the end of September. Apparently, although the record is not entirely clear, during the first 6 months of 1967, the plant worked for a time on two shifts, but for the most part on a one-shift basis. Beginning about June 1, two shift operations were resumed.' On September 15, operations were reduced to one shift and so conducted until welding operations were terminated on November 16, whereupon Respondent undertook the annual plant overhaul program. In late December 1967, Respondent resumed operations on a two-shift basis, recalling to work at that time the employees laid off or released incident to the September 15 reduction to one shift. Respondent reduced operations to one (the day or "first") shift on September 15 at the direction of the C & 0,5 and on this record it is clear and I find that the C & 0 decision and Respondent's resulting action (i.e., the reduction to one shift), were based on legitimate business reasons exclusive of any union activity among Respondent's employees.6 At this time, notification to Respondent. 6 About August 15, Mr Szaks, assistant chief engineer of the C & 0 and the official responsible for C & 0 planning and decisions on rail welding matters and corresponding relations with Respondent, notified Respondent of the possibility , in the light of the further welding program as it then appeared, that a reduction to one shift would need to be made in the first or second week of September . However, this was not a firm decision since some additional business remained in prospect . Thereafter these prospects vanished and on or about September 1 the C & 0, through Szaks and /or a C & 0 representative acting at his direction, notified Respondent to reduce operations to one shift as soon as possible . In further discussions, the cut-off date was fixed as September 15, so as to coincide with the end of Respondent's biweekly pay period. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unfinished welding business scheduled for the year was lust sufficient to maintain a one-shift operation until about mid-November; and that a reduction to one shift was a likely possibility was widely known among the employees in the weeks preceding September 15.7 A. The Alleged Violations of Section 8(a)(1) During the summer months of 1967 there were occasional discussions among some of Respondent's employees relative to the desirability of unionization to obtain improvements in working conditions. However, the first concrete step toward actual unionization occurred on September 9 when Jimmy Lee Grubb, who filed the charges in this case, and three other employees sought out officials of the Union at a regularly scheduled meeting which Grubb knew the Union was to hold on that date. In response to their inquiries these employees were informed that the Union was interested in representing Respondent's employees if that was the majority sentiment, and that a union official, Dunford, would meet with the employees as soon as a date could be fixed. Early in the morning of September 14, Dunford and an assistant of his came to the plant and informed employee Dillow (one of the four with whom he had met on September 9) that he would meet with Respondent's employees during the afternoon of September 15 at a garage building about two blocks distant from Respondent's plant. Thereafter, employees Grubb and Dillow spread among the employees notice of the meeting and of the corresponding arrangements for attendance by the first and second shift employees, i.e., that the second shift employees were to arrive at about 3 p.m. on their way to work and the first shift employees were to attend following the approximate 3:30 p.m. termination of their shift. Apparently all but one of the second shift employees attended, as did the bulk of the first shift employees. A principal feature of the meeting was the signing of union membership cards by ,employees on both shifts.8 Respondent's plant supervisory staff at the time of these events consisted of Plant Superintendent Thome, Assistant Superintendent and First Shift Foreman Fisher, and Second Shift Foreman Luther. None of these supervisors testified at the hearing (Respondent states that Thome and Luther were not then employed by Respondent). Uncontradicted evidence by employee witnesses of the General Counsel establishes that Superintendent Thome knew in advance of the September 15 meeting that organizational activity was going on among the employees and that he engaged in responsive coercive conduct as set forth below. Either on September 13 (or, as I prefer to believe on all the evidence) September 14, Thome told night maintenance employee Sidney Joe Stepp that he was going to lay off the second shift and see if "they" could form their union while laid off. After first shift employee Dillow had met with Union Representative Dunford and his assistant in the plant early on the morning of September 14, Thome asked Dillow who the 7 As later described , in the early afternoon on September 15, there was posted in the plant a notice stating that the nine employees whose names appeared on the notice would be laid off at the end of the second shift on that day. 8 By Monday, September 18, practically all employees on both shifts had signed membership cards. But the record does not permit of a finding as to the identity of those employees who had signed just prior to or at the meeting on September 15, and the General Counsel does two men were. Dillow said he did not know-that they were looking for employee Grubb. Later that day Thome again approached Dillow and asked him if the two men were union men and Dillow admitted that they were. During Grubb's afternoon (second) shift, Thorne asked Grubb if the "next" meeting was going to be held the following day and Grubb said he thought so. Thome asked Grubb if he was going to attend and Grubb replied in the affirmative. Thome asked Grubb if he, Thome, could attend, Grubb responded by asking Thome if he wanted to join the Union, and Thome replied "Hell, no." Thome then told Grubb to attend and report to Thome what took place. On about September 14, Thome asked employee Willie Stepp if he had heard anything about the Union and when Stepp replied in the negative, Thome said he figured it would blow over in a few days. At some point during the second shift on September 14, employee Baer overheard Thome and Foreman Luther having a conversation in the locker room, in which Thome told Luther that if he knew the men who had gone to the Union's September 9 meeting he would fire them "both."9 About 7 a.m. on September 15, Thome asked employee Dillow what was the time of the meeting. Dillow told Thome that 3:30 p.m. was the time of "our" meeting (meaning the time set for arrival of the first shift employees). Thome then asked Dillow what was the meeting time for the second shift and Dillow replied he did not know. Later that morning Thome asked Dillow what had happened on September 9. Dillow told Thome this was just a regular meeting of the Union and that he and Grubb had "sat in on it." Thorme asked Dillow if he was one of the "instigators," Dillow replied in the negative, and Thome said that if he could ascertain the employees who were responsible he would fire them. Further on September 15, Thome asked first shift employee Sam Stepp who was instrumental in starting the union movement. Stepp replied that he did not know. Thome further asked Stepp if he was going "with the union or not" and Stepp replied that he would have to go "with the majority of the men." At about 2 p.m. on the 15th Thome asked Grubb (who was then reporting to Thome that he would not be at work that afternoon) if he was going to the meeting and Grubb replied that he was; and that afternoon Thome told employee Chester Gilliam, a first shift employee, that a meeting was going on and asked Gilliam if he was going to attend. (The record does not reveal what reply, if any, Gilliam made to this inquiry.) Respondent engaged in coercive conduct violative of Sec- tion 8(a)(1) of the Act through the following items of Thome's conduct as more fully depicted in the preceding paragraph his threats (which he associated with the employees' union activities) to lay off the second shift and to discharge the instigators of the organizational movement which he made to employee Sidney Joe Stepp, Foreman Luther, and employee Dillow; his inquiries of employee Dillow as to the two union officials, concerning the time of the September 15 meeting, concerning what had happened on September 9, and whether Dillow was one of the "instigators"; his inquiries of Grubb concerning the date of the next meeting and whether Grubb not rely on their card-signing as proof of the alleged discriminatory discharge of the eight employees named in the complaint. 9 On September 14, Assistant Superintendent and Day Shift Foreman Fisher made separately to two employees statements to the effect that he hoped the men were "satisfied ," now that C & 0 Inspector Duff had turned down two or three trams of rail (to be welded) on account of the union activity among the employees. HAWES ELECTRIC CO. was going to attend, and his statement or request to Grubb that the latter attend and report what took place, his inquiry of Willie Stepp as to whether Stepp had heard anything about the Union, his inquiries of Sam Stepp as to what employees had initiated the union movement and as to whether Stepp was going "with the union"; and his inquiry of Chester Gilliam whether Gilliam was going to attend the September 15 meeting. Through Thome's surveillance of the September 15 meet- mg, Respondent engaged in a further violation of Section 8(a)(1). The pertinent facts, established by uncontradicted testimony, are that the meeting was held in a garage budding some two blocks from Respondent's plant. The doors of this building were unusually wide and were open. At some uncertain point while the meeting was in progress, Thorne drove up in his car and stopped about 20 feet in front of the garage entrance. Sitting in his car, he "hollered" to Grubb asking Grubb if he could come in. Grubb walked up to Thome's car and told Thorne the question was one for Thorne to decide, that he could not invite Thorne in. Thorne sat in his car for some brief additional period and then drove off. Subsequently, he drove by the meeting place several times looking toward the building. These circumstances warrant the inference I draw that by these actions Thorne was seeking to inform himself concerning those present at the meeting. B. The Alleged Discriminatory Discharges At a point in time which I find was somewhere between 2 and 2 30 p.m. on the afternoon of September 15, there was posted on the bulletin board in the locker room a notice, signed by Thorne, which is not in evidence but which read generally to the effect that at the end of the second shift that day the employees whose names were listed in the notice were laid off. Those listed were the eight individuals named in the complaint herein, plus Superintendent Thome's son, for a total of nine. Two of the nine (Dillow and Sam Stepp) were first shift and the remaining seven were second shift employees. News of the notice was brought to the meeting about 3:30 p.m. by some of the first shift employees who had proceeded to the meeting place upon termination of their shift. Various of the second shift employees then proceeded from the meeting to the plant, where they variously arrived over a period extending to about 4 p.m., that is, after the 3 30 p.m. normal starting time for the second shift. Some of these saw Foreman Luther of the second shift "locking" up various items of equipment and were told by Luther that he had been instructed by Thorne that the second shift would not work that day. One or another of these employees then returned to the meeting to report this news, whereupon employees Grubb and Wheeler went to the plant and talked to Thome. C-ubb asked Thorne what he was doing and Thorne said he was shutting "the damn place down." Grubb asked if Thorne wanted "us" back on Monday (the 15th w,.s a Friday) and Thome replied "Hell, no," that every "goddamn man" that attended the union meeting was "fired." Thorne made a similar statement to Wheeler. 10 Likewise on September 16, Assistant Superintendent and First Shift Foreman Fisher told employee Grubb, when the latter came to the plant for his paycheck , that he would fire any first shift employee he caught fooling around with the Union. 547 On occasions subsequent to September 15, Thorne made various statements pertinent to the layoff. On September 16, Thorne and Fisher called at the home of first shift employee Willie Stepp, who had not worked or attended the union meeting on September 15. Thorne, who appeared to Stepp to be drunk, told Stepp that he would have fired him if his car had been at the meeting place and that he was going to fire the first man on the first shift that he heard mention the Union. (On this occasion, Fisher told Stepp that he guessed the men had their union but not their jobs.)1o In the first week of October Thorne came to the home of Troy Gilliam ("half" drunk as Gilliam opined), where he told Gilliam not to fool with the Union and he would have a job as long as Respondent operated the plant. Thorne went on to say that the second shift employees were the "head starters" of the Union and that the employees laid off on September 15 were "fired" and he would never take them back. On the other hand, in his conversation with Willie Stepp and in conversations with other employees during this general post-September 15 period, Thome made statements to the effect that the second shift employees laid off on September 15 had been "fired" because they had failed to report for work on time (i.e., by 3.30 p.m.) Further, Union Representative Dunford had a meeting on September 20 with Respondent's president Hawes, in the course of which Dunford referred to Thome's statements on September 15 that the men were fired, and asked Hawes whether they were discharged or merely laid off. Hawes replied that Thorne had not known what he was doing and that the men were not discharged but laid off, and in the circumstances were entitled so far as Respondent was concerned to receive unemployment compensation. Thome's statements and conduct prior to, on, and subse- quent to September 15 display his virulent opposition to unionization of Respondent's employees and his corresponding retaliatory frame of mind. But in the light of other important circumstances of this case, Thome's declarations and conduct, damning as they appear on the surface, do not justify an automatic leap to the conclusion that what occurred was a mass elimination of prounion employees, as appears to be the main position of the General Counsel. For, as I have found, a reduction to a one-shift force was scheduled to take place on September 15, for economic reasons, in any event. Thus a layoff of employees equivalent in number to those actually laid off was preordained.' 1 Moreover, in fact practically all the employees were favorable to the union cause , of which I take note below. And despite Thome's declarations to employees (to Grubb and Wheeler on September 15 and to Troy Gilliam 2-3 weeks later), I am not persuaded that those included in the layoff list were actually discharged. The notice itself referred instead to a layoff, which the employees had understood all along was what was to take place, and on September 20 President Hawes confirmed to Union Representative Dunford, who undoubtedly was speaking for all the men, that they were in layoff and not in discharge status regardless of what Thorne may have said on the 15th. In short, the case cannot be disposed of as one merely involving the mass elimination of the group of proumon employees. i i On September 15, Respondent employed a total of 20 nonsuper- visory production employees . The layoff of nine left Respondent with 11, the number usually given in the record as the normal complement of one shift. 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But there remains the question whether the General Counsel has established that Thome selected particular em- ployees named in the complaint for inclusion in the layoff list because of their respective union attachments. The evidence before me does not permit of such a finding in the cases of six of the eight employees, namely, Baer, Wheeler, Middleton, Cox, Sam Stepp, and Stephens. While Baer and Stephens had been at the union headquarters on September 9 (with Grubb and Dillow), there is nothing to show Thome's knowledge of this fact. The other potential source, on this record, of knowledge of prounion inclinations on the part of five of these six men was their attendance at the September 15 meeting. (Sam Stepp did not attend the meeting.) But even if the remaining five of this group of six were at the meeting when Thorne observed it and were seen by him (the hazy evidence does not permit reliable inferences that these assumptions were facts), I cannot find on this record that Thome posted the layoff notice after his appearance in front of the meeting place, so that he cannot be charged with knowledge of those in attendance at that meeting at the time he posted the layoff notice.' 2 On the record before me, therefore, I can see no basis for finding that Thome had any more reason to know or believe that the six men under reference were union adherents or distinguishable on this score from others not laid off 13 Accordingly, as to these six employees I conclude that the General Counsel has failed to prove that their inclusion in the list flowed from a discriminatory purpose on Thome's part.' 4 The record is different as to Grubb and Dillow since, as my earlier findings show, Thome had threatened to get rid of the "instigators" and was aware, prior to his preparation of the layoff list, of the fact that these two employees had played leading roles in initiating and forwarding the unionization movement. On all the evidence, I find that this fact constituted at least one reason why Thome included them in the layoff list. In making the foregoing findings I have considered Re- 'spondent's contention that the men laid off were selected on the basis of seniority (except for Cox, whose inclusion was attributable to other nondiscriminatory reasons as found above, supra, fn. 14). While the record contains no evidence of formalized seniority rules governing layoffs, it does show that the entire group laid off (the eight named in the complaint and the ninth, Thome's son) were those most recently hired, and, with the exception of Dillow and Sam Stepp, were on the second shift. The evidence further shows that in an abundance of conversations various of the second shift employees had with Thome (or Fisher) after their employment they under- stood that elimination of the second shift at some point was to 12 As found previously , Thome could have posted the layoff notice as early as 2 p.m., whereas 3 p m. appears to have been the time set for arrival of the first group of employees-those on the second shift-at the garage (at what times these employees actually arrived at the garage is not clear). Counsel for the General Counsel cites no record evidence, and I can find none , for the statement in his brief (p. 10) that Thome posted the layoff notice after his return to the plant from observing the September 15 meeting. 13 In his brief (p 7), counsel for the General Counsel treats the eight men laid off as though they were the only union sympathizers among Repondent 's employees , and on this theory argues for a finding of discrimination . But the evidence affords no warrant for such a distinction as between the eight and others not laid off, since the great majority of all were union sympathizers. 14 There are special circumstances in the case of Cox affirmatively indicating that his inclusion by Thome in the layoff list was traceable to nondiscriminatory causes. Cox was employed for some period in 1966, be expected and that, as the employees of most recent hire, they would be laid off when reduction of work caused the termination of their shift.' 5 For this reason , and because Thome (although free to disregard seniority under the in- structions he had from Hawes see below) had no reason to consider Baer, Wheeler, Middleton, Sam Stepp, and Stephens as prounion, or any more so than others not laid off, I credit this explanation as to these men. I do not, however, believe that seniority was Thome's exclusive reason for including Grubb and Dillow in the layoff list, even though it appears (from Respondent's Exhibit 6 and their testimony) that they too were junior in tenure to those not laid off. President Hawes' testimony is merely that he instructed Thome to make the layoff in accord with seniority "as far as practical." Thome thus was free to depart from seniority, and the evidence previously reviewed shows that he was disposed to get rid of the union leaders and knew that Grubb and Dillow were such. Evidence sufficient to create a conflict with the strong inference of discriminatory motivation arising from these facts would have existed if Thome had taken the stand and testified that he relied exclusively on seniority in the cases of Grubb and Dillow. But he did not testify. In the circumstances, I adhere to my previous finding that Thome's antipathy to any leading spirits of the union movement entered into his decision to include them in the layoff list. Thus, their layoffs violated Section 8(a)(3) of the Act even though they might have been included in the layoff list on seniority grounds had there been no union movement.' 6 C Respondent's Responsibility for the Alleged Statements of Duff, the C & 0 Representative at Respondent's plant In support of a corresponding allegation in the complaint, Grubb testified that on September 21, after the layoff, Duff, the C & 0 inspector-representative at Respondent's plant, asked him how the Union was going and what the employees were trying to achieve through the Union, and then told Grubb that the employees were just "knocking" themselves out of work in trying to get a union in the plant, i.e., that he, Duff, had canceled three trains of rails to be welded because of the employees' union activities. The complaint further charges Respondent with liability for these statements on the ground that Duff was an agent or supervisor of Respondent. But employee testimony and other evidence persuades me that the employees clearly understood that Duff was a representative of the C & 0 and not of Respondent, and that the employees also fully understood that Duff was acting in line with his was included in the layoff of one shift in September of that year, and was reemployed in May 1967 when Respondent was inaugurating a second shift Cox' testimony shows that following his reemployment in 1967 he had numerous conversations with Thome which reflect his understanding and that of Thome that he would be laid off when Respondent next reduced the force to one shift. The basis of this understanding indicated by Cox' testimony is that Cox, who worked on something called the "point " outside the plant , preferred not to work inside the plant as he would have been required to do if retained on a one shift operation. 15 See, for example, the testimony of Baer, Wheeler, Middleton, and Stephens 16 On the record before me I cannot determine whether, despite the factor of discriminatory motivation , Grubb and Dillow would never- theless have been laid off That matter can, if necessary be pursued in the usual postorder compliance proceedings for such bearing as it has on the question of what amount of backpay they may be entitled to. HAWES ELECTRIC CO responsibilities to the C & 0 in those occasional and few instances relied on by the General Counsel when Duff merely directed or advised employees relative to the unloading, placement, or other handling of rail.' These counts of the complaint should, accordingly, be dismissed along with similar counts charging Oppenheimer, Duff's assistant, with having said that Duff had turned down rail for welding on account of the employees' union activities. On the other hand, Respondent is liable for statements made to employees by Foreman Fisher on two occasions (September 14 and 15), to the effect that Duff had turned down trains of rail for welding, on account of the employees union activities. These statements, not denied by Fisher who did not testify, constituted further violations of Section 8(a)(1) of the Act. CONCLUSIONS OF LAW I By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, in the respects hereinabove found, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By laying off Jimmy Lee Grubb and Charles Gordon Dillow to discourage membership in the Union, as hereinabove found, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondent has not engaged in the other unfair labor practices charged in the complaint herein. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that the Board issue the proposed order set forth below. This order requires Re- spondent to cease and desist from engaging in further violations of the character found, and, in view of the discriminatory layoffs and the multiplicity of other coercive statements and conduct, contains a broad cease and desist order coterminous with Section 8(a)(1) of the Act. The order further requires Respondent to take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices and otherwise to effectuate the policies of the Act. Since they have heretofore been reemployed, my proposed order does not call for the reinstatement of employees Grubb and Dillow but does require Respondent to make them whole for such earnings, if any, as they lost due to their discriminatory inclusion in the layoff list. Since it is possible that either or both of them might have been laid off even if Respondent's selection had been on a nondis- criminatory basis (a question which cannot be determined on this record), this possibility can be taken into consideration, in determining the amounts of backpay due them, in the subsequent compliance proceedings. See Deena Products Com- pany, 93 NLRB 549, 554, 555. 17 There is no suggestion that Duff ever exercised any of the usual supervisory authorities , such as those with respect to hiring, firing, disciplinary action, etc. 18 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the 549 Upon the foregoing findings and conclusions, and upon the entire record, I recommend pursuant to Section 10(c) of the Act that the Board issue the following- ORDER Respondent, Hawes Electric Co., its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from: (a) Discouraging membership in Local 1633, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organiza- tion, by discrimination in regard to hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating employees relative to the union sympathies or activities of any of its employees. (c) Directing or requesting its employees to report to Respondent concerning the occurrences at union meetings of its employees. (d) Threatening to discharge or stating that it has dis- charged employees because of their union sympathies or activities. (e) Engaging in surveillance of union meetings of its employees. (f) Promising or assuring employees of regular or continued employment if they refrain from joining a union or engaging in union activities (g) Telling employees that the amount of welding work available to Respondent has been reduced because of their union sympathies or activities. (h) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Make Jimmy Lee Grubb and Charles Gordon Dillow whole for any losses of earnings they may have suffered due to their discriminatory inclusion in the layoff list by payment to each of them of a sum of money equal to that which he would have earned from the date of his layoff to the date of his reemployment less his net earnings during said period, said backpay to be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum as prescribed in Isis Plumbing & Heating Company, 138 NLRB 716. (b) Preserve and make available to the Board or its agents, upon request, for examination and copying all payroll records, social security records, timecards, personnel records and reports and all other records necessary to analyze the amount of backpay due hereunder. (c) Post at its plant at Russell, Kentucky, copies of the attached notice marked "Appendix .1118 Copies of said words "the Recommended Order of a Trial Examiner " in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice on forms provided by the Regional Director for Region 9, shall, after being duly signed by Respondent's repre- sentative, be posted by Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days there- after in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.i 9 IT IS FURTHER ORDERED that the complaint be, and it hereby is dismissed insofar as it alleges unfair labor practices not specifically found in the Trial Examiner's Decision. 19 In the event that this Recommended Order is adopted in whole or in part by the Board , this provision shall be modified to read "Notify the Regional Director for Region 9, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith." APPENDIX WE WILL NOT threaten to discharge or state that we have discharged employees because of their union sym- pathies or activities. WE WILL NOT engage in surveillance of union meetings attended by our employees. WE WILL NOT promise or assure employees of regular or continued employment if they refrain from joining a union or engaging in union activities. WE WILL NOT tell employees that the amount of weld- ing work available to us has been reduced because of their union sympathies or activities. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, except as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL make Jimmy Lee Grubb and Charles Gordon Dillow whole for any loss of earnings they may have suffered by reason of our discrimination against them in laying them off on September 15, 1967. NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Local 1633, International Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths , Forgers and Helpers, AFL-CIO, or any other labor organization , by discrimination in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate employees relative to the union sympathies or activities of any of our employees. WE WILL NOT direct or request employees to report to us concerning the occurrences at union meetings attended by our employees. HAWES ELECTRIC CO. (Employer) Dated By (Representative ) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2407, Federal Office Building, 550 Main St., Cincinnati, Ohio 45202, Telephone 684-3663.