Ajax Paving Industries, Inc.

National Labor Relations Board - Board Decisions

May 6, 1982

261 N.L.R.B. 695 (N.L.R.B. 1982)

AJAX PAVING INDUSTRIES, INC.
Ajax Paving Industries, Inc. and Lawson Dalton.
Case 7-CA- 18108
May 6, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On October 19, 1981, Administrative Law Judge
Sydney J. Barban issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Ajax Paving
Industries, Inc., Detroit, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to employ or in any
other manner discriminate against our employ-
ees because they engage in concerted activities
protected by the National Labor Relations
Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
by Section 7 of the Act.
WE WILL offer Lawson Dalton immediate
and full reinstatement to his former job, or, if
that job no longer exists, to a substantially
equivalent job, and WE WILL make Lawson
Dalton whole for any loss of earnings, plus in-
terest, and benefits he may have suffered by
reason of the discrimination against him, in ac-
261 NLRB No. 101
cordance with the Order of the National
Labor Relations Board.
AJAX PAVING INDUSTRIES, INC.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard before me in Detroit, Michigan, on
July 9, 1981, upon a complaint issued on September 26,
1980, based on a charge filed on August 7, 1980. The
complaint alleges that Ajax Paving Industries, Inc.
(herein called Respondent), violated Section 8(a)(1) of
the National Labor Relations Act, as amended (herein
called the Act), by failing and refusing to recall Lawson
Dalton, the Charging Party, for engaging in certain as-
serted protected concerted activity. The answer to the
complaint denies the unfair labor practices alleged, but
admits allegations of the complaint sufficient to justify
the assertion of jurisdiction under the Board's present
standards (Respondent engaged in performing paving
services for various entities and enterprises in the State
of Michigan, and in a recent annual period rendered
services valued in excess of $50,000 to such entities and
enterprises, each of which, during the same period, pur-
chased and had transported goods of a value of $50,000
from outside the State of Michigan directly to its facili-
ties in the State of Michigan).
Upon the entire record in this case, from observation
of the witnesses and their demeanor, and after due con-
sideration of the briefs filed by the General Counsel and
the Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE ISSUES
Lawson Dalton, an employee of Respondent, in the
early fall of 1979, distressed by the fact that he, as well
as other employees on his work crew, had been shorted
in their pay for two successive pay periods, went to Re-
spondent's main office and protested the situation to Re-
spondent's payroll clerk. The General Counsel contends
that Dalton's conduct in making this protest was protect-
ed concerted activity under the Act. Respondent, for
reasons developed more fully hereinafter, asserts that
Dalton's actions in this instance did not constitute pro-
tected activity.
Members of Respondent's work crews are normally
laid off in the late fall of each year and recalled to work
in April or May of the following year. However, in the
spring of 1980, Dalton was informed that he had been re-
placed and would not be recalled to work. The General
Counsel contends that Respondent failed and refused to
recall Dalton to work because of his protest of the wage
shortage to the payroll clerk the preceding year, as more
fully discussed hereinafter. Respondent, on the other
hand, contends that the reason Dalton was not recalled
derived from adverse business conditions and Respond-
ent's desire to retain the best employee in the job per-
formed by Dalton. Respondent asserts further that, in
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any event, there is no evidence that Respondent knew
that Dalton's action was concerted, as distinguished from
personal activity.
II. THE FACTS
A. The Wage Shortages
Dalton was employed by Respondent to operate a
paving machine on a crew whose foreman was John
(Jake) Potter (referred to as Potter's crew). In the fall of
1979 (probably late October or early November), be-
cause of the loss of I day's timecards, Respondent short-
ed the pay of each of the members of Potter's crew by a
full day's pay, a clearly substantial amount. The employ-
ees discussed this among themselves. Dalton and at least
some of the others protested this shortage of pay to
Foreman Potter who advised that he would look into the
matter and do what he could to get it adjusted. Dalton
(and possibly some of the other employees) also protest-
ed this situation to W. Thomas Rea, Respondent's divi-
sional manager for the area in which Potter's crew was
located, Dalton asking, "when we were going to get our
money." However, the employees were not only not
paid for the first shortage at this time, but on the next
payday their paychecks were also for less than the
amounts due. The reason for this second shortage is not
clear, but seems to have been occasioned by Rea's failure
to notify the payroll clerk that certain checks which had
been drawn to partially reimburse the employees for the
lost time on the first paychecks had not, in fact, been
given to the employees.' During a subsequent pay
period, after Dalton's protest to the payroll clerk, as set
forth below, these shortages were paid to the employees
on Potter's crew.
B. Dalton's Protest to the Payroll Clerk
One morning, after the second shortage in the employ-
ees' paychecks, Dalton went to Respondent's main
office, where he spoke with the payroll clerk. According
to Dalton, he "just asked her about my shortage of pay
and if she knew why we hadn't received it, or why I
hadn't received mine." Dalton stated that she replied that
Rea had lost the timecards and there was no way that
she could make out replacement checks unless she had
the timecards, that she would "get right on it and see
about it and find out about it."
The payroll clerk, Dale Diane Kazeta, testified that
Dalton "walked into the office and said he was short and
asked me what the hell I was going to do about it and
when this shit was going to stop," that she responded
that "there was nothing I could do about it, I would
have to get in touch with [Rea] in order to rectify this
error."2 Kazeta then called Rea, on a two-way radio
I Rea testified that he had offered such "advances" to the employees
on two occasions, but they had not been rejected. No reason was devel-
oped for this refusal. The matter is not significant, but I suspect the ad-
vances were rejected because they were less than the full amount due.
2 Though Kazeta testified that the payroll shortage on Potter's crew
was "initially" brought to her attention when Dalton walked into the
office and said he had been short, the record is clear that she had previ-
ously known about the original shortage and had prepared "advances" to
partially compensate for the shortages.
communication and asked him to come to the office to
straighten out this matter. Rea then returned to the office
and spoke with her about this.
Dalton denied that he was "upset or mad" when he
was talking to Kazeta, or that he swore at her, or used
the language which she attributed to him.3
Upon consideration of the entire record I am inclined
to the belief that the actual words spoken were probably
much less vulgar than Kazeta now recalls and very
likely much more vigorous than Dalton states. The evi-
dence certainly indicates that Kazeta was less distressed
by Dalton's language then than is now claimed. Thus,
Rea, to whom she told the story of her encounter with
Dalton when it was fresh, and who immediately went to
the jobsite where (as discussed below) he lectured the
entire crew because of the incident, did not mention the
alleged vulgar language at the time. Nor does it appear
that Rea, at the time, or at any time before Dalton was
laid off in the fall, mentioned to Dalton this alleged use
of immoderate language, or complained about the
manner of his approach to Kazeta rather than the fact
that Dalton had bypassed Rea in going to see the payroll
clerk instead of going through the "chain of command."
Indeed, according to Kazeta's testimony, it appears that
she was as much upset, on this occasion, with Rea for
failing to advise her that the "advance" checks had not
been delivered to the crew (and thus presumably causing
her to short them a second time) as she was with Dalton.
When Dalton left the office, he went to the jobsite
where he informed the crew as to what he had done.
One crewmember said that if he had known, he would
have accompanied Dalton to the office.
C. Rea's Reaction to Dalton's Protest
After talking with Kazeta about Dalton's visit to the
main office, Rea went to the jobsite where Potter's crew
was working, called all the employees together, and lec-
tured them on Dalton's visit to the payroll clerk. Dalton,
two members of Potter's crew at the time, Rick Mitchell
and Donald Nelson, and Rea testified as to the occur-
rence. With the exception of one issue raised by
Dalton-more apparent than real-the accounts of each
of them is essentially the same. In the words of Nelson,
Rea "called us all together and talked to us about our
shortage in our check. He told us our timecard had been
lost and to give him a little time and he'd get it straight-
ened away for us." Nelson recalled that thereafter a con-
siderable part of Rea's remarks was directed at Dalton
about going to the office to talk to the payroll clerk,
"who didn't have no authority at all," instead of coming
to Rea first. In the interchange between Rea and Dalton,
Nelson recalls Rea saying that if Dalton "wasn't satisfied
with the way we were running things, he could go to
the office and pick up his check and quit." Later Nelson
recalled that Rea had said that the payroll clerk "was
upset because [Dalton] was talking to her about his
3 Though Dalton on a number of occasions categorically denied using
this language to the payroll clerk, he also, during cross-examination,
stated that he did not recall using such language, and when pressed as to
whether it was possible, stated "anything is possible with humans." I
weighed this in assessing Dalton's credibility.
696
AJAX PAVING INDUSTRIES, INC.
shortage in money and there was nothing she could do
about it."
Similarly, Mitchell testified that Rea was upset "be-
cause Dalton had gone to the office and he thought we
should be able to pull together better and let him handle
these matters," further "that we didn't need men like
that, that if he couldn't wait . . . for his money, we
didn't need people like that," and Rea, in addition, spoke
of "having faith in the company," that when he worked
long hours, he knew he would always get his money,
"and that we should have the patience to do that."
On cross-examination, Mitchell reiterated that Rea said
he was upset because "they" all should work as a team
and because Dalton, instead of coming to Rea, had gone
to see the wrong person in the office, which, in Rea's
opinion, was the wrong thing to do.
Rea's testimony was to the effect that he was upset be-
cause Dalton had gone outside "the chain of command"
and upset the payroll clerk who was powerless to cor-
rect the error.
As noted previously, I find no evidence in any of the
testimony that Rea complained to the crew or to Dalton
about the language Dalton was alleged to have used to
Kazeta.
Dalton asserts that on this occasion Rea attempted to
fire him, but that he insisted that only foreman or the
management official who hired him could terminate
him.4 Rea denies that he attempted to fire Dalton,
though he states he told the men that "if we couldn't
work together as a team . . . from management all the
way down, then maybe we had better take a long, hard
look at ourselves as to whether we should be there."
Neither Mitchell nor Nelson recalled that Rea specifical-
ly fired Dalton. On the whole record, I find that he did
not, though he certainly gave Dalton good reason to un-
derstand that he was being invited to leave.
Dalton continued to work until the end of the season
in 1979.
D. The Failure To Recall Dalton
It was Respondent's custom to have the crew foreman,
in the spring, call his crewmembers to come in for a
physical examination and shortly after notify members of
the crew to come in for work for the new season. In the
spring of 1980, Potter called Dalton to come in for his
physical examination, but shortly thereafter Rea called
Dalton and advised him not to come in to work because
he had been replaced on Potter's crew.
Rea testified, and it does not seem to be disputed, that
few if any bids for paving work were let by the State of
Michigan-a primary source of Respondent's business-
in late 1979 and early 1980, when such work would nor-
mally be awarded. Consequently, 1980 was a poor year
for Respondent's business. Rea asserts that Respondent
decided early in the year that it would have to retrench,
and, as a result, out of four paving crews (two in Rea's
area, and two in a nearby area) two paving crews were
disbanded (one in each area). Potter's crew was retained.
' Dalton was a member of the Operating Engineers Union, which had
a collective-bargaining contract covering Respondent's operations. It is
sometimes the custom that union men are dismissed only by the foreman.
In the one crew outside Rea's area that was retained,
the paving operator, Bob Lemerand, was retained with
his crew. When the second crew in that area was dis-
banded, the paving operator, Smazel, was nevertheless
retained and transferred to Potter's crew in Rea's area.
In the one crew in Rea's area which was disbanded, the
paving operator, Al Denno, was laid off. Dalton was the
only operator in any classification (paver or roller opera-
tor) who was laid off notwithstanding the fact that his
crew was maintained. Respondent has a policy of trying
to maintain its crews intact year after year, to provide
continuity, as Rea explained when questioned as to why
Lemerand was not laid off.
Rea testified that the management group with which
he met weighed whether to retain Smazel whose crew
was going to be disbanded, or Dalton whose crew was
to be retained. 5 From the record it appears that both
Dalton and Smazel are, and management considered
them both to be, very good operators. Rea states, how-
ever, that it was decided to retain Smazel because he
maintained his equipment better than Dalton maintained
his. There is no explanation as to why it was decided not
to let Smazel replace Lemerand, except for Rea's asser-
tion of Respondent's policy of trying to keep its crews
intact, which, of course, would apply equally to Dalton.
E. Dalton's Maintenance of Equipment
Dalton was employed by Respondent in 1971 or 1972,
most likely the latter, as a roller operator. Thereafter,
whenever needed, he filled in as a paver operator and
became a full-time paver operator for Respondent in
1975 or 1976. From the record as a whole it appears that
he became an excellent operator. As far as I can ascer-
tain, Respondent does not contend that it found any fault
with him prior to 1979, and even then it appears that Re-
spondent did not tell Dalton that his work was being
faulted. Thus Rea, the divisional manager, after testifying
that there were "a lot of discussions" about Dalton "tee-
tering on the brink of discharge or discipline because he
did not maintain his machine," then stated that he "never
mentioned" anything about this to Dalton and he was
sure that Potter, the foreman, "didn't either." Rea says
that he never communicated these concerns "directly" to
Dalton because Rea "was trying to keep everybody
intact," a non sequitur, which here again explains noth-
ing.6
Upon close analysis, Respondent's complaint against
Dalton appears to consist of two elements which, at the
outset, will be considered separately. First, Respondent's
maintenance manager, Joe Damron, testified that, ac-
cording to computer readouts, "the machine cost [of
Dalton's paver] was running too high" and "[i]t was
costing us money." He stated that he reported this to Re-
5 Rea's testimony in this area, as well as generally, did not impress me
favorably. He tended to be nonresponsive, vague, nonspecific, and at
times inconsistent.
6 At another place, on cross-examination, when asked if he told
"Dalton that the fault rested with him," Rea evasively replied that "[hle's
the paver operator and he knows that he is responsible for his equipment,
as well as the roller operators know that they're responsible for his equip-
ment from a maintenance point of view." Dalton did not recall whether
Rea had spoken to him about this.
697
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's division manager, as well as the fact that "the
machine wasn't being kept clean, it wasn't being proper-
ly maintained." Rea also testified that Damron com-
plained to him that the machine was costing "a lot more
money to maintain" than "other pieces of equipment of
comparable age." However, Respondent nowhere ex-
plains how Dalton's actions, or his failure to perform,
contributed to this asserted excessive cost of maintaining
Dalton's paver, except to the extent his asserted failure
to "clean" his paver, discussed hereinafter, may have
contributed to that result.
Dalton, on the other hand, attributed the necessity of
repairs to the age of the paver, which was already much
used when he was assigned to it in 1975-76.7 Dalton tes-
tified, without contradiction, that when, in 1979, he re-
ported that the machine needed repairs, Damron told
him to go ahead and finish the season with the machine
the way it was, that Respondent had a new machine or-
dered and would get rid of Dalton's paver at the end of
the season.
Secondly, with respect to Respondent's claim that
Dalton did not keep his machine "clean," 8 significantly
this complaint is asserted to come from Damron, who
has only infrequent contact with the 500 or more pieces
of Respondent's equipment during the season, and not
from the foreman of the crew (who did not testify) who
presumably would have daily observation of the crew
and the equipment." Dalton testified that he performed
the daily maintenance required on his paver-washing it
down, cleaning out the moving parts, and greasing the
necessary parts. Two employee witnesses on his crew
testified that on those occasions when they had an op-
portunity to observe (the workday of the others normal-
ly ended before Dalton's), they saw Dalton cleaning and
maintaining his machine. There were apparently minor
exceptions to some of this routine. In certain situations it
was not practical or permissible to clean the machine
with the diesel fuel used for this purpose. And, on one
occasion, Dalton recalled that he was compelled to send
the paver in for repairs without cleaning out the asphalt
because of the nature of the broken parts. In which in-
stance he notified the maintenance people of the prob-
lem.
On the whole, I credit Dalton that he cleaned and
maintained his paver daily, as required. He was an expe-
rienced paving operator. He was not warned or criti-
cized concerning such alleged dereliction. Neither Rea
nor the crew foreman testified to observing a single in-
stance in which Dalton failed in these duties and he was
supported, to some extent, by other members of his
crew. Damron obviously had little or no opportunity to
observe whether Dalton cleaned his equipment. In any
7 To the extent that the testimony of Rea and Damron conflicts with
that of Dalton on this issue, I credit Dalton.
8 At the hearing, Rea and Damron explained that by this they mean
not only washing down the outside of the machine, but cleaning out cer-
tain moving parts each day, as well as daily greasing of moving parts in
the paver. The General Counsel points out that in Rea's affidavit to the
General Counsel Rea referred only to keeping the paver "clean."
9 Damron stated that he sees "a majority" of the equipment in the win-
tertime, and, during the season, only whatever is brought in for major
repair. There is specific indication of only one instance that Dalton's
paver was brought in for major repair in 1979.
event, I have difficulty in following Damron's assertion
that Dalton's claimed failure to clean his machine every
day was the cause of excessive maintenance costs for the
machine. When asked about this, he referred only to the
difficulty in cleaning the machine after asphalt has har-
dened overnight.
Ill. ANALYSIS AND CONCLUSIONS
A. The Alleged Concerted Activity
Employees have the right under Section 7 of the Act
to engage in concerted activities in protest of their work-
ing conditions and to attempt to improve or correct
those conditions. See N.L.R.B. v. Washington Aluminum
Company. Inc., 370 U.S. 9 (1962). Respondent does not
contest this principle, but contends that Dalton's action
in going to see Respondent's payroll clerk to protest
shortages in the paychecks received by Dalton and the
other members of his paving construction crew was an
individual action, in his own behalf, not concerted activi-
ty; further that Respondent did not know and had no
way of knowing that Dalton's activity was on behalf of
the other employees, and, even if Dalton were acting on
behalf of the others, his conduct was not protected. I
find these contentions to be without merit.
Because of the loss of I day's timecards, and some
confusion in Respondent's payroll operation, thereafter,
the members of the paving crew on which Dalton was
employed were substantially shorted in their pay on two
successive occasions. They complained of this to their
foreman and, at least some of them, to Rea, the division-
al manager. The employees also talked among them-
selves about these shortages in pay. After the second
shortage, Dalton went to the Respondent's main office
where he spoke with Respondent's payroll clerk.' ° At
the office, using some vigorous language (the clerk says
this included the words "hell" and "shit"), he asked her,
in his words, "about my shortage of pay" and "why we
hadn't received it or why I hadn't received mine." After
some mollifying words from the clerk Dalton went back
to the jobsite where he told the crew what he had done.
At least one employee said he would have accompanied
Dalton if he had known of the trip to the office in ad-
vance.
When Division Manager Rea learned from the payroll
clerk what had occurred, he went directly to the jobsite,
where he gathered the entire crew together and lectured
the entire crew on making their protests about working
conditions only through the "chain of command." In
particular, Rea invited Dalton to terminate his employ-
ment if he and the other employees could not work as a
team with management. Significantly, Rea did not com-
plain, then or later, to the employees as a group, or
Dalton alone, about the language used to the payroll
clerk.
'0 Respondent makes some point, in passing, that the payroll clerk had
no authority to do anything about the shortages. However, it does not
claim that Dalton knew she had no authority. Indeed, Respondent asserts
other employees have also gone to the payroll clerk with similar ques-
tions or complaints.
698
AJAX PAVING INDUSTRIES, INC.
On these facts, and the record as a whole, I find that
in complaining to Respondent's payroll clerk about the
shortages in pay, Dalton was engaged in concerted activ-
ities protected by the Act. His action involved a matter
of immediate common concern to all the members of his
work crew, which they had discussed among themselves
and with supervision. To the extent that Dalton was suc-
cessful in his mission, all the employees would be benefit-
ed, as, indeed, all were, when shortly thereafter they
were all paid what was owing-a result to which I have
no doubt Dalton's action contributed. 1 There is no indi-
cation that any employee disapproved of what Dalton
had done, and, indeed, the evidence indicates that when
informed they approved his effort. Also, significantly,
Divisional Manager Rea perceived that Dalton's action
was on behalf of all the employees since he immediately
went to the jobsite and called the entire crew together to
complain to all of them about what Dalton had done.
From this last, and from the record as a whole, I find
that contrary to Respondent's contention, Respondent re-
alized that Dalton was not engaged in a personal adven-
ture, but was acting on behalf of the entire crew in his
visit to the main office. It is also clear from Rea's actions
at the time that he was then not concerned about Dal-
ton's language to the payroll clerk-for he did not com-
plain about it to Dalton or the other employees-though
Respondent now seems to contend it should be consid-
ered disqualifying. I have not the slightest doubt that the
language used was common among Respondent's work-
ers and well known to the payroll clerk, which may well
be the reason Rea did not complain about it to the em-
ployees at the time.
B. Respondent's Motivation in Terminating Dalton
It is not disputed that, in the spring of 1980, among
four paving crews in two divisions, Respondent dis-
solved two crews (one in each division) for good busi-
ness reasons. In the Pontiac Division, one paving crew
was retained, including its paving operator, Lemerand.
In that division, the second crew was disbanded and the
members of that crew, except for Smazel, the paving op-
erator, were not recalled to work for the 1980 season. In
the remaining division, Dalton's crew was retained, but
he was not recalled to work, and was replaced by
Smazel. The second crew in that division was disbanded
and all members, including the paving operator, were
laid off.
In essence, Respondent's position is that it had two
paving positions in the spring of 1980 and considered
three paving operators, Lemerand, Smazel, and Dalton
for those two positions. No reason was originally given
for retaining Lemerand, but, on cross-examination, Rea
l It is also noted that Dalton's action served to induce Respondent to
comply with the current collective-bargaining agreement with the Oper-
ating Engineers Union which not only provided the employees' rates of
pay, but, also, in art. Vil, sec. 5, provides that "All wages shall be paid
to the employees at least once a week on the jobsite." (This requires,
clearly, that all wages due the employees be paid once a week.) Respond-
ent argues, however, that Dalton never said he was trying to enforce the
contract. In the circumstances here, that was not necessary
The General Counsel also relies on the Michigan statute requiring pay-
ment of wages to workers at least every 2 weeks, which I have judicially
noticed. I have not relied on this law.
referred to Respondent's policy not to break up existing
crews in order to provide continuity in the crew. There
is no evidence as to the ability or performance of Lemer-
and. According to Rea, Dalton and Smazel were equally
good operators. Rea states that Respondent, nevertheless,
chose Smazel over Dalton because of the latter's asserted
laxness in maintaining his equipment, a contention that I
find, for reasons discussed above, to be meritless.
Respondent finally argues that it is not rational (an
"absurdity") to contend that the failure to recall Dalton
was due to a desire "to discriminate against a long-term
employee . . . because he registered a complaint about a
paycheck shortage with a payroll clerk some 8 to 9
months earlier" (br. p. 14). However, the facts do not
seem to allow of any other conclusion. Rea's reaction to
Dalton's action was hostile and intense and made known
to the other employees. It would seem that Rea did not
follow through on his desire to get rid of Dalton imme-
diately because of the nearness to the end of the 1979
season. In 1980, Foreman Potter actually indicated to
Dalton that he would be recalled before Rea advised
Dalton that he would be replaced.
Further, Respondent's explanations for this action raise
more questions than they provide answers. Lemerand
and Smazel were in the same division. It would seem
logical, if Smazel were to be retained, that he should re-
place Lemerand rather than Dalton. The only reason
given for retaining Lemerand, a policy against breaking
up the crew, applies equally to Dalton. No contention is
made that Lemerand was a better operator than or as
good an operator as Dalton. Respondent's contention
that Dalton was remiss in maintaining his equipment-a
complaint never made to Dalton-I have found pretex-
tual. In the circumstances, on the facts found above, and
on the entire record, I find that by failing and refusing to
recall Lawson Dalton to work in 1980 and thereafter be-
cause of his protected concerted activities, Respondent
violated Section 8(a)(l) of the Act.
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent, by failing and refusing to recall
Lawson Dalton to work in 1980 and thereafter and refus-
ing to employ him because he engaged in concerted ac-
tivities protected by the Act, violated Section 8(a)(l) of
the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has been and is
engaged in unfair labor practices in violation of the Act,
it will be recommended that it cease and desist therefrom
and take certain affirmative action to effectuate the pur-
poses of the Act.
It having been found that Respondent discriminated
against Lawson Dalton in violation of Section 8(a)(1) of
the Act, it will be recommended that Respondent offer
him immediate and full reinstatement to his former job,
699
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or if such job no longer exists, to a substantially equiva-
lent job, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay
and benefits he may have suffered as a result of the dis-
crimination against him by payment of such sums of
money as he would have earned as wages and benefits
from the date of the discrimination against him to the
date of Respondent's offer of reinstatement, less his net
earnings during such period, in accordance with the for-
mula prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), together with interest thereon to be comput-
ed in the manner prescribed in Florida Steel Corporation,
231 NLRB 651 (1977); see, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 12
The Respondent, Ajax Paving Industries, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to employ or otherwise discriminating
against employees because they engage in concerted ac-
tivities protected by the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
'z 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. 102.48 of the Riles 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.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act:
(a) Offer Lawson Dalton immediate and full reinstate-
ment to his former job, or if the job no longer exists, to a
substantially equivalent job, and make him whole for any
loss of earnings or benefits he may have suffered by
reason of the discrimination against him, in accordance
with the provisions set forth in the section of this Deci-
sion entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to the effectuation of the Order herein.
(c) Post at its operations in and about Detroit, Michi-
gan, copies of the attached notice marked "Appendix."' 3
Copies of said notice, which shall be duly signed by a
representative of Respondent, on forms supplied by the
Regional Director for Region 7, shall be posted by Re-
spondent immediately upon receipt thereof, and main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to ensure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
'3 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
700