Omsco, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 872 (N.L.R.B. 1984)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Omsco, Inc. and kick); Taylor and Albert Smith.
Cases 23-CA-8 185 and 23-CA-8300
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND-
DENNIS
On 24 February , 1982 Administrative Law Judge
Burton Litvack issued the attached decision. The
General Counsel and the Respondent filed excep-
tions and supporting briefs.
The ,National Labor . Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified.1
We agree with the judge's finding that. the Re-
spondent violated Section 8(a)(1) of the Act by in-
terrogating employee Weaver and by threatening
employee Ricky Taylor with discharge if he should
engage in union activity. 2 We also 'agree with his
recommended dismissal of the complaint' allegation
that the Respondent violated Section 8(a)(3) and
(1) of the Act when it laid off seven night-shift tre-
panning employees 6 October 1981. For the rea-
sons set forth below, however, we do not adopt
the judge's finding that the Respondent violated
Section 8(a)(3) and (1) of the Act by laying off an
eighth nightshift trepanning employee, Ricky
Taylor, on the same date.
The Respondent is engaged in the manufacture
and sale of equipment utilized in the exploration of
oil and natural gas. Eighty percent of the Respond-
ent's business involves the production of tubular
steel collars used as drilling weights. Part of the
1 The judge failed to provide in his recommended Order that the Re-
spondent shall cease and desist from engaging in such conduct "in any
like or related manner" We shall modify the Order accordingly
2 Supervisor Sholar's statement to employee Taylor that he "could be
fired for union activity . [and that] employees had been talking too
much about the union on company time" was a classic threat within
the meaning of Sec. 8(a)(1); Our dissenting colleague's attempt to put a
more venial gloss on Sholar's conduct is unavailing There is no justifica-
tion for distinguishing between a threat to discharge an employee for en-
gaging in union activity and a threat to discharge an employee fOr violat-
ing an unlawful overly broad no-solicitation rule The latter threat en-
compasses the former There is also no justification for our colleague's
evaluation of Sholar's statement by any standard other than the Board's
traditional objective test of whether the conduct reasonably tended to
Interfere with an employee's exercise of Sec 7 nghts By this test, Tay-
lor's mistaken subjective belief that Sholar was not a statutory supervisor
has no relevance in determining the legality of Sholar's conduct
Member Hunter also would dismiss the 8(a)(1) allegation that Supervi-
sor Taylor interrogated employee Weaver because, in his view, the inter-
rogation was de mimmis Since we find that the Respondent threatened
employee Taylor, we do not need to decide whether the interrogation of
employee Weaver, standing alone, would be de mmimis
drilling collar production process involves passing
steel bars through a trepanning machine which
drills a hole lengthwise through ' each bar. A tre-
panning operator and helper team to staff each ma-
chine.
- At the time of the 'alleged unfair labor practices,
the Respondent's manufacturing _operations entailed
two 12-hour shifts. In the trepanning department,
10 employees operated 5 machines during the first
shift (5 . a.m. through 5. p.m.) and 8 employees
worked 4 machines during the second shift.
In mid-September 1980 3 discussions concerning
union organization' began among trepanning em-
ployees. Although the day shift was involved, the
majority of union discussions occurred during the
night shift. On 26 September a group Of seven to
nine of the Respondent's second-shift employees
met during the first shift in the -office of a union
representative.- Thereafter, second-shift trepan op-
erator Ricky Taylor and helper Alfred Garrison
distributed ' authorization cards on nonworktime
either in the plant parking lot or on a public street
in the vicinity of the Respondent's facility. When
soliciting signatures, Taylor asked low-level super-
visor Sholar to .,sign an authorization 'card. Subse-
quently, Sholar told Taylor that Taylor could be
"fired for union activity" and that he had been
talking too much about the union on company
time. There is no credible evidence that the Re-
spondent's officials observed or suspected any
other second-shift employees of- engaging in union
activities.
Between 26 September and 6 October the Union
received 14 authorization cards from second-shift
employees, including all but helper William Gallo-
way among the 8 trepanning department employ-
ees. In the same period, 15 first-shift employees
signed cards.
On 6 October Respondent's president Kess Ver-
huel announced the layoff of six second-shift tre-
panning employees and two yard hands. Verhuel
told the employees that the reasons for the layoff
were low production and low supply of steel. Ad-
ditionally, Verhuel told the employees that all of
them had performed good work and that he would
give each of them a good job recommendation.
The judge correctly found that the General
Counsel had failed to establish as part of his prima
facie case that the Respondent had knowledge or
suspicion of union activities by any alleged discri-
minatee other than Taylor. In addition, the judge
found that the Respondent had actually relied on
its asserted reason for the layoff of the night shift,
which reason was economically based and justified.
3 All dates are in 1980 unless otherwise stated
273 NLRB No. 116
OIVISCO, INC. 873
In so finding, the judge specifically credited Re-
spondent's witness D. C. Ogden,..who testified that
the layoff was due to the depletion of the Respond-
ent's on-hand stock of steel bars along with a
dearth of incoming steel in the immediate future.
As to Taylor, however, the judge determined
that the General Courisel .had established a prima
• facie case. The judge relied on the Respondent's
actual knowledge of Taylor's union activity, from
the date of his card solicitation of Supervisor
Sholar and on Sholar's subsequent threat Of dis-
charge that violated Section 8(a)(1) of the:Act. Al-
though the judge found the Respondent's defer*
of business justification for the layoff to be legiti-
mate he nevertheless found it to be insufficient to
rebut the , inferende of discriminatioh in Taylor's
layoff: Specifically, the judge found that in the 'ab-
sence of any evidence about' the factors considered
in selecting Taylor for layoff, the Respondent had
failed to meet its burden of proof that Taylor
would have been laid off notwithstanding his union
activities.
Contrary to the judge, we find that the Respond-
ent did not discharge Taylor for engaging in union
activity because we disagree with the judge's deter-
mination that the record fails to establish what fac-
tors were considered in selecting Taylor for layoff.
Notwithstanding the Respondent's , unlawful threat
to Taylor of discharge for engaging in union activi-
ty, the credible and uncontradicted evidence shows
that the layoff of the night-shift trepanners was due
to the Respondent's shortage of on-hand and . in-
coming steel bars. In addition, contrafy to the
judge's finding, there is evidence that the Respond-'
ent utilized a basic seniority system in the layoff of
the night-shift trepanners. In this context; the judge
failed to consider additional testimony by Ogden
wherein he stated that when he informed Verhhel
of the Respondent's inventory problem, Verhuel
specifically requested a list of the names and dates
of hire of the night-shift trepanners. It is undis-
puted that the Respondent laid off all but the most
seniorS shift trepanning operator and his helper,
both of whom had signed union cards.4
Based on the foregoing, we find that the Re-
spondent has rebutted whatever prima facie infer-
ence of unlawful motivation might be drawn from
timing, the Respondent's knowledge of Taylor's
union activity, and the threat based on that activi-
ty. In sum, (1) the Respondent had a justifiable
business reason for laying off its night shift; -(2) the
Respondent followed a • basic seniority system in
4 Having found that the 'decision to restrict the layoff to the second-
shift trepanners was lawful, we find comparisons of first-and second-shift
seniority irrelevant In any event Taylor was senior to only one ,first-shift
operator, Joe Weaver
implementing the layoff; and, (3) although Taylor
was laid off with the other -night-shift employees,
there is no evidence that an employee junior to
him in his position on the shift was retained. Con-
sequently, there is no showing that the Respondent
treated Taylor disparately. Accordingly, we hereby
dismiss the complaint allegation that- the Respond-
ent violated Section 8(a) .(3) and (1) when it laid off
employee Ricky Taylor.
ORDER
The National Labor Relations Board adopts the
recommended Order of' the administrative law
judge as modified below and orders that the Re-
spondent, Omsco, Inc., Houston, Texas, its officers,
agents, successors, and assigns, shall take the action
set .forth in the Order as modified.
Delete paragraphs .1(a) and 2(a) and (b) and
reletter the subsequent paragraphs.
2. Insert the following as paragraph 1(c).
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
3.• Substitute the attached notice' for that of the
administrative law judge.
MEMBER HUNTER, dissenting.
My- colleagues have adopted two 8(a)(1) viola-
tions found by the judge. They agree with the
judge's findings that :Foreman Sholar threatened
employee R. Taylor with . discharge for his union
activities, and that Supervisor J. Taylor unlawfully
interrogated employee Weaver. I cannot join in
these findings. I would find, no 8(a)(1) violation in
Sholar's comments and, in all the circumstances, I
would ,find Supervisor Taylor's comments. de mini-
mis. Thus, I would dismiss the complaint in its en-
tirety and I dissent from my colleagues' failure to
do so.
Regarding Sholar's comments to employee
Taylor, I note that Taylor was one of the key em-
ployee organizers. He solicited a number of em-
ployees to, sign cards and . he even asked Sholar,
who the parties stipulated was a supervisor but
who Taylor thought was an employee, to sign a
card. Subsequently Sholar called Taylor into his
office and, told Taylor, "[W]e could be fired for
union activity . .. that we had been _talking too
much about the union . . . on _company time."
Sholar said Taylor needed to keep everyone quiet
about the .union on company time. Taylor respond-
ed that nobody had talked about the Union on
company time and, if Sholar wanted to discuss the
subject further, he would have to meet Taylor at
the end of the shift. The' conversation ended. The
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
judge found this a "blatant" threat of discharge
notwithstanding that Taylor did not think Sholar
was a supervisor. -
My first problem with the judge's analysis is that
I do not see this as a "blatant" threat of discharge
for union activity. Such a conclusion reads the
statement toe broadly.' Rather, Sholar's statement
must be tied into his admonition 'about when
Taylor could solicit for the Union. I read the state-
ment as a threat of discharge if Taylor solicited at
the "wrong" time. So one has to look at Sholar's
"time" admonition. Here, Sholar pegged his prohi-
bition to "company time." That term has historical-
ly been considered too broad a prohibition on so-
licitation activity. But Taylor responded to that ad-
monition with a comment that he knew that, off his
shift, he could solicit. However, "company time"
unless further qualified (and it was not here) could
still encompass breaks, when employees can solicit.
Therefore, this is not a "blatant" threat, as the
judge • found, but . an overly broad no-solicitation
rule backed up by a threat of discharge for violat-
ing it. Ordinarily, I would find this an 8(a)(1) state-
ment, except for the unique circumstances that
Taylor did not think this statement came from a su-
pervisor. An employee's subjective reaction to an
employer's statement is typically not to be consid-
ered an element of weighing an- 8(a)(1) violation
but attention must be paid to particular factual cir-
cumstances' in- our assessment of whether a state-
ment was coercive. Here, comment was made to an
employee by a person not thought to be a supervi-
sor by the employee.- The employee's retort clearly
indicates he dikerned no coercive impact—in the
statement. Coupled with an apparent lack of evi-
dence that Taylor repeated the comment to any
other employee, e.g., one who knew Sholar to' be a
supervisor, I cannot in the circumstances 'find an
8(a)(1) violation in this statement.
Regarding the second comment found to be in
violation of Section 8(a)(1), I note that, 'at the
outset of employee interest in the Union, , employee
Weaver beckoned to Supervisor Taylor as Taylor-
walked by Weaver's . machine. Weaver asked
Taylor, "What was all this about" the
Union. Taylor said he did not know. At some later
point, Taylor went to Weaver's _machine and, ac-
cording tó Weaver, asked Weaver "if [he] knew
who was behind it. He didn't say behind' what or
nothing else. And I told him-no." According to
Weaver, Taylor then went- to Plant Superintendent
Butler and told him, "[Weaver] don't know."
1 My ' colleagues claim that- the discussion which follows attempts to
put "a more venial gloss' on Sholar's statement Rather, the folkiwing
discussion attempts to analyze Ins.statement more closely and carefully
than either the judge or mir̀ colleagues have chosen to do
The judge fotind this an 8(a)(1) interrogation: He
found so 'even though' he concluded that ,Weaver
initiated the incident and' that TaYlor did not ac-
company his question with Coercive conduct. Ad-
ditionally, he found that Taylor left the impression
that' possible reprisals would be taken against the
individuals about whom Taylor sought information.
In excepting, the Respondent, inter alia, argues
that Weaver and Taylor were good _friends and
worked closely together. This point was not
touched On by the judge. It also raises the point
that there was- no reference to the Union in Tay-
lof's question. While there may have been an inter-
rOgation here, I do not think this one possible
8(a)(1)' violation warrants a remedial order. In so
concluding I note that I would dismiss all other al-
legations against the Res. pondent; any interrogation
here was ultimately sparked by an employee's ques-
tions of his own supervisor about union activities;
and there is an allegation that the two were friends.
In these circumstances, I would dismiss this inci-
dent as de minimis
,APPENDIX
' NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT warn employees that they . could
be discharged for engaging in union or other pro-
tected concerted activities.
WE WILL NOT interrogate employees as to the
union 'activities, membership, and sympathies of
their fellow employees.
WE WILL NOT in any like or related- manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
OMSCO, INC.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. This
matter was heard before me in Houston, Texas, on July
28 and 29, 1981. On January 27, 1981, the Regional Di-
rector for Region 23 of the National Labor Relations
Board (the Board) issued an order consolidating cases, a
consolidated complaint, and a notice of hearing, based on
an original and amended unfair labor practice charge in
OMSCO, INC 875
Case 23-CA-8185, filed on October 9, 1980, 1 and Janu-
ary 26, 1981, respectively, by Ricky Taylor, an individ-
ual, and on an unfair labor practice charge in Case 23-
CA-8300, filed on January 6, 1980, by Albert Smith, an
individual, alleging that Omsco, Inc. .(Respondent) en-
gaged. in acts and conduct violative of Section 8(a)(1)
and (3) of the Act. Respondent filed an answer denying
the commission of any unfair labor practices. At the
hearing, .counsel for the General Counsel was permitted
to amend the consolidated complaint by withdrawing the
name of an alleged discnminatee. All parties were afford-
ed full opportunity to offer relevant evidence, to examine
and cross-examine witnesses, and to submit posthearing
briefs. Therefore, based on the entire record, the posth-
eanng briefs, and on my observation of the demeanor , of
the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Texas corporation with an office and
principal place of business located in Houston, :Texas,
where it is engaged in the manufacture of products uti-
lized in the oil and gas exploration and development in-,
dustry. During the 12-month period immediately preced-
ing the issuance of the consolidated complaint, a repre-
sentative period, Respondent purchased and received at
its Houston, Texas facility goods, products, and materials
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of Texas.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
-
Respondent admits, and I find, that United Steelwork-
ers of America, AFL-CIO-CLC (the Union) is a, labor
organization within the meaning of Section 2(5) of the
Act.
III. ISSUES
1. About October 6, 1980, did Respondent lay off em-
ployees Ricky Taylor, Alfred N. Garrison, Marion Keith
Bruce, Albert Smith, David Vitela, William J. Galloway,
James Duffy, and 011ie Rogers in violation of Section
8(a)(1) and (3) of the Act?
2. About September 30, 1980, did Respondent tê11 . an
employee that he could be fired for engaging in union
activities on company time in violation . of Section 8(a)(1)
of the Act?
3. About September 30, 1980, did Respondent interro-
gate an employee concerning the identity of Respond-
ent's employees who were engaged in union activities in
violation of Section 8(a)(1) of the Act?
' Unless otherwise stated, all relevant dates and events occurred in
1980
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record discloses that Respondent, a State of Texas
corporation, was established in 1948 as Oil Field Ma-
chine and Supply Company; that on July. 1, 1975, its
assets were sold to, and it became a wholly owned sub-
sidiary of, a Canadian company, Bralorn Resources; and
that upon the sale Respondent's name was changed to its
present one. At its Houston, Texas plant, Respondent is
engaged in the manufacture and sale of equipment uti-
lized in the exploration for oil and natural gas, of 'which
the production and sale of steel weights, called drilling
collars, accounts for approximately 80 percent of Re-
spondent's business. The record further discloses that a
drilling collar is a round or tubular shaped piece of
strengthened steel of various diameters, 2 with a hole
through the center, 3 weighing in excess of 1-1/2 tons,
and .precisely 31.6 feet in length; that while drilling for
deep deposits of oil or natural gas, pressure must be con-
stantly exerted upon the drilling bit to force it into the
ground; and that to accomplish this, the drilling, collars
are used as weights, with at least 21 collars "strung" to-
gether and placed directly above the bit. In manufactur-
ing these drilling collars and other equipment, Respond-
ent employs approximately 80 workers, who work at its
plant in two daily 12-hour shifts. Kess Verhuel is the
president of Respondent, and D. C. Ogden is the treasur-
er.
According to Ogden, once the steel bars which Re-
spondent uses in its manufacturing process are received
by the plant, the bars undergo a straightening process to
ensure that the steel "runs true." If the steel has been
sold, the requisite bars are immediately put through the
"trepanning" process wherein the holes, which are cut to
specified diameters, are drilled through the bar length-
wise. Next, the bar is placed on a threadmill which
threads both ends of the hole. Finally, if ordered by the
customer, special machine work may be done on the col-
lars. 4 As are most of the manufacturing procedures, 3 the
trepanning process is performed on both the day and
night shifts. The record establishes that there are five tre-
panning machines in this department; that, at least, as of
October 1, all were operated during the first shift but
just four were run on the second shift; that two employ-
2 There are 26 different diameters of drilling collars, ranging from 4 to
10 inches To ensure that its drilling collars are strong enough to with-
stand the incredible heat and pressure generated during the dnlling proc-
ess, Respondent purchases and uses for its collars specially ordered heat-
treated alloy steel The steel is received by Respondent, shaped by the
manufacturer, and precut to the required length and a specified diameter.
Eighty-five percent of Respondent's steel supply is purchased from
United States Steel Corporation, 10 percent is imported from France, and
the remainder comes from other Amencan suppliers
, There are six different hole sizes for the drilling collars
4 According to Ogden, if sufficient quantities of unsold steel are in
stock, ". . we will guess at the hole size that we think we will use and
trepan them ahead and put them on the rack"
While not entirely clear from the record, it appears that Respondent
utilizes more workers on the day shift (5 a m to 5 p m) than at night (5
p m to 5 a m) It also appears that fewer manufacturing procedures are
performed on the second shift Finally, the record does disclose that Re-
spondent has been utilizing a second shift since 1978 or 1979
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees (an operator and a helper) are required for the oper-
ation of a machine; and that as of October 1, there were
10 trepan shop employees on the day shift 6 and eight.'
on the night shift. In addition, among other employees
on each shift, Respondent employs individuals, classified
as yard hands, whose function is to bring the uncut steel
bars to the trepanning machines for cutting.9
The record reveals that preliminary discussions con-
cerning the seeking of union representation began at the
plant in mid-September and that those involved were pri-
marily the trepan shop employees on the night shift. Ac-
cording to Ricky Taylor, 9 who was classified as an oper-
ator, these initial organizing discussions resulted from a
series of work-related injuries and other safety problems.
There is also record evidence that day-shift employees
were consulted in this regard. Thus, Marion Bruce, also
an operator, testified that, while he held such discussions
mainly with other second-shift employees, "I did talk to
some first shift when I got the time." In any event, a
vote was taken among a group of unidentified night-shift
trepan shop employees, and Taylor and Alfred Garrison,
a helper, were selected to contact a union. After being
directed to do so by representatives of the Teamsters
union, Taylor and Garrison telephoned the Steelworkers
union and spoke to Robert Clowers, an organizer; a
meeting was arranged for the morning of September 26.
While there is no evidence that Respondent was aware
of these preliminary union discussions or the leaders,
there is, however, evidence that Respondent endeavored
to discover this information. Thus, Billy Joe Weaver, a
day-shift trepan machine operator, testified that early one
morning in the second half of September, he beckoned to
his foreman, John Taylor, 1 ° as the latter passed by Wea-
ver's machine. Weaver, who stated that he had heard
rumors about a union and who ultimately signed an au-
thorization card for the Union. on October 1, asked
Taylor "what was all this bullshit about the union. And
he said, I don't know. And he turned around and walked
off." Weaver further testified that either later that morn-
6 The trepanning department employees on the first shift, along with
their dates of hire, are as follows Robert Ehlinger, operator, 4/14/75,
Joaquin Herrera, helper, 2/22/80, Jack Craft, helper, 7/23/80, Juan
Flores, operator, 10/5/78, Andy Kraska, helper, 7/23/80, Jimmy Neville,
operator, 11/15/78, Joe Weaver, operator, 8/24/79, Ronnie Batchelor,
helper, 5/12/80, Oliver Jenkins, operator, 6/20/77, and Riley Jackson,'
helper, 7/23/80 •
The trepanning department employees on the night shift, along with
their dates of hire, are as follows J Santos Cons, operator, 1/20/78,
Ricky Taylor, operator, 7/1/79, Alfred Garnson, helper, 5/1/80, Albert
Smith, helper, 3/30/80, Keith Bruce, operator, 8/16/79, Albert Terrazas,
helper, 2/27/80, 011ie Rogers, operator, 3/16/80, and William Galloway,
helper, 7/6/80
8 AS of October 1, the yard hands on the night shift were Jim Duffy
and David \facia There is nothing in the record as to how many yard
hands are employed during the day shift, nor is there record evidence as
to other classifications of employees on either shift
9 Although Taylor's hire date is listed as July 1, 1979, he testified that
he had worked for Respondent twice before Thus, he first worked for
Respondent for a period of 6 months in 1975 but quit over a dispute con-
cerning a change in the computation of the pay periods He was hired
again 9 months later and was subsequently terminated because of exces-
sive absenteeism resulting from his wife's pregnancy According to
Taylor, after his brother John who is a day-shift foreman for Respondent
asked him to return, Taylor did so in July 1979
is Respondent admitted in its answer that John Taylor is a supervisor
within the meaning of Sec 2(11) of the Act
ing or 2 or 3 days later, Taylor walked over to Weaver's
machine, and "[he] asked me if I knew who was behind
it. He didn't say behind what or nothing else. And I told
him no." Next, according to Weaver, Taylor turned and
walked outside the shop to where Don Butler, the plant
superintendent, was standing; Weaver heard Taylor say
to Butler, ".' . . Don, Joe don't know."
On the morning of September 26, a group of Respond-
ent's second-shift employees met with Robert Clowers at
the Union's office in Houston. The record is not clear,
however, as to the number of employees who attended
or as to their identities. In this regard, Robert Clowers,
whose memory of the meeting was extremely vague, tes-
tified that 10 or 11 employees Were present; that, while
he did not recall, any other names, he specifically , re-
called Taylor, Garrison, and yard hand James Duffy
attending; that also present were "a couple of Spanish
people" and that each employee who attended executed
a union authorization card. ' 1 Ricky Taylor testified that
nine employees attended including himself, Alfred, Jim,
011ie, Albert, and Vince; he could recall none of the re-
maining employee participants. Albert Smith, who
worked in the trepanning department as a helper, testi-
fied that he was present and that the other employees at
the meeting were Ricky, Alfred, Jim, 011ie, Jeff, and
Archie. Finally, Garrison testified that besides himself,
Ricky, Albert, Nat, Archie, Keith, 011ie, Jim, and Philip
attended the meeting with Clowers. What is clear about
the meeting is that the latter explained the mechanics of
union organizing to the employees, explained that a cer-
tain percentage of the employees had to indicate' support
for the Union, and gave union authorization cards to the
participants for distribution to other employees.
Pursuant to Clowers' instructions, during the next 2
weeks union authorization cards were distributed among
Respondent's plant employees; 12 however, except for
Taylor and Garrison, there is no record that any other
meeting participant or second-shift trepan shop employee
engaged in such distribution. Thus, Garrison testified
that, subsequent to September 26, he solicited five or six
employees to support the Union, obtained three or four
signed authorization cards, and returned the cards to
Taylor who, in turn, was to give the signed cards to
Clowers and that he engaged in such activities only
during nonwork hours either in the plant parking- lot or
on a street corner near the plant. Likewise, Taylor testi-
" After examining a senes of nine union authorization cards (which
bear the signature of employees of Respondent, are all dated September
26, and which were received into the record as G C Exhs° 2(a)-2(0),
Clowers identified the signers as the employees who attended the. Sep-
tember 26 meeting However, Clowers admitted that he had no independ-
ent . recollection of most of the names of the participants and that it was
possible that some of the cards were backdated to September 26 The
nine signed cards bear the signatures of Biuce, Taylor, Garrison, Nat
Vasquez, Archie Mills, Albert Smith, James Duffy, Albert -Terrazas, and
David Vitela As to signing such a card, Bruce stated that he did so later
that day at the home of Ricky Taylor, and he denied being present at this
meeting
12 The parties stipulated to the following facts (1) that the union re-
ceived 15 signed authorization cards, dated between September 26 and
October 10, from day-shift plant employees, (2) that the Union received
14 signed authonzation cards, dated between September 26 and October
6, from night-shift employees, and (3) that the Union obtained 14 signed
cards dated subsequent to October 6 from plant employees
877OMSCO, INC
fled the week following the union meeting, he engaged
in authorization card distribution in the mornings after
work in the plant parking lot and on a street, a short dis-
tance from the plant. The record discloses that Respond-
ent was aware that Ricky Taylor was soliciting and dis-
tributing authorization cards on behalf of the Union
Thus, among those whom Taylor solicited to sign an au-
thorization card was David Sholar, who is the night-shift
foreman in the trepan shop and who, Respondent admit-
ted in its answer, was a supervisor within the meaning of
Section 2(11) of the Act." Subsequently, Sholar passed
by Taylor's machine in the trepan shop and said that he
wanted to speak to Tayloi. Ten minutes later after com-
pleting a job, Taylor went into a tool room to meet
Sholar. The former closed the door, and Sholar "told me
that - we could be fired for union activity . . . that we
had been talking too much about the union . on com-
pany' time." Taylor responded that no one had spoken
about the Union on company time and that if Scholar
wanted to discuss the subject further, he would have to
meet Taylor after 5 a m. The conversation ended at that
point.
The General Counsel contends that Respondent spied
upon the union solicitation activities of Taylor and Gar-,
rison on the morning of Friday, October 3 According to
Ricky Taylor, while several second-shift employees were
in a group talking and drinking beer in the plant parking
lot after work that day, he and Garrison were standing a
few feet away, soliciting arriving first-shift employees to
sign authorization cards and support the Union - Taylor
testified that as he "was handing a union card to a gen-
tleman in a car," he observed his brother and Don Butler
approximately 50 feet from them, "standing in the shad-
ows of the shop" Moments later, Butler and his brother
approached from behind Taylor, and "Mr. Butler called
out that there was no drinking allowed on company
property, that we would have to leave." At that point,
all the second-shift employees, including Taylor" and
Garrison, left the parking lot During cross-examination,,
Taylor admitted that neither his brother nor Butler could
have known exactly what he and Garrison were distrib-
uting Further, while maintaining that his brother and
Butler must have seen what he and Garrison were doing
as "we wasn't hiding the cards," Taylor admitted that
rather than looking at them, Butler and John Taylor
"wa.d looking directly at the group" and conceded that
he Just assumed that they observed the card soliciting as
such was done openly. Finally in this regard, no other
employee witness corroborated this incident and Garri-
son specifically denied observing any supervisor ever
engage in surveillance of his union solicitation efforts
At approximately 5:30 p m. on October 6, Kess Ver-
huel walked into the trepan shop, carrying a sheet of
paper, and spoke to the foreman, David Sholar. Mo-
ments later, the latter walked from machine to machine
and announced that Verhuel wanted to speak to the em-
ployees in the yard area. Thereupon, all the night-shift
13 Taylor believed that Sholar was merely a leadman at the time and
not a supervisor
14 Taylor denied that he was one of those employees who consumed
beer that morning
trepanning employees," with the exception of Santos
Corm, who was the most senior machine operator and
who signed a union authorization card on October 1, and
Albert Terrazas, who was Coria's helper at the time and
who signed an authorization card on September 26, as-
sembled in the yard area where Verhuel was waiting for
them. The latter was the only management speaker at
this meeting, and while all witnesses agree that he an-
nounced that each of the assembled employees would be
laid off, they disagree as to Verhuel's stated reason.
Thus, both Albert Smith and Alfred Garrison testified
that Verhuel gave as a reason for the layoff the fact that
the production of steel was low; while Ricky Taylor and
Marion Keith Bruce testified that Verhuel attributed the
layoff to the fact that Respondent's supply of steel in the
yard was too low to continue at the same level of tre-
panning. In any event, Verhuel also stated that the em-
ployees had all performed good work and that he would
give each a good job recommendation. The meeting
ended with Verhuel giving final checks to the employ-
ees. Neither Coria nor Terrazas was laid off, and the
record discloses that David Vitela was recalled later that
week to his former job as a yard hand
Conceding all the above-described evidence, Respond-
ent contends that the layoffs of night-shift trepanning
employees Taylor, Garrison, Rogers, Bruce, Smith, and
Galloway and of night-shift yard hands Duffy and Vitela
were economically motivated, necessitated by a severely
reduced inventory of uncut steel bars and by an antici-
pated lack of significant amounts of incoming steel in the
near future. At the outset, without regard to Respond-
ent's evidence in this regard, employee witnesses, includ-
ing Taylor and Garrison, admitted that, as of the date of
the layoffs, there were "empty areas" among the various
sizes of uncut steel bars in Respondent's inventory and
that the trepanning employees were cutting a greater
percentage of "unpopular" bar sizes Further, Marion
Keith Bruce testified regarding the height of the various
stacks of steel bars on hand on October 6: "the lowest I
ever seen them was about like they were on [October
6].",
The record -establishes that Respondent's treasurer, D.
C. Ogden, is responsible for the ordering and purchasing
of steel, for keeping an accurate accounting of both cut
and uncut steel bars in stock, for the scheduling of work
in the trepanning and other departments, and for all sales
orders and the pricing of merchandise Ogden testified
that in October 1979, Respondent was given by Bralorn
Resources an $11 Million budget for the purchasing of
steel inventory in 1980 and that, as a result, he ordered
large amounts of steel in November and December 1979
and January 1980 16 Ogden further testified that in late
15 The night-shift trepanning department employees at the meeting
were Taylor, Garrison, Bruce, Rogers, Smith, and William Galloway
Also present were yard hands Duffy and Vitela
" According to Ogden, when ordering steel from domestic suppliers,
he decides what sizes of bars are required by Respondent and places an
oral order with the supplier His decision "is based on the sales orders
that you have, what you have in Inventory, what you sold in the past,
and just guessing what you think you are going to need three or four
months down the road" Seven to ten days after placing his oral order,
Continued
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February, he received a telephone call from an official of
Bralorn Resources named Scott Grant, who "told us to
reduce our dollar volume in our drill collar inventory,
that they were in a money crunch or a cash flow prob-
lem and needed cash." Having committed Respondent to
large steel orders the previous 3 months, for which Re-
spondent would begin paying in January, and unable, at
that time, to cancel said orders, 17 Ogden complied with
Grant's order and "quit ordering steel as heavy as we
had been and started reducing orders" According to
Ogden, such was reflected in substantially reduced
orders for steel for the period March through June.
Thus, whereas in January, Respondent ordered 1731 tons
of steel and in February 1235 tons, in March and April
1069 tons were ordered each month; in May 1024 tons
and, ultimately in June, only 496 tons of steel bars were
ordered.18
The effect of this reduction in the amount of steel bars
ordered from suppliers, according to Ogden, was 'a con-
comitant reduction in Respondent's inventory of steel
bars. Thus, analysis of Respondent's Exhibit 6, which is a
compilation of Respondent's purchases and sales for
1980, establishes that commencing in June, Respondent's
shipments of steel products became greater than its
monthly purchases," that this condition existed through
September, and that in monetary terms, Respondent's in-
ventory of on-hand steel bars was reduced from
$11,136,075 worth , of steel in June to $8,300,961 in Octo-
ber. 2 ° Ogden testified that while inventories had been as
low in the past (Jan. 1980, for example), previous steel
orders indicated that Respondent's on-hand stock would
quickly be replenished; however, noting the small quanti-
ty of bars (138) which was paid for and shipped in
August and the normal time lag between shipment and
Ogden confirms this in writing and ultimately receives back a promised
shipping date from the supplier Ogden testified that domestic manufac-
turers require up to 90 days to complete a steel order for Respondent and
that subsequent to completion, but prior to shipping, an invoice is sent to
Respondent with a shipping date If Respondent then pays within a speci-
fied time, it receives a discounted price for the steel In any event, ac-
cording to Ogden, it takes from 4 to 6 weeks, from the date of shipping,
for the steel to be delivered to Respondent's plant Finally, Ogden testi-
fied, Respondent does not always receive what it orders as portions ire
often ruined during manufacture and scrapped
17 Bearing in mind the time delay between ordering and paying for its
steel, as described in fn 16, a review of R Exh 6 establishes that in the
time period January through June, Respondent's steel expenditures
ranged from $1 8 million to $2 3 million As to the cancellations of orders
Ogden testified that after - 30 days, the customer bears responsibility for
the cost of the product
18 The reduced steel orders for these months reveals itself-further in
Respondent's steel payments for the period July, August, and September,
when the orders placed in the prior 4 months were ready for shipment
Thus, Respondent paid $1,058,743 in July, $297,587 in August, and
$1,026,383 in September for previously ordered steel •. .
i9 steel purchases had previously been greater than shipments in
1980, in June, Respondent purchased approximately $1 9 million worth of
steel but shipped approximately $2 1 million worth of steel This imbar-
ance increased so that in September, Respondent purchased slightly more
than $1 million worth of steel but sold $2 7 million worth
20 Due to increases in the price of steel, the - cost of Respondent's steel
was approximately 5 percent more in October than In January Thus, al-
though the dollar amount of inventory was greater in October, the actual
number of bars on hand was approximately 5 percent less Prior to Octo-
ber, the only month for 'which we have specific figures for the number of
steel bars in stock is June According to R Exh 11, as of June 30, there
were 2687 uncut drilling collars on hand, 3 months later, September 30,
there remained 1345 uncut steel bars in inventory
delivery, Ogden did not anticipate significant steel deliv-
eries until sometime in November or sufficient on-hand
stock in October to justify operations at the same rate.
Consequently, on taking inventory in August, Ogden
sent Verhuel a memo, dated August 27, in which he
alerted Verhuel that Respondent's inventory of uncut
steel bars was extremely low in most sizes, that the con-
tinued trepanning of bars based on guesswork, absent job
orders for . specific sizes, was becoming increasingly
risky, and that a slowdown was possible. Ogden testified
that Verhuel met with him after reading the memo and
that he essentially repeated the contents of the memo,
stating that the plant was running dangerously low on
stock which, in turn, increased the difficulty in guessing
on requirements. Also, Ogden informed Verhuel that
threading procedures were behind schedule, leaving
large numbers of trepanned bars without reguired, thread-
ing. As to the latter Verhuel said he would attempt to
"speed up" threading operations; however, with regard
to trepanning, Verhuel said, "We will see," but did es-
sentially nothing.
Ogden testified that through September trepanning
continued at the same rate as before, and on October 1,
he undertook an exact counting of all stock, because "we ,.
are getting low on bars" and little material was coming
in. He further testified . that analysis of this inventory was
not completed until Friday, October 3 but, since he was
extremely busy that day,, it was not until the following
Monday (Oct. 6) that he went to Verhuel with the re-
sults: "and I caught Mr. Verhuer and showed him what
we had and told him we were in bad shape and he was
going to have to do something." 21 Verhuel listened to
Ogden, went into the• shop, returned a few moments
later, and "asked me to give him a list of the names of
the night trepanners, which I did." Later that day, ac-
cording to Ogden, Verhuel asked him for the hire dates
of said employees and then instructed Ogden to prepare
their final checks. The latter did so, and the employees
were laid off. -
Other than the foregoing evidence ccncerning its de-
pleted inventory of uncut steel bars on October 6, ,Re-
spondent proffered no evidence as to the necessity for a
layoff as opposed to other forms of economic action, in-
cluding operating the plant with shorter work shifts or,
most significantly, as to what factors were considered by
Verhuel in selecting for layoff the discriminatees herein.
As to the former, not only did the discriminatees so testi-
fy but also Jack Stamps, who was in charge of personnel
matters for Respondent until mid-September, testified
that, as a standard procedure when hiring employees, "I
would reassure them, based on what . had gone before on
the history of Omsco, that we were a growing corpora-
tion, that we did not anticipate lay-offs." Also, in this
" Ogden testified that on a normal Machine, approximately six bars
could be trepanned each shift If all the steel bars in stock, but not includ-
ing incoming supplies (which would have been small in October based on
the low purchase figure for August), were trepanned, such would have
meant approximately 24 days of work for a full complement of workers
on the day shift and eight trepan employees at night However, in view
of the paucity of incoming steel bars in October, guessing at hole diame-
ters and drilling every last bar in stock that month would have been ex-
tremely risky—especially if portions of the stock were unsold
OMSCO, INC 879
regard, Marion Keith Bruce testified that on occasion he
and David Sholar spoke concerning the possibility of
layoffs, "and he told me, he says, No, we have never had
a lay-off, to the best of his knowledge. And he said that
they have cut back on hours but never had a lay-off."
While testifying that some time in the 1950s Respondent
did, indeed, choose to reduce hours rather than lay off
employees in a period of business decline, Ogden pointed
out that the situation in October was unique in Respond-
ent's history in that never before had depleted invento-
ries been coupled with an anticipated lack of sufficient
incoming steel orders, therebY mandating a reduction in
operations from previously maintained levels. With
regard to the factors involved in the layoff decision-
making process, Kess Verhuel, the individual who select-
ed the alleged discriminatees for layoff, did not testify,
and no other evidence was offered.
B. Analysis
The consolidated complaint alleges that Respondent
laid off employees Taylor, Garrison, Duffy, Rogers, Gal-
loway, Smith, Bruce, and Vitela on October 6 in viola-
tion of Section 8(a)(1) and (3) of the Act. In support,
counsel for the General Counsel contends that the discn-
minatees were the same people who signed union author-
ization cards and attended the union meeting on Septem-
ber 26; that by "spying" on the union activities of Taylor
and Garrison on October 3, Respondent "placed itself in
a position to learn that employees on the night shift were
those who were 'pushing for the union"; that Respond-
ent violated Section 8(a)(1) of the Act by John Taylor's
interrogation of employee Billy Joe Weaver and David
Sholar's threat of termination to Ricky Taylor; that the
layoffs occurred the next working day after the "spying"
incident; and that said layoffs were the first in Respond-
ent's history. Contrary to the General Counsel, Respond-
ent denies that the layoffs were unlawfully motivated, ar-
guing that it was without knowledge of the aforemen-
tioned employees' union sympathies or activities and that
the layoffs were precipitated by a shortage of steel bars
and an anticipated lack of sufficient incoming steel to
justify trepanning operations at prelayoff levels.
A determination of the legality of the instant layoffs is
governed by the traditional precepts of Board law in
8(a)(1) and (3) discharge cases, as modified by the
Board's decision in Wright Line, 251 NLRB 1083' (1980),
enfd. 662 F.2d 899 (1st Cir. 1981) Thus, in order to es-
tablish a prima facie violation of Section 8(a)(1) and (3)
of the Act, the General Counsel must establish that (1)
the individual engaged in union or other protected con-
certed activities; (2) the employer had knowledge of the
activities; (3) the employer's actions were motivated by
union animus; and (4) the discharge had the effect of en-
couraging or discouraging membership in a labor organi-
zation. WMUR-TV, 253 NLRB 697, 703 (1980). Further,
the General Coimsel has the' burden of proving the
aforementioned by a preponderance of the evidence.
Gonic Mfg. Co., 141 NLRB 201, 209 (1963). While the
aforementioned analysis was easily applied in cases in
which the employer's motivation was straightforward,
conceptual problems arose whenever dual motivation
was involved—the presence of both a lawful cause and
an unlawful - cause for discharge. In order to resolve this
ambiguity, in Wright Line, supra, the Board established
the following causation test in all 8(a)(1) and (3),cases in-
volving employer motivation. "First, we shall require
that the General Counsel make a prima facie showing
sufficient to support the inference that protected conduct
was a 'motivating factor' in the employer's decision.
Once this is established, the burden will shift to the em-
ployer to demonstrate that the same action would have
taken place even in the absence of the protected con-
duct." Id. at 1089. Two points are relevant to the forego-
ing test. First, in concluding that the General Counsel
has established a prima facie violation of the Act, the
Board will not "quantitatively analyze" the effect of the
unlawful motive. The existence of such is sufficient to
make a discharge a violation of the Act. Id. at 1089, fn.
14 Second, while afpatently warranting the identical an-
alytical approach, pretextual discharge cases' should be
viewed as those in -which the "defense of business justifi-
cation is wholly without merit" Id. at 1084 fn. 5.
At the outset, analysis of the posthearing brief of coun-
sel for the General Counsel establishes that he views the
alleged discnminatees as a class, with the identical cir-
cumstances involved in the layoff of each Initially, it is
contended that each -attended the union meeting on Sep-
tember 26 and executed a union authorization card on
that occasion. Although unstated, presumably counsel
wishes the inference drawn that said individuals, as a
group, were the "pushers" or main union adherents in
the plant.. While the record does establish that two of the
diScriminatees were, indeed, ardent union adherents, I
refuse to draw such a broad inference. In this regard,.
other than Taylor, Garrison, Bruce, and Smith, there is
no evidence as to other employees who participated in
the initial organizing discussions at the plant. Also, not
all the alleged discriminatees engaged in union activities;
there is not a scintilla of record evidence that William
Galloway signed a union authorization card, joined in
any union discussions, attended any union meetings, so-
licited any other employee to support the Union, or oth-
erwise indicated support for the organizing campaign. As
to the September 26 meeting at the Union's office, the
five witnesses who testified concerning the participants
and discussions unanimously agreed on only the follow-
ing alleged discrimmatees as attending: Taylor, Garrison,
Duffy, Rogers, and Smith. Other- alleged participants in-
cluded presumed second-shift employees Vince, Jeff,
Nat, Archie, and Philip, 22 none of whom was laid off on
October 6. Further, while it is alleged that Marion Keith
Bruce attended, based on the date of his signed authori-
zation card, Bruce himself denied having attended, stat-
ing that he executed his card later that afternoon. Also,
although General Counsel's Exhibit 2(1), a union authori-
zation card dated September 26, bears the unauthenticat-
ed signature of David Vitela, and Clowers, the union or-
ganizer, testified that all those present at the meeting of
that date signed cards, Vitela did not testify at the hear-
ing, no witness specifically placed him at this meeting,
22 Nat Vasquez and Archie Mills, who are both classified as machin-
ists, executed union authorization cards dated September 26
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and there is no evidence in the record of either the cif-, -
cumstances surrounding the execution of the above ex-
hibit or what other, if any, union activities in which
Vitela may have engaged. -
While Respondent has not contested or raised as an
issue the matter of the alleged discrimmatees' union ac-
tivities, it does strenuously dispute the General Counsel's
contention that it had knowledge of same. At the outset,
it cannot be seriously disputed that, prior to the Septem-
ber 26 union meeting, Respondent at least suspected the
existence of union organizing activities at the plant and
that subsequently it obtained actual knowledge, not only
of the union campaign in general, but also of the identity
of a leading union adherent. Thus, it was uncontroverted
that in mid-September, employee Billy Joe Weaver asked
his foreman, John Taylor, "What was all this bullshit
about union," that Taylor subsequently asked Weaver
"who was behind it," and that Taylor reported on the
results of this interrogation to Don Butler, plant superm-
tendent. 23 It was also uncontroverted that, some time
after September 26, Ricky Taylor solicited David Sholar,
an admitted supervisor, to support the Union by asking
him to sign an authorization card. While Sholar may be,
as contended by Respondent, a "low level supervisor,"
he nevertheless remains a supervisor within the meaning
of the Act and "information acquired by a supervisor,
with respect to the specific employees involved in the
union campaign, is ordinarily imputable to the employer"
as a matter of law. Kimball Tire Co., 240 NLRB 343, 344
(1979); Pellegrini Bros. Wines, 239 NLRB 1220 fn. 2
(1979). However, knowledge that a particular individual
was involved in union activities does not itself warrant
the conclusion that any other individuals, of group, were
known, or suspected, by Respondent to be the organizers
of the union movement in the plant or even engaged in
union activities at all. Rather, the burden was on the
General Counsel to establish this fad. I do not believe
counsel for the General Counsel , has done so.
In this regard, other, than the activities of Taylor and
Alfred Garrison, there exists not a scintilla of record 'evi-
dence that any other employee, including the alleged dis-
criminatees, engaged in any form Of overt—or even
covert—union activity at or in the vicinity of the 'plant
after September 26 so as to -come to the obvious notice
of Respondent. In his posthearing brief, counsel for the
General Counsel glosses over this fact, pointing to the
"spying by 'John Taylor and Don Butler" in the early
morning of October 3. Again, counsel apparently desires
that an inference be drawn—that, by placing themselves
in a -position to learn of employees' union activities, Said
supervisors did, in fact, discover that-the night-shift em-
ployees were those "pushing for the union." I can draw
no such inference and place no reliance on this incident
22 Counsel for the General Counsel alleges the interrogation of
Weaver by Taylor constitutes a violation of Sec 8(a)(1) of the Act ' In
the circumstances of this case, I agree Thus, notwithstanding that the
entire incident was initiated by Weaver, and Taylor did not accompany
his question with any coercive conduct, there does not appear to have
been any necessity or justification for Taylor's question, he was seeking
quite specific rather than general information, and rather than being mere
Innocent conduct, the impression left by such a question is that possible
repnsals would be taken against the individuals about whom Taylor
sought information Colson Equipment, 257 NLRB 78 (1986). • , -
as establishing knowledge of union activities. Initially, I
note that, other than Taylor and' Garrison, the record
does not even establish the identities of those night-shift
workers who were in the parking lot that morning, talk-
ing and drinking beer. .Next, assuming that the individ-
uals were, in fact, the alleged discrimmatees, there is no
evidence that they engaged in union activities on that oc-
casion. Finally, the facts that these workers were drink-
ing beer and that Butler and -Tayfor ordered them to
leave the plant parking area for that very reason hardly
support , the conclusion that Respondent somehow
learned of their union activities at this time. As to Garri-
son, rather than establishing knowledge, the testimony of
Ricky Taylor mandates just the opposite conclusion —
that Don Butler and John Taylor did not become aware
of Garrison's union activities on this occasion. Thus,-
Ricky Taylor testified that, rather than paying attention
to Garrison and himself, the two supervisors were ob-
serving the actions of the employees who were talking
and , drinking beer and that had they, in fact, been look-
ing directly at . Taylor and Garrison, Butler and his
brother could -not- have known what they were doing.
Thus, Taylor candidly admitted that he just assumed that
Butler and John Taylor were aware of their union activi-
ties ,that morning. Also, I note that Garrison did not cor-
roborate the occurrence of such "spying" and specifical-
ly denied ever observing supervisors engaging in surveil-
lance of his union activities. Based on the foregoing, I
shall not speculate as to what Respondent's supervisors
might have learned that morning, and I believe counsel
for the -General Counsel has failed to prove either that
Respondent was generally aware of the union sentiments
of second-shift, employees or that, except for Ricky
Taylor, Respondent knew the identities of union adher-
ents on-this shift.
'I am not unaware that there are cases in which viola-
tions oz)f,Section 8(a)(1) and (3) have been sustained based
mainly' on circumstantial evidence and inferences drawn
therefrom; without specifically addressing the issue of
knowledge: NLRB. v. Pacific Grinding Wheel Co., 572
F.2d 1343, '1345 (9th Cir. 1978); NLRB v." Long Island
Airport Limousine Co., 468 F.2d 292, 295 (2d Cir 1972),
However, I do not believe the record permits any sort of
an inference that Respondent knew, or suspected, that
the alleged discnminatees, except Ricky Taylor, were, at
most, the main union instigators or, at least, str -Ong union
adherents. In support of his assertion that Respondent
did know or suspect the foregoing; counsel for the Gen-
eral Counsel initially argnes that the timing of the lay-
offs,, occurring the first workday after the ',parking _lot
"spying" .incident, suggests that Respondent aid, indeed,
learn that the night-shift' workers had fomented the union
movement at the plant. Without regard to whether
"spying" occurred, D. C Ogden explained that the lay-
offs were decided on October 6 inasmuch' ishe had initi-
ated an inventory Of Respondent's on-hand steel stock on
October 1, as analysis of the, accounting was not com-
pleted until October 3 and, as he was ektremely busy
with other work-related matters on that day, he was
unable to confer with Kess Verhuel concerning the in-
ventory until the following Monday (October 6). I found
OMSCO, INC 881
Ogden to be an honest and forthright witness and shall
credit his testimony as to the foregoing Next, counsel
argues that not only had Respondent never experienced
a layoff during its employment history but also employ-
ees were expressly informed of this fact during employ-
ment interviews and that whenever Respondent suffered
economic difficulties in the past, its policy vis-a-vis the
employees was to reduce their hours. However, while
Ogden corroborated the foregoing-facts, he testified that
the period of reduced work hours- occurred sometime in
the 1950s—a period, I believe, too remote to beat upon
Respondent's decision-making process in the present
decade Moreover, there exists no record evidence re--
garding the circumstances surrounding prior periods of
economic difficulty for Respondent, and . I specifically
credit Ogden that the situation by which it was confront-
ed in October 1980, depletion -of its on-hand stock of
steel bars along with a dearth of incoming steel in the
immediate future, was one; unique in Respondent's histo-
ry . further, based on the testimony of various employee
witnesses and Ogden and the record as a whole, it
cannot be said that Respondent acted unreasonably in
concluding that a layoff was necessary to alleviate the
aforementioned situation. Put another way, Respondent's
decision to lay off employees does not, itself, establish
knowledge or suspicion of the identities of the union pro-
ponents at the plant. Finally," and with regard - to the
latter . point, it must be borne in mind that, other than
Taylor and Garrison, none of the alleged discriminatees
engaged in overt union organizing activities at or in the
vicinity of the plant; that at the time of the layoffs. ap-
.proximately 36 percent of the total employee comple-
ment, including 15 day-shift employees, had executed au-
thorization cards for the Union, that, at least 7 other
night employees had signed cards; that 2 night-shift tre-
panning employees who signed cards, Coria and Terra-
zas, were retained; and that the entire night shift was not
eliminated These latter factors are of particular signifi-
cance for two reasons. First, absent specific knowledge,
which, I have concluded, Respondent did not have, they
indicate how remote the likelihoOd was that Respondent
could have even suspected that the union activities
which were engaged in by the alleged discriminatees,
except Taylor, were more extensive than those of other
employees. Second, if Respondent knew or suspected
that the second shift was the source of the union senti-
ment, it would have been more expedient to dispose of
all employees thereon and, thereby, "nip the nascent
union movement in the bud"—rather than lay off the
eight trepan shop employees who may or may not have
been the union instigators.
Based on the foregoing, I find that counsel for the
General Counsel has failed to establish that Respondent
possessed knowledge or suspicion of their respective
union involvements when it selected for layoff seven of
the eight alleged discriminatees—an essential element in
proving prima facie violations of Section 8(a)(1) and (3)
of the Act 24 Accordingly, I shall recommend dismissal
24 Although not argued by the General Counsel, I note that seven of
the eight alleged discominatees engaged in some form of union activities
Thus, while 36 percent of the total employee complement were so en-
of those portions of the consolidated complaint regarding
Alfred N. Garrison, Marion K. Bruce, Albert Smith,
David Vitela, William Galloway, James Duffy, and 011ie
Rogers. Simpson Steel Fabricators, 249 NLRB 1111
(1980); Sharkey's Tire & Rubber Co., 222 NIRB 261
(1976), Industrial Products, 216 NLRB 133 (1975).25
However, the record does establish that Respondent had
actual knowledge of the union activities of employee
Ricky Taylor who, it was uncontroverted, distributed
union authorization cards to several people, including
David Sholar, the night-shift supervisor. The record fur-
ther establishes, and it was also uncontroverted, that
shortly after receiving a card from Taylor, Sholar
warned the former that Taylor could be fired for engag-
ing in union activities. Notwithstanding that Taylor did
not feel threatened or that he did not believe Sholar was
a statutory supervisor, such a specific prediction of ad-
verse .- consequences for engaging in union activities,
coming from a managerial representative, is conduct
which goes directly to the heart of that which is protect-
ed by the Act and constitutes a blatant threat, violative
of Section 8(a)(1) of the Act. Stewart-Warner Corp., 253
NLRB 136 (1980); Kansas City Power Co., 231 NLRB
204, 205 (1977). Irrespective of this,- the statement also
patently reveals Respondent's resolute attitude to disci-
pline an employee who, it discovered, , was engaging in
union activities and, therefore, establishes the existence
of unlawful animus towards Taylor." AcCordingly, not-
gaged. 87 5 percent of those laid off were so I am aware that such a
statistical anomaly has been utilized in determining whether unfair labor
practices have been committed, however, such should only be considered
as a factor Without more conclusive and factual record evidence, this
statistical anomaly does not itself establish that Respondent selected the
alleged discommatees for layoff, with knowledge or suspicion of their
union activities.
25 The General Counsel relies on Kranco, Inc , 228 NLRB 319 (1977),
as support for the allegations in the consolidated complaint However,
the decision is readily distinguishable from the facts herein Involved
Thus, ni Kranco, the Board concluded that the Respondent "had reason
to conclude that the [union activity] was strong, if not centered, among
the night-shift employees" This finding was based on the fact that the
night supervisor had discussions with several employees on that shift
about a union Consequently, then, the finding of knowledge had a specif-
ic factual basis Such is missing herein Other than knowledge that Taylor
was distributing authonzation cards, there is just no factual basis to con-
clude that Respondent knew the union sentiments of the second-shift em-
ployees or that Respondent knew the identities of other union instigators
Emphasis is placed on the alleged "spying" on October 3, but I reiterate
my belief that it would be speculative to draw any conclusions from the
events of that morning Likewise, I have found that there is no basis to
conclude that Respondent could have even reasonably suspected union
activity on the night shift of a magnitude greater than on the day shift
Accordingly, while the layoff of Ricky Taylor makes the layoffs of the
other alleged 'cliscominatees highly suspicious, such does not justify a
conclusion that such were unlawfully motivated
25 it is gainsaid that an employer is bound by the actions of its supervi-
sors Glenroy Construction Go, 215 NLRB 866, 867 (1974), GAG Proper-
ties, 205 NLRB 1150 (1973) That Sholar's threat may be considered as
representing Respondent's attitude is clear from the fact that Plant Super-
intendent Butler obviously directed John Taylor to Interrogate employee
Weaver as to the identity or identities of the union adherents Such per-
mits the Inference that Shofar was reflecting the attitude of, if not direct-
ly instructed by, his superiors when he threatened to terminate Taylor
because of his union activities Finally, ' the fact that Sholar uttered his
warning in the guise of a "prediction" does not lessen the consequences
thereof
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
withstanding the possible necessity for a layoff, I believe
that counsel for the General Counsel has established that
the selection of Ricky Taylor for such was motivated by
his union activities, of which Respondent was aware,27
in violation of Section - 8(a)(1) and (3) of the Act.
Utilizing the standard set forth in Wright Line, 251
NLRB at 1089, the burden of proof shifted to Respond-
ent to demonstrate that Taylor would have been selected
for layoff notwithstanding his union activities. Respond-
ent's explanation for the necessity for layoffs herein is
economic-based. In this regard, I credit the testimony of
Treasurer Ogden that, in view of. a shortage of both on-
hand and incoming steel bars in October, he believed
that Respondent ". : . was going to have to do some-
thing." Further, while not entirely free from doubt,
given what was a "unique" situation, I shall not "second
guess" Respondent that a layoff was necessary to allevi-
ate it However, what Respondent failed 28 to do was to
explain what factors were considered by Kess Verhuel,
who apparently made the layoff decision and the selec-
tions of those employees' who were chosen, in selecting
Ricky Taylor for layoff Thus, Verhuel did not testify at
the hearing and there is just no record evidence in this
regard. Accordingly, I find that Respondent has failed to
meet its burden of proof that Taylor would have been
laid off notwithstanding his union activities and conclude
that, in laying off Taylor, Respondent acted in violation
of Section 8(a)(1) and (3) of the Act. Reeves Southeastern
Corp, 256 NLRB 574 (1981); Modesti Bros., 255 NLRB
911 (1981) 2 9
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
" The existence of animus directed at Taylor and a finding that his
selection for layoff was unlawfully motivated do not permit the drawing
of an inference that the other alleged chscnminatees were likewise unlaw-
fully selected for layoff Thus, the finding that one individual was unlaw-
fully laid off does not, absent record evidence of knowledge as to their
union activities, establish that other layoffs are likewise unlawful Kimball
Tire Co , 240 NLRB at 344
28 In its postheanng brief, Respondent speculates that selections for
layoff were logical and based on the fact that the second shift was recent-
ly established It is sufficient to say that, absent testimony by Verhuel or
other record evidence, there is nothing in the record as to why Taylor
was laid off
" The fact that Respondent did not explain how and why the remain-
der of the laid-off employees were selected for layoff is not relevant to
my conclusion that counsel for the General Counsel did not establish
prima facie violations of Sec 8(a)(1) and (3) of the Act with regard to
the layoffs of Garrison, Bruce, Smith, Vitela, Galloway, Duffy, and
Rogers Thus, in arguing the contrary when he asserts that Respondent
picked and chose those who were most active on behalf of the union
(itself, a rather dubious claim), counsel seemingly—without explicitly
stating—analogizes the failure of Respondent t offer any explanation to
the offering of a patently false explanation for the selection of the em-
ployees for layoff In this regard, counsel relies on such cases as Shattuck
Denn Mining Corp v NLRB, 362 F 2d 466, 470 (9th Cir 1966), and First
National Bank of Pueblo, 240 NLRB 184, 185 (1979) However, even in
such circumstances, the Board will draw an Inference that the employer
sought to conceal an unlawful motive only if the surrounding circum-
stances so justify SUperior Forwarding Co. 242 NLRB 761, 765 (1979)
Herein, where the record is barren as to Respondent's knowledge that
the selected employees were strong union adherents or suspicions thereof,
I draw no such inference
2. By laying off employee Ricky Taylor about October
6, 1980, and thereafter not reinstating him because he en-
gaged in union or other protected concerted activities,
Respondent committed unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
3. By interrogating employees as to the union activi-
ties, membership, and sympathies of their . fellow employ-
ees, Respondent interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed by
Section 7 of the Act and thereby committed an unfair
labor practice within the meaning of Section _8(a)(1) of
the Act.
4. By warning employees that they could be terminat-
ed for engaging' in union activities, Respondent interfered
with, restrained, and coerced employees in the exercise
of the rights guaranteed by Section 7 of the Act and
thereby committed an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
5. Unless specifically found, Respondent committed no
other unfair labor practices.
REMEDY
Having found that Respondent engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act. As I
have found that ,Respondent unlawfully laid off Ricky
Taylor, I shall recommend that Respondent be ordered
to offer him immediate and full reinstatement to his
former position or, if that job no longer exists, to a sub-
stantially equivalent position without prejudice to his se-
niority or other rights and privileges. I shall further rec-
ommend that Respondent be ordered to make him whole
for any loss of earnings he may have suffered as a result
of the discrimination against him by payment to him of
the amount he normally would have earned from the
date of his layoff, October 6, 1980, with backpay to be
computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), and with interest as prescribed
in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida
Steel Corp., 231 NLRB 651 (1977)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eda()
ORDER
The Respondent, Omsco, Inc., Houston, Texas, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off employees because they engaged in
union or other-protected concerted activities.
(b) Interrogating employees as to the union activities,
membership, or sympathies of their fellow employees
3 ° If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
OMSCO, INC 883
(c) Warning employees that they could be discharged
because they engage in union or other protected concert-
ed activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Offer Ricky Taylor immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him in the manner set forth in the remedy
section of the decision.
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, 'timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Post at its Houston, Texas facility copies of the at-
tached notice marked "Appendix."" Copies of the
3 ' If this Order is enforced by a Judgment of a ,United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
notice, on forms provided by the Regional Director for
Region 23, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated com-
plaint should' be' dismissed insofar as it alleges that Re-
spondent 'violated Section 8(a)(1) and (3) of the Act by
laying off employees Alfred N. Garrison, Marion K.
Bruce, Albert Smith, David Vitela, William Galloway,
James Duffy, and 011ie Rogers:
tonal Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"