Eastern Omni Constructors

National Labor Relations Board - Board Decisions

Oct 7, 1997

324 N.L.R.B. 652 (N.L.R.B. 1997)

652
324 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In affirming the judge’s finding that Foreman Ted Williams un-
lawfully communicated an overbroad no-distribution rule, we rely
solely on the implicitly credited testimony that Williams referred to
the adverse consequences of giving out union literature ‘‘on the
job.’’ We note further that we do not adopt the speculative remarks
in fn. 9 of the judge’s opinion.
2 In affirming the judge’s conclusion that the Respondent violated
Sec. 8(a)(1) by promulgating a rule forbidding the display of all but
company-issued decals on hard hats, we recognize the legitimacy of
the Respondent’s concern about some inflammatory decals (unrelated
to union activities) that some employees had been wearing. We note,
however, that the Respondent could have more narrowly, and law-
fully, addressed this problem. It need not have broadly proscribed
the wearing of all noncompany insignia, including those associated
with protected concerted union activities.
1 All dates are 1996 unless otherwise indicated.
Eastern Omni Constructors, Inc. and Local Union
342, International Brotherhood of Electrical
Workers, AFL–CIO. Case 11–CA–16886
October 7, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On April 29, 1997, Administrative Law Judge
George Carson II issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations 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 conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Eastern Omni Construc-
tors, Inc., Greensboro, North Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Jasper C. Brown Jr., Esq., for the General Counsel.
William Joseph Austin Jr. and Catherine Ricks Piwowarski,
Esqs., for the Respondent.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Greensboro, North Carolina, on December 18
and 19, 1996. The charge was filed on February 21, 1996,1
and the complaint was issued on May 17. The complaint al-
leges various independent violations of Section 8(a)(1) of the
National Labor Relations Act, participation in an unfair labor
practice strike by certain employees, and the layoff and re-
fusal to recall five employees in violation of Section 8(a)(3)
of the Act. The Respondent’s timely answer denies any vio-
lation of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, is engaged in general con-
struction at its jobsite at Brown Summit, North Carolina,
where it annually receives goods and materials valued in ex-
cess of $50,000 directly from points outside the State of
North Carolina. The Respondent admits and I find and con-
clude that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Respondent admits and I find and conclude that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent, at its Brown Summit, North Carolina
jobsite, provides maintenance and construction services for a
large Proctor and Gamble facility. The Respondent’s work
force at Brown Summit varies in size, depending on the
needs of Proctor and Gamble. In the past several years it has
been as small as 12 and as large as 250. In the words of
Mike Barnum, the Respondent’s vice president in charge of
project management, the manpower graph ‘‘looks like the
Alps.’’ Various crafts are needed at different times. Thus,
when Proctor and Gamble decides to set up a production line
to produce a particular product, the Respondent performs the
work necessary to make the line operational. The primary
crafts employed are pipefitters, millwrights, and electricians.
From time to time, some of the Respondent’s employees are
assigned to provide maintenance services directly to Proctor
and Gamble. These employees, when so assigned, are over-
seen by Proctor and Gamble supervisors, and they refer to
themselves as working ‘‘in the plant.’’ The Respondent’s
project manager is Carl Harbin, the construction manager is
Ted Gammon, the electrical superintendent is Fred Redman,
and the general electrical foreman is John Bauer. During the
period relevant to this proceeding, Daryl Bailey, Ted Wil-
liams, and Mitch Williams were foremen. The Respondent’s
employees are not represented by a labor organization.
In December 1995, the Respondent needed increased man-
power in order to complete two projects, a production line
for denture cream and relocation of the plant engineering of-
fices, both of which were to be turned over to Proctor and
Gamble about February 1. Fourteen new employees were
hired in December 1995: five pipefitters, two pipe welders,
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2 Two pipefitters and one pipe welder first appear on the payroll
ending December 3, 1995; they may have actually been hired in late
November.
3 Cottingham, West, the Steiners, and Forester did not disclose any
union affiliation when seeking employment.
4 Mitch Williams shall hereinafter be referred to as M. Williams
to distinguish him from his brother Ted Williams, hereinafter re-
ferred to as T. Williams.
5 The Respondent, in its brief, appears to contend that the
discriminatees, having been hired in December for the Respondent’s
immediate needs, were terminated when those needs were met. This
argument is contrary to the sworn testimony of Project Manager
Harbin who, concerning the layoff of February 8, testified that the
Respondent ‘‘tried to use the same criteria in every case. We keep
the most qualified people with the job.’’ Vice President Barnum spe-
cifically testified that the Respondent does not lay off by seniority.
Documentary evidence reveals that the Respondent, on February 8,
did not lay off by seniority.
6 Electrician Jerry Hill appears to be a person other than another
electrician named Hill who had received warnings in September
1994 and who counsel for the Respondent represented had been ter-
minated on December 21, 1995.
7 West testified that M. Williams concluded the conversation by
advising him that he would be ‘‘all right’’ if he did his job and did
not talk too much about the Union. The complaint alleges that on
December 28, 1995, M. Williams threatened an employee with dis-
charge for engaging in union activities. It appears that this alleged
remark is the basis for that complaint allegation, although the Gen-
eral Counsel does not mention it in his brief. The complaint does
not allege a partial gag rule, i.e., not talking ‘‘too much’’ about the
Union. In any event, I do not credit West’s testimony regarding this
conversation, and consequently, I make no finding in this regard.
five electricians, and two electrician apprentices.2 Elec-
tricians Wacon Cottingham and Tommy West applied for
work together, were interviewed on December 12, and began
work on December 13, 1995. Apprentices Matt and David
Steiner, who are brothers, were interviewed together on De-
cember 13 and began work on December 18, 1995. Elec-
trician Billy Forester also began work on December 18,
1995.3 A new electrical crew was created, and Mitch Wil-
liams was promoted to foreman.4 He understood that this
was a temporary promotion and that he would resume work-
ing with his tools in February.
On December 20, 1995, both Cottingham and Forester
placed IBEW stickers on their company owned hard hats.
West, on January 5, passed out union literature in a break
room in the presence of several supervisors. The Steiners did
not engage in any union activity.
The Respondent does not lay off employees by seniority.
Both Vice President Barnum and Project Manager Harbin
testified that the chief criteria for layoff is to keep the ‘‘most
qualified’’ people. The Respondent’s reduction-of-force
(ROF) termination policy provides as follows:
In determining which employees are to be retained,
consideration will be given to (not all inclusive):
(1) Ability of the employees to do the available
work.
(2) Current and past job performance.
(3) Transferability of skills to other positions within
the Company.
(4) Compliance with Company and site regulations.5
On February 8, the last workday of the week, the Re-
spondent laid off 14 employees including 4 pipefitters; 2
pipefitter apprentices; 1 pipe welder; 4 electricians, including
Cottingham and Forester, who were on strike at the time, and
West; 2 electrician apprentices, the Steiners; and 1 welder
who had been in an electrical crew. Of the five pipefitters
and two pipe welders hired in December 1995, only one,
pipefitter Barker, was laid off. Electrician Jerry Hill, who
was hired the week of December 24, 1995, was not laid off.6
Although the Respondent was aware that Proctor and
Gamble was going to move a production line from Pennsyl-
vania to its Brown Summit plant, that work had not begun,
and did not begin until February 25. On February 25, four
new electricians were hired. Project Manager Carl Harbin
testified that carrying 14 employees on the payroll, when
there was insufficient work for them, would be spending the
money of the client, Proctor and Gamble, unwisely.
B. The 8(a)(1) Allegations
The complaint alleges that, on December 20, 1995, Fore-
man M. Williams interrogated employees regarding the union
activities of other employees and threatened employees by
advising that employees had been discharged in retaliation
for engaging in union activities. Electrician West testified
that, on December 20, 1995, M. Williams asked if he had
noticed that Forester, with whom West had been sitting, had
a union sticker on his hard hat and thermos, and whether
West knew him. West testified that M. Williams commented
that it ‘‘looks like this stuff is starting all over again,’’ ex-
plaining that ‘‘about two years ago we had some guys to
come in . . . [and] they had to let them go on account of
passing out [union] literature and stuff like that.’’ M. Wil-
liams denied this conversation, specifically testifying that he
had not been employed by the Respondent for 2 years and
had no such information.
Forester began wearing a union sticker on his company
owned hard hat on December 20, 1995. I credit M. Williams’
denial of this conversation. In doing so I note that the Gen-
eral Counsel did not attempt to elicit what response West
gave to the purported questions, which certainly suggests that
a reason for the absence of a response was the absence of
a question. M. Williams began working for the Respondent
in February 1995, less than a year before this conversation.
There was, as he credibly testified, no basis for referring to
an alleged 2-year old incident of which he had no knowl-
edge.
The complaint also alleges that M. Williams, on December
28, 1995, interrogated West regarding his union activities
and advised that employees had been discharged in retalia-
tion for their union activity. On December 28, 1995, West
had, as was his practice, given Wacon Cottingham a ride to
work. Cottingham wore a union T-shirt to work that day.
West testified that M. Williams stated that he had noticed
that ‘‘the guy that was riding with me’’ was wearing a union
T-shirt and then asked if West were a union man. West
states that he responded that he was not; but, shortly there-
after, he told M. Williams that he was a union member. He
testified that M. Williams stated that he had no problem with
that, as long as West did his job and did not ‘‘start acting
silly and stuff . . . like these other two guys did,’’ an appar-
ent reference to the previously mentioned alleged dis-
charges.7 M. Williams denied interrogating or threatening
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654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The transcript uses the word ‘‘them’’ instead of ‘‘him.’’ It is cor-
rected. M. Steiner recalled T. Williams saying ‘‘on company time’’
instead of ‘‘on the job.’’ I base my finding on the comment which
T. Williams admitted and additionally note that my finding would
be the same if based on M. Steiner’s testimony since either version
threatens termination based on an unlawfully broad rule. Southeast-
ern Brush Co., 306 NLRB 884 (1992).
9 Forester was not disciplined. It may be that the clock used by
the electricians was fast, or the clock observed by T. Williams was
slow. It is possible that Forester had been given permission to go
to break early.
10 The text of the rule is as follows:
Employees are prohibited from soliciting or distributing lit-
erature on Company property during working time.
Working time is defined as the time an employee is expected
to be working. It does not include an employee’s free time, i.e.,
before or after work, lunch, breaktime, or other free time,
whether the employee is being paid for that time or not.
11 Payroll records reflect that electrician Hill began working the
week ending December 24, and electrician Russell began working on
December 26, 1995; thus, both started after West, Cottingham, and
Forester.
West. He acknowledged that West told him that he was a
union member and that he told West that his union affiliation
did not matter so long as he came to work and did his job.
I credit M. Williams’ testimony. His demeanor was more
impressive that of West. West and Cottingham had applied
for work together, and both began work on December 13,
1995. West drove Cottingham to work, and West’s testimony
that M. Williams began the purported conversation by refer-
ring to the person West brought to work confirms that this
was common knowledge. Cottingham, like Forester, began
wearing a union sticker on the company owned hard hat on
December 20, 1995. Thus, Cottingham’s union sticker, which
he began wearing more than a week before this purported
conversation, would have provided ample opportunity for M.
Williams to have initiated such a discussion well before De-
cember 28. West appeared to confuse the remarks he attrib-
uted to M. Williams. Thus, when testifying regarding the De-
cember 20, 1995 conversation, West referred to M. Williams
speaking about the alleged termination ‘‘two years’’ ago of
‘‘some guys;’’ whereas, in relating the purported conversa-
tion of December 28, West has M. Williams referring to
‘‘two guys.’’ In testifying about this alleged threat, West ac-
knowledged that he could not ‘‘remember all that, but it was
something like that, you know.’’ I find that West voluntarily
informed M. Williams of his union affiliation and that M.
Williams did not refer to an alleged 2-year old event of
which he had no knowledge.
The complaint alleges that, on December 26, 1995, Fore-
man T. Williams threatened employees with discharge for
engaging in union activities. T. Williams observed Forester
hand a union leaflet to a Proctor and Gamble employee as
Forester was walking to the break trailer. A nearby clock
showed it was 8:55 a.m., whereas break did not begin until
9. Shortly after this, in the nonsmoking break trailer and in
the presence of employee M. Steiner, T. Williams told an-
other foreman, Bailey, that ‘‘if Ted Gammon saw that union
guy giving out union literature on the job he was going to
send [him] up the hill.’’8
Whether Forester was in technical violation of the Re-
spondent’s valid solicitation and distribution rule is immate-
rial.9 The issue is what was communicated to the employee,
M. Steiner, who overheard T. Williams’ comment. The state-
ment heard by Steiner was far broader than the Respondent’s
valid rule which prohibits solicitation and distribution ‘‘on
Company property during working time.’’ The valid rule
clearly explains working time as not including lunch time,
breaktime, or before and after work. There is no restriction
in the Respondent’s rule regarding where distribution or so-
licitation may take place, just that it must not occur when
‘‘an employee is expected to be working.’’10 T. Williams,
when reporting that the ‘‘union guy’’ was going to be sent
‘‘up the hill,’’ clearly threatened discharge. The offense he
cited was ‘‘giving out union literature on the job.’’ Although
the Respondent’s rule is not unlawfully broad, that is not
what T. Williams communicated. He communicated a clear
threat that employees who gave out union literature ‘‘on the
job’’ would be terminated. NTA Graphics, 303 NLRB 801
(1991). In so doing, the Respondent violated Section 8(a)(1)
of the Act.
The complaint alleges that, on January 26, M. Williams in-
formed employees that the Respondent was changing its lay-
off procedure in order to dissuade support for the Union. The
evidence adduced in support of this allegation was testimony
by West concerning a conversation that supposedly occurred
on December 29, 1995. West asserts that M. Williams stated
that there was going to be a layoff and that, although em-
ployees were usually laid off for poor attendance or job per-
formance, he thought that the Respondent was going to lay
off by seniority because he thought the last ones hired were
members of the Union. M. Williams denied these remarks.
He noted that there were always rumors about layoffs going
around, but that he did not learn of the layoff of February
8 until that date.
There is no evidence before me explaining the almost 1-
month discrepancy between the date of the complaint allega-
tion and the only testimony relating to that allegation. I find
it unlikely that such a conversation would occur some 2
weeks after the beginning of an 8-week job. There is no evi-
dence of any union activity by the Steiner brothers, nor is
there evidence of any union activity on the part of Hill and
Russell, the last two electricians who had been hired.11 Thus,
the premise on which M. Williams’ alleged comment was
based, that the last employees hired were members of the
Union, did not exist. M. Williams was a temporary foreman
and was not consulted regarding the layoff. I credit M. Wil-
liams’ denial and find that he did not make these remarks
that West attributed to him.
The complaint contains eight allegations relating to the
Respondent’s promulgation and enforcement of a rule pro-
hibiting the wearing of insignia, other than company author-
ized items, on the company owned hard hats issued to the
Respondent’s employees. The text of the rule is as follows:
Company-Owned Hard Hats
Eastern Omni Constructors, Inc. (the ‘‘Company’’)
prohibits the wearing or display on Company-owned
hard hats of all stickers, decals, pins, badges, buttons,
or other insignia that have not been specifically author-
ized or issued by the Company. An employee who vio-
lates this policy by wearing or displaying noncompany-
authorized items on his or her Company-owned hard
hat, or who refuses to remove such items when re-
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655EASTERN OMNI CONSTRUCTORS
12 Whether the Respondent had a verbal rule that had been en-
forced in the past is immaterial.
13 M. Steiner testified that, following promulgation of this rule,
Foreman Bailey commented to Foreman T. Williams that he had told
one of his men that he had better remove his union sticker or he
was going to fire him. I do not credit this testimony. Following pro-
mulgation of the rule, Forester went to Bauer with Cottingham; there
was no interchange with Bailey. Forester, who was supervised by
Bailey, did not testify to any such threat, and Bailey credibly denied
making any such statement. M. Steiner also testified that, on that
same day, T. Williams commented to other foremen, ‘‘I guess Carl
Shore’s idea worked. The union boys went on strike over their stick-
er this morning.’’ This statement is not alleged as a violation of Sec.
8(a)(1), and T. Williams credibly testified that, as of mid-January,
he had been transferred and was working under the direction of
Proctor and Gamble supervision. He was not in the Eastern Omni
area; he was ‘‘in the plant.’’
14 I need not determine whether West had already placed a sticker
on his hard hat, as he claims, or whether he carried the sticker in
his hand and informed T. Williams, Bauer, and Redman that the
Union had directed him to put the sticker on his hard hat, but he
was a single parent and needed his job, as they testified. Regardless
of the circumstances, the rule was enforced by M. Williams, Bauer,
and Redman, and West obeyed it.
15 In Kendall, special circumstances were found. The union
keychain dangling from the employee’s pocket was found to be a
hazard since the employee often leaned over machinery.
16 In Malta Construction Co., 276 NLRB 1494 (1985), the Board
distinguished Standard Oil and Andrews, noting that the employees
in Andrews worked in ‘‘a poorly lighted mill’’ and the employees
in Standard Oil worked at a refinery with ‘‘highly volatile, dan-
gerous, and hazardous gases necessitating an elaborate safety pre-
caution system.’’ Id. at fn. 4.
quested by a Company representative, will be subject to
disciplinary action up to and including immediate ter-
mination of employment.
This policy does not prohibit the wearing or display
of noncompany-authorized items on an employee’s own
clothing or articles of personal property, provided that
the items do not have the potential to jeopardize em-
ployee safety, to damage Company equipment, to create
employee distraction or dissension, or otherwise to
interfere with the business of the Company.
It is undisputed that this rule was announced on January 23
and, thereafter, uniformly enforced. It is also undisputed that,
although the Respondent contends the rule had existed in the
past, it was not reduced to writing until after January 23.12
The promulgation of this rule was precipitated by an incident
on January 22, when Project Manager Carl Harbin observed
a pipefitter wearing a confederate flag decal on his hard hat.
He considered this symbol to be inflammatory. A safety
meeting had already been scheduled that day and, at that
meeting, he explained that he had seen a rebel flag on a
company hard hat and that he wanted everything except com-
pany issued stickers removed from the company owned hard
hats. Harbin explained that he was aware that Proctor and
Gamble was sensitive to issues relating to diversity, and that
he, on at least two occasions, had received complaints from
employees concerning confederate flags on the clothing of
other employees. On both of those occasions he requested
the offending employees to change clothing, or turn it inside
out. Harbin had not received any complaint regarding the
flag worn by the pipefitter and did not request him to remove
it on January 22. The pipefitter removed it on January 23 in
compliance with the announced rule.
On January 23 the rule was announced to all crafts. Gen-
eral Electrical Foreman John Bauer made the announcement
to the electrical crews. Union stickers were not mentioned.
Rather, Bauer’s direction was to remove all decals not issued
by the Company. The specific example he cited was stickers
with the number 3, a reference to NASCAR driver Dale
Earnhardt’s car. Immediately after the meeting, Cottingham
and Forester, who had been wearing union stickers, ap-
proached Bauer and advised that they were on strike because
of unfair labor practices, and that if there were any questions
to contact the Union. As Cottingham and Forester were
checking out, they explained that they were going to wear
their union stickers on the hard hats.13 West was not at work
on January 23 or 24. When he returned, on January 25, M.
Williams informed him of the rule prohibiting all but com-
pany insignia on hard hats, and West questioned whether he
would be fired if he violated the policy. Bauer became in-
volved in the conversation, and he and West left the floor.
The conversation continued in Redman’s office where Bauer
and Redman advised West that he could not have anything
but company insignia on his hard hat and that, if he dis-
obeyed the rule, he would be disciplined. West placed the
sticker on his clothing.14
The credible testimony of Harbin establishes that the Re-
spondent’s enforcement of the rule prohibiting all but com-
pany owned insignia on hard hats was because of Harbin’s
concern; he ‘‘knew the inflammatory nature of this symbol,’’
the confederate flag that he had observed. Although there is
testimony relating to the different colored tape identifying
the various crafts, and the presence of special stickers indi-
cating certification as a fork lift driver or person qualified to
deal with high voltage, the record also establishes the wear-
ing of Carolina Tar Heel decals, NASCAR decals, Harley
Davidson and Hilty stickers, and the IBEW stickers worn by
Cottingham and Forester. On January 22, when Harbin spoke
with the supervisors at a safety meeting, he specifically men-
tioned having seen a rebel flag on a hard hat. No other rea-
son for enforcement of the rule was mentioned. There is no
evidence that any safety concerns were cited at that time, or
by Bauer when he announced the rule to the electricians on
January 23.
Employees have the protected right to wear union insignia
while at work. Republic Aviation Corp. v. NLRB, 314 U.S.
793, 801–803 (1945). The Board, in cases involving inter-
ference with that right, has reasoned as follows:
While employees have the right to wear union insignia
at work, employers have the right to take reasonable
steps to ensure full and safe production of their product
or to maintain discipline. Therefore, the Board holds
that a rule which curtails that employee right is pre-
sumptively invalid unless special circumstances exist
which make the rule necessary to maintain production
or discipline, or to ensure safety. Kendall Co., 267
NLRB 963, 965 (1983).15
In the instant case, there is no evidence of any special cir-
cumstances relating to safety. Thus the cases of Standard Oil
Co. of California, 168 NLRB 153 (1968), and Andrews Wire
Corp., 189 NLRB 108 (1971), cited by the Respondent, are
inapposite.16
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656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 In Malta Construction Co., supra at 1495, the respondent,
among other factors, sought to justify its rule by arguing that some
employees placed vulgar stickers on their hats and that employees
might be called on to stop traffic, thereby creating an undesirable
public image. The Board held that the evidence did not establish the
public contacts argument.
18 The Respondent, although noting that the hard hats are company
owned, does not assert its property interest as the basis for its action.
See Reno Hilton, 319 NLRB 1154 fn. 4 (1995). If the Respondent
had made such an assertion, I would not have found it persuasive
since its property interest was not sufficiently compelling to have
prompted the Respondent to enforce the alleged preexisting verbal
rule since a forgotten date in either September or October 1995.
19 The strike began 16 days before the layoff.
20 The absence of picketing does not constitute abandonment of a
strike. Intermountain Corp. (Michigan), 90 NLRB 1145 (1950). On
January 23, Cottingham and Forester had stated that they were going
on strike. On January 25, they refused the voluntary quit slips given
to them, explaining that they were on strike. On January 29, the
Union wrote the Respondent reconfirming that Cottingham and For-
ester were on strike.
The record also does not establish any special cir-
cumstances relating to discipline that would override the em-
ployees’ right to wear union insignia on the company issued
hard hat. I recognize that, in various circumstances, display
of the confederate flag has caused controversy. See
N.A.A.C.P. v. Hunt, 891 F.2d 1555 (11th Cir. 1990). The Re-
spondent, in its brief, notes Proctor and Gamble’s commit-
ment to sensitivity to the concerns of a diverse work force,
and it points out the Respondent’s efforts to follow Proctor
and Gamble’s lead, citing the two occasions where Harbin
approached workers who were wearing clothing with confed-
erate flags. This evidence establishes that the Respondent has
been successful in dealing with individual employees when
problems regarding insensitivity have arisen. There is no evi-
dence on this record reflecting any breakdown of discipline
that would establish a special circumstance sufficient to in-
fringe on the right to display union insignia.17 Harbin did not
tell the pipefitter that he observed to remove the flag from
the hard hat, noting that he had received no complaint with
regard to it. The Respondent has cited no case authority, and
I am aware of no case authority, that permits a ban on all
insignia in the name of discipline when there is no evidence
of any problem relating to discipline. Respondent’s rule
reaches far beyond a management concern regarding sensitiv-
ity to a diverse work force. It undercuts employee Section
7 rights established in the Act and recognized by the Su-
preme Court.
The Respondent’s permitting employees to wear union in-
signia on clothing does not vitiate the violation. As discussed
above, employees have a right to display union insignia ab-
sent special circumstances. I have found that no special cir-
cumstances sufficient to circumscribe that right have been es-
tablished.18 Thus, the Respondent, by promulgating the rule
forbidding the display of all but company issued decals on
hard hats, interfered with employees’ free exercise of the
right to display union insignia. Northeast Industrial Service
Co., 320 NLRB 977 (1996); United Parcel Service, 312
NLRB 596 (1993); and Malta Construction Co., 276 NLRB
1494 (1985). In so doing, the Respondent violated Section
8(a)(1) of the Act. Similarly, by enforcing the rule, M. Wil-
liams, Bauer, and Redman independently violated Section
8(a)(1) of the Act.
C. The Strike
The complaint alleges that the strike in which Cottingham
and Foster engaged was an unfair labor practice strike.
Cottingham and Forester went on strike immediately follow-
ing the announcement of the Respondent’s unlawful rule on
January 23. Bauer acknowledges that, as they were leaving,
they informed him that the strike was about the ‘‘unfair labor
practices[;] . . . they were going to wear the stickers on hard
hats.’’ After Cottingham and Forester told Bauer that they
were going on an unfair labor practice strike, that ‘‘they
were going to wear the stickers,’’ Bauer notified Redman.
Redman informed Gammon and Harbin that ‘‘we had two
people that were walking out claiming to be on strike.’’ The
Respondent, in its brief, argues that Cottingham and Forester
‘‘claimed to be on strike’’ when they were discharged, as-
serting that ‘‘[t]his convenient ‘strike’ occurred just before
their jobs were completed.’’19 The Respondent neglects to
acknowledge that the strike began immediately after the Re-
spondent announced its unlawful rule and that Cottingham
and Forester cited the prohibition on the wearing of their
union stickers as the reason for their action. The Respondent
also fails to acknowledge that, on January 31, it received a
letter from the Union dated January 29, confirming that
Cottingham and Forester were on strike, noting that they
were not actively picketing,20 and informing the Respondent
that they remained on strike until further notice. Thus, con-
trary to the Respondent’s argument that the strike was ‘‘con-
venient,’’ the record establishes that the strike was precip-
itated by the Respondent’s unlawful action. It was, as the
General Counsel alleges in the complaint, an unfair labor
practice strike.
Even if I had found that the Respondent’s promulgation of
its rule did not violate the Act, Cottingham and Forester
would have been engaged in the protected concerted activity
of protesting a change in working conditions, an economic
strike. Crystal Princeton Refining Co., 222 NLRB 1068,
1070 (1976). As economic strikers they would have been
subject to permanent replacement; but that is not the manner
in which they were treated by the Respondent. As hereinafter
discussed, the Respondent did not replace them; it terminated
them.
D. The 8(a)(3) Allegations
1. Facts
The complaint alleges that, on February 8, the Respondent
discriminatorily laid off, and failed and refused to rescind the
layoffs of, M. Steiner, D. Steiner, West, Cottingham, and
Forester. At the time of the layoff the work on the denture
cream line and engineering offices was virtually complete.
Although General Counsel elicited testimony relating to con-
versations concerning upcoming work, there is no probative
evidence that sufficient work was available immediately after
February 8 to justify keeping 14 employees on the payroll.
Accordingly, I find that the layoff was economically justi-
fied. The issue, therefore, is whether the five alleged
discriminatees were discriminatorily selected for layoff. As
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21 This is the trailer in which Foremen Bailey, M. Williams, and
T. Williams took their breaks. None of the acknowledged union
members took breaks in that trailer. No foreman is alleged to have
questioned M. Steiner regarding his union affiliation.
22 West testified that M. Steiner was ‘‘undercover.’’ He acknowl-
edged that he ‘‘slipped’’ by making the comment about coming to
the hall to D. Steiner. Neither Forester nor Cottingham reported fre-
quent association with either Steiner. The comment was made as
West walked by D. Steiner; he was not sitting with him. I do not
credit D. Steiner’s testimony that he regularly ate lunch with For-
ester, Cottingham, and West. Rather, I find, consistent with West’s
testimony, that the acknowledged union members were sensitive to
the status of the Steiners as unacknowledged union members and did
nothing that would have exposed their status.
23 The comment could be construed as a solicitation to someone
not involved in union activity to become involved in union activity.
In any event, I find it was not overheard.
24 M. Williams was not an experienced foreman. Redman reported
to Gammon that M. Steiner did not have qualifications any greater
than other helpers.
25 I specifically discredit Gammon’s testimony that it was his im-
pression that ‘‘they had just walked off the job.’’ Redman told Gam-
mon and Harbin that they had walked out ‘‘claiming to be on
strike.’’
26 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
discussed above, the Respondent does not lay off by senior-
ity.
The Steiners engaged in no union activity. M. Steiner and
West were on M. Williams crew but did not regularly take
breaks together. M. Steiner took his breaks in the non-
smoking break trailer.21 West did not regularly go to a break
trailer due to a problem with his leg. When he did, such as
at the lunch break, he went to the smoking break trailer. The
remaining alleged discriminatees were on different crews. D.
Steiner was moved to T. Williams crew on December 26.
Forester was on Daryl Bailey’s crew, and Cottingham was
under James Montgomery. Neither Cottingham nor Forester
was asked about, or testified to, regular contact with either
Steiner. D. Steiner testified that, on one occasion, West
walked by him in the smoking break trailer and said,
‘‘[B]rother, you need to come to the hall.’’ He states that
Bauer was present, in the smoking break trailer, when this
was said.22 Bauer acknowledged observing West, Forester,
and Cottingham eating together. From time to time others,
including the Steiners, would join them. He did not overhear
West’s comment to D. Steiner.23 The first time any super-
visor became aware of a Steiner’s union affiliation was on
the day of the layoff when, after being told he was to be laid
off, M. Steiner commented to M. Williams that ‘‘maybe the
Union can find me a job.’’
M. Steiner falsified his job application by stating that he
had 3-1/2 years’ experience. At the hearing, in December
1996, he testified that, when he applied, he had just under
2 years’ experience. Although he states that M. Williams
complimented his work and was going to see about getting
him a raise, this never occurred.24 In mid-January, M. Steiner
spoke with Bauer concerning layoffs. Bauer commented that
‘‘we might all be gone tomorrow and we may all be here
for a while.’’ He thumbed through a list that had about half
a dozen highlighted names, which M. Steiner understood to
be employees with attendance problems, and then said that,
as far as he was concerned, there was nothing to worry
about.
D. Steiner sustained an on-the-job injury on January 15.
He suffered a hyperextension of his knee. He was placed on
light duty. He continues to received total temporary disability
benefits from the workers’ compensation fund.
West had been involved in an automobile accident in
1994. When asked if that limited things he could do on a
construction job, West replied, ‘‘Well, I can’t be climbing
. . . way up in the air without . . . a genie boom or some-
thing. We most of the time use ladders and I didn’t want to
be on one of them because it started hurting the ankle real
bad standing on a ladder.’’ He acknowledges that, if he did
not go to the break trailer, he would elevate his leg during
the 15-minute break. West received a written warning for 11
instances of absenteeism or tardiness when he returned to
work on January 25, after having missed work on January
23 and 24. Thereafter he was absent on February 5 and 6.
On one occasion M. Williams found him with his shoe off,
massaging his leg, which was swollen. M. Williams told
West that he might be able to do that on some other job, but
the Respondent was strict. He suggested that, if his leg were
hurting that bad, that he should go to the restroom.
Cottingham had 12 years’ experience as an electrician. He
was warned for 2 days of absenteeism on December 26,
1995, but thereafter had no problem. At one point he was as-
signed to install the drives that control the speed of motors
in a control panel. There were no complaints regarding his
work performance, and he was complimented on his work by
his foreman, Montgomery. On January 23, immediately after
promulgation of the Respondent’s unlawful rule, he went on
strike.
Forester was the most experienced of the discriminatees,
with 30 years’ experience as an electrician. The Respondent,
recognizing his skills, assigned him to perform control work
in the PLC area. He received no warnings of any kind. On
January 23, on promulgation of the Respondent’s unlawful
rule, he went on strike with Cottingham.
On January 25, Cottingham and Forester returned to the
jobsite where, at the guard shack, they were given their pay-
checks by Harbin and Gammon.25 With the checks were vol-
untary quit slips. They refused the slips, explaining that they
were on strike. By letter dated January 29, the Union advised
the Respondent that Cottingham and Forester were on strike.
On February 8, the Respondent laid off 14 employees, in-
cluding the 5 alleged discriminatees. Construction Manager
Gammon testified that D. Steiner and West were selected be-
cause of their physical limitations, M. Steiner was selected
because he was no more qualified that other helpers who
were paid at the Class 4 level, and Cottingham and Forester
were selected because they were ‘‘not there at the time and
that was it.’’
2. Analysis and concluding findings
The analytical framework of Wright Line26 is applicable in
dual or mixed motive cases after the General Counsel has es-
tablished employee union activity, employer knowledge of
that activity, animus towards such activity, and adverse ac-
tion taken against those involved in, or suspected of involve-
ment in, that activity. As hereinafter discussed, there is no
question that Cottingham and Forester, who were engaged in
a strike, engaged in union activity and that the Respondent
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658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Sec. 13 of the Act provides: ‘‘Nothing in this Act . . . shall be
construed so as either to interfere with or impede or diminish in any
way the right to strike.’’
28 Even if I were to have found that the Respondent was aware
of the union affiliation of the Steiners, I would, nevertheless, find
no discrimination in their selection for layoff. D. Steiner had been
injured on the job and placed on light duty. The Respondent was
under no obligation to continue to find light duty work for him. At
the time of this hearing he was still drawing total temporary disabil-
ity workers’ compensation benefits. M. Steiner falsified his job ap-
plication, reporting that he had 3-1/2 years’ experience. Although the
falsification of the application was not discovered until the hearing,
Construction Manager Ted Gammon credibly testified that M.
Steiner was selected for layoff because he was no more qualified
than other helpers on the job who were making less money. Thus,
his selection for layoff was simply an economic decision. Although
Bauer had told M. Steiner that he had nothing to worry about, that
representation was made on the basis of an absenteeism and tardi-
ness list. Gammon’s decision was based on relative skills and pay
rate.
29 The Respondent’s policy that governs reduction-of-force, vol-
untary quit, and termination for cause is titled ‘‘Termination Policy
and Procedures.’’ The introductory paragraph reflects that the policy
is to provide guidelines ‘‘for implementing terminations of employ-
ment.’’
30 Although I have found that striking employees Cottingham and
Forester were terminated on February 8, the Respondent, by ten-
dering the voluntary quit slips to them on January 25, arguably dis-
charged them on that date. Indeed, the Respondent’s answer states
that ‘‘certain employees characterized their action as a strike but Re-
spondent alleges and says they voluntarily quit and Respondent sub-
sequently changed the status of the separation from employment to
ROF.’’ The Respondent did not disavow that it continued to consider
them as having voluntarily quit. Cargill Poultry Co., 292 NLRB
738, 739 (1989).
was aware of that activity. There is also no issue regarding
union activity and the Respondent’s knowledge of that activ-
ity by West.
Regarding animus, I note that some animus is established
by the independent violations of Section 8(a)(1) of the Act.
Although T. Williams’ threat of discharge for handing out
union literature on the job violated the Act, the threat related
to Forester, and it was communicated only to M. Steiner,
who T. Williams did not identify as having any affiliation
with the Union. The Respondent’s prohibition on the wearing
of all but company insignia on hard hats also violated the
Act; however, I have found no evidence of antiunion motiva-
tion in the promulgation of the rule. Notwithstanding the
foregoing, the Respondent’s conduct towards Cottingham and
Forester unquestionably establishes animus. The Respondent
sought to treat these employees, who struck over the Re-
spondent’s unlawful prohibition on the wearing of union
stickers, as having voluntarily quit. In so doing the Respond-
ent evidenced a fundamental disdain for the lawful exercise
of Section 7 rights. ‘‘Calling a strike a voluntary quit . . .
is to write Section 13 out of the Act.’’27 Anderson Cabinets,
241 NLRB 513, 518–519 (1979). See also Matlock Truck
Body & Trailer Corp., 217 NLRB 346, 349 (1975), and
Bartlett-Collins Co., 230 NLRB 144, 169 (1977). The Re-
spondent informed the strikers on January 25, well before the
layoff of February 8, that it considered them to have volun-
tarily quit. In so doing, the Respondent clearly revealed its
animus towards employee union activity and the exercise of
protected Section 7 rights.
The Steiners did not engage in any union activity, al-
though they were members of the Union. Despite the absence
of union activity by them, the General Counsel argues that
the Respondent was aware of their union affiliation. The
General Counsel, relying on the testimony of D. Steiner,
whom I do not fully credit, and of Bauer, who acknowledged
seeing the Steiners, as well as others, sometimes eating with
West, Cottingham, and Forester, seeks an inference of
knowledge. M. Steiner, as noted above, generally took breaks
in the nonsmoking break trailer. When T. Williams made the
statement about ‘‘the union guy,’’ referring to Forester hand-
ing out literature, he made no mention of any suspicion of
a connection between Forester and M. Steiner. West con-
firmed that the acknowledged union members were cir-
cumspect regarding the affiliation of the apprentices, the
Steiners. The Respondent’s supervisors credibly denied
knowledge of the Steiners’ union affiliation. I find no pro-
bative evidence that the Respondent was aware of any union
activity or affiliation by the Steiners. Thus a ‘‘fundamental
prerequisite’’ for establishing a discriminatory motive has not
been established. Bayliner Marine Corp., 215 NLRB 12
(1974). The absence of evidence establishing knowledge by
the Respondent of any union activity or affiliation by the
Steiners precludes the finding of a violation of the Act.28
Regarding West, I find that the Respondent has met its
burden of establishing that it would have laid off West with-
out regard to union activity. Although West asserted that he
did everything that was asked of him, M. Williams was
aware of his physical problems and had spoken candidly with
him on one occasion when he found West massaging his leg
instead of working. West’s spontaneous answer to counsel
regarding having problems being on a ladder confirms his
limitations. Both Redman and Gammon credibly testified to
having observed West on the job and noted his limitations.
I am satisfied that, when present on the job, West endeav-
ored to do his best. I am likewise satisfied that his limita-
tions were apparent. Furthermore, West had been warned for
11 attendance violations on January 25, and despite this, he
missed work again on both February 5 and 6.
A Wright Line analysis is unnecessary when considering
the terminations of Cottingham and Forester. The Respond-
ent’s brief, consistent with Gammon’s testimony, concedes
that they were terminated because they were not present. The
Respondent does not address the undisputed evidence that
the reason they were not present was because they were on
strike. At no time were Cottingham and Forester assured that
the Respondent would honor their rights as strikers. Matlock
Truck Body & Trailer Corp., supra at 349. The Respondent’s
current records reflect that Cottingham and Forester were ter-
minated on February 8. Although the complaint pleads the
terminations as a layoff, the reduction-of-force documents
state ‘‘date terminated.’’29 This was not a temporary layoff.
Cottingham and Forester were permanently terminated.
Whether the terminations are characterized as layoffs or dis-
charges is immaterial. Colonial Press, 204 NLRB 852 fn. 4
(1973). There was no mixed motive. Cottingham and For-
ester were ‘‘not there’’ because they were on strike. They
told this to Bauer at the time they left. The Respondent first
treated Cottingham and Forester as having voluntarily quit.30
It then included them in a reduction-of-force because they
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659EASTERN OMNI CONSTRUCTORS
31 Even if I were to have found that this was a mixed motive case,
the Respondent did not establish that, absent union activity,
Cottingham and Forester would have been selected for layoff. The
Respondent retained an electrician, Dickerson, who, prior to Feb-
ruary 8, had worked for two foremen, neither of whom had been sat-
isfied with his job performance. Gammon asserted that, even if
Cottingham and Forester had been present, they were not as quali-
fied as ‘‘some’’ of the others. This answer reveals that Cottingham
and Forester were, in fact, more qualified that those electricians not
included in the group Gammon designated as ‘‘some.’’
32 In Dilling Mechanical Contractors, 318 NLRB 1140, 1154
(1995), cited by the Respondent, the strikers were not informed that
they were considered to have voluntarily quit, and effectively termi-
nated, until after an unconditional offer to return to work was made.
In the instant case, as in Abilities & Goodwill, the discriminatees
were terminated while on strike. The continued viability of Abilities
& Goodwill is confirmed by the Board decisions in Super Glass
Corp., 314 NLRB 596 (1994), and Cargill Poultry, 292 NLRB at
740 (1989).
33 Notwithstanding my finding that Cottingham and Forester were
unlawfully terminated and my subsidiary finding, at fn. 31, that even
if this were a dual motive case, neither would have been laid off
on February 8 pursuant to the Respondent’s policy of keeping the
‘‘most qualified’’ employees, the Respondent will also be permitted,
at compliance, to establish that either Cottingham or Forester, or
both, would nondiscriminatorily have been affected by a reduction-
of-force at some time after February 8. Dean General Contractors,
285 NLRB 573 (1987).
34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
were not present. The reason they were not present was that
they were exercising their statutory rights by striking.31
The evidence in the instant case is even more compelling
than the evidence in National Fabricators, 295 NLRB 1095
(1989), where the respondent selected seven employees for
a temporary layoff because it believed they were likely to en-
gage in the protected union activity of honoring a picket line
that might be set up in the near future. In finding a violation
the Board stated that ‘‘we think it clear beyond peradventure
that the criterion used by the Respondent to select employees
for layoff—disfavoring employees who were likely to engage
in protected union activities—is the kind of coercive dis-
crimination that naturally tends to discourage unionization
and other concerted activity.’’ Ibid. In the instant case the
employees selected were actually engaged in protected union
activity. They were not selected for temporary layoff; they
were terminated. I find that the ‘‘direct and proximate
cause’’ of the selection of Cottingham and Forester for layoff
was their strike activity. Bingham Willamette, 282 NLRB
1192, 1194 (1987). By terminating Cottingham and Forester,
the Respondent violated Section 8(a)(3) of the Act.
The Respondent, in an apparent attempt to minimize its li-
ability for its unlawful actions, argues that neither
Cottingham nor Forester ever made an unconditional offer to
return to work. The Respondent does not cite Abilities &
Goodwill, 241 NLRB 27 (1979), the lead case in this area
of the law. In Abilities & Goodwill, the Board held that,
when a striker is discharged, the obligation is on the offend-
ing respondent to offer reinstatement since, having been dis-
charged, it would be futile for the striker to make an uncon-
ditional offer to return to work.32 Whether the striking em-
ployee is engaged in an economic or unfair labor practice
strike is immaterial. Cottingham and Forester were engaged
in an unfair labor practice strike. They were terminated be-
cause they were ‘‘not there and that was it.’’ The reason they
were ‘‘not there’’ was that they were on strike, and the Re-
spondent violated the Act when it terminated them. Having
terminated Cottingham and Forester, it is the Respondent’s
obligation to offer them reinstatement.
CONCLUSIONS OF LAW
1. By threatening that employee who handed out union lit-
erature on the job would be discharged and by maintaining
and enforcing a rule prohibiting employees from placing any
union stickers or decals on its hard hats, the Respondent has
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(a)(1) and Section 2(6) and (7) of
the Act.
2. By terminating the employment of striking employees
Wacon Cottingham and Billy Forester because they engaged
in union activities, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent having discriminatorily discharged em-
ployees, it must offer them reinstatement and make them
whole for any loss of earnings and other benefits, computed
on a quarterly basis from date of discharge, February 8,
1996, to date of proper offer of reinstatement, less any net
interim earnings, as prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), plus interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). As in Abili-
ties & Goodwill, the Respondent will be permitted, at com-
pliance, to avoid or reduce its backpay obligation by estab-
lishing that the reinstatement offer would not have been ac-
cepted. Id. at fn. 5.33
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended34
ORDER
The Respondent, Eastern Omni Constructors, Inc., Brown
Summit, North Carolina, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge for handing
out union literature on the job.
(b) Maintaining and enforcing a rule that prohibits the dis-
play of any union stickers or decals on its hard hats.
(c) Discharging or otherwise discriminating against any
employee for supporting Local Union 342, International
Brotherhood of Electrical Workers, AFL–CIO, or any other
union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
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660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
35 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(a) Within 14 days from the date of this Order, offer strik-
ing employees Wacon Cottingham and Billy Forester full re-
instatement 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 privileges previously
enjoyed, discharging if necessary any replacement employees
hired after February 8, 1996.
(b) Make Wacon Cottingham and Billy Forester whole for
any loss of earnings and other benefits suffered as a result
of the discrimination against them in the manner set forth in
the remedy section of the decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges and
notify the employees in writing that this has been done and
that the discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
jobsite in Brown Summit, North Carolina, copies of the at-
tached notice marked ‘‘Appendix.’’35 Copies of the notice,
on forms provided by the Regional Director for Region 11,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent
at any time since February 21, 1996.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten you with discharge for handing out
union literature on the job.
WE WILL NOT maintain and enforce a rule that prohibits
you from wearing union stickers or decals on our hard hats.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Local Union 342, International
Brotherhood of Electrical Workers, AFL–CIO, or any other
union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer striking employees Wacon Cottingham and Billy
Forester 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
privileges previously enjoyed, discharging if necessary any
replacement employees hired after February 8, 1996.
WE WILL make Wacon Cottingham and Billy Forester
whole for any loss of earnings and other benefits resulting
from their discharges, less any net interim earnings, plus in-
terest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharges of Wacon Cottingham and Billy Forester, and WE
WILL, within 3 days thereafter, notify each of them in writing
that this has been done and that the discharges will not be
used against them in any way.
EASTERN OMNI CONSTRUCTORS, INC.
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