Aztec Concrete, Inc . And E.M.L. Construction Co., Joint Employers

National Labor Relations Board - Board Decisions

Dec 23, 1985

277 N.L.R.B. 1244 (N.L.R.B. 1985)

1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aztec Concrete, Inc. and E .M.L. Construction Com-
pany, Joint Employers and William Stewart.
Case 31-CA-13987
23 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 19 July 1985 Administrative Law Judge
Gordon J. Myatt issued the attached decision. The
Respondents filed exceptions and a supporting
brief, and the General Counsel filed a brief in op-
position to the exceptions.
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, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Aztec Con-
crete, Inc. and E.M.L. Construction Company, Las
Vegas, Nevada, their officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
' The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. 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 re-
versing the findings
Mori Pam Rubin, Esq., for the General Counsel.
Harold P. Gewerter, Esq. (Fadgen, Lovell, Bilbray, Potter
& Gewerter), of Las Vegas, Nevada, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. On a
charge filed by William Stewart, an individual, against
Aztec Concrete, Inc. (Aztec) and E.M.L. Construction
Company (EML), the Regional Director for Region 31
issued a complaint and notice of hearing on 11 April
1984; The complaint alleges, inter alia , that Aztec and
EML constitute a single business enterprise and a single
employer within the meaning of the National Labor Re-
lations Act. Further, that by the conduct of various per-
sons alleged to be agents and/or supervisors of Aztec,
Respondent threatened employees with termination for
engaging in protected concerted activity regarding their
wages and, on 8 November 1983,1 discharged employees
for engaging in this activity. Next, the complaint alleges
that Respondent Aztec reinstated the discharged employ-
ees pursuant to a non-Board settlement agreement on 15
December 1983 and subsequently discharged three of the
reinstated employees on 5 January 1984 because of their
protected concerted activity. The complaint alleges the
above conduct violated Section 8(a)(1) of the Act.
Respondent filed an answer in which it admitted cer-
tain allegations of the complaint, denied others, and spe-
cifically denied committing any violations of the Act. At
the hearing, counsel for General Counsel amended the
complaint to allege that, in addition to Pete Ruiz and
Berv Thorson, Mark Escoto, David Sams, and William
Menge were agents and/or supervisors within the mean-
ing of Section 2(11) of the Act. Respondent admitted the
allegation as it related to Escoto and Menge, but denied
the agency and supervisory status of the other individ-
uals named in the amended allegation.2
A hearing was held regarding this matter on 26 and 27
June 1984 in Las Vegas, Nevada. All parties were repre-
sented by counsel and afforded full opportunity to exam-
ine and cross-examine witnesses and to present material
evidence on the issues involved. Briefs were submitted
by all parties and have been duly considered.
On the entire record in this case and upon my observa-
tion of the witnesses while testifying, I make the follow-
ing
FINDINGS OF FACT
1. JURISDICTION
Aztec Concrete, Inc. and E.M.L. Construction Com-
pany are Nevada corporations engaged in the business of
concrete and general construction and share a common
office and place of business located in Las Vegas,
Nevada. Aztec and EML have common offices, owner-
ship, management, and supervision and have formulated
and administer a common labor policy affecting all em-
ployees engaged in their business operations. In the
course and conduct of their business operations, Aztec
and EML annually purchase and receive goods or serv-
ices valued in excess of $50,000 from sellers or suppliers
located within the State of Nevada who in turn receive
such goods, in substantially the same form, directly from
outside the State of Nevada. The parties have stipulated,
and I find, that Aztec and EML constitute a single em-
ployer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
EML was awarded a contract to perform certain con-
struction work at Nellis Air Force Base in Nevada. All
of the concrete work to be performed by EML at Nellis
' Unless otherwise indicated, all dates herein refer to the year 1983
2 Although its answer denied the single enterprise and single employer
status of Aztec and EML, at the hearing Respondent stipulated that the
companies constituted a single employer within the meaning of the Act
277 NLRB No. 142
AZTEC CONCRETE
was subcontracted by it to Aztec. The general contractor
on the Nellis project was Avedon Corporation . Because
the work was being performed at a military installation,
it was subject to the provisions of the Davis-Bacon Act
which required all contractors to pay their employees
the prevailing wage for their job classifications. A sched-
ule of the job classifications and the prevailing wage
rates was posted on the jobsite by the general contractor
as required by the Federal regulations.
B. The Dispute Between Aztec and its Employees
Regarding Their Wages
Stewart, the Charging Party, was employed by Aztec
in May 1983 and assigned to work on the Nellis project.
He had worked previously for Mark Escoto, principal
owner of Aztec and EML, when Escoto was a part-
owner of another concrete construction firm in the Las
Vegas area. Aztec was responsible for all of the concrete
work to be performed at Nellis. This included laying out
the,foundations for buildings, digging footings, compact-
ing the gravel, grading, building forms for the footings,
and the walls, pouring concrete into the forms, pouring
concrete slabs,-building forms for curbs and sidewalks,
and pouring the concrete, stripping the forms after the
concrete pours, cement finishing, and all cleanup work
involved in the concrete construction.
Stewart testified that although he performed work on
all facets of Respondent' s operations , he primarily set
(built) forms for the concrete and stripped them after the
pours. Stewart's immediate foreman on the project was
William Menge and the other members of the crew were
Kenneth Ward, George Grisnick, and Martin Pollard.
Similar to the situation involving Stewart, Grisnick spent
most of his time setting and stripping forms, Ward per-
formed mostly laborers duties, and Pollard was a cement
finisher. Stewart's initial irate of pay was $12 an hour and
this amount was increased to $13.60 in October 1983.
Ward, who was hired in mid-August 1983, received $12
an hour. Grisnick began working for Respondent at
Nellis in June 1983 and his wage rate was $10 an hour.
Pollard started on the project in July 1983 and his initial
rate of pay was $12 an hour. He later received a wage
increase to $13 an hour
Stewart testified that sometime in July he was ques-
tioner by a civilian representative of the Corps of Engi-
neers on the project regarding the tools he used in per-
forming his work and the rate of pay he was receiving.3
At the time of this interview, Stewart was aware that he
was receiving less than the prevailing wage for the duties
he performed because he had seen the wage and classifi-
cation schedule posted by the general contractor. He
also testified that the stubs from his paychecks failed to
indicate the number of hours for which he was being
paid.4 He stated, however, that he never approached
3 The Corps of Engineers was the contracting agency responsible for
the construction at Nellis Air Force Base As a part of this responsibility,
the Corps' representatives monitored the ,lobsite to ascertain whether the
various contractors were to compliance with the Davis-Bacon require-
ments
4 See G C Exhs 2(a) and 2(bl for example of Stewart's paycheck stubs
during this period
1245
Escoto about the subject of the .wages because he was
fearful of losing his job. He` and, other members of
Menge's crew testified they discussed the matter of
wages among themselves at least "a couple of times a
week" and especially when they received their weekly
paychecks. They speculated on how to correct the
matter without jeopardizing their jobs with the Respond-
ent.
In addition to discussing the problem of the wages
among themselves, the employees brought the matter to
the attention of Menge, their foreman, and Terrance
Johnson, the project superintendent for the general con-
tractor. Johnson testified that, in July, the representative
of the Corps of Engineer notified him that the wage
survey revealed Respondent's certified payroll reports
contained violations of the prevailing wage requirements.
Johnson also stated that Respondent's employees com-
plained to him directly about their substandard wages.
He told them, however, that the matter had to be han-
dled by his home office in Phoenix because that was
where the certified payrolls of all of the subcontractors
on the project were sent.
On 11 August Avedon wrote to EML about the fail-
ure to receive certified payroll reports from Aztec and
the fact that Aztec's employees complained about their
wages and job classifications (see G.C. Exh. 7). Again,
on 17 August, Avedon wrote EML about the matter and
attached a copy of the letter from the representative of
the Corps of Engineers. This letter indicated the wage
survey revealed Aztec's employees were misclassified
and were not paid the proper wages (see G.C. Exh. $).
Shortly thereafter, the Aztec employees began to re-
ceive paychecks which indicated they were classified as
laborers and paid at the rate of $16.79 an hour. In order
to reflect the total wages the employees were receiving
at their actual wage rate, the check stubs showed them
as working fewer hours than they actually performed
each week (see G.C. Exhs. 2(c)-(f), 4(a} -(g)).
The testimony reveals that the employees continued to
discuss among themselves their complaints about their
wage and classification problems on the jobsite. The tes-
timony of Menge indicates that in July the employees
complained to him that their pay stubs failed to show the
hours they had worked. After mid-August, they com-
plained to him that the paychecks showed them earning
a higher rate of pay than they were receiving and work-
ing fewer hours than they actually worked.
Grisnick testified that the employees became more dis-
satisfied with their, failure to receive the proper wages
and decided to explore other ways to correct the matter.
Sometime in October the employees decided to give
Grisnick copies of their pay stubs and their timecards
and he, in turn, submitted them to the onsite representa-
tive of the Corps of Engineers. The employees also con-
tinued to express their complaints over the job classifica-
tions and wage rates to Menge and Johnson.
On 28 October the Corps representative wrote to
Avedon requesting immediate submission of all of
Aztec's outstanding payrolls. The letter noted the Corps
intended to investigate complaints submitted by Aztec's
employees regarding underpayment of wages and job
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
misclassification. Avedon thereupon sent a letter to EML
on 2 November requesting submission of proof that the.
wage and classification problem had been resolved (see
G.C Exh. 9).
Menge testified he met with Escoto "about the first of
November" and informed him that Grisnick submitted
the employees' wage and classification complaints to the
Corps of Engineers. Menge suggested that Escoto meet
with the employees. 5 Escoto was hospitalized later that
same week. While there, he called Pete Ruizs to the hos-
pital and instructed Ruiz to meet with Stewart and
Ward. According to Escoto, he told Ruiz "to keep the
peace on the job" and to "get the tension out of every-
body." He stated he wanted Ruiz to get Stewart and
Ward "off to the right start" on a church construction
project that Respondent was also doing at the time.
Stewart and Ward testified they were called at their
respective homes early in the morning on 5 November
(Saturday) by Ruiz, who asked them to meet him at a
local restaurant at 7:30 a.m. to talk about work. Accord-
ing to the testimony of Stewart and Ward, when they ar-
rived Ruiz stated there was a problem over the wage
complaints at Nellis. Ward testified that Ruiz stated he
had discussed the matter with Escoto the day before, and
he was taking action based on the decision resulting from
that discussion. Ruiz told the employees that Menge and
Pollard would be fired on Monday for complaining
about the wages. Both Stewart and Ward testified that
Ruiz stated they could continue to work for Respondent
and drop their wage complaints, in which event they
would receive a raise.. If not, he would take the same
course of action regarding them as he intended to take
against Menge and Pollard. When the employees asked
what the amount of the raise would be, Ruiz replied he
could not say, until the employees made a decision re-
garding his request.- Both employees told Ruiz they
could not accept his offer under those conditions Ruiz
then said, "That's it." Stewart asked Ruiz if that meant
the employees were fired and Ruiz replied, "Yes."
Ruiz' testimony concerning this event differed sharply
from that of Stewart and Ward. He stated he asked the
two employees to meet with him because he was con-
cerned about the quality of the work performed by
Menge's crew. According to Ruiz, the work of the crew
required "better coordination." He stated he told Stewart
he would be a better worker if he had better leadership.
Ruiz denied that he fired Stewart or Ward at this meet-
ing. He stated he had no authority to fire employees and
that, he only hired employees for Aztec after first check-
ing with Escoto. Ruiz denied mentioning the wage com-
plaints of the employees during this meeting.
After the meeting, Ward informed Pollard that he and
Stewart had been fired by Ruiz and that Pollard and
Menge would be fired the following Monday. Pollard
contacted Menge over the weekend and was instructed
by him to report to work on Monday.,
On Monday (7 November), Pollard, Menge, and Gris-
nick were working at the Nellis jobsite. Menge testified
he went into Avedon's trailor at approximately 1 p.m.
and Berv Thorson of EML was there.' Thorson ex-
pressed surprise to see Menge on the job and asked if he
had spoken to Ruiz. He also asked if Menge knew Ruiz
fired the crew. When Menge indicated he was not aware
of this, Thorson told him the job was shut down. Ac-
cording to Menge, Thorson asked him to tell the crew to
meet him at Respondent's office the next morning.
Menge left to advise Pollard and Grisnick to pick up
their tools and leave because the job was shut down, On
his way, he ran into Stewart who had returned to the
jobsite to pick up his tools. Menge told Stewart that
Thorson had shut down the job and the employees were
to meet Thorson the following morning at EML's of-
fices
Thorson's testimony regarding the events of 7 Novem-
ber conflicts with that of Menge. Thorson, who stated he
was merely a salesman for EML, said he went to Nellis
that day on instructions from Escoto. He stated he had
been asked by Escoto to "keep the lid" on the job while
Escoto was in the hospital. He further stated that when
he met Menge in the trailer, he asked Menge to come to
Respondent's office to discuss the matter of the wage
disputes. According to Thorson, he expected Menge that
afternoon but Menge did not show up until the following
morning.
Johnson testified that he was in the trailer when Thor-
son came on the jobsite on 7 November. According to
Johnson, Thorson advised Mel Marks, Avedon's project
manager at Nellis, that he was going to close down Re-
spondent's portion of the job at that time because the
crew had been fired over the complaint about their
wages. Johnson stated that Thorson remarked that the
crew was not supposed to be working on the job at all
that day.
The following morning, Menge and all the members of
his crew went to Respondent's offices to talk with Thor-
son.8 The undisputed testimony reveals that Thorson
first spoke with Menge and then Stewart separately and
then conferred with Grisnick, Pollard, and Ward in a
group. Menge stated Thorson asked if he would return
to the Nellis project at the same rate of pay with the un-
derstanding that something could be worked out later re-
garding his wages. According to Menge, he rejected this
proposal, stating he had been fired and he wanted clarifi-
cation of his status as well as his wage scale on the Nellis
project. Thorson then told Menge Respondent would
fight any effort Menge made to receive unemployment
compensation or to change his job classification at the
Nellts project.
Stewart testified that when he spoke with Thorson, be
was told that he (Stewart) was a laborer at Nellis and
was considered a superintendent when working on an-
5 Escoto admitted Menge told him "there was unrest out there with r The complaint alleges Thorson is a supervisor for Respondent His
the people " Escoto stated he promised Menge he would get the matter status is also treated elsewhere in this decision, infra
resolved by Friday 8 Thorson testified he was surprised to see the entire crew gathered at
6 Ruiz is alleged in the complaint to be the superintendent of Aztec his office He stated he had instructed Menge to meet with him the after'
His status with Respondent is treated elsewhere in this decision, infra noon of the previous day, but Menge did not appear
AZTEC CONCRETE
other project of Respondent at Black Mountain.9 Be-
cause of this , Thorson insisted that Stewart 's expenses at
Black Mountain would , be deducted from any wage set-
tlement resulting from the wage and classification dispute
at Nellis. Stewart disagreed with Thorson 's characteriza-
tion of his job classifications when working on both job-
sites and the discussion between them ended
During Thorson 's discussion with the three other em-
ployees, Ward asked if his paycheck was ready since he
had been fired by Ruiz the preceding Saturday . He testi-
fied Thorson admitted he was aware that Ruiz fired ev-
eryone and stated the paychecks would not be available
until Friday. Ward then left the meeting because his only
purpose was to pick up his paycheck.
Grisnick and Pollard corroborated Ward 's testimony
that Thorson stated he knew Ruiz had fired the entire
crew . According to Grisnick , Thorson told the employ-
ees he had been authorized by Escoto to settle the wage
dispute arising from the work on the Nellis project.
Thorson's testimony differed in a number of instances
from that of the employees . He stated that his purpose in
talking to the members of Menge's crew was to keep the
job (at Nellis) running ; until Escoto returned from the
hospital . According to Thorson, during his discussions
with the , employees , they all wanted to be classified as
carpenters rather than laborers on the Nellis project. He
further stated that he asked Menge to get the employees
to return to the Nellis job and Menge replied that he and
the employees would discuss the matter in a nearby bar
and let Thorson know their decision . Later that day, ac-
cording to Thorson, Menge called the office and in-
formed Linda Smith , the office manager, that the crew
would not return to work 10
On the same day that Thorson spoke with the employ-
ees at Respondent 's offices , Avedon's project manager
wrote to Thorson confirming an earlier telephone con-
versation that no work would be performed on the Nellis
jobsite on 8 November by Respondent in order to allow
Respondent to meet with the employees to resolve the
wage problem . The letter indicated Respondent's work
at Nellis would resume on 9 November as scheduled,
(See G.C . Exh. 10.) Johnson testified that Thorson vis-
ited the Nellis jobsite during the afternoon of 8 Novem-
ber and informed Marks that Respondent was going to
put a new crew on the Nellis job. Johnson made a nota-
tion on his daily report for that day that EML had "fired
[the] entire crew over wages" and was in the process of
putting a new crew together . (G.C. Exh. 17(2).) Re-
spondent 's records show that starting 9 November, Re-
spondent performed its work at the Nellis jobsite with
employees other than Menge or the members of his
crew. (See G.C. Exh. 18.)
Following the discussion with Thorson on 8 Novem-
ber, Grisnick filed an unfair labor practice charge against
Respondent with the Board's Regional Office. In the in-
terim, Avedon continued to write to Respondent insist-
9 During the time they worked at Nellis, Stewart and Ward were as-
signed to work on various occasions at other projects of Respondent
One was called the "Black Mountain" job located in Beatty, Nevada, and
the other was a church construction project in Las Vegas
10 Smith was called as a witness and stated she received such a tele-
phone call from Menge that afternoon
6
1247
ing that Respondent submit. revised payroll statements
showing its employees in the, proper job classifications,
proof that the employees received the posted wage rates,
and a revised statement showing the correct number of
hours the employees worked on the Nellis project. The
evidence also reveals that the Corps of Engineers penal-
ized Avedon by withholding approximately $33,000 from
the contract payments due to the wage and classification
violations committed by Respondent at Nellis. (See G.C.
Exhs. 11, 12, 13, 14, and 16.) The record further indi-
cates that Respondent's violations of the wage and classi-
fication requirements on the Nellis project remained un-
resolved as late as 7 June 1984. (See G.C Exh. 15.)
After Grisnick filed the unfair labor practice charge
against Respondent, Thorson sought unsuccessfully to
settle the wage dispute with the employee. (See G.C.
Exh. 3.) Thorson testified that he did so on the express
instructions of Escoto.
On 15 December, Escoto met with Menge and the
members of his crew in an attempt to settle the unfair
labor practice charge filed by Grisnick. According to the
testimony of Menge, Escoto told the group he would not
have handled the wage problem with the crew as did
Ruiz. He stated he would not have changed the crew in
the middle of a job. All of the employees testified that
Escoto offered to reinstate them to work on the Nellis
project until it was completed. Escoto also offered to
pay the employees back wages for the 5 weeks they
were off the project, but at the same rate they were re-
ceiving at the time they were discharged. In response to
questions by the employees, Escoto stated that only he
or Menge would have the authority to direct the work
or discharge any of the employees The employees
agreed to accept Escoto's terms and Grisnick withdrew
the unfair labor practice charge against the Respondent.
They returned to work on 15 December., I
C. The Events After the Employees Returned to the
Nellis Project
Menge testified that when he returned to the Nellis
jobsite he was told by David Sams that he (Sams) was
running the job for Respondent and would direct the
work of the employees 12 Pollard stated that upon his
return to the Nellis project, Menge informed him that
Sams would be his supervisor on the project. When Pol-
lard reported to Sams, he was instructed to work" for
Ruiz on the cement pouring crew. Pollard protested that
he was told he was to report to Menge or Escoto and
that he could not work for Ruiz who had fired him.,
Sams then assigned Pollard to work setting forms. The
next day, however, Sams told Pollard that Ruiz wanted
the employee to work with the pouring crew. Pollard
i i The testimony and the record evidence reveals that after the em-
ployees returned to 'work at Nellis, they were paid at the proper wage
classification for the work they performed. For example, Stewart and
Grisnick were paid at the carpenter's rate when they set forms and at a
laborer's rate when they performed other work, Ward was paid at a la-
borer's rate, and Pollard was paid at a cement mason's rate
lz Sams is alleged to be a supervisor of Respondent and his status is
treated elsewhere in this decision, infra
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereupon gathered his tools and quit his employment
with Respondent.13
The undisputed testimony indicates that the Menge
crew had been working at Nellis for approximately 2
hours on 5 January when Sams informed them to stop
work because the job was shutting down. According to
Menge and Ward, Sams instructed Menge to have his
crew report to another project where Aztec was work-
ing the following Monday in Bullhead City, Nevada.
When Menge and the employees arrived at the Bullhead
City jobsite on 9 January, they were told there was no
work at that location for them . Menge telephoned
Escoto and was told that the crew should not have gone
to Bullhead City. Menge and the employees then re-
turned to the Nellis project and encountered Escoto. The
employees testified Escoto said they should not have
been sent to Bullhead City, but should have been laid off
for lack of work. He stated the Nellis job was shut down
for a while. The employees left and were never recalled
by Respondent to work on the Nellis project or any
other construction job being performed by Respondent.
All of the members of the Menge crew testified Re-
spondent had more concrete work to perform under its
subcontract at Nellis , and that it used other employees to
do this work. Stewart,- who was hired subsequently by
Avedon to work at Nellis sometime in February or
March, testified he observed other employees performing
the same work-the Menge crew had been doing at the
jobsite; i.e., setting forms, grading , and compacting for
concrete pours, and stripping forms after the concrete
hardened. Stewart stated he first observed this activity
taking place in January when he returned to the jobsite
to apply for work with other contractors on the project.
He continued to see the same work being performed
during the months of February, March, and April, after
he was hired by-Avedon to work on the project.
Grisnick testified he saw other employees performing
Aztec's work on the very day that Escoto told the mem-
bers of the Menge crew they were laid off because of
lack of work. Ward stated that when the crew was laid
off, sidewalks and curbs remained to be constructed.
Menge also testified that work remained to be completed
by Aztec when Escoto notified the employees they were
laid off. Menge further stated he returned to the Nellis
jobsite sometime in February and saw Sams- and Escoto's
son setting and stripping forms and other employees, un-
known to Menge, working with them.
Johnson also testified that Respondent continued to
perform work on the Nellis project after Sams told the
Menge crew to stop work on 5 January. Johnson's daily
reports for Avedon show Respondent continued to set
and strip forms, pour slabs, construct sidewalks and
curbs from 6 January 1984 to 14 March 1984. (See G.C.
Exh. 17(35-85).) Respondent's summary of its own
records reveal that it had laborers and cement masons
working on the Nellis project from the week immediate-
ly following 4 January until the week ending 4 April
1984. The summary also indicates there was no work
performed by Respondent at Nellis from the week fol-
1 a At the time of the hearing , Pollard was working as a cement mason
for Avedon, the general contractor on the Nellis project.
lowing 4 April to the week ending 23 May 1984, but
thereafter Respondent had laborers working on the job-
site until the week ending 6 June 1984.14
Escoto's testimony regarding the layoff of the Menge
crew differed from that of the employees. He stated he
told Sams on 5 January to lay off Menge and his crew
because work was slack at Nellis. According to Escoto,
Aztec could not perform any more work at Nellis be.
cause another subcontractor on the project "had not cut
the grades" necessary for the concrete work. Escoto
denied instructing Sams to send the Menge crew to Bull-
head City to work the following Monday. He stated the
employees were laid off on 5 January but chose never-
theless to show up for work the following Monday.1 s
Escoto denied that Respondent used other employees to
perform the same type of work that had been performed
by the Menge crew prior to the layoff. He asserted that
no forms were set for pouring concrete for 2 weeks fol-
lowing the layoff because other subcontractors were de-
layed in completing their portions of the work; thereby
delaying Respondent's performance on the project.' He
further stated that after the layoff, Respondent's work at
Nellis was accomplished by using other crews, but he
denied the work was the same type as that which was
performed by the Menge crew. Escoto admitted, howev-
er, that in February he had cement masons setting .forms
for concrete and used laborers to strip the forms after
the pouring.
D. Respondent's Other Contentions
Escoto testified that the work performed by Menge
and his crew on the Nellis project was substandard and
their work habits on the jobsite were poor. According to
Escoto, a foundation wall poured by the Menge crew for-
a warehouse building was faulty and caused complaints
by the representatives of the general contractor. He
stated that the Menge crew also poured a concrete vault
in the Squad Operations building in August or Septem-
ber 1983 which was found unacceptable by the Corps of
Engineers and was the subject of a written memorandum-
of complaint from Avedon as late as April 1984. (See R.
Exh. 1.)
Escoto further stated that he observed members of the
Menge crew drinking alcoholic beverages on the jobsite
and taking extended lunch periods. Specifically, Escoto
testified he observed Menge and Stewart with a beer on
a Saturday in July and Mange with an open can of beer
in his truck in late November. Escoto also testified that
when he visited the jobsite on one occasion, he observed
Ward returning to the job long after his lunch period
had ended.
Menge and Stewart both denied drinking alcoholic
beverages on the jobsite and each denied ever having
14 The record does not indicate , however, the type of work being per-
formed by the laborers during the latter part of May or early June
15 Sams was no longer employed by Respondent at the time of the
hearing and did not appear as a witness in this proceeding Although the
record does not reveal the precise date, Sams apparently became an em-
ployee of Avedon and was working on the Nellis project during the first
week in Match Johnson testified that Sams told him at that time that he
(Sams) sent Menge and his crew to Bullhead City on 9 January pursuant
to instructions from Escoto and Thorson.
AZTEC CONCRETE
been warned by Escoto for doing so. Ward testified that
on one occasion when he left the jobsite to go to lunch,
his automobile broke down. He then called Menge who
came in his truck and picked the employee up and re-
I urned him to the jobsite.
Contrary to Escoto, Johnson testified the work per-
formed at Nellis by the Menge crew met the quality
standards required on the project. Johnson- stated the
repair work on the warehouse foundation wall resulted
from heavy rains and flooding which occurred in the
Las Vegas area after the wall was poured 'and not from
faulty workmanship. He also stated that the concrete
vault was found unacceptable, not because of the manner
in which Menge's crew framed and poured the vault,
but, rather, because Respondent's employees who were
to finish the vault according to specifications failed to do
so. Johnson stated the specifications required the con-
crete nodules to be ground down i 6 and the interior
walls and ceiling to be "concrete bagged." He stated this
finishing work was not properly performed by Respond-
ent's ' employees and gave rise to the complaint about the
unacceptability of the vault.
Escoto also testified that Johnson resented his compa-
ny performing 'the concrete work at Nellis because
Escoto had rejected Johnson's request to be employed
by Respondent. Escoto asserted that sometime in August
1983, Johnson suggested that Escoto hire him because
"he could do a lot of gciod for Escoto [in the construc-
tion industry] in Nevada." Escoto stated that Johnson
said Escoto had a lot of incompetent people working for
him. According to Escoto, he told Johnson he did not
need any more people as the Company was just getting
started, but stated, "maybe down the line." Escoto testi-
fied that Johnson's 'attitude toward him changed thereaf-
ter. Because of the rambling manner in which Escoto
testified, it is not clear whether during this conversation
or on another occasion, he asserted that Johnson made a
derogatory reference to his Mexican heritage and stated,
"I can squash you like a bug, like we do Mexicans in
Chicago." Escoto further testified that Johnson did not
want him or Thorson to visit the Nellis project and told
him to keep Ruiz off the Nellis jobsite.
Ruiz testified he supervised two concrete pours at the
Nellis project in July and August 'until Johnson had him
cited for a safety violation and barred him from the job-
site. According to Ruiz, he was wearing tennis shoes
while supervising a concrete pour because his bunions
were causing his feet to hurt. He stated he had work
boots in his truck. Johnson instructed him to put on his
hardhat and boots and when he failed to do so, Johnson
barred him from the jobsite. Ruiz further testified that
sometime in December he went to the Nellis project to
make certain that pours were started properly and John-
son discovered he was there. According to Ruiz, as he
was driving off the project he received a call on the
two-way radio from Sams who said Johnson wanted to
see the superintendent. Ruiz returned and Johnson had
the Air Force police escort him off the jobsite.
16 The nodules were apparently formed as wet concrete seeped
through the cracks in the wooden forms Johnson described these nod-
ules as "snots "
1249'
Johnson acknowledged he had discussed the possibility
of setting up,a joint venture with EML and Avedon or
another contractor he knew in' Chicago. He stated these
discussions were for the purpose of exploring the possi-
bility of increasing the bonding, power of EML to enable
it to bid on a construction project taking `place at the Las
Vegas Airport. Although he stated that most of the dis-
cussions in this vein were between Thorson and him, he
admitted he also discussed the matter with Escoto. John-,
son testified that Thorson originally approached him
about the subject because Thorson was looking for work
opportunities for EML on the airport and Department of
Transportation (DOT) projects. Johnson denied he
sought to get a job with Escoto's company stating, "The
pay is not enough."
Regarding Ruiz being barred from the Nellis jobsite,
Johnson testified that the representative of the Corps of
Engineers on the project brought to his attention that
Ruiz was in violation of safety regulations during a con-
crete pour. Johnson stated that the Corps of Engineers
cited Avedon as the principal contractor responsible for
safety on the project, with a safety infraction because
Ruiz failed to wear a hardhat and work boots while
pouring concrete. Johnson testified the safety require-
ments apply to all Government construction, projects and
are rigidly enforced. For this reason, Johnson stated he
barred Ruiz from the Nellis project when the infraction
occurred and had him escorted off the jobsite by the Air
Force police when he returned in December.
E. The Evidence Relating to the Status of Ruiz, Sams,
and Thorson
Menge (an admitted supervisor), Pollard, Stewart, and
Ward all testified that Ruiz was a supervisor for, Re-
spondent. According to the testimony of Menge, Pollard,
and Stewart, Escoto held a meeting in October 1983
with the employees and told them that Ruiz was the
acting superintendent for Respondent on all of its jobs.
Ward testified that when he worked on Respondent's
church project, during the same time interval that he
worked at Nellis, he was told by, Escoto that Ruiz was a
supervisor. Ward also stated that Ruiz drove a truck
with a, two-way radio and gave employees directions on,
Respondent's various jobs. According to Ward, Ruiz was
not a working foreman but was a superintendent for Re-
spondent. Pollard testified that when he was working on
another project for Respondent, Ruiz gave the employ-
ees their work assignments and reporting times and kept
their timecards. Later, according to Pollard, another
foreman was sent to the project where he was working'
and he was told that Ruiz was now Respondent's, super-
intendent.
Ruiz testified, on the other hand, that he was, merely
the supervisor of the pouring crew. He denied that he
had authority to discharge employees and stated he did
not hire any employees without first checking with
Escoto. He admitted, however, he responded to the
radio call for Respondent's superintendent on the Nellis
project in December when Johnson had him escorted
from the jobsite by the Air Force police.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Escoto testified Ruiz was only in charge of the pour-
ing crew with no authority to hire or fire employees
except for his own crew. Escoto acknowledged he met
with the Menge crew in October but denies he told them
Ruiz was Respondent's superintendent. According to
Escoto, he merely instructed Menge to coordinate the
scheduling of the various phases of the work performed
by his crew at Nellis with Ruiz and Sams. Escoto further
acknowledged that while he was in the hospital in No-
vember, he instructed Ruiz to keep the peace on the job
at Nellis and to get Stewart and Ward started on Re-
spondent's church project.
Although Respondent denies Sams was a supervisor,
Escoto stated on direct examination by his counsel that
Sams was a superintendent for EML and "was kind of a
buffer between Avedon and Aztec people." Stewart's un-
refuted testimony indicates that when the Menge crew
returned to the Nellis project in December, Sams told
him that he (Sams) was the superintendent for EML and
directed Stewart to come to him for anything he needed
on the job. Similarly, Grisnick and Ward testified that
Sams stated he was running the Nellis project for Re-
spondent and gave the employees their work assignments
after they returned in December. Pollard also testified
that Sams gave him work assignments and his reporting
time when the Menge crew returned in December. He
further stated that Menge informed him in December
that Sams was the supervisor for Respondent on the
Nellis project.
Thorson testified that he was a commission sales
person for EML. He also stated he did not supervise any
concrete crews but acknowledged that he bid on con-
crete work for Respondent. Stewart testified, however,
that when he worked on the Black Mountain project for
Respondent, Escoto introduced Thorson to him as the
EML superintendent. He stated Thorson said Stewart
should come to him for any material or with any prob-
lems he encountered on the job. Pollard testified that
when he worked on the Black Mountain project for Re-
spondent, Thorson would come on the job to supervise
the concrete pouring. The record evidence discloses that
Thorson was the representative of EML to whom
Avedon directed all complaints about the performance of
the work on the Nellis project and the failure to comply
with the Davis-Bacon requirements. Further, Escoto's
testimony and the record evidence establish that Thorson
was directed by Escoto to settle the wage and classifica-
tion dispute with the employees after they were removed
from the job in November 1983.
Concluding Findings
Respondent contends that neither Thorson, Ruiz, nor
Sams were supervisors or agents within the meaning of
the Act. Further, that Menge and the members of his
crew were not fired on 7 November 1983 or on 9 Janu-
ary 1984 but, rather, voluntarily quit on 7 November and
were laid off due to lack of work on 9 January. Re-
spondent also asserts the employees performed substand-
ard work at the Nelhs project and displayed poor work
habits by drinking on the job and taking extended lunch
hours. Finally, Respondent appears to contend that its
problems with the employees were not the result of the
employees engaging in protected activity but, rather, re-
sulted from some sort of conspiracy between the employ-
ees and the project superintendent of the general con-
tractor because they resented Respondent being a minori-
ty contractor on the Nellis project and because Respond-
ent had refused the request of the project superintendent
for employment by Respondent.
Having considered the record evidence and having
evaluated the credibility of the witnesses testifying in this
case, I find the General Counsel has made a prima facie
showing that Respondent has violated the Act. I further
find that the matters raised by Respondent in defense
thereof are unsupported by the record. In so doing, I
find the testimony given by Escoto, Ruiz, and Thorson
was less than candid, contradictory in many instances,
and was tailored to obfuscate the truth in an effort to
conceal Respondent's culpability in this matter. There-
fore I do not credit their testimony where it conflicts
with that of the employees or Johnson or is not support-
ed by other objective evidence in the record.
Regarding the supervisory and/or agency status of
Thorson, Ruiz and Sams, I find the record fully supports
the General Counsel's contention that each of these indi-
viduals was a supervisor and/or agent of Respondent
with authority to responsibly direct the work of Re-
spondent's employees on the Nellis project. Although the
testimony of Escoto and Thorson portrayed Thorson as
no more than a salesman for EML, the record evidence
belies this claim. It is unrefuted that Thorson came on
the Nellis jobsite on 7 November and ordered Menge to
have his crew stop work and meet with him at Respond-
ent's offices regarding the wage and classification dis-
pute. Furthermore, Johnson's testimony and his daily
records reveal that Thorson advised the project manager
of the general contractor that Respondent was stopping
work that day in order to resolve the wage dispute with
the employees. The record further demonstrates that
Thorson was the management official of EML to whom
the general contractor looked for rectification of Aztec's
failure to comply with the Davis-Bacon requirements re-
garding the wages paid and job classifications assigned to
its employees on the project. Additionally, it, was Thor-
son who met with the employees on 8 November in an
attempt to resolve Respondent's dispute with them over
the wages paid for the work at Nellis and who sought to
come to terms on the back wages with Grisnick, after
the employee filed the unfair labor practice charge
against Respondent. Indeed, Escoto admitted he directed
Thorson to settle the wage matter with the employees,
and Thorson acknowledged he talked with the employ-
ees on 8 November in order to keep the job operating at
Nellis until Escoto was released from the hospital.
In light of the above, I find Thorson, while he did not
direct the day-to-day on-site ,work of the employees, pos-
sessed and exercised authority to order the employees to
cease work and to adjust any grievances the employees
had regarding their wages and other terms of employ=
went In addition, the testimony of the employees clearly
established that they perceived Thorson to be a supervi-
sor of Respondent I find, therefore, that the record here
fully supports the General Counsel's contention that
AZTEC CONCRETE
Thorson was a supervisor and/or agent of Respondent
within the meaning of the Act. Cf. American Model &
Pattern, 269 NLRB 309 (1984).
Similarly, I find Ruiz was a supervisor for Respondent
with authority over the employees who worked on the
Nellis project. Although Escoto and Ruiz testified Ruiz
only had supervisory authority over his pouring crew, I
do not credit them in this regard. Ruiz' testimony was
rambling and laced with hearsay Additionally, his testi-
mony conflicted with that of Escoto on the question of
the purpose of his meeting with Stewart and Ward on
the morning of 5 November. Concerning that event,
Ruiz testified he met with the two employees because he
wanted to talk with them about the quality of their
work. Escoto, on the other hand, stated the reason he
had Ruiz meet with the two employees was to keep the
peace on the Nellis project and to get the two employees
started on Respondent's church project. It should also be
noted at this point that Escoto gave these directions to
Ruiz after having been informed by Menge that the em-
ployees had taken their complaint about their wages and
job classifications to the representatives of the Corps of
Engineers . Further, the credited testimony of the em-
ployees establishes that in October 1983, Escoto told
them in a meeting that Ruiz was Respondent's superin-
tendent on all of its projects. Indeed, by Ruiz own testi-
mony, he responded to the call from Sams on the two-
way radio in December when Johnson requested that
Respondent's superintendent return to the construction
trailor on the Nellis project.
I find, contrary to Respondent's assertion, that the
credited testimony establishes Ruiz was a supervisor
within the meaning of Section 2(11) of the Act. He pos-
sessed and exercised the 'authority to hire and fire Re-
spondent's employees on the Nellis project, assigned
them work, and responsibly directed their work utilizing
his independent judgment.
Finally, the credited testimony of the employees also
establishes that Sams was a supervisor within the mean-
ing of the Act on the Nellis project. Although Sams was
not called as a witness, the testimony of all of the em-
ployees and Menge show that Sams gave the employees
their work assignments , informed the employees he was
running the Nellis project for Respondent, and was the
person who ordered the employees to stop working on
the Nellis jobsite on 5 January. Moreover, Escoto admit-
ted that Sams was EML's superintendent at Nellis who
acted as a buffer between Aztec and the general contrac-
tor.
In sum, I find the record evidence and the credited
testimony fully establish that Thorson, Ruiz, and Sams
were supervisors and agents of Respondent at all times
material to the instant case
Turning to the substantive issues involved in this case,
it is clear beyond all purview of doubt the employees'
activity in reporting their complaints about their wages
and job classifications on the Nellis project to the Corps
of Engineers constituted protected concerted activity.
They conferred with each other regarding this subject
matter throughout the summer and, in October, gave
Grisnick copies of their paycheck stubs to present to the
representative of the Corps of Engineers revealing the
1251
wage underpayments and job misclassifications. Thus, it
is evident that the complaints about the wages and job
classifications were matters of great concern shared by
all of the employees on the Menge crew. Additionally,
when Grisnick reported the matter to the representative
of the Corps of Engineers, he did so with the express au-
thorization of his fellow employees. This clearly satisfies
the standard defining "concerted activity" set forth by
the Board in Meyers Industries, 268 NLRB 493 (1984).
See Walter Brucker & Co., 273 NLRB 1306 (1984); Cristy
Janitorial Service, 271 NLRB 857 at 860 (1984).
Furthermore, when Stewart and Ward were told by
Ruiz on 5 November they were fired if they did not
accept Respondent's conditions for remaining on the job
and when Thorson confirmed to the employees on 8 No-
vember that they had been terminated by Ruiz, Respond-
ent's officials were aware of the concerted nature of the
employees' activity. Menge (Respondent's admitted first-
line supervisor on the Nellis project) informed Escoto
earlier that the employees had taken their complaints to
the Corps of Engineers; Thorson told the Nellis project
manager that the employees were fired because of their
complaints about their wages; and Ruiz told Stewart and
Ward they could remain employed if they stopped com-
plaining about their wages. Applying the standards enun-
ciated in Meyers, it is readily apparent that the activity of
the employees here was both concerted and protected
under Section 7 of the Act and their employment was
terminated by Respondent on 7 November because they
engaged in such activity. i 7 Accordingly, I find the dis-
charge of the employees on 7 November violated Sec-
tion 8(a)(1) of the Act.'8 Dayton Typographical Service,
273 NLRB 1205 (1984).
I further find that when Respondent laid off Stewart,
Ward, and Grisnick on 5 January 1984, after having rein-
stated them on 15 December, it did so for reasons which
violated the Act. Respondent contends the employees
were laid off because of lack of work on the Nellis
project. Implicit in this contention is that the employees
would have been laid off in any event on this occason
regardless of whether they had engaged in protected
concerted activity. The credited testimony and record
evidence, including a summary of Respondent's own
work records, belie this claim. Thus, the record estab-
lishes that Respondent continued to perform the same
type of work on the Nellis project from 9 January to at
least 14 March 1984; utilizing different employees using
the same skills and in the same job classifications as the
laid-off employees. Indeed, Respondent's summary re-
veals that at least one cement mason performed work at
the Nellis project until the week ending 4 April 1984 and
after a hiatus of approximately a month and a half, Re-
17 In so finding, I reject Respondent's claim that the employees walked
off the job and refused to return to work as being wholly unsupported by
the credited evidence contained in the record Thorson's proposal of 8
November was that they could return to work under the same substand-
ard terms they were complaining about to the Corps of Engineers
Therefore, their refusal to do so in no way vitiated the unlawfulness of
their discharge for complaining about the matter in the first instance.
18 I find 7 November, rather than 8 November, to be the operative
date because that was the next working day following Ruiz' firing of
Stewart and ward
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent employed. laborers on the project until the
week ending 6 June 1984. These records fully substanti-
ate the credited. testimony of Johnson, Stewart, Pollard,
and Menge that Respondent was continuing to perform
cement ;work an the Nellis jobsite immediately after the
employees-were laid off in January, and this work con-
tinued , for several months thereafter until Respondent
completed the project. It is apparent, therefore, that Re-
spondent's claim, that-the layoff at the Nellis project was
due to , lack of work is contrary to the creditable evi-
dence and, therefore, is nothing more than a pretext.
Respondent also contends it laid off the employees be-
cause their work was substandard and they drank and
took extended lunch hours on'the job. Again, the cred-
ited testimony compels rejection of this contention. The
project superintendent for the general contractor (John-
son) on the Nellis project credibly testified the work per-
formed by the Menge crew met the standards of the
project. In the two instances of purported undesirable
job habits, Menge credibly `denied drinking on the job
and Ward, presented a credible explanation for returning
late from lunch on the single occasion cited by Escoto.
Equally important in considering these other explana-
tions offered by Respondent is the fact that Respondent
never told the employees an 9 January they were laid off
for substandard work performance or indulging in poor
work habits on the job. Rather, Escoto specifically told
the employees they were laid off because the work was
slack on the Nellis project.
Since Respondent's asserted justification that the layoff
in January was due to lack of work is contrary to the
record evidence and since Respondent also sought to jus-
tify the layoffs by claiming poor job performance by the
employees when it did not advance this as the reason at
the time of the layoff, I find Respondent's contention to
be unworthy of belief and merely pretextual in order to
mask its unlawful conduct. Hence, I find Respondent has
failed to meet the burden of establishing that the employ-
ees would have been laid off on 5 January in any event
without regard to whether they engaged in protected
concerted, activity. See Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899, cert. denied 455 U.S. 989 (ap-
proved in ' NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983)). I find, therefore, that Respondent
violated Section 8(a)(1) of the Act by laying off the
three employees on 5 January 1984.
CONCLUSIONS OF LAW
1. Respondent Aztec Concrete, Inc. and E.M.L. Con-
struction Company constitute a single employer within
the meaning of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By discharging employees William Stewart, George
Grisnick, Martin Pollard, and Kenneth Ward on 7 No-
vember 1983 for engaging in protected concerted activi-
ty in presenting their complaints about their wage under-
payments and job misclassifications to the Corps of Engi-
neers on the Nellis Air Force Base construction project,
Respondent has violated Section 8(a)(1) of the Act.
3. By subsequently laying off employees Stewart, Gris-
nick, and Ward on 5 January 1984, after reinstating the
employees on 15 December 1983, because the employees
engaged in protected concerted activity, Respondent has
violated Section 8(a)(1) of the Act.
4. The above unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found Respondent has engaged in unfair labor
practices , I shall order it to cease and desist therefrom
and to take certain affirmative action which will effectu-
ate the policies of the Act.
Because the discharges of employees William Stewart,
George Grisnick , Martin Pollard ,' and Kenneth Ward on
7 November 1983 have been found to be unlawful, the
private settlement agreement whereby Respondent rein-
stated these employees on the Nellis project on 15 Deg
cember and paid them wages at the substandard rate for
the time they were off the project does not fully remedy
Respondent 's unlawful conduct and is not binding on the
Board . The private settlement occurred during the ad-
ministrative investigative stage of the unfair labor 'prac-
tice charge filed and subsequently withdrawn by Gris-
nick. It did not compensate the employees at the rate of
pay they were to receive under the Davis -Bacon regula-
tions governing the work on the Nellis project. Further-
more , Respondent subsequently engaged in similar un-
lawful conduct by laying off Stewart, Grisnick, and
Ward on 5 January 1984, when it had additional con-
crete work to perform on the Nellis project. Thus, the
private settlement here failed to remedy the unlawful
conduct or to effectuate the policies of the Act and is
not binding on the Board. i s
Therefore , Respondent shall be ordered to reinstate
Stewart, Grisnick , and Ward to their former positions or,
if such positions no longer exist, to substantially equiva-
lent positions , without prejudice to their seniority or
other rights and privileges . In addition, Respondent shall
make these three employees whole for any loss of earn-
ings they may have suffered due to the discrimination
against them from the date of their unlawful ' discharge
on 7 November 1983 until the date of Respondent 's offer
of reinstatement . Backpay, less interim earnings, shall be
calculated in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon comput-
ed in the manner set forth in Florida Steel Corp., 231
NLRB 651 (1977).20 Since employee Pollard voluntarily
quit his employment with Respondent after his reinstate-
ment in December 1983, Respondent shall make him
whole for any loss of earnings he may have suffered
from the date of his unlawful discharge on 5 November
1983 to the date of his reinstatement on 15 December
1983. Backpay and interest for this employee shall be cal-
culated in the manner set forth above. In addition, Re-
spondent shall be ordered to expunge from its records
any references to the discharges of the above-named em-
ployees on 7 November 1983 and shall inform each of
19 Lammert Industries, 229 NLRB 895, 924 (1977), Polynesian Cultural
Center, 222 NLRB 1192 (1976) The sums paid to the four employees in
December 1983 may be raised as an offset to Respondent's backpay liabil-
ity, but that is a matter for the compliance stage of this proceeding. See
Polynesian Cultural Center, supra
20 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
AZTEC CONCRETE
them, in writing, that the unlawful discharges shall not
be used as a basis for further personnel action against
them.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2i
ORDER
The Respondents, Aztec Concrete, Inc. and E.M.L.
Construction Company, Las Vegas, Nevada, its officers,
agents, successors, and assigns shall
1. Cease and desist from
(a) Discharging or laying off employees for engaging
in protected concerted activities wherein they present
complaints regarding their wage underpayments and job
misclassifications to the Corps of Engineers while work-
ing on the Nellis Air Force Base construction project.
(b) 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 designed to ef-
fectuate the policies of the Act.
(a) Offer William Stewart, George Grisnick, and Ken-
neth Ward immediate and full reinstatement to their
former jobs or, if those positions no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges previously en-
joyed. In addition, make whole the above-named em-
ployees and Martin Pollard, in the manner set forth in
the remedy section of this decision, for any loss of earn-
ings they may have suffered by reason of the discrimina-
tion against them.
(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) Remove from its files any reference to the dis-
charge of Martin Pollard and the discharges and subse-
quent layoffs of William Stewart, George Grisnick and
Kenneth Ward, and notify them, in writing, that this has
been done and this unlawful conduct will not be used as
a basis for future' personnel actions against them.
(d) Post at its facilities located in Las Vegas, Nevada,
copies of the attached notice marked "Appendix."22
21 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.
22 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 Nation-
1253
Copies of said notice, on forms provided by the Regional
Director for Region 31, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places, including places
where all notices to employees are customarily posted.
Reasonable steps shall be taken by'Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
al 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OP TIRE
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.
WE WILL NOT discharge or lay off our employees for
engaging in protected concerted activity by reporting
wage underpayments and job misclassifications to the
Corps of Engineers when working on the Nellis Air
Force Base construction project.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed to them by Section 7 of the Act.
WE WILL offer William Stewart, George Grisnick, and
Kenneth Ward immediate and full reinstatement to their
jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority
or other rights and privileges, and WE WILL make them
and Martin Pollard whole for any loss of earnings they
may have suffered because of our discrimination against
them.
WE WILL remove from our files any reference to the
discharge of Martin Pollard and to the discharges and
subsequent layoffs of William Stewart, George Grisnick,
and Kenneth Ward and notify them, in writing, that this
has been done and that our unlawful conduct will not be
used as a basis for future personnel actions against them.
AZTEC CONCRETE, INC. AND E.M.L. CON-
STRUCTION COMPANY