Christopher Construction Co., Inc.

National Labor Relations Board - Board DecisionsMay 31, 1988

288 N.L.R.B. 1272 (N.L.R.B. 1988)

1272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Christopher Construction Company, Inc. and Car- penters and Millwrights Local Union No. 319. Cases 5-CA-17813 and 5-CA-18014 May 31, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On February 16, 1988, Administrative Law Judge Steven M. Charno issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. 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 brief and has decided to affirm the judge's rulings, findings, 1 and conclusions 2 and to adopt the recommended Order as modified.3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Christopher Construction Company, Inc., Fairlawn, Virginia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(h). The Respondent has excepted to the judge's finding that employee Wayne Trail was known by Respondent to be a dedicated union support- er and organizer. We note that Trail testified that he and Supervisor Sam Reed were friends and that Reed knew about his union activities and that the judge credited Trail's testimony. The Board's established policy is not to overrule an administrative 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 reversing the findings. 2 The Respondent excepted to the judge's recommendation that back- pay for the discharged strikers be calculated from the date of the dis- charge pursuant to the Board's decision m Abilities & Goodwill, 241 NLRB 27 (1979), enf. denied on other grounds 612 F.2d 6 (1st Qr. 1979). We note that the Respondent's allegation that certain discharged strikers would not have returned to work prior to the strike's conclusion may be htigated at the compliance stage of this proceeding. As we stated in Abili- ties & Goodwill, ". . as in any compliance proceeding, the crucial issue . . whether the employer can show that. . . the employees were un- available or unwilling to accept or seek employment" (Abilities & Good- will, supra at 27 fn 8). See also Northwest Metal Products, 275 NLRB 1042 (1985), in which the Board held that the employer was entitled to adduce evidence at the compliance stage that discharged strikers would not have crossed the picket line and returned to work before the strike ended had they not been discharged 3 The judge included in his remedy and order a visitatorial clause as requested by the General Counsel. We find Respondent's desultory sub- poena compliance with respect to the complete production of the em- ployment cards of Crowder and Trail insufficient to "demonstrate a like- lihood that Ethel Respondent will fail to cooperate or otherwise evade compliance." Cherokee Marine Terminal, 287 NLRB 1080, 1084 (1988). Accordingly, we shall delete the visitatorial clause from the judge's Order "(h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." Jasper Brown, Esq., for the General Counsel. George V. Gardner, Esq., of Roanoke, Virginia, for the Respondent. Robin Gerber, Esq., of Washington, D.C., for the Charg- ing Party. DECISION STATEMENT OF THE CASE STEVEN M. CHARNO, Administrative Law Judge. In response to charges timely filed, a complaint was issued on 22 December 1986, alleging that Christopher Con- struction Company, Inc. (Respondent) violated Section 8(a)(1) and (3) of the National Labor Relations Act, by unlawfully threatening, demoting, laying off, and dis- charging certain employees. Respondent's answer denied the commission of any unfair labor practice. A hearing was held before me in Pulaski, Virginia, on 3 and 4 March 1987. During the hearing on 4 March, the complaint was amended to allege Respondent's unlawful discharge of 19 employees on 28 March 1986. The hear- ing was continued until 7 April 1987 to permit Respond- ent to prepare its defense to the amendment. Respond- ent's unopposed motion of 30 March to cancel the con- tinued hearing and to close the record was granted by my Order of 3 April 1987. Briefs were filed by the Gen- eral Counsel, Charging Party, and Respondent under due date of 24 April 1987. In its brief, the General Counsel moved without opposition to delete three alleged discri- minatees named in the 4 March amendment to the com- plaint. FINDINGS OF FACT I. JURISDICTION Respondent is an Ohio cofporation engaged in the construction business with an office and place of business in Fairlawn, Virginia. During the 12 months preceding issuance of the complaint, Respondent, in the course of its operations in Virginia, purchased and received goods valued in excess of $50,000 from points outside the State and derived gross revenues in excess of $500,000. It is admitted, and I find, that Respondent is an employer en- gaged in commerce within the meaning of the Act. Carpenters and Millwrights Local Union No. 319 (the Union) is admilted to be, and I find is, a labor organiza- tion within the meaning of the Act. IL THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent began the construction of a waste water treatment plant in Fairlawn, Virginia, early in 1985. At all times relevant, Tom Bingham, Respondent's job su- perintendent, was responsible for overall supervision of the project and had authority to hire and terminate em- ployees. Bingham reported to Jerry Burnett, Respond- 288 NLRB No. 145 CHRISTOPHER CONSTRUCTION CO. 1273 ent's field superintendent. I find both Bingham and Bur- nett to be supervisors and agents of Respondent within the meaning of Section 2(11) of the Act. At the end of the summer of 1985, the project em- ployed approximately 100 workmen, including 40 car- penters who were divided into three work crews. The carpenter work crews reported to Respondent's foremen Sam Reed, Jessie Allison, and Donnie Gilliam,' all of whom had the same duties and responsibilities. Respond- ent's foremen generally remain in its employ for exten- sive periods and travel from job to job. 2 Bingham met with his foreman every Monday to schedule the week's construction activities. The foremen made job assign- ments, resolved work problem, interpreted blueprints, and directed the employees' work. 3 They also main- tained employee time records, excused tardiness, permit- ted early departures, and remedied payroll errors.4 The foremen also had some degree of control over the tenure of employees in their work crews. Reed threat- ened to discharge employees if they did not follow his instructions, explicitly stated that he had authority to ter- minate them and told them that he had discharged em- ployees in the past for failing to follow his instructions,6 Respondent's employees were also informed that fore- men had the power to lay them off. Thus, Reed in- formed employee William Crowder that Allison had said Bmghain admitted that Respondent's employees referred to these men as foremen, Respondent's personnel records so denominate them, and a letter written by Reed demonstrates that the individuals themselves used the title. Bingham initially testified that these men were called fore- men, but then repeatedly insisted that they were called leadmen. Bingham was an evasive and uncooperative witness whose testimony was internally inconsistent on material matters. Throughout his testimony, he was clearly at some pains to frame his answers in a way beneficial to Re- spondent's interests. In this instance, he appeared to believe that there was some legal significance to the term "Foreman." For these reasons and, more importantly, based on my observation of his demeanor while on the stand and in the hearing room, I do not credit Bingham's testimo- ny when it is in conflict with that of other, more reliable witnesses. 2 Bingham so testified. 3 This finding is based on the credited testimony of employees Crowder, Linkous, Trail, Duncan, Chinault, and Smith Bingham initially testified that he personally made all work assignments, which were then communicated to the workers by his foremen, but he admitted in re- sponse to later questions from the bench that the foremen actually made such assignments. Bingham also testified that, many times every day, he personally supervised the work done by carpenters but this appears highly probable in view of his responsibility for doing all the hiring at the project, overseeing 60 other employees, maintaining a flow of build- ing materials and supplies to the project, and supervising the operations of several subcontractors. I do not credit Bingham's protestations of almost omnipresent supervision. See fn. I, supra. 4 Bingham admitted that his foremen kept employee time and conced- ed that they may have excused tardiness. He testified that it was a prac- tice for employees to go first to their foreman and then come to him con- cerning any changes in time or wages. He further testified that he would accept a foreman's recommendation on such matters only after independ- ently investigating a situation. His testimony on employee practice con- flicts with that of employees Duncan and Linkous For this reason, as well the reasons set forth in fns. 1 and 3 supra, I do not credit Bingham. 5 Employees Crowder, Linkous, and Ferguson so testified. Reed, who was in Respondent's employ at the time of the hearing, did not testify; I therefore draw the adverse inference i equested on brief by the General Counsel. After several evasive answers in response to questions from the bench, Bingham admitted that foremen made recommendations concern- ing termination, but he insisted that he conducted a totally independent investigation before acting on any such recommendation. For the reasons set forth above and in iFns. 1, 3, and 4, I do not credit Bingham on this point. to lay Crowder off. 6 On at least one occasion, Reed of- fered an employee a promotion 7 and, on another occa- sion, signed a letter of recommendation from Respond- ent, a letter that was composed and typed by Mrs. Bingham who was employed to handle certain adminis- trative and clerical duties at the project. s The foremen wore hardhats of a color different from the color of those worn by either carpenters or laborers employed on the project. s At least one of the foremen was permitted to drive his personal vehicle onto the worksite, a privilege denied to carpenters, laborers, and working leadmen. Foremen were paid 50-percent higher wages than carpenters and 40-percent higher wages than working leadmen at the project. For the foregoing rea- sons, I fmd Respondent's foremen to be its supervisors and agents within the meaning of Section 2(11) of the Act. When individuals sought work at the project, it was Respondent's practice to record their name, craft, and telephone number in a spiral stenographic pad. When Respondent wished to hire an employee, the individual was generally contacted by telephone l ° and told to report to work. After the individual arrived at the project and was hired by Respondent, he filled out a health history and two identical employment cards; one of which was sent to Respondent's home office (office copy) while the other was retained at the worksite (project copy). When a worker left Respondent's employ, Bingham had the project copy annotated to in- dicate the reason for the departure." B. The Organizing Campaign During July and August 1985, Respondent's carpenter employees began a union organizing campaign among the construction workers at the project. This campaign engendered numerous lunchtime discussions among the carpenters. Reed was present at some of these discussions of indeterminate date between July and October 1985. On several occasions, Reed stated to the employees that Respondent would never allow a union at the project, that Respondent would shut the job down before allow- ing a union to come in, and that Respondent would bring in replacement construction workers from Ohio before going union. During this same period,-Reed also stated 6 Employee Crowder so testified in a credible manner. Neither Reed nor Allison testified, although both were still employed by Respondent at the time of the hearing I therefore draw an adverse inference concerning the content of their testimony on this issue. 7 Employee Trail so testified. Reed did not testify, and Bingham could not recall such an offer. I draw the adverse inference from Reed's failure to testify on this point and credit Trail over Bingham. 8 Employee Crowder so testified without contradiction by Mrs. Bingham. 9 Employee Linkous so testified Bingham was purportedly unable to remember what color hardhat Reed wore I credit Lmkous '° Bingham testified that it was Respondent's practice to hire exclu- sively by telephone. On at least one occasion, Respondent sent a job offer by mail on the advice of counsel. Bingham so testified and stated that his wife, who made the annota- tions, would not put anything on a card that he had not told her to put on it 1274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that he would discharge an employee if the latter kept "talking union."12 C. The October Layoffs The record reflects a continuing need for carpenters to build the forms used to construct concrete retaining walls at the project during the month of October 1985.13 In fact, Respondent hired carpenters on 2, 15, and 16 Oc- tober. Wayne Trail, a carpenter who declined promotion to a supervisory position in late September 1985, was known by Respondent's management to be a dedicated union supporter and organizer. Crowder, a carpenter described by his supervisor as dependable, mature, and an asset to a work crew, was also known to support the establish- ment of a union at the project. 14 Following their attend- ance at a union meeting on 7 or 8 October, where the possibility of a strike was discussed, Trail and Crowder began to canvass their fellow employees concerning sup- port for a work stoppage. Crowder was engaged in such a conversation with two other employees on 10 October when the group was approached by Allison, who stated "this talk is gonna stop here" and suggested the exchange of telephone numbers to permit continuation of the conversation off the job. The record contains no indication that Allison overheard the employees' conversation. Within an hour of this interchange, Reed informed Crowder that the latter was being laid off pursuant to instructions from Al- lison.15 Also on 10 October, Reed informed Trail that the latter was being laid off. In response to Trail's query as to the reason for his layoff, Reed acknowledged that Trail was one of his best men and stated, "you and I both know the reason, but what more can I say. Shortly thereafter, Trail approached Bingham and asked the reason for the layoff. Bingham responded that Trail was just standing around and stated that there was not enough work for carpenters at that time. Trail demurred on both grounds. The employment records of both Crowder and Trail were marked "fired," 17 and both men were replaced by 12 The findings m this section are based on the uncontroverted and credited testimony of employees Crowder, Linkous, Duncan, and Fergu- son Because Reed was still employed by Respondent and dui not testify, I draw the adverse inference requested by the General Counsel 13 Employees Trail and Turner so testified, and I credit their testimo- ny over that of Bingham for the reasons set forth in fns. 1 and 3-5, supra, and fns. 17 and 18, infra 14 The findings m the foregoing part of the paragraph in text are based on the credited testimony of employees Trail and Crowder. Bingham tes- tified that he could not recall Trail being offered a promotion and stated that Trail was only an average employee while Crowder was a "little less than average." Based on Respondent's letter concerning Crowder, the ad- verse inference drawn from Reed's failure to testify and the reasons set forth in fns. 1 and 3-5, supra, I do not credit Bingham. 19 Employee Crowder so testified, and neither Reed nor Allison was called as a witness 18 Employee Trail so testified, and Reed did not appear at the hearing. " The General Counsel and the Umon subpoenaed the personnel records of certain of Respondent's employees, including Crowder and Trail. Allegedly complete production by Respondent under the subpoena consisted of the project copies of the employment cards for all the em- ployees named m the subpoena, except Crowder and Trail. When the issue of noncompliance was formally raised by the Union, Respondent newly hired carpenters on the third and fourth working days following the layoffs. Respondent made no effort to recall either employee and, when Trail called the project in January and visited in February to seek renewed em- ployment, his name was not placed in the spiral steno- graphic pad in accordance with Respondent's normal procedure. He was told by Mrs. Bingham on the former occasion and by Bingham on the latter that no job was then available, although Respondent hired at least six carpenters during these 2 months.18 D. The McPeak Incident On 5 December 1985, William McPeak applied for work at the project as a carpenter. Mrs. Bingham re- corded his name and telephone number in the spiral sten- ographic pad and, later that day, called him and told him to report for work the following day. McPeak reported on 6 December and met with Bingham and an unidenti- fied man. While McPeak was filling out his employment cards," he overheard the unidentified man say that, if a union member went to work on a nonunion job, he would be fined. Bingham replied that the Umon had al- ready tried to organize the job and failed. Bingham then asked McPeak if the latter was ready to go to work, and McPeak asked if he would return the following Monday. Bingham agreed. Because McPeak was a member of the Union, he called James Wright, the union business agent, to inquire whether there would be a fine for working at Respondent's project. Wright stated that McPeak would not be fmed and urged the latter to go to work at the project. On his way to work on Monday, 9 December, McPeak stopped at a country store where he chanced to meet employee Roy Duncan. McPeak stated that he was going to work at the project and might be working with Duncan. After McPeak arrived at the office trailer on supplied the office copies of Crowder and Trail's employment cards. The office copies did not contain annotations indicating the reason for separa- tion. After the Union again formally asserted noncompliance with the subpoena and Respondent was informed by the bench of the possibility of sanctions, the project copies of Crowder and Trail's cards were finally produced. On both cards, the annotation "fired" had been crudely changed to "lay-off-not enough work." Mrs Bingham testified that she had made the original entry on the advice of an employee whose identity she could not recall and that she changed the annotation shortly thereaf- ter to reflect what had actually occurred Mrs Bingham's story is in direct conflict with Bingham's description of both her authority and her general practice, see fn 1 1 and accompanying text, supra For these rea- sons, because of Respondent's unexplained difficulty in producing the al- tered cards in a timely manner and based on my observation of Mrs. Bingham's demeanor while testifying, I do not credit her explanation of when or why the cards were altered 18 Bingham initially testified that he had attempted to recall Trail and Crowder but their employment cards did not contain telephone numbers or "any way to get in touch with them." When confronted on cross-ex- amination with the cards, Bingham admitted that he did not use the ad- dresses appearing thereon He then testified that he had called the tele- phone number appeanng on Trail's card but could not recall the outcome of that effort I do not credit Bingham's testimony on this point. My find- ing that Respondent made no attempt to recall Crowder and Trail is based on the following facts: Bingham "fired" both men, both were re- placed withm a week of leaving, the current addresses of both men were on file with Respondent, and Trail's attempts to gam reemployment were ignored in contravention of Respondent's normal procedures Bmgham testified that workers fill out employment cards only after they have been hired "16 CHRISTOPHER CONSTRUCTION CO. 11275 - the project, he overheard a second conversation con- cerning the Union between Bingham and the same un- identified man. McPeak volunteered to them that he be- longed to the Union, and Bingham responded that it would "mean trouble down the road" if McPeak came to work at the project. Bingham continued, "it would do both of us a favor if [McPeak] didn't go down the hill to work." McPeak asked if Bingham would give him a job if he dropped his union card. Bingham responded that he might, later on. McPeak then asked what Bingham was going to do with McPeak's employment card. Bingham walked around the desk, removed the card from his file, and tore it up. McPeak reminded Bingham of the second employment card, and Bingham responded that it "was either in the mail or misplaced" and that he would find it. McPeak then left the project. McPeak thereafter secured other employment At some point in January or February of the following year while Wright was handbilling at the project, he noticed that McPeak was not on the job. Wright telephoned McPeak, and the latter related what had occurred on 9 December. Wright indicated that he believed an unfair labor practice had been committed and secured McPeak's permission to file a charge on the latter's behalf. On 16 April 1986, after the charge had been filed, Respondent sent a certified letter to McPeak offering him a job.2° E. Contract Negotiations A representation election was held on 17 January 1986 in a combined unit of laborers and carpenters. On 29 Jan- uary, the Union and the Laborers' Union were certified by the Board as the exclusive collective-bargaining rep- resentatives for the combined unit. Employee Michael Linkous returned to the project as a working leadman on 17 February 1986 after a 7-month absence due to injury. Working leadmen are responsible for laying out construction work and earn 50 cents an hour more than carpenters. Linkous was an active union supporter and was a member of the union negotiating committee at the first session of contract negotiations on 19 February. At that session, Respondent's field superin- tendent Burnett was overheard to remark that Linkous had been off the job for months with a broken leg and was now "on this damn negotiating committee." Three to four weeks later, Linkous' pay was reduced to that of 20 The fmdings in this section are based on McPeak's credited testimo- ny. Mr. and Mrs. Bmgham both testified that McPeak did not show up for work on 6 December, and Mrs. Bingham made an entry to this effect on the spiral stenographic pad Bingham also testified that McPeak had never filled out any employment cards. Both McPeak's accurate, detailed description of the employment cards which he filled out and his rendition of Bingham's comment that the second card was "in the mail" or lost display a familiarity with Respondent's operations one could not expect if Bingham's version of events was true. McPeak's testimony concerning his 9 December conversation with Duncan was corroborated by the latter. Similarly, both of McPeak's conversations with Wright were corroborat- ed by the union business agent. Indeed, disclosure of the details of McPeak's discharge and the resultant filing of a charge would never have occurred but for Wright's mquiries. For these reasons, as well as those set forth in fns. 1, 3-5, and 17, supra, 1 credit McPeak's testimony over that given by the Bmghams. a regular carpenter although he continued to perform the duties of a working leadman,2' F. The Strike After eight negotiating sessions, the unit employees commenced an economic strike on Thursday, 27 March 1986, and began picketing the project. On Friday, 28 March, the striking employees crossed the picket line to pick up their paychecks at the office trailer. Only two employees were permitted to enter the trailer at a time. When the strikers entered the trailer, they were told by Bingham, Mrs. Bingham (generally in the immediate presence of her husband), or Reed that if they did not report for work the following Monday, Respondent would consider them to have quit their jobs and they would be replaced. When Bingham delivered this mes- sage, he added that, if the strikers later wished to return to work, they would have to reapply and Respondent would consider their applications. The striking workers' employment cards all indicate that they were separated from employment with Re- spondent on 27 March, the first day of the strike. All the cards also bear the annotation "Quit-Struck for Union," which was written by Mrs. Bingham at Bingham's ex- plicit instruction. One employee, Charles Cox, returned to work by the Monday deadline and was accepted for reemployment without having to reapply.22 G. Discussion The record contains substantial evidence that Re- spondent repeatedly threatened its employees because of their support of the Union or their activities on the Union's behalf. The record is clear that, between July and October 1985, Respondent's foreman, Reed, in- formed employees that it would be futile to select the Union as a bargaining representative and threatened workers with job shutdown and replacement to avoid recognizing the Union. During this period, Reed also threatened to discharge an employee for union activities. On 9 December 1985 Respondent's job superintendent, 2i The fmdings in this section are based on the testimony of Linkous and Wright. Burnett did not tefstify, and I draw an adverse mference from his failure to do so. While Bingham initially testified that he was not aware that Linkous was a member of the negotiating committee until after the demotion, he subsequently reversed this story; his revised testi- mony is supported by the record. Bingham also testified that he thought that Linkons had been replaced as a leadman by Donnie Gilliam and stated that Respondent's failure to lower Lmkous' pay when the latter re- turned to work was merely an administrative oversight Respondent's answer establishes that Gilliam was a foreman during the period in ques- tion. For these reasons, as well as for the reasons set forth in fns. 1, 3-5, and 18, supra, I credit Lmkous over Bingham. 22 The findings in this section are based on the credited testimony of employees Smith, Roop, Turner, Chmault Cox, Linkous, Lang, Gravley, Thompson, and Duncan, as well as on the strikers' employment records. Bingham variously testified that he said nothing to the strikers on 28 March, that he did not use the word "quit" and that he did not think he used the word "quit" or said that the strikers must reapply for employ . -ment. Mrs. Bingham unequivocally denied telling the strikers they would be considered to have quit. Reed did not testify, and I draw the adverse influence. Given the documentary contravention of the Binghams' testi- mony, Bingham's admission that he considered the striking employees to have quit and the Bmghams' generally mendacious approach to testimony under oath, I do not credit their denials. 1276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bingham, threatened a union member with trouble if the latter went to work for Respondent. On 28 March 1986 Mrs. Bingham, Respondent's agent by virtue of her actual and apparent authority to relay messages from her husband to Respondent's employees, and Bingham threatened striking employees that they would be regard- ed as having quit if they were not back on the job the next working day. On the same occasion, Bingham also threatened employees that they would be regarded as new applicants for employment if they did not abandon their strike. All the foregoing activities are violatiye of the Act. The record does not support the allegation that Re- spondent's foreman, Allison, threatened employees with unspecified reprisals on 10 October 1985. There is no in- dication in the record that Allison was aware of the nature of the conversation that he interrupted on that date and his completely proper instructions to the em- ployees at that time made no mention of union activity. The General Counsel contends that the layoff of Crowder and Trail was discriminatorily motivated, while Respondent argues that both men were laid off for lack of work. A number of factors compel a finding that Re- spondent's justification for its action is pretextual: there was adequate work available for carpenters in October 1985 and Respondent hired carpenters just days before and after the layoff, so attempt was made to recall Carter and Trail from layoff during a sustained period of hiring, both employees had positive job histories, Reed implicitly ascribed Trail's layoff to the latter's union sympathies and, finally, Respondent has repeatedly dem- onstrated its animus toward union adherents. According- ly, I find the layoffs of Trail and Crowder to be violative of the Act.23 The General Counsel contends that McPeak was dis- charged and Linkous was demoted because of their union activities. Respondent maintains that McPeak was never hired and that Linkous' pay reduction was not dis- criminatorily motivated. Based on my credibility resolu- tions concerning both incidents and because of Respond- ent's demonstrated antiunion animus, I find both person- nel actions to be violative of the Act. The General Counsel also argues that Respondent dis- charged all of its striking employees on 28 March, while Respondent contends that there is no factual foundation for such an allegation. The statements that I found were made by Respondent's agents clearly establish its inten- tion to terminate the economic strikers because of their involvement in the strike. See Conair Corp., 261 NLRB 1189, 1190 (1982). This finding of unlawful motivation is further supported by the employee records of the strik- ing workers. Accordingly, I find that Respondent unlaw- fully attempted to break the strike by conditioning the strikers' continued employment on the abandonment of their right to engage in a protected work stoppage, and I further find that Respondent unlawfully discharged its striking employees on 28 March in violation of the Act. 23 It is clear that the purported layoffs of Trail and Crowder were ac- tually discharges. Because such a finding could have no impact on the remedial portion of this decision, the distinction appears moot. The final issue in this case involves the nature of the Union's strike against Respondent after the latter dis- charged its striking employees. The record contains no evidence that the strikers ever discussed the discharges or that they ever concertedly considered the discharges a reason to prolong the work stoppage. 24 I therefore fmd that it has not been demonstrated that the economic strike that commenced on 27 March was converted into an unfair labor practice strike by Respondent's unlawful acts on 28 March. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By threatening its employees with termination of employment through discharge, replacement by other employees, and job shutdown because of their union and other concerted protected activities, Respondent has en- gaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By informing its employees that it was futile for them to select the Union as their bargaining represenM- five, Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. 5. By threatening its employees that it would regard them as having quit unless they abandoned a lawful work stoppage, Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act. 6. By laying off its employees William Crowder and Wayne Trail on 10 October 1985 and refusing to rein- state them because of their union activities, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, 7. By discharging William McPeak on 9 December 1985 because of his union activities, Respondent has en- gaged in and is engaging in an unfair labor practice in violation of Section 8(a)(1) and (3) of the Act. 8. By demoting Michael Linkous on 14 March 1986 because of his union activities, Respondent has engaged in and is engaging in an unfair labor practice in violation of Section 8(a)(1) and (3) of the Act. 9. By discharging its employees Roy Duncan, Bobby Turner, Richard Grayley, Teddy Smith, Mark Thomp- son, Basel Alls, Walter Lewis, Michael Linkous, Dale Chinault, David Grayley, Walter Lang, Glenn Worrell, Brian Rateliff, Dennis Roop, Ralph Burchette, and Lyle Loving on 28 March 1986, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. 10. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 24 In this context, I reject the Union's contention that prolongation of the strike by Respondent's unlawful activities was demonstrated by the following testimony (1) employee Chinault's after-the-fact statements on the stand that the strike was not over and that Respondent "was a little bit unfair," and (2) employee Lang's testimony that he made no effort to return to work after he had been told that he would be regarded as having quit CHRISTOPHER CONSTRUCTION CO. 1277 11. A preponderance of the credible evidence does not establish that Respondent has otherwise violated the Act. REMEDY Inasmuch as Respondent has engaged in unfair labor practices, I shall order it to cease those practices and to take affirmative action designed to effectuate the pur- poses of the Act. Such affirmative action shall include offers to the employees laid off on 10 October 1985 and discharged on 9 December 1985 and 28 March 1986 of immediate and full reinstatement to their former jobs, discharging any replacement if necessary or, if those jobs no longer exist, to substantially equivalent jobs, withOut prejudice to the discriminatees' seniority or other rights and privileges previously enjoyed. These employees shall be made whole for any loss they may have suffered as a result of Respondent's discrimination against them. Back- pay will be calculated from the date of layoff or dis- charge in accordance with the Formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1927).25 Respondent shall also be required to post a copy of the attached notice at the project and, because many of its employees appear to enjoy only brief employment tenure and there is a significant possibility that the project has been completed, Respondent shall also be required to mail a copy of the notice to each of the employees on the payroll for that project between 1 July 1985, the commencement of the Union's organizing campaign, and 4 March 1987, the date of the hearing in this case. Final- ly, the inclusion of a visitatorial provision, a remedy sought by the General Counsel, will be granted in view of Respondent's history of subpoena noncompliance in this case. On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed 2 6 ORDER The Respondent, Christopher Construction Company, Inc., Fairlawn, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening its employees with termination of em- ployment through discharge, replacement by other em- ployees, or job shutdown because they engage in union or other protected concerted activities. (b) Informing their employees that it is futile for them to select a union as their collective-bargaining represent- ative. 25 Under New Horizons, interest is computed at the "short-term Feder- al rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). 26 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. (c) Threatening its employees that it will regard them as having quit if they do' not abandon a lawful work stoppage. (d) Discharging, laying off, demoting, or otherwise discriminating against its employees because they engage in union or other protected concerted activities. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to engage in or refrain from engaging in any or all of the activities specified in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer William Crowder, Wayne Trail, william McPeak, Roy Duncan, Bobby Turner, Richard Gravley, Teddy Smith, Mark Thompson, Basel Ails, Walter Lewis, Michael Linkous, Dale Chinault, David Gravley, Walter Lang, Glenn Worrell, Brian Ratcliff, Dennis Roop, Ralph Burchette, and Lyle Loving immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or any other rights or privi- leges. (b) Make the employees named in the preceding para- graph whole for any loss of earnings they may have suf- fered as a result of Respondent's discrimination against them in the manner set forth in the remedy section of this decision. (c) Make Michael Linkous whole, with interest, for any loss of earnings he may have suffered as a result of his unlawful demotion. (d) Remove from its files any reference to, the person- nel actions found unlawful in this decision and notify the affected employees in writing that this has been done and that evidence of those actions will not be used as a basis for future personnel action against them. (e) 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. (f) Post at its Fairlawn, Virginia facility copies of the attached notice marked "Appendix." 27 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu- tive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Mail a copy of the attached notice marked "Ap- pendix" to each of the employees on its payroll between 1 July 1985 and 4 March 1987. 21 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- 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." 1278 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (h) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply. For the purpose of de- termining or securing compliance with this Order, the Board, or any of its authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors or assigns, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Proce- dure. Such discovery shall be conducted under the su- pervision of the United States court of appeals enforcing this Order and may be had upon any other matter rea- sonably related to compliance with this Order, as en- forced by the court. IT IS FURTHER ORDERED that: 1. The allegations of the complaint not specifically found herein are dismissed. 2. The General Counsel's motion of 23 April 1987 to strike the names Billy Bailey, Douglas Crigger, and Robert Crigger from paragraph 12 of the amended com- plaint is granted. 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. WE WILL NOT threaten you with termination of em- ployment through discharge, replacement by other em- ployees or job shutdown because you engage in union or other protected, concerted activities. WE WILL NOT inform you that it is futile for you to select the Carpenters and Millwrights Local Union No. 319 as your collective bargaining representative. WE WILL NOT threaten you that we will regard you as having quit unless you abandon a lawful strike. WE WILL NOT discharge you, lay you off, demote you or otherwise discriminate against you because you engage in union or other protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the free exercise of your rights under Section 7 of the National Labor Relations Act. WE WILL immediately offer to reinstate William Crowder, Wayne Trail, William McPeak, Roy Duncan, Bobby Turner, Richard Grayley, Teddy Smith, Mark Thompson, Basel Ails, Walter Lewis, Michael Linkous, Dale Chinault, David Grayley, Walter Lang, Glenn Worrell, Brian Ratcliff, Dennis Roop, Ralph Burchette, , and Lyle Loving to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, and WE WILL make them whole, with interest, for any loss of pay resulting from their unlawful layoffs and discharges. WE WILL make Michael Linkous whole, with interest, for any loss of pay resulting from his unlawful demotion. WE WILL remove from our files any reference to the unlawful discharges, layoffs and demotion set forth above, and WE WILL notify the affected employees that this has been done and that evidence of our unlawful conduct will not be used for future personnel action against them. WE WILL remove from our files any reference to the unlawful discharges, layoffs and demotion set forth above, and WE WILL notify the affected employees that this has been done and that evidence of our unlawful conduct will not be used for future personnel action against them. CHRISTOPHER CONSTRUCTION COMPANY, INC.