Martin K. Eby Construction Co., Inc.

National Labor Relations Board - Board Decisions

Aug 4, 1980

250 N.L.R.B. 1348 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin K. Eby Construction Co., Inc. and John E.
Cafer. Case 14-CA-12722
August 4, 1980
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
DECISION AND ORDER
On April 19, 1980, Administrative Law Judge
George Norman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Martin K. Eby
Construction Co., Inc., Center, Missouri, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, except
that the attached notice is substituted for that of
the Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc. 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT discharge employees because
of their union membership, activities, or sym-
pathies.
250 NLRB No. 149
WE WILL NOT criticize our employees or
otherwise interfere with them for availing
themselves of the rights set forth below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their right to self-organi-
zation, to form, join, or assist United Brother-
hood of Carpenters and Joiners of America,
Local No. 607, AFL-CIO, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any or all such activity.
WE WILL offer John E. Cafer immediate
and full reinstatement to his former position
or, if that is not possible, to a substantially
equivalent position, without prejudice to his
seniority and other rights and privileges previ-
ously enjoyed, and WE WILL make him whole
for any loss of pay suffered by reason of our
discrimination against him, with interest.
WE WILL make any employee whole for any
loss of pay suffered by him by reason of our
discrimination against them, and John E.
Cafer.
MARTIN K. EBY CONSTRUCTION Co.,
INC.
DECISION
STATEMENT OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This
was heard at St. Louis, Missouri, on August 20, 1979.
The original charge was filed on June 25, 1979, followed
by a charge filed on July 21, 1979, by John E. Cafer, an
individual. The complaint, based on those charges, was
issued on July 23, 1979. The complaint alleges that
Martin K. Eby Construction Co., Inc., herein called Re-
spondent, violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended, herein called the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine the witnesses, to argue orally, and to file briefs.
Briefs, which were filed on behalf of the General Coun-
sel and the Respondent, have been carefully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a corporation authorized to do business
under the laws of the State of Kansas. It has maintained
an office and place of business at the Clarence Cannon
134R
MARTIN K. EBY CONSTRUCTION CO), INC
Dam and Power Plant worksite in the city of Center,
Missouri. Respondent maintains its principal office and
place of business in the State of Kansas where it is en-
gaged in the building and construction industry. The
only operation involved in this proceeding is Respond-
ent's jobsite located at Center, Missouri. During the year
ending June 30. 1979, in the course and conduct of its
business operations, Respondent performed services
valued in excess of $50,000 of which services were per-
formed in and for various enterprises located in States
other than the State of Kansas. Respondent is now and
has been at all times material herein an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATION
United Brotherhood of Carpenters and Joiners of
America, Local No. 607, AFL-CIO, herein the Union, is
a labor organization within the meaning of Section 2(5)
of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Background
In 1978, Respondent was awarded the construction of
the Clarence Cannon Power Plant superstructure for the
United States Army Corps of Engineers. In order to
obtain craftsmen for that project, Respondent executed
various labor agreements including one with Center Mis-
souri District Council, United Brotherhood of Carpen-
ters and Joiners of America.' In October 1978, Respond-
ent's projects superintendent, Dickie Green, requested
that the Union send a qualified craftsman to the project
to perform millwright work. The Charging Party, John
E. Cafer, was referred to Respondent in response to that
call. Cafer worked for approximately 2 weeks on the
project and was then terminated because at the time a
phase of the millwright work was completed. Superin-
tendent Green, being satisfied with Cafer's performance,
specifically requested the Union to send Cafer to the
project when millwrights were again needed in early
February 1979.2
In February, Cafer went to work for Respondent a
second time as millwright craftsman and was designated
by his Union to be millwright steward. Cafer worked for
Respondent until he was terminated on June 8, when an-
other phase of the millwright work on the project was
completed.
As the millwright work was reaching completion, in
the latter part of May and early June. carpenter work
began to increase. 3 At the time that carpenter craftsmen
came on the job, the Union designated one of their mem-
bers to be carpenter steward. Although the union agree-
ment provided for only one steward from the Local, Re-
spondent went along with one millwright steward and
I Nothing in that labor agreement requires Respondent to request mill-
wright or carpenter craftsmen from the Union or any other union who is
signatory to that agreement
a All events herein occurred in 1979, unless otherwise indicated.
a Both millwrights and carpenters were covered under the same union
agreement and all craftsmen for both trades were obtained through the
Union
one carpenter steward being assigned to the project at
the same time when both millwright and carpenter work
was being performed. Respondent recognized the two
stewards in their respective capacities as the onsite union
representative for each craft. 4
As the millwright work decreased and the carpenter
work increased, various millwrights were reassigned to
perform carpenter duties. Selection of the millwrights
who were reassigned to be carpenters was based on the
man's work record as a millwright, his willingness to be
reassigned to perform carpenter work, and his ability to
perform carpenter work. Respondent claims that, prior
to the time of the reassignments, Cafer advised Green
that he did not want to perform any carpenter work.
Cafer did not recall making this statement to Green.
When Business Agent George Mundell asked Green why
Cafer had not been offered carpenter work, Green re-
plied that he heard Cafer did not want it. Green asked
Foreman James Davis, also a member of the Union, if
Cafer would work as a carpenter. Davis initially told
Green that Cafer did not want to work as a carpenter
but, after Davis talked to Cafer about it, Davis told
Green that Cafer said that, although he preferred to
work as a millwright, he would work as a carpenter
rather than be laid off.' On June 8, when millwright
work ran out, Cafer was terminated. Neither Cafer nor
any other millwright journeyman has been hired or re-
hired by Respondent to perform millwright work since
Cafer's terminaton on June 8.
1. Criticism of Steward John E. Cafer
Near the end of May, Foreman James Davis testified
that General Foreman Bard Terry, an admitted supervi-
sor, told Foreman James Davis, not an admitted supervi-
sor, that "Butch" Cafer was a "piss poor" steward and
that Respondent wanted to get rid of Cafer. Davis also
testified that Terry told him that Cafer "was dumb and
didn't really know what he was doing; that he was a
slow worker; that he would like to get rid of him but
couldn't do that because he was a steward; and that he
just causes a lot of trouble." On another occasion Terry
told Davis "look there, Butch Cafer is over there talking
to some other men, causing more trouble now. Go see
what you can do about it." Davis, following instructions,
went and talked to Cafer.
Terry testified he had several conversations with
Davis about Cafer's union activities. He admitted criticiz-
ing Cafer's performance as a steward and making several
critical remarks. Terry said, "As a union member, he was
concerned that stewards were not doing a good job and
that this was harmful to the Union."
Davis testified that he did not have the authority to
hire, transfer, suspend, lay off, recall, promote, or dis-
charge personnel on the job. On the other hand he said
4 The Union's practice was that the steward who appeared at a job
first, whether he be the carpenter or a millwright steward, was consid-
ered the "bull" steward or the senior steward who was authorized to act
across craft lines. Respondent denied knowledge of this practice and at
no time recognized either to be the "hull" steward
I I therefore conclude that, although Green knew that Cater would
accept carpenter work rather than be laid off, Green did not offer Cater
carpenter work hut instead laid him off
1349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he directed Cafer's activity and that Cafer came to him
for assignments along with other members of Davis'
crew. He assigned Cafer welding jobs, bolt chasing, and
leveling of seal beams. Davis received direction from
Terry and in turn directed the members of his (Davis')
crew. Davis testified that as a foreman he could (but
never did) ask that a man be laid off the job but could
not lay one off on his own. Nor could he hire anyone
without going through the office. Davis said he could
make a recommendation that a man change from the
millwright crew to the carpenter crew but that he could
not transfer the man on his own authority.
Cafer testified that on June 8, when he was being laid
off, Superintendent Green told him that the job had a lot
of problems on it and there had been a lot of things go
wrong on the job and that he was, just at this point, get-
ting rid of "poison weeds" and he thought once that the
"poison weeds" were weeded out the job would go on
fairly smoothly.
2. The refusal to recall Cafer
On June 20, Green called Business Agent Mundell and
told him that they were ready to go ahead with the mill-
wright work again and that he intended to transfer cer-
tain of the carpenter employees who had worked as mill-
wrights from the carpenters group to perform the mill-
wright work. Mundell replied that was fine and that he
would send out his steward, Butch Cafer. In response to
that Green replied, "No, I won't hire him." Mundell
said, "Why not? You laid him off for lack of work, to be
hired back first."6 Green said, "No. I won't hire won't
him. I've got enough men on the job to do the job."
Mundell said, "You know, Dick, the contract says I ap-
point the steward. This man is qualified for everything.
You don't have another man on the job with the qualifi-
cations to be steward and he's coming back." Green said,
"Nothing doing." Mundell told Green that Cafer had
gone through a first aid course, was a certified welder of
stainless steel as requested by the Corps of Engineers,
and was a topnotch man; and that he, Mundell, worked
with the man; that Carter could do everything that
Green wanted of him; that he was a good millwright and
that there was nothing wrong with his work.7
The following day, June 21, Mundell received a call
from Norman Clark, on the carpenter crew. Clark told
Mundell that he had been assigned millwright work and
6 At the time of the June 8 layoff, Cafer was the "bull" steward and as
such the Union could have chosen him to remain as the last nonforeman
on the job. Under the labor agreement the last person to be laid off is the
foreman and the penultimate, the steward. Business Agent Mundell made
the decision to allow Cafer to be laid off and to let the steward for the
carpenters' group continue on the job. Both Cafer and Mundell testified
that, at the time of the June 8 layoff of Cafer, they talked to Superintend-
ent Green and told him that, if Cafer did not remain on the job as the
only steward, a steward would have to be the first man recalled as soon
as millwright work became available. Green testified that he could not
remember talking to Mundell about that but stated he made no promise
However, Green admitted that Cafer, when informed of his layoff, told
Green that the first man back had to be the steward.
7 The Millwrights constitution and bylaws prohibit an employee from
working on a job in the absence of a steward. Green did not contend that
the Union did not have a right to have a millwright steward on the job
but instead he insisted that Mundell appoint one of the other millwrights
to the steward's job.
asked what he should do inasmuch as there was no mill-
wright steward on the job. Following that conversation,
Mundell called Cafer and directed him to come to his
office and pick up a referral slip and to report on Re-
spondent's jobsite as millwright steward. Cafer picked up
the work referral slip, went to the jobsite, and was told
by Green that he had not requested any employees.
Cafer then asked to use the telephone to call Mundell.
While Cafer was talking to Mundell, Green joined in on
a third phone. Mundell asked Green why Cafer was not
put to work, to which Green stated he didn't need Cafer
and that they had plenty of men on the job to do the
work. Mundell told Green he had a right to put a ste-
ward on the job. Green replied that he was transferring
two carpenters to millwright work and that Mundell
could appoint either Clark or Terry as a steward.8 After
that conversation Mundell went to the jobsite and talked
to the millwrights on the job. Thereafter, only the fore-
man could perform millwright duties without a steward.9
Respondent transferred Clark and Terry to other duties.
As previously indicated, inasmuch as the millwrights re-
fused to work without a steward, Green assigned the
millwright work to four ironworkers. They performed 64
manhours of millwright work.
3. The walkout by the millwrights
Green admitted in his testimony that he was dissatis-
fied with Cafer's performance on the job because he
spent too much time on steward's duties. While acting as
steward, Cafer protested to Green that Millwright Fore-
man Terry Brown had been improperly criticizing mill-
wrights. Cafer also protested to Green that ironworkers
were doing millwright work and cutting slots in the gate
frames.
On another occasion, when millwrights were denied
showup time for a rainy day, Cafer and other mill-
wrights filed a grievance. The grievance did not reach
arbitration allegedly for lack of money to pursue it.
Green told Cafer that he knew that he was wrong in
filing the grievance. On still another occasion, sometime
in the middle of May, Cafer protested to Green that la-
borers were doing millwrights' work by hoisting con-
crete forms. Because of that dispute, the carpenters and
millwrights stopped working for 7 days. The dispute was
settled by the work being divided between laborers and
carpenters.
B. Discussion and Conclusions
I. The 8(a)(1) allegations
The allegations concerning General Foreman Bard
Terry's interference with the employees Section 7 rights
is based on conversations between General Foreman
Terry and Foreman James Davis. The evidence concern-
ing this allegation does not indicate that any other em-
' Terry was not a member of Mundell's Local at the time and there-
fore not eligible to be a steward for that Local. Clark had not had the
first aid course required of stewards. Consequently neither Clark nor
Terry was an acceptable steward to the Union.
a Under the Union's rules and the contract. a foreman is free to work
when there is no steward on the job.
1350()
MARTIN K EBY CONSTRUCTION CO). INC
ployee was present during the conversation. According-
ly, if it is concluded that Millwright Foreman Davis is a
supervisor within the meaning of Section 2(11) of the
Act, his remarks would not constitute a violation inas-
much as it was a private conversation between supervi-
sors, not overheard by other employees. ° Colecraft
Manufacturing Company, Inc. v. N.L.R.B., 385 F.2d 998
(2d Cir. 1967). N.L.R.B. v. McKann Steel Co., Inc., 448
F.2d 277 (6th Cir. 1971). On the other hand, if Davis is
not considered a supervisor within the meaning of Sec-
tion 2(11) of the Act, the remarks made by General
Foreman Terry, an admitted supervisor, to Davis con-
cerning Cafer had a coercive effect on protected em-
ployee Davis or interfered with his legally protected
rights, as contended by the General Counsel. A. Laspon-
ara & Sons. Inc., 218 NLRB 1096, 1104 (1975).
Respondent argues that, although Davis testified he
did not have the authority to hire, transfer, suspend, lay
off, recall, promote, or discharge personnel on the job,
the record discloses that he was given authority by Re-
spondent to make recommendations regarding their em-
ployment and that he exercised that authority and was a
supervisor over the daily work and activities of the men
in his millwright crew. Furthermore, Davis testified that
although it never happened he could ask for a man to be
laid off on the job and that upon request of the office he
could discharge a man. Respondent further argues that
Davis understood that he had that authority and the fact
that he never requested anyone to be discharged, or
hired, or disciplined did not lessen the authority he had
been given or his supervisory status. In support of its ar-
gument Respondent cites N.L.R.B. v. The Broyhill Com-
pany, 514 F.2d 655 (8th Cir. 1975), in which the court
held that even though the "supervisor" did not have au-
thority to hire, fire, grant time off, reward, or discipline
employees or to make effective recommendation in these
matters, he exercised independent judgment with respect
to assigning and reasonably directing employees and that
he did so in more than a routine fashion. In that connec-
tion, Respondent contends that Davis had more authori-
ty and exercised more independent judgment than did
the supervisor in Broyhill, supra.
However, the record does not substantiate Respond-
ent's contention that Davis exercised more independent
judgment than did the supervisor in Broyhill. Davis' testi-
mony indicates that whatever direction he gave his crew
was in the nature of a leadman who worked with them
and that the direction was routine in nature and required
no independent judgment. Davis testified there were
times when he assigned work to his crew and General
Foreman Terry would make the determination that some
other work had priority and therefore at Terry's direc-
tion Davis took his crewmembers off that work and as-
signed them to the work Terry determined had priority.
I do not believe that Davis, though titled a foreman, pos-
sessed any of the powers enumerated in the statute to es-
tablish supervisory status. Oregon State Employees Associ-
ation, 242 NLRB 976 (1979); The West Penn Power Com-
1' There is no evidence that Terry made the remarks with the inten-
lion of being overheard by other employecs.
paony, 143 NLRB 1316 (1963), enfd. 337 F.2d 993 (3d Cir.
1964).
Accordingly, I find that the remarks of General Fore-
man Terry to Davis that Cafer was a poor steward and
that Respondent wanted to get rid of him; that Cafer
was trying to stir up trouble; his directions to Davis to
go see "what trouble Cafer was trying to start now"; and
Terry's criticism of Cafer's stewardship interfered with,
restrained, and coerced Davis, a protected employee in
the exercise of his rights guaranteed in Section 7 of the
Act and therefore is a violation of Section 8(a)(1) of the
Act.
2. Superintendent Dickie Green's conduct
On the day before his June 8 layoff Cafer was blamed
by Green for the 5-day strike concerning the laborers
and the carpenters. On the following day Green laid off
Cafer without offering him carpenter work such as he
had offered to other millwrights. Although Green may
have been of the view that Cafer did not want carpenter
work despite having been told of the contrary by Davis,
whom I credit, that Green did not definitely ascertain it
by at least making the offer to Cafer coupled with his
statement to Cafer that he was getting rid of the "poison
weeds" at the time of Cafer's layoff leads to the reason-
able inference that Green was referring to Cafer as a
"poison weed" he was ridding himself of.
Respondent contends that any unfavorable comments
which Green made to Cafer must be understood within
the context of the illegal work stoppage which occurred
approximately 3 weeks prior to Cafer's termination,
citing the "no-strike" clause in the Union's agreement
(art. VIII). Assuming Cafer was responsible for the work
stoppage and the work stoppage is a violation of the no-
strike clause of the agreement, Respondent allowed
Cafer to return to work unconditionally and Cafer
worked for several weeks thereafter. By such action Re-
spondent condoned Cafer's conduct and, therefore, does
not excuse Green's remarks to Cafer even when taken in
the context of Cafer causing the illegal work stoppage.
Brantly Helicopter Corporation, 135 NLRB 1412 (1962);
Alabama Marble Co., 83 NLRB 1047 (1947).
3. The refusal to recall Cafer
The General Counsel contends that Respondent's re-
fusal to recall Cafer on June 21 was because of his activi-
ties as union steward and was therefore a violation of
Section 8(a)(3) of the Act. And, because other mill-
wrights lost work as a consequence of Respondent's dis-
crimination against Cafer, they too are discriminatees
within the meaning of Section 8(a)(3) of the Act.
There is no question that Respondent did refuse to
recall Cafer on June 21 and, likewise, there is no ques-
tion that millwrights lost work as a result of Respond-
ent's refusal to recall Cafer. The work that Cafer and
other millwrights would have performed was assigned to
and performed by the ironworkers. Respondent contends
it had enough men on-the-job, that it needed no addition-
al manpower, and that if it did need men Cafer would
have been rehired. Respondent also contends that noth-
ing in the agreement required that Green be rehired or
1151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that any rehiring should have been on the basis of senior-
ity.
Respondent's contentions ignore the fact that although
the agreement called for only one steward from the
Local, for both carpenters and millwrights on the job, in
actual practice and with the concurrence of Respondent
there was a steward for each craft. In addition, it is the
Union's prerogative to designate the steward. The agree-
ment, coupled with the on the job practice, required that
a steward be on the job before the employees may
accept an assignment of work in that craft. The employ-
ees who were doing carpentry work at the time Green
attempted to assign them millwright work refused to do
the millwright work because they were liable to be fined
by the Union if they accepted the assignment without a
millwright steward on the job. Thus, Respondent's refus-
al to rehire Cafer, in the context of the remarks made by
Green at the time Cafer was terminated on June 8, leads
to the unavoidable conclusion that Respondent's refusal
to recall Cafer on June 21 was because of his activities as
union steward and in violation of Section 8(a)(3) of the
Act, as contended by the General Counsel. I am con-
vinced that Respondent's stated reasons, referred to
above, were pretextual. Respondent discriminated against
Cafer because of his union activities by refusing to recall
or rehire him. Thus, Respondent violated Section 8(a)(3)
and (1) of the Act by such conduct.
I also agree with the General Counsel that because of
the refusal to rehire Cafer because of his activities as
union steward other millwrights lost work as a conse-
quence of Respondent's discrimination and that they too
are discriminatees within the meaning of Section 8(a)(3)
of the Act. The millwrights would have performed the
millwright work which was available on and after June
21. Respondent had already assigned carpenters to do
that millwright work, which would have been acceptable
to the Union if Respondent had recalled Cafer. Howev-
er, the evidence does not support the proposition that if
Respondent had recalled Cafer that it would also have
asked the Union to refer other millwrights along with
Cafer to perform that work. It appears that Respondent
did not need to hire any other millwrights to do that
work inasmuch as it had carpenters who previously had
done millwright work who would have performed the
millwright work but for the absence of a millwright ste-
ward. Except for Cafer, how much backpay is due and
to whom is a matter for compliance to determine.
Accordingly, upon consideration of the entire record,
I find and conclude that Respondent's discharge of John
E. Cafer was discriminatorily motivated and, as it plainly
had the natural tendency in effect of discouraging mem-
bership in the Union, was violative of Section 8(a)(3) and
(I) of the Act.
Upon the foregoing findings of fact, and the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2) of the Act and is 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 the conduct engaged in by Superintendent
Dickie Green and General Foreman Bard Terry, set
forth above, Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaran-
teed them by Section 7 of the Act and thereby engaged
in and is engaging in unfair labor practices proscribed by
Section 8(a)(1) of the Act.
4. By discharging, and thereafter failing and refusing
to reinstate, John E. Cafer because of his union activities
as a millwright steward, Respondent discriminated
against him in regard to hire and tenure of employment
thereby discouraging membership in the Union, and thus
engaged in and is engaging in unfair labor practices pro-
scribed by Section 8(a)(3) and (1) of the Act.
5. By engaging in the conduct described in paragraph
4 above Respondent also discriminated against its mill-
wright employees who would have performed the work
assigned by Respondent to ironworkers but for Respond-
ent's discrimination against them in regard to their hire
and tenure of employment, thereby discouraging mem-
bership in the Union, Respondent engaged in and is en-
gaging in unfair labor practices proscribed by Section
8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent interfered with, re-
strained, and coerced its employees in the exercise of
rights guaranteed to them by Section 7 of the Act, I
shall recommend that it be required to cease and desist
therefrom.
Having found that Respondent discriminatorily dis-
charged and failed and refused to reinstate John E.
Cafer, I shall recommend that it be required to offer him
full and unconditional reinstatement to his former posi-
tion or if that position no longer exists to a substantially
equivalent position without prejudice to his seniority or
other rights, privileges, and working conditions, and
make him whole for any loss of earnings suffered as a
result of the discrimination against him. Any backpay
found to be due shall be computed, with interest, in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977)."
Having found that, as a consequence of the discrimina-
tion that Respondent engaged in against John E. Cafer,
certain millwright employees lost the work that would
have been performed by them but for that discrimination,
I shall recommend that said employees be made whole
for any loss of earnings suffered as a result of the dis-
crimination against them by paying to them a sum of
" See, generally. Isis Plumbing & Healing Company, 138 NLRB 716
(1962)
1352
MARTIN K. EBY CONSTRUCTION CO., INC
money equal to that which they would have earned as
wages in accordance with the Board's formula referred
to above.
I shall also recommend that Respondent be ordered to
cease and desist from infringing upon the Section 7
rights of its employees in any like or related manner.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
ORDER t 2
The Respondent, Martin K. Eby Construction Co.,
Inc., Center, Missouri, its officers, agents. successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with the rights of its employees guaran-
teed by Section 7 of the Act by referring to them as
"troublemakers" or "poison weeds" that it intended to
get rid of because said employees were engaging in
union and other protected activity.
(b) Discouraging membership in United Brotherhood
of Carpenters and Joiners of America, Local No. 607,
AFL-CIO, or any other labor organization of its em-
ployees, and discriminatorily discharging or in any like
or related manner discriminating against any employee in
regard to hire, tenure, or other term or condition of em-
ployment.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer John E. Cafer immediate, full, and uncondi-
tional reinstatement to his former or substantially equiva-
lent position or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights and privileges, or working condi-
tions, and make him whole for any loss of earnings suf-
fered, in the manner stated in the section of this Decision
entitled "The Remedy."
(b) Make those employees whole for any loss of pay
they may have suffered by reason of Respondent's dis-
crimination against them and John E. Cafer in the
manner computed in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to au-
thorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary and useful in
determining compliance with this Order or in computing
amount of backpay due.
12 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(d) Post at its office and place of business at the Cla-
rence Cannon Dam and Power Plant worksite in the city
of Center, Missouri, copies of the attached notice
marked"Appendix." ' Copies of said notice on forms
provided by the Regional Director for Region 14, after
being duly signed by its authorized representative, shall
be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of this Order what steps
have been taken to comply herewith.
l In the event that this Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Pursuant to
a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT discharge employees because of
their union membership, activities, or sympathies.
WE WILL NOT criticize our employees or other-
wise interfere with them for availing themselves of
the rights set forth above.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of their Section 7 rights.
1353
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE Wlt L offer John E. Cafer immediate and full
reinstatement to his former position or, if that is not
possible, to a substantially equivalent position, with-
out prejudice to his seniority and other rights and
privileges previously enjoyed, and WE WitL make
him whole for any loss of pay suffered by reason of
our discrimination against him, with interest.
WE WILL make any employees whole for any
loss of pay suffered by them by reason of our dis-
crimination against them and John E. Cafer.
MARTIN K. EBY CONSTRUCTION CO., INC.
1354