Raymond International, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1975

218 N.L.R.B. 202 (N.L.R.B. 1975)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Raymond International , Inc. and Joseph G. Wright.
Case 5-CA-6902
June 3, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On March 31,, 1975, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, -the Charging Party filed
exceptions and a supporting 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, fmdings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
commission of any unfair labor, practices. At the- close of
the hearing, the parties waived oral argument but there-
after the Respondent and the General Counsel filed briefs
in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses , and with due consideration
given to the contentions advanced by the parties in their
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation is engaged at its
Elkridge, Maryland, location in the business of soil and
foundation testing. During the year immediately preceding
the issuance of the complaint herein, a representative
period, the Respondent purchased and received in inter-
state commerce materials and supplies of a value in excess
of $50,000 directly from points located outside the State of
Maryland.
It is admitted, and I fmd, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I fmd, that International Union of
Operating Engineers, Local 37, herein called the Union, is
a labor organization within the meaning of Section 2(5) of
the Act.
HI. THE ALLEGED UNFAIR LABOR PRACTICES
i The Charging Party has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have
carefully examined the record and find no basis for reversing his findings.
For the reasons set forth in Collyer Insulated Wire, A Gulfand Western
Systems Co , 192 NLRB 837 (1971), and related cases , Member Jenkins
would not have in any event deferred this case to arbitration.
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
case was heard on December 17, 1974, at Baltimore,
Maryland, upon the complaint of the General Counsel
issued November 14, 1974, which complaint was based on
a charge filed on September 30, 1974. The complaint
alleges, in substance, that the Respondent, Raymond
International, Inc., herein called the Respondent or the
Company, violated Section 8(a)(3) and (1) of the National
Labor Relations Act, herein called the Act, by discrimina-
torily selecting for layoff two of its employees during an
economic layoff because the said employees had engaged
in and were engaging in union activities on behalf of
International Union of Operating Engineers, Local 37,
herein called the Union, and refusing and failing to
reinstate the said employees to their former or substantially
equivalent positions for the same reason. The answer, while
admitting certain allegations of the complaint, denies the
218 NLRB No. 39
A. The Issues
The events leading up to the layoff of the two employees
involved herein arise, not in the usual context of a union
organizational drive, but out of the individual activities of
two employees who allegedly acted on behalf of their
fellow employees in the context of a 3-year collective-
bargaining relationship between the Respondent and the
Union. As noted above, the layoffs of these employees
occurred during a period when economic layoffs were
necessitated by the falling off of business of the Respon-
dent. General Counsel concedes this, but alleges that the
individuals were selected out of seniority and for the
reason that they were active on behalf of their fellow
employees with regard to matters relating to the union-
employer relationship between the Respondent and the
Union.
The Respondent contends that the layoffs were lawful
and the testimony of its witnesses sets forth the reasons
that the individuals were selected for layoffs at the
particular time. If this testimony is credited, the reasons
advanced by the Respondent for the layoffs would not
constitute unfair labor practices. Thus, essentially, the
basic issue presented is one of credibility. It arises out of
the testimony of the two alleged discriminatees who
testified that on the day they were discharged they were
told by Respondent's general superintendent that they
were, in effect, selected for layoff by reason of their union
activities. The general superintendent, in testifying, denied
RAYMOND INTERNATIONAL, INC. 203
making any such statement to the employees and insisted
in his testimony that the selection was purely nondiscrimi-
natory and that the alleged discriminatees were selected on
the basis of seniority considerations and because they were
the least capable employees in their respective classifica-
tions.)
B. The Events
Joseph G. Wright, the Charging Party herein, and one of
the alleged discriminatees, was hired by the Respondent on
June 8, 1973. Respondent's general superintendent, Joseph
J. Fresolone, testified credibly that he hired Wright as a
driller upon the written recommendation of another boring
and testing firm, Pennyman & Brown, which recommenda-
tion stated that Wright was extremely well qualified and
that if Pennyman & Brown, which had gone out of the test
boring business, were to resume this type of operation
again they would immediately rehire Wright upon the
latter's request. Wright worked as a driller between his date
of hire and sometime in September 1973 when he was
appointed by Fresolone to the position of assistant
superintendent. Before this occurred, however, Wright
together with the other alleged discriminatee, Joseph Herr,
worked on a job that had to be performed in a rush for a
client of the Respondent, and the work was performed so
efficiently and so quickly, that Fresolone upon the
recommendation of the former manager of the Respon-
dent's facility awarded a $100 bonus to Wright for his
efficient completion of the job. Wright then shared this
bonus with Herr.
Beginning February 14, 1974, as assistant superinten-
dent, Wright was designated to head a project at the
Conowingo Dam, approximately 50 miles northwest of
Baltimore, Maryland, for the Pennsylvania Electric Com-
pany. As such superintendent for the Respondent, Wright
was in complete charge of the job and supervised, from
time to time during the period which this job consumed,
approximately 25 employees. During that period of time
Wright had the authority to hire, fire, and generally
supervise these employees independently without direct
supervision from higher management officials of the
Respondent.
According to Fresolone, the drilling portion of the
Conowingo job was performed in good fashion. This was
also confirmed by the Respondent's district boring
manager, Ross Bamford. However, according to both
Fresolone and Bamford, the other portions of the work
which consisted of the testing of the ground drilled or
bored, and other tests which had to be made, were delayed
and not properly performed to the extent that the
i The Respondent also contends that this matter should not be heard by
the Board but should be deferred to the arbitration provisions in the current
collective-bargaining agreement between the Respondent and the Umon.
However, one of the dischargees, Joseph F. Herr, did file a grievance with
the Union immediately after his layoff, This grievance was never processed
beyond a letter of inquiry from the Union to the Respondent and an answer
by the Respondent's, general manager. Careful consideration of the
grievance and arbitration procedure set forth in the collective-bargaining
agreement (Art. IV) reveals that the time for filing the next step of the
grievance procedure has long since expired and there is no statement
anywhere on the record, or in any of the Respondent's contentions, to the
effect that it will waive any of the tune-hmitmg provisions of the grievance
Respondent's client requested that Wright not be placed in
charge of any future jobs performed by the Respondent for
that company.
Also, during this job, Wright encountered some difficul-
ties with driller Wayne Lipscomb. According to Wright,
Lipscomb was just not performing up to par or listening to
instructions and Wright asked Fresolone to remove
Lipscomb from the job. However, contrary to Wright's
testimony in this respect, Fresolone testified that what
actually occurred was that one of the two drills being used
was broken and that Lipscomb was, therefore, idle.
Accordingly, when informed of this, Fresolone ordered
Lipscomb back to the Baltimore area to perform other
work but, then, later on, sent Lipscomb back to the
Conowingo jobsite when his presence there became
necessary to perform the work. According to Fresolone, it
was Wright's inability to get along with Lipscomb which
caused some difficulty and not Lipscomb's inability to
perform. In any event, it should be noted that Fresolone's
criticism of Wright's performance as superintendent of the
Conowingo job had nothing whatsoever to do with
Wright's ability as a driller, the position from which he was
ultimately discharged.
About the time that the Conowingo job was winding up
in the summer of 1974, presumably around July or August,
Wright, without consulting Fresolone, directly made
contact with Respondent's Vice President Miller whose
office was in Houston, Texas. His conversation with Miller
resulted, ultimately, in Wright's being transferred on or
about August 19, 1974, to Respondent's Detroit, Michigan,
facility, there to train for the position of district manager of
the Detroit area. Whether Miller consulted with Fresolone
with regard to Wright's ability to handle the job of district
manager before Miller assigned Wright to the Detroit
office is not revealed by the record.
Evidently, after remaining in Detroit for approximately 2
weeks, Wright was disappointed with the prospects of the
Detroit district managership, or at least with the money
that was being offered to him in the event that the
managership was granted to him. Therefore, over the
Labor Day weekend of 1974 Wright returned to his home
and appeared at the Respondent's Baltimore area facility
for work as a driller on the morning of September 3, 1974.
When he appeared Fresolone was surprised, having
thought that Wright had remained in Detroit. In any event,
Wright worked around the Respondent's yard in various
capacities on that day and either late in that day or the
following day, September 4, was assigned to a job as driller
for a client in southern Maryland at Solomon. His
assistant on that job was driller-helper Joseph Herr.
and arbitration procedures. Additionally, the said procedures cover only
disputes regarding interpretation , application, or observance of the terms of
the agreement. A reading of the agreement reveals no provision for the
layoffs or discharges to be determined by seniority and, in fact, the
agreement's management rights clause (Art. VI) is so broadly written as to
give to the Employer almost complete control over hiring, firing, and
discipling of employees without any limitation. Accordingly , for the
foregoing reasons, I find and conclude that deferment of the matters
complained of in the complaint herein would not be feasible or proper
within the policy set forth by the Board in Collyer Insulated Wire, A Gulf and
Western Systems Co., 192 NLRB 837 (1971 ), and the cases issued by the
Board since then in which deferral to arbitration has been ordered.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joseph Herr, who assisted Wright at the Solomons job,
was hired by the Respondent on or about August 16, 1973,
as a driller's helper. Shortly thereafter, approximately 3
months, Herr was promoted to the position of driller. He
served as a driller for the most part during the entire period
from the date of his promotion until September 4, 1974,
when he reverted to the position of driller-helper. It is
inconsequential to the decision in this case whether at all
times during the period from his originally acting as a
driller until September 4, 1974, Herr was employed only as
a driller or whether there were times during that period of
time when he worked only as a driller-helper. In any event,
there would seem to have been little or no dissatisfaction
expressed by any of Herr's superiors during that period
with regard to the manner in which he performed his work.
As a matter of fact, Wright testified that during the periods
of time that Herr worked as his driller-helper Herr
performed admirably. It should be noted, as heretofore
referred to, that it was Herr who assisted Wright on the
special job for which Wright received a $100 bonus from
the Respondent for outstanding performance.
In any event, as heretofore noted, on September 4, 1974,
Herr went to the Solomons job with Wright as Wright's
driller-helper. According to Boring Manager Bamford, on
the week preceding September 9, 1974, in each employees'
pay envelope was a notice to the effect that there was to be
an employees' meeting with Bamford and Fresolone on
September 9 at the Respondent's Baltimore area headquar-
ters. Wright and Herr came up from Solomons and
attended that meeting which took place on the morning of
September 9. According to Wright, he had asked to leave
to go to the meeting on September 9 and had been given
permission to leave the Solomons jobsite by the client's
foreman. Also, according to Wright, the meeting was
mandatory and it was necessary for him and for Herr to
attend. According to Bamford, the client at Solomons had
requested that work on the drilling, for which the
Respondent was hired, be performed on September 9 and
that neither Wright nor Herr was supposed to attend the
meeting on September 9 at the Respondent's Baltimore
area headquarters. At the September 9 meeting were
discussed, among other things, requested changes by the
employees in the personnel and equipment allowance of
the employees by the Respondent.
After the meeting ended, Wright was sent to Pennsylvan-
ia to pick up a diamond drill to be used on the Solomons
job. According to Fresolone, the only reason Wright was
sent up there was because it was too late for Wright to
return to the Solomons job and, although the diamond drill
was needed at the Solomons job, Fresolone testified that he
himself would have gone to Pennsylvania to pick up the
drill if Wright and Herr had remained at the Solomons job
where they belonged.
In any event, the Solomons job ended soon thereafter,
and on September 26 all of Respondent's employees
received with their pay envelope a memorandum which
announced a change in personnel and equipment allow-
ance. This' matter was discussed among the employees at
the Respondent's headquarters, among them Herr and
Wright, and the group of four or five employees selected
Herr to call Respondent's Regional Manager Gibson in
Hackensack, New Jersey, to make further inquiries with
regard to the changes about which the employees and Herr
evidently had some doubt. Among other things, the
memorandum also instructed the employees that the job
picture in the drilling field looked rather bleak at the
moment and explained to a certain extent why the changes
became necessary with regard to expenses. Referring to the
meeting of September 9, the memo stated that although a
discussion had taken place with regard to expenses and
that the employees had requested a $25-per-week allow-
ance for the individuals with pickups and a $10-a-week
allowance for cars, Mr. Gibson, in Hackensack, New
Jersey, did not approve. Gibson stated that he was not
receptive to any amount, according to the memo, and that
his attitude was to follow only contract agreement
provisions. The memorandum further stated that the use of
personal vehicles on jobs and compensation therefor
should be worked out prior to the job with Joe Fresolone
or Ross Bamford.
Because of this puzzling situation, as noted above, after
being selected as spokesman, Herr, without speaking first
to either Fresolone or Bamford, called Gibson on that
night, Thursday, September 26, with regard to the matter.
Although Gibson did not testify, Herr, who testified as to
the conversation with Gibson, admitted that Gibson more
or less verified what the memo had stated, but, however,
seemed to leave the door open to the extent that he stated
that he would call or speak to Bamford and/or Fresolone.
After Herr finished his telephone conversation with
Gibson, he called Fresolone at the latter's home and told
the latter that he had made the phone call. Fresolone had
merely answered to the effect that he thanked Herr for
informing him of the same . There was no indication either
by Herr or by Fresolone, in testifying, that Fresolone was
angry or upset with regard to the fact that Herr had made
the phone call.
The following day, Friday, September 27, Herr was
engaged as a driller-helper with driller Frank Ostovitz at a
job in Edgewood, Maryland. While they were at that job,
Bamford and Fresolone made a visit to the site and had, a
conversation with Ostovitz who then informed Herr that
Herr was being laid off effective that day. Although Herr
immediately attempted to speak with Fresolone about the
layoff, Fresolone and Bamford were already leaving the
site by car and Herr was unable to speak to either of them
at that time. According to Herr, over that weekend he
attempted to contact Fresolone and Bamford but was
unable to make contact. Accordingly, on the morning of
Monday, September 30, Herr reported for work, as usual,
at the Respondent's headquarters for the Baltimore area.
In the meantime during the week before that, the same
week in which the memo above referred to was received by
the employees in their pay envelopes, Wright had obtained
10 copies of the Respondent's then current contract with
the Union.2 According to Wright, as confirmed by Herr,
Wright distributed these copies of the contract to various
employees in order to obtain the men's suggestions with
2 The Respondent's contract with the Union was not directly between Respondent belonged known as The Test Boring Association of Maryland.
the Respondent and the Union but rather with the Association to which the
RAYMOND INTERNATIONAL, INC.
regard to what they would desire to be put into the renewal
of the contract which was due to expire on September 8,
1975, almost a full year after Wright's distribution of the
contract.
Wright also reported for work at the Respondent's
headquarters for the Baltimore area early on the morning
of September 30. At that time, present in addition to
Wright, were Fresolone and employees Lagasse and
Lipscomb. Upon his arrival at work, Wright was informed
by Fresolone. that Bamford was supposed to have called
Wright over the weekend to inform the latter that he was
laid off for lack of work.
About that time, Herr appeared and Lagasse and
Lipscomb left the area evidently to go to work on an
assigned job. Thereafter Wright, along wrath Herr, followed
Fresolone into the company office and asked Fresolone the
true reason he was laid off. According to Wright, he told
Fresolone that "helpers were working and you are laying
me off." In the office, Fresolone told Wright, according to
Wright, "I think you know the reason, because you turned
down that job in Detroit and because of the union meeting
you organized." Then, according to both Herr and Wright,
Fresolone also said "Furthermore the reason Herr is laid
off is because of his little phone call he made to Gibson in
Hackensack, New Jersey."
In contrast to the foregoing testimony of Herr and
Wright, Fresolone testified that all that he told Wright that
morning in the presence of Herr was that they were laid off
because of lack of work. When asked the question directly
on the witness stand, Fresolone emphatically denied that
he made any mention whatsoever of Wright's activity in
distributing the union contracts and, furthermore, testified
that he had no knowledge that Wright had made such
distribution. Additionally, he testified it would not have
made any difference to him at any rate inasmuch as (a) he
was not concerned with the negotiation of any contracts
since Vice President Smith in Houston, Texas, was the one
appointed by the Respondent to take care of these matters
and (b) in any event the employees were entitled to copies
of the contract. Fresolone further denied, when asked, that
he stated that Herr was discharged because of the phone
call Herr had made to Gibson in Hackensack, New Jersey.
Fresolone stated that he absolutely had made no such
statement and that, in fact, the phone call to Gibson was
not even mentioned on that morning. He testified,
furthermore, that he was not in the least upset with regard
to the phone call made by Herr to Gibson inasmuch as
Gibson had told Herr exactly what had been written in the
memo to the men the previous week and, therefore, there
was nothing that had occurred on that Friday evening in
the conversation which would in any way have been
detrimental to Fresolone's position.
It should further be noted, that Herr and Wright testified
that, at that conversation on the morning of September 30,
Fresolone had expressed keen dissatisfaction with how the
Respondent Company had acted and stated that he was
disgusted with the Company, inferring that he was
unhappy with his employment with the Respondent.
Fresolone testified, to the contrary, that all he had
expressed was that he was unhappy because it was
205
necessary to lay people off, an act which did not afford him
any pleasure.
C. Contentions, Discussion, and Concluding Findings
The controversial testimony of Herr and Wright on the
one hand and Fresolone on the other with regard to the
exact content of the conversation between Wright and
Fresolone on the morning of September 30 constitutes the
crux of the entire case presented herein. If Fresolone's
version is the truthful one then there has been no violation.
On the other hand, if the testimony of Wright and Herr is
credited then, certainly, a violation has been spelled out. In
order to determine which of the versions is the exact or,
nearly exact, both the General Counsel and the Respon-
dent present arguments and examples of contradictions
and ambiguities in the testimony of their opponent's
witnesses.
A careful reading of the transcript reveals that there
were, indeed, certain inherent conflicts in the testimony of
both Wright and Herr which are pointed out by the
Respondent in its brief. Thus, Respondent argues, for
instance, with regard to Herr's testimony, in one place he
stated that Fresolone stated that on the morning of
September 30 Fresolone said that Herr was discharged
because of the call he had made to Gibson "last night."
Since the phone call was made to Gibson on Thursday
night, September 26, 4 days earlier, and the conversation
occurred on September 30, it is highly unlikely that
Fresolone,made the statement that a phone call was made
"last night by Herr." In addition, the Respondent makes a
point of the fact that Wright testified that while acting as
assistant superintendent of the Respondent for almost a
year, much of which time was spent at the Conowingo
Dam job, Wright was not paid for any overtime and had
"donated" his time to the Respondent. Bamford, on the
other hand, testified that this was impossible and that,
although he could not quote the figures without checking
further, Bamford testified that Wright must have been paid
overtime inasmuch as his earnings at that time were on a
hourly basis and he was paid driller's pay. The contract
between the Respondent and the Union requires overtime
pay for overtime work for drillers. I find that, in this
respect, Bamford was more believable and Wright's
testimony with regard thereto was tantamount to "guilding
the lily."
Additionally, I conclude that the testimony of Wright to
the effect that Fresolone on the morning of September 30
expressed disgust with the Respondent is less than
believable. Fresolone had been an employee and a
superintendent for the Respondent for a period of 27 years.
There is no question that General Counsel admits that the
Respondent's business was very slow during the period of
time with which this proceeding is concerned. It takes no
specialized knowledge to know that building and contract-
ing business was falling off during the entire period of
1974. In view of the foregoing, therefore, I conclude that
the more logical choice is that Fresolone was expressing
regret for having to lay people off and was therefore
unhappy, but was not expressing disgust or dislike for the
Respondent.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all of these circumstances, I find and conclude
that Fresolone's version of what occurred on the morning
of September 30, 1974, is the more accurate and,
accordingly, do not accept as reliable the versions of
Wright and Herr.
This finding is bolstered by other undenied factors which
appear in the record. As stated above, the year 1974 was
disastrous in the building and construction industry.
Accordingly, as far back as the early part of the summer of
1974, Fresolone and Bamford were faced with the necessity
to lay off employees and, in fact, during that period of time
some employees were laid off. The General Counsel argues
that even though the layoff might have been necessary, the
choice of Herr and especially of Wright was not made in
the order of seniority, that is, last in, first out. Furthermore,
the General Counsel contends that Wright was not the
least senior of the drillers and that, therefore, he should not
have been laid off. Additionally, General Counsel main-
tains that it was the custom of the Respondent, as brought
out in testimony, that, when there was a layoff, drillers'
helpers were first laid off and drillers were permitted to
take over the job of driller-helper and were given that
choice before being laid off.
It is significant in connection with the latter that
Fresolone and Bamford testified that during the summer of
1974, when the question of layoffs became critical, Wright
was asked if he would be willing to bump back to drillers'
helper in the event such became necessary. According to
Fresolone, Wright answered that he would not be willing to
go back to the position of drillers' helper, he would not
work at that pay scale, and he would not work for that pay.
When called on rebuttal Wright did not dispute this
testimony. Accordingly, I give credence to the Respon-
dent's argument, and to the testimony of Respondent's
witnesses, to the effect that this was the reason why, when
Wright was laid off, he was not given the choice of
bumping a driller-helper for a driller-helper job rather than
being laid off. Moreover, there is no provision in the
contract introduced into evidence as the current agreement
between the Respondent and the Union, which sets forth
any criteria with regard to the manner in which layoffs
must be made and, although the Respondent, admittedly,
normally would adhere to seniority when confronted with
the necessity for layoff, there is no contractual obligation
to follow a seniority system.
Another critical point raised by counsel for General
Counsel and Respondent is the so-called retention of
Lipscomb as against the layoff of Wright with regard to
who was the better of the two employees in their capacity
as drillers . I find Fresolone's testimony in this respect to be
most believable and most logical. He testified that Wright
had expressed on a number of occasions his unwillingness
to accept out-of-town assignments which would keep him
away from home for a somewhat prolonged length of time.
Although the General Counsel elicited from Fresolone an
admission to the effect that employees other than Wright
had also refused out-of-town assignments , Fresolone
without contradiction testified that the employees who so
refused had just returned from rather lengthy out-of-town
assignments and therefore turned them down whereas
Wright had completely in the past refused such -out-of-
town assignments and, accordingly, it would seem that this
would make Lipscomb a more desirable employee because,
as testified by Fresolone, Lipscomb was willing to and did
accept out-of-town assignments even though he would rate
both Lipscomb and Wright as equal in their capacity as
drillers.
In coming to all of the foregoing conclusions ,l have not
discussed completely all of the conflicts of testimony
presented by the record herein. To do so would be to
unduly lengthen this Decision. Nor have I ignored the
argument by General Counsel that Wright's immediate
success with the Respondent soon after he was hired would
indicate that he was such a valuable employee that it would
be incredible to believe Respondent's argument that
Wright was not a more valuable employee than was
Lipscomb. However, it should be noted that Wright was
not a willing or cooperative employee in certain respects,
as found above. Additionally, from the point of view of
pure liklihood of events, the Respondent's version of what
occurred would seem to be the more reasonable.
Finally, even if it were to be found that strict seniority
was to be observed in laying off individuals, the Respon-
dent did adhere to such. The record, as submitted by
written evidence in the form of a seniority list by the
Respondent, shows that driller Baker and driller-helper
Phillips were senior on the list to Wright and Herr. Junior
employees had been laid off in both classifications before
either Wright or Herr were laid off. The General Counsel
did elicit testimony to the effect that Baker and Phillips
were brought back to the Respondent's employ after
breaks in service due to layoffs after Wright and Hen were
employed. However, the list submitted clearly, demon-
strates that seniority dates are the dates of first employ-
ment . This is true even in the case of Wright who, when he
became assistant superintendent, was a supervisor and
during the period that he was acting as superintendent was
not a rank-and-file employee and did not lose his seniority
right when he came back to work on September 4 as rank-
and-file driller. This is true because on the seniority list it
shows that Joseph Wright's original hiring date was his
seniority date and that was June 8, 1973, the day he first
went to work for the Respondent. Accordingly, the
Respondent's contention that a break in employment due
to layoff did not affect the seniority of its employees is
credible and I accept the same.
Moreover, since the layoffs of Wright and Herr, no
employees have been hired and, moreover, employees with
greater seniority than Wright and Herr have been laid off
and have not been recalled. Additionally, although some of
the remaining employees have been given overtime work,
such overtime was the result of the peculiar requirements
for worktime specified by Respondent' s clients such as
contractors engaged in building the Washington, D.C.,
Metro Subway System.
Finally, I have carefully considered the timing of the
layoffs of Wright and Herr. As noted, each was active in
protected activity the weeks they were laid off. However,
although this circumstance raises grave suspicion, the other
circumstances surrounding the layoffs, as found heretofore,
serve to balance out the factor of timing. The monthly sales
figures for the Respondent's Baltimore area show that the
RAYMOND INTERNATIONAL, INC. 207
month ending September 30, 1974, was worse than the
months before that and that the figures declined at a steady
rate for the balance of the year. Accordingly, the layoffs
coming when they did, were seemingly justified when
considered in the light of these figures and the entire
record.
Under all of the foregoing circumstances, I find and
conclude that the General Counsel has failed-to prove by a
preponderance of the credible evidence the allegations set
forth in the complaint.
2. The , Union, the Operating Engineers, is a labor
organization within the meaning of Section 2(2) of the Act.
3. By laying off Wright and Herr on or about
September 30, 1974, the Respondent did not engage in
discriminatory selection of these individuals for layoff and,
accordingly, did not commit violations of Section 8(a)(3)
and (1) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
ORDERS
It is hereby ordered that the complaint herein be
dismissed in its entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.