American Electric

National Labor Relations Board - Board Decisions

Apr 10, 1998

325 N.L.R.B. 637 (N.L.R.B. 1998)

637
325 NLRB No. 101
AMERICAN ELECTRIC
1 On April 8, 1997, Administrative Law Judge Gerald A. Wacknov
issued the attached decision. The Respondent filed exceptions and a
supporting brief. The General Counsel filed cross-exceptions. The
Respondent filed an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to the judge’s failure to rule on a
prehearing motion to dismiss the complaint. In light of the judge’s
unfair labor practice findings, which we affirm, the motion is denied.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
4 We do not adopt the judge’s suggestion, in fn. 4 of his decision,
that the Respondent’s owner ‘‘was aware that the Union was at-
tempting to set him up for unfair labor practices.’’ Chairman Gould
finds that it is not necessary to pass on the General Counsel’s cross-
exception to this finding.
5 In accord with the General Counsel’s cross-exceptions and Dean
General Contractors, 285 NLRB 513 (1987), we shall modify the
remedy by adding a provision that the Respondent offer a job to
discriminatee Forrest Bayer, notwithstanding the Respondent’s com-
pletion of work at the jobsite where it discriminatorily refused to
employ him. The Respondent will bear the burden of proving in
compliance proceedings that it would not have transferred Bayer
from project to project.
We shall further modify the recommended Order by including sep-
arate reinstatement, backpay, personnel record removal, records pres-
ervation, and notice requirements that accord with Indian Hills Care
Center, 321 NLRB 144 (1996).
6 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
Thomas Mcclellan, d/b/a American Electric and
International Brotherhood of Electrical Work-
ers, Local 234, AFL–CIO. Case 32–CA–15619
April 10, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
The main issues in this case1 are whether the judge
correctly found that the Respondent violated Section
8(a)(3) and (1) of the Act by refusing to hire union or-
ganizer Forrest Bayer and that its owner further vio-
lated Section 8(a)(1) by advising an employee that he
would not hire anyone who had anything to do with
the Union. 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,2 findings,3 and
conclusions,4 and to adopt the recommended Order as
modified and set forth in full below.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Thomas McClellan, an individual, d/b/a
American Electric, Santa Cruz, California, his officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Telling employees that it would not hire anyone
who had anything to do with a union.
(b) Discriminatorily refusing to hire applicants for
employment because of their union affiliation and ac-
tivities.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Forrest Bayer employment to the job for which he ap-
plied or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority
or other rights and privileges, dismissing, if necessary,
any employees hired to fill the position.
(b) Make Forrest Bayer whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, in the manner set forth in the
remedy section of the judge’s decision, as modified in
this decision.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful re-
fusal to hire, and within 3 days thereafter notify Bayer
in writing that this has been done and that the refusal
to hire will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its place of business in Santa Cruz, California, cop-
ies of the attached notice marked ‘‘Appendix.’’6 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 32, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since August 15, 1996.
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638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
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 or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT tell you that we will refuse to hire
anyone who has anything to do with a union.
WE WILL NOT discriminate against employee appli-
cants because of their union affiliation or activity by
refusing to hire them.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL within 14 days from the date of the
Board’s Order, offer Forrest Bayer employment to the
job for which he applied or, if that job no longer ex-
ists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights or privileges
to which he would have been entitled if he had been
hired.
WE WILL make Forrest Bayer whole for any loss of
earnings and other benefits resulting from the discrimi-
nation against him, less any interim earnings, plus in-
terest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful refusal to hire Forrest Bayer, and WE
WILL, within 3 days thereafter, notify him in writing
that this has been done and that the discrimination will
not be used against him in any way.
THOMAS MCCLELLAN D/B/A AMERICAN
ELECTRIC
Gary M. Connaughton, Esq., for the General Counsel.
Robert Fried, Esq. (Thierman Law Firm), of San Francisco,
California, for the Respondent.
Eugene Miller, Esq. (The Hilby Professional Center), of Sea-
side, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursu-
ant to notice of hearing in this matter was held before me
in Santa Cruz, California, on February 6, 1997. The original
charge was filed on August 15, 1996, by the International
Brotherhood of Electrical Workers, Local 234, AFL–CIO
(the Union). On November 20, 1996, the Regional Director
for Region 32 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing alleging vio-
lations by Thomas McClellan, an individual d/b/a American
Electric (the Respondent) of Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act). The Respondent, in
its answer and amended answer, duly filed, denies that it has
violated the Act as alleged.
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. Since the close of the hearing, briefs
have been received from counsel for the General Counsel
(the General Counsel) and counsel for the Respondent.
On the entire record, and based on my observation of the
witnesses and consideration of the briefs submitted, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a sole proprietorship with an office and
place of business located in Santa Cruz, California, where it
is engaged in the construction industry as an electrical con-
tractor. In the course and conduct of its business operations
the Respondent annually sells and ships goods or provides
services valued in excess of $50,000 directly to customers or
business enterprises that themselves meet (or would meet,
but for their exempt status), one of the Board’s jurisdictional
standards, other than the indirect inflow or indirect outflow
standards. It is admitted and I find that the Respondent is en-
gaged in commerce or in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the
Union has been a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether the
Respondent has violated Section 8(a)(1) and (3) of the Act
by stating to an employee that it would not hire certain union
electricians, and by failing and refusing to hire Forest Bayer,
an applicant for employment, because of his union affiliation
as an organizer for the Union.
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639AMERICAN ELECTRIC
1 All dates or time periods herein are within 1996 unless otherwise
stated.
2 In documents submitted during the investigatory stage of this
proceeding the Respondent placed the date of Bayer’s visit as the
latter part of July, around July 19 or 20. At the hearing, McClellan
placed the date as July 23, as this was about the time that two of
his employees had notified him that tools had been stolen from their
tool boxes. However, McClellan had no notes indicating the date of
Bayer’s visit.
B. The Facts
Between the dates of July 16 and July 22, 1996,1 the Re-
spondent’s owner, Thomas McClellan, placed an ad in the
Santa Cruz Sentinel, a local newspaper, as follows: ‘‘Elec-
trician, fax info to [telephone number].’’ On July 17, Forrest
Bayer, an organizer for the Union, faxed his resume to the
Respondent. On July 19, McClellan sent Bayer a letter telling
him that all positions had been filled.
It is admitted that McClellan had had prior conversations
with Bayer regarding the possibility of becoming a signatory
contractor to the standard IBEW area contract, and that for
several months McClellan had attempted to put Bayer off by
telling him that due to the nature of his business he was not
yet ready to enter into an agreement with the Union. On July
19, after receiving Bayer’s resume, McClellan advised Bayer
that, ‘‘Unfortunately, we have filled the positions that were
open with our company. We will however keep your resume
on file.’’ At this time he knew that Bayer was a union orga-
nizer and business representative and that Bayer was inter-
ested in organizing his employees; he also acknowledged
that, on reviewing the resume, Bayer appeared to be a very
experienced and qualified electrician.
McClellan testified that at the time he placed the foregoing
ad the Respondent was engaged as an electrical subcontractor
on the campus of California State University at Monterey
Bay (CSUMB), where three or four dormitory buildings were
being constructed, and had just been advised that due to the
nature of the project the work was being speeded up in order
to get the buildings completed earlier than originally sched-
uled; thus, he would need a much larger employee com-
plement than he currently employed. At the time the project
began in May he had a total of about 12 journeyman and ap-
prentice electricians, and in July his employee complement
had increased to about 18 employees. In August, however,
he had approximately 36 electricians working on this job.
The job was completed about the last week in August.
McClellan testified that because of the ‘‘big push’’ in Au-
gust he was trying to get almost anybody on a temporary
basis, and ‘‘borrowed’’ many employees from other contrac-
tors for a day or two as they were available. However, fol-
lowing his rejection of Bayer on July 19, he also hired four
journeymen electricians as ‘‘regular’’ employees for the re-
mainder of the project. McClellan testified that as of the date
he received Bayer’s resume he had not yet contacted any of
these four individuals. Explaining, McClellan testified that he
had previously promised jobs to these people in May, after
he had hired his original complement of employees, and told
them that when work picked up he would hire them. Further,
his purpose for putting the ad in the newspaper was not to
obtain electricians for immediate employment, but was mere-
ly to build up a backlog of resumes to prepare himself for
the possibility that he would need even more employees than
anticipated after the four regular employees had commenced
working.
It was stipulated that the following journeyman electricians
were hired as ‘‘regular,’’ that is, not temporary, employees,
on the following dates: Anthony Miemotka, July 27; Larry
Warren, August 1; Kyle Tuck, a former employee, August 5;
and Christopher Neill, a former employee, August 17.
Regarding the hiring of Larry Warren, McClellan testified
that he had a practice of hiring employees who were rec-
ommended to him by current employees, and in this regard
Warren had previously been recommended to him by Debo-
rah McGowan, a current apprentice. However, McGowan tes-
tified that although she knew Warren as a result of pre-
viously working on the same jobsite with him, she did not
recommend Warren to McClellan as she ‘‘didn’t want to be
a part of [Warren] getting hired on’’ because she wasn’t sure
of his ability.
In addition to the foregoing reason for failing to hire
Bayer, McClellan testified that on or about July 23,2 prior to
the time any of the four regular employees began working
at the site, Bayer came to the jobsite and, while McClellan
and a group of his employees were eating lunch near the
construction trailer, made a disparaging remark about the Re-
spondent’s apprentice electricians.
The account of this incident given by both parties is essen-
tially the same, however Bayer testified that the incident took
place on August 8. Thus, Bayer testified that on August 8,
he entered the site with James Nichols, an organizer and
president of the local union herein. Nichols went to another
location on the site while Bayer approached McClellan and
some of his employees who were eating lunch. At this time
Bayer was aware that the Respondent was a contractor affili-
ated with the Associated Building Contractors (ABC), an or-
ganization of nonunion employers, and that McClellan ob-
tained his apprentice electricians through the ABC appren-
ticeship training program. Bayer testified that his purpose for
visiting the site was to just talk to McClellan as a result of
having received the letter advising him that all positions had
been filled. McClellan and abut four of his employees were
eating lunch. Bayer said hello and asked, ‘‘Can you use any
good people?’’ McClellan answered that the job was ‘‘pretty
filled up right now.’’ Bayer was acquainted with Deborah
McGowan, an apprentice, as she had previously applied as
an apprentice with the IBEW program. There was some con-
versation regarding the apprenticeship program, and at one
point Bayer said something to the effect that ‘‘the ABC pro-
gram sucks, and that the IBEW program is a much better
program. And that if we were to organize American Electric,
they would be slotted into the IBEW program.’’
McClellans’s account of the conversation does not differ
significantly from the account given by Bayer except, ac-
cording to McClellan, Bayer was accompanied by Union
Representative Nichols at the time, and the conversation oc-
curred on July 23 rather than August 8. Bayer testified that
he was surprised at Bayer’s derogatory comment regarding
the ABC apprenticeship program, which was made in a
somewhat loud tone of voice, particularly as it was directed
to ABC apprentices who were present. He told Bayer that
they were having their lunchbreak and did not want to have
a confrontation, and that he would appreciate it if Bayer and
Nichols would leave. They did so.
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640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Initially, during the investigation of this matter, the Respondent
had submitted a position statement to the Board on October 3, stat-
ing that, ‘‘With respect to the reasons for not hiring the applicant,
Forrest Bayer, the employer determined that Mr. Bayer would be an
uncooperative employee, since he intentionally tried to instigate a
conflict and a possible confrontation with our apprentices.’’ The Re-
spondent did not take the position that Bayer was not hired because
all the positions had been filled until the hearing herein. Indeed Re-
spondent’s answer and amended answer to the complaint contains
the affirmative defenses that Bayer had submitted a fraudulent appli-
cation and that he ‘‘used fighting words which precluded him as an
applicant to be hired. Also, said conduct angered the employer.’’
Thus, there was no contention that Bayer was refused employment
because the available positions had been filled. Current counsel did
not represent the Respondent until sometime after the Respondent’s
answers to the complaint had been filed.
4 On the same day that McClellan had received the resume from
Bayer he also received a resume from another individual, purport-
edly ‘‘Fred McKnight.’’ The resume, however, was the same resume
submitted by Nichols, months earlier. In fact, McClellan had hired
Nichols on the project and Nichols had worked for him for a while
until he quit, at which time he advised McClellan that he was a
union representative and organizer. Thus, during his discussion with
Zeman, McClellan was aware that the Union was attempting to set
him up for unfair labor practice charges.
5 While Zeman testified that the word ‘‘stoolie’’ may not have
been used by McClellan, Zeman interpreted McClellans’s remarks as
conveying that connotation.
6 Zeman testified that he had been a contractor some 15 years ear-
lier and that Bayer had been employed by him at that time.
7 There is no contention that Nichols’ employment was other than
satisfactory.
When asked whether the foregoing statement by Bayer had
anything to do with his not being hired, McClellan answered
that ‘‘it may have played a little bit, just the fact that if any-
body else had come to me to apply for a job and they said
those remarks, I can’t see how they can get along with my
employees after they said that right in front of them . . . I
didn’t have a place to put him by himself . . . I couldn’t see
him disrupting my work force.’’3
According to Deborah McGowan, Bayer and Nichols came
to the site where employees were eating lunch and Bayer
was ‘‘kind of loud’’ and the whole thing seemed kind of
funny to him. McGowan testified that as an ABC apprentice
she ‘‘just felt insulted’’ on hearing Bayer’s derogatory re-
marks. However, she did not say anything and never commu-
nicated her feelings to McClellan.
Union Representative Nichols testified that although he
went to the site with Bayer, he was not present during the
conversation as he was taking photos of other things at the
site. The photos, identified on the record, bear an imprinted
date of August 8, which is the date, according to Nichols,
that he and Bayer visited the site.
Richard Zeman was employed by the Respondent as a
journeyman electrician from May 7 to July 31. Zeman testi-
fied that during the latter part of July, McClellan mentioned
that he had received a resume from Bayer and that the Union
was pulling every trick in the book to get him to violate the
law.4 He further said that he wouldn’t hire any ‘‘stoolie’’5
from the Union. Zeman said that he knew Bayer and that
Bayer was a good electrician.6 McClellan just said that he
would not hire anybody who had anything to do with the
Union.
On July 31, the day Zeman gave the Respondent 2 weeks’
notice that he would be quitting, he was dismissed by the
Respondent. During the latter part of his employment Zeman
had been speaking to union representatives, and after leaving
the Respondent’s employ became a union member, cooper-
ated with the Union in the investigation of this matter, and
was referred to jobs through the union hiring hall.
McClellan denied that he told Zeman that he would not
hire any union organizers, but did testify that he had a con-
versation with Zeman regarding the bogus resume from
‘‘McKnight’’ that was the same resume that he had received
in May from Nichols, whom he hired.7 McClellan said that
was all he remembered about the conversation with Zeman,
and that it was his policy that he basically did not discuss
business matters with his employees.
C. Analysis and Conclusions
The General Counsel has presented a prima facie case sup-
porting the complaint allegation that the Respondent has
failed and refused to hire Forrest Bayer, an applicant for em-
ployment, because of his union affiliation and activities in at-
tempting to organize the Respondent’s employees.
Thus, the record is clear that on July 19, the Respondent
advised Bayer that all the positions for electrician had been
filled. This was not the case, however, as McClellan admit-
tedly had not even contacted any of the four regular employ-
ees who were not hired until well after Bayer, who was ad-
mittedly a well qualified applicant, was sent a rejection letter.
While the Respondent contends that, in May, after the com-
mencement of the CSUMB project, each of the four employ-
ees had been promised future employment at some indeter-
minate time, it does not follow that these employees would
be available for work or would even desire such employment
some 3 months later. Nor does it seem likely that the Re-
spondent would turn down Bayer, an admittedly qualified ap-
plicant, before determining whether any of the four employ-
ees would be available.
Moreover, it is noteworthy that McClellan testified that he
wanted to hire employee Warren based on the recommenda-
tion of a current employee, whereas the credible record evi-
dence shows that Warren was not so recommended by that
employee.
Regarding the testimony of Richard Zeman, a former em-
ployee, I have carefully considered his testimony in view of
the fact that he was terminated on giving his 2 weeks’ no-
tice, and that he thereafter cooperated with and became a
member of the Union. Nevertheless, Zeman was subjected to
extensive cross-examination and I conclude that his testi-
mony is credible. Thus, I find that shortly after receiving the
resume from Bayer, and during the course of a conversation
involving the receipt of Bayer’s resume, McClellan did tell
Zeman that he would not hire anybody who had anything to
do with the Union. I do not credit McClellan, who categori-
cally denied this statement. Accordingly, I find that this
statement was coercive and is violative of Section 8(a)(1) of
the Act, particularly in light of the fact that Zeman at the
time was considering union membership. In addition, it fur-
ther supports the complaint allegation that Bayer’s applica-
tion for employment was rejected for discriminatory reasons
and not for the reasons advanced by the Respondent.
And finally, it is significant that the Respondent main-
tained, until the commencement of the instant hearing, that
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641AMERICAN ELECTRIC
8 NLRB v. Town & Country Electric, 116 S.Ct. 450 (1995).
9 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983).
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Bayer was not hired because of the alleged argumentative
and disruptive statement he made to some of Respondent’s
apprentice electricians sometime in July or August. In this
regard, I credit the testimony of Union Representatives Bayer
and Nichols, who placed this event on August 8, well after
Bayer was rejected for employment and other were hired.
Thus, McClellan’s testimony shows that he was merely spec-
ulating as to the date and had not otherwise definitively
placed the date as being July 23, while the photo date stamp
of Nichols, coupled with the credible testimony of Nichols
and Bayer, support the date of August 8. Thus, it is clear,
and I find, that Bayer’s remarks could not have been a factor
in his being rejected for employment.
Moreover, I find nothing in Bayer’s remarks that would
have disqualified him for future employment. Thus, Bayer
advised some of the Respondent’s employees that the ABC
apprenticeship program ‘‘sucks.’’ Placed in context, this re-
mark was merely a somewhat forceful statement that in Bay-
er’s opinion the ABC program was a poor substitute for the
IBEW apprenticeship program, and that if the Respondent
became signatory to the IBEW area agreement the employees
could participate in the better IBEW program. While some
of the apprentices may have taken exception to this remark
and even may have been offended, as ABC apprentice Debo-
rah McGowan so testified, nevertheless Bayer’s remark
seems to be no more than ordinary union campaign rhetoric
to which unions, employees, and employers are often sub-
jected during the course of competing claims for support.
Accordingly, I find that Bayer’s statement did not exceed the
bounds of permissible organizing rhetoric, and that by such
a remark he did not forfeit his right to future employment.
Paid union organizers are employees within the meaning of
the Act,8 they have a right and, in fact, an obligation to the
union to organize, and it is to be expected that statements
critical of one of two competing labor organizations should
be reasonably understood merely as campaign propaganda
and should be evaluated as such by employees. Nor has the
Respondent cited any pertinent cases to the contrary.
On the basis of the foregoing I conclude that, as stated,
the General Counsel has presented a prima facie case, and
that the Respondent has not sustained its burden of proof
under Wright Line9 by demonstrating by a preponderance of
the evidence that it failed and refused to hire Forrest Bayer
for legitimate and nondiscriminatory reasons. Accordingly, I
find that the Respondent has violated Section 8(a)(3) of the
Act as alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has violated Section 8(a)(1) of the Act
by advising employees that it would not hire any employees
who had anything to do with the Union.
4. The Respondent has violated Section 8(a)(3) of the Act
by failing and refusing to hire Union Organizer Forrest
Bayer.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
THE REMEDY
Having found that the Respondent has violated and is vio-
lating Section 8(a)(1) and (3) of the Act, I recommend that
it be required to cease and desist therefrom and from in any
like or related manner interfering with, restraining, or coerc-
ing its employees in the exercise of their rights under Section
7 of the Act. Moreover, as the project on which Bayer would
have been employed has been completed, the Respondent
shall be required to make him whole for any loss of wages
and other benefits he may have suffered by reason of Re-
spondent’s discrimination against him in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Further, the Respondent shall be re-
quired to post an appropriate notice, attached heret as ‘‘Ap-
pendix.’’
[Recommended Order omitted from publication.]
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