National Industrial Constructors, Inc.

National Labor Relations Board - Board DecisionsJul 14, 1976

225 N.L.R.B. 672 (N.L.R.B. 1976)

672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Industrial Constructors, Inc. and James Sherman Hobbs, David M . Martin, Jess W. Gur- well, and James V. Ronje. Cases 17-CA-6760, 17- CA-6771, 17-CA-6783, and 17-CA-6788 July 14, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On April 30, 1976, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, the General Counsel and the Respondent filed exceptions and supporting briefs. 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 briefs 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, National Industrial Con- structors, Inc., North Platte, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge : These matters came on for hearing at North Platte, Nebraska , on Febru- ary 24 and 25, 1976, upon the Regional Director's com- plaints alleging, in general terms, that the Respondent had discharged a foreman in violation of Section 8(a)(1) and three employees in violation of Section 8(a)(3) of the Na- tional Labor Relations Act, as amended , 29 U.S.C. Â§ 151, et seq. Subsequent to the hearing , all counsel submitted briefs which have been duly considered , and upon the record as a whole , including my observation of the witnesses and argu- ments of counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent is a corporation engaged in the con- struction industry and is the general contractor at a facility near Sutherland, Nebraska, involving construction of the Gerald Gentleman Power Station. In connection with the Respondent's business operations in the State of Nebraska, it annually receives goods, supplies, and materials directly from outside the State of Nebraska in excess of $50,000. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED Although denied in its answers, at the hearing the Re- spondent admitted that Local 1187, United Brotherhood of Carpenters and Joiners of North America, and Local 571, International Union of Operating Engineers, are now, and at all times material herein have been, labor organizations within the meaning of Section 2(5) of the Act, and I so find. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Background By any reasonable standard, this matter arose in the con- text of a huge construction project. The Respondent has a contract for approximately $65 million for the construction of a power plant which will ultimately cost in excess of $300 million. The Respondent received its contract in March 1975 and began working in April. As is apparently common in con- nection with large construction projects, the number of people began modestly and gradually crescendoed such that by 1977 the Respondent will have on the project be- tween 800 and 900 craft employees-carpenters, ironwork- ers, operating engineers, laborers, cement finishers, and the like. In the spring and summer of 1975, employees began to be hired. Thus the Respondent's president, Robert Butters, testified that by the early part of September they had a complement of approximately 260 craft employees. In early April, Butters met with the Grand Island Build- ing Trades Council, composed of union business agents representing the various construction crafts. They request- ed that he sign a project agreement and hire union employ- ees. Butters advised the Building Trades Council that he had bid the job as an "open shop" job, that he would not sign a project agreement, but he would not discriminate against union employees who offered themselves for em- ployment at the gate. Butters testified that between April and October, the ma- terial time involved in this matter, he occasionally saw the union business agents of the Building Trades Council at motels in North Platte. Further, off and on from the begin- ning there were rumors of organizational activity. The first rumors of union authorization cards being passed came sometime after September 1. 225 NLRB No. 90 NATIONAL INDUSTRIAL CONSTRUCTORS According to the testimony of Project Manager Edward Nobel Scoville II, the organizational activity culminated in the carpenters filing a petition for a National Labor Rela- tions Board election on October 2, 1975 The election was scheduled for November 13; however, the Union withdrew its petition on November 12, and no election was held. In sum , the undisputed evidence indicates that while there had been some talk about unionism from April on, there was no really serious effort at organization among the employees until sometime in mid-August. Substantially in- volved in this organizational effort, at least as to the Car- penters, was James Hobbs, a carpenter foreman. On behalf of the Operating Engineers, the principal union organizer was employee James Ronje, who had been a member of Local 571 for about 3 years. There was a meeting of employees at Hobbs' house on or about September 9, to which 30 or so men were invited, and about 16 or so showed up. About that time Hobbs passed out union cards on the job as did Ronje and carpen- ter employee Jess Gurwell. David Martin, an operator who was hired in June, was one of those who participated in the meetings and who had signed a card. There is some evidence that supervisory personnel ob- served the union meeting at Hobbs' house. The manager of the Ramada Inn notified Scoville of a meeting involving business agents at his motel sometime in mid-September; and there is some testimony concerning what supervisory personnel should do with regard to the possible union ac- tivity. None of this, however, is alleged to be independent violations of Section 8(a)(1). Specifically, there are no alle- gations of unlawful surveillance, interrogation, threats, or other activity directed at employees by management. On August 19 or 20, 1975, Ronje was discharged, ac- cording to the Company, for cause On September 5, Mar- tin was discharged allegedly for negligence. On September 11, 1975, Hobbs was discharged for having engaged in union activity. And, finally, on September 22, 1975, Gur- well, according to the Company, was discharged for violat- ing instructions concerning performance of his job. These discharges are the alleged violations of the Act. B. The Discharge of James Ronje The basic facts surrounding the discharge of James Ron- je are not in particular dispute. He was one of the early employees for the Respondent working as crane oiler. As a member of Local 571, he discussed the prospect of having the Operating Engineers represent the Respondent's equip- ment operators. While his testimony differs in some re- spects from that of Dennis Wyatt, the operator foreman, Wyatt admits, and I find, that he knew Ronje was trying to organize for Local 571. Wyatt testified that he was not satisfied with Ronje's work and, on one occasion in July, had told Ronje to "tighten up." Ronje, on the other hand, testified that as far as he knew his work was good. With the single exception testified to by Wyatt, there is no evidence that he was not at least a satisfactory employee who, except for the one instance, was never reprimanded for poor performance. There is some indication that Ronje once went to sleep 673 while he was supposed to have been working, but this was apparently treated by the Company as trivial. Wyatt testified that on August 18 or 19 (in any event the day before Ronje was discharged), he had heard rumors that Ronje and the crane operator for whom he was work- ing, David Martin, had been playing chess in the cab of the crane. Wyatt stated that he did not mention this to the men on that day because he was working all day himself operat- ing a crane. He does not know why he did not mention it to them the next morning. The next afternoon Wyatt ap- proached Martin's crane and saw the two sitting by a chess board. At that time he told Ronje he had to do something he did not want to do; namely, fire him. Wyatt tended to suggest that the chess-playing incident was only one reason for his discharging Ronje and that poor work was also a factor. However, he testified on cross-examination that the sole reason for his termination of Ronje was the chess playing. Following Ronje's discharge, he and Wyatt preceded to the shack, during which time there was some conversation to the effect that Ronje said he knew why he was being discharged-for union activity. Ronje testified that Wyatt said, "I won't repeat it, but yes, they did." Wyatt did not specifically deny having made such a statement, although he testified in rather vague and general terms to a different version. Although Wyatt seemed to be a reasonably credible wit- ness, to the extent that there is a conflict between his testi- mony and that of Ronje's (which is not necessarily the case because Wyatt was not asked the specific to illicit a denial), I credit Ronje who appeared to be a more straightforward and reliable witness.[ The question is not whether playing chess is good cause to discharge an employee. Unlike an arbitration case, the employer does not have to have good cause to effect a discharge. As far as the National Labor Relations Act is concerned, an employer can discharge an employee for any reason or no reason at all-except for engaging in union or protected, concerted activity. But, if the asserted reason is not reasonable, then that fact is evidence that the true mo- tive lies elsewhere. "If he (the trier of fact) finds that the stated motive for a discharge is false, he certainly can infer that there is another motive " Shattuck Denn Mining Corpo- ration v. N.L R.B., 362 F.2d 466, 470 (C.A. 9, 1966). Wyatt testified that he asked G E. Dameron, the con- struction manager, after work on the first chess-playing day if he could discharge Ronje and was told he could. Wyatt admitted, however, that he really had no knowledge that Martin and Ronje were in fact playing chess on com- pany time. Yet he determined to discharge Ronje. Wyatt made no attempt to find out the facts. He did not confront Ronje. He did not warn him. Would a reasonable man, conducting a serious business enterprise, discharge an em- ployee in such a circumstance? I think not. If in fact the chess playing was felt to be serious, one would expect Wyatt to investigate it or, at a minimum, warn the employ- 1 Another apparent conflict is that Ronde said he gave Wyatt an authori- zation card, which Wyatt denies While I tend to credit Ronje's version, this is not particularly material inasmuch as Wyatt's knowledge of Ronje's union activity is otherwise established 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees in question. It is also noteworthy that at this time, and for this alleged reason, only Rome was discharged. Martin was not. Yet if this event is the sort of thing for which employees are summarily fired, then it would seem that Martin would also have been fired at that time. Discharging Rome given these circumstances is just not reasonable. This, superimposed upon Wyatt's knowledge of Rome's union activity and the fact that otherwise Ronje appears to have been at least an adequate employee, leads to the conclusion that Wyatt's asserted reason for discharg- ing Rome was a pretext. The true reason must be some- thing else; and in the context of this factual situation, that something else must have been his having engaged in orga- nizational activity on behalf of Local 571. The Respondent thus violated Section 8(a)(3). C. The Discharge of David Martin Closely connected with Rome's discharge and arising out of basically the same organizational activity was the discharge of David Martin. Martin was discharged about 2 weeks after Rome for a number of purported negligent acts including: not dogging off his crane one weekend in June (tying the cable down so that the crane would not whip in the wind); leaving the crane while it was suspending a load-in this instance, a section of large pipe weighing ap- proximately 22 tons, one end of which was being held by the crane about a foot off the ground; and, having hung his coat in the cab of the crane so that the exhaust fan sucked the coat into the engine compartment and the coathanger put a hole in the radiator, which caused the crane to be shut down for about 3 hours. Chess playing was not given by the Respondent witnesses as a factor. Dameron testified that although he knew Martin had engaged in union activity and that the Company might get in trouble for discharging him, he nevertheless determined to do so after the coathanger incident. He testified that the other events caused him to be very upset with Martin's performance including being caught off his crane several times and, Dameron believes, playing chess. As in the case with Ronje, the question is not whether these matters constituted good cause to discharge Martin, but whether, in spite of them, the totality of the evidence shows that the real reason was Martin's union activity, which was known by Dameron and Wyatt. Any of the acts charged against Martin is to some degree negligent and might reasonably support a finding of cause for his discharge. However, in the totality of this situation, I find that they were really pretextual. Martin agrees that not dogging off the crane is probably a serious breach of standard operating procedures. He tes- tified, though, that he was told by the ironworker superin- tendent not to do so. That individual was not brought forth by the Respondent to deny this, from which I infer that his testimony would have been adverse to the Respondent. In- terstate Circuit, Inc. v. United States, 306 U.S. 208, 220 (1939). Martin was told not to do this anymore, but he was not reprimanded or warned. While Dameron testified that leaving a crane with a load on it is a serious safety hazard, this particular situation would seem somewhat different. The load was suspended only a foot. There was no testimony that in such a situation there would be anything the crane operator could do in the event of an emergency. Further, Martin testified without contradiction that the load was suspended throughout 2 working days and at no time was he given any relief on the crane. He was not reprimanded or warned concerning this matter. Dameron went on to testify that he had seen Mar- tin off his crane while a load was suspended on several occasions. I do not credit this, particularly since there is no corroboration from other Respondent witnesses nor evi- dence that Martin was at any time warned. Finally, having his coat sucked into the engine compart- ment, thus putting the crane out of commission for 3 hours may be negligent. But it would not seem to be such a mat- ter as to justify discharge, particularly since coats are tradi- tionally hung in crane cabs, and this is the first time in memory that one was sucked into the engine compartment. In addition to the adverse inference drawn from the pre- textual nature of Dameron's reasons, there is direct evi- dence that union activity was a causative factor. Following his discharge, Martin retained an attorney and contacted the Company in an effort to get his job back. As a result of this contact, Scoville came to his house and, on advice of counsel, Martin denied any knowledge of the union activity to which Scoville responded, "that I might be able to get my job back if I would tell him that I was not trying to get the Union in out there." This state- ment was not denied by Scoville during his testimony and stands uncontradicted. The statement by Scoville can only mean that the reason for Martin's discharge was his union activity and that he was not reinstated because his disclaimer was not believed. The statement by Scoville, superimposed upon the com- pany knowledge of Martin's union activity, proximity to the unlawful discharge of Rome, and the lack of warnings for the alleged acts of negligence all lead me to conclude that the precipitating cause of Martin's discharge was his activity on behalf of Local 571 Accordingly, Martin's dis- charge was violative of Section 8(a)(3). D. The Discharge of James Hobbs The General Counsel argues that Hobbs, who was ad- mittedly a supervisor within the meaning of Section 2(11) and an agent of the Company within the meaning of Sec- tion 2(13), was a principal instigator of the union activity. When the Company found this out, according to the Gen- eral Counsel's theory, it therefore knew that he would not engage in antiunion activity as he had been instructed to do. Thus, argues the General Counsel, Hobbs was dis- charged not because as a supervisor he was an instigator of the union activity. Rather, he was discharged for failing to carry out the Company's antiunion policy, including com- mitting unfair labor practices. Hobbs' union activity was not the cause of his discharge, but the evidence by which the Company knew he would not do his antiunion chores; and it was his refusal to commit unfair labor practices which resulted in his discharge. A supervisor may be discharged for any reason , particu- larly including union activity (Farm Stores, Inc., F.S. #2, Inc., and FS. #4, Inc., 131 NLRB 1068 (1961)), except, NATIONAL INDUSTRIAL CONSTRUCTORS 675 insofar as is material here, where he has declined to com- mit unfair labor practices. Jackson Tile Manufacturing Company, 122 NLRB 764 (1958), enfd. 272 F.2d 181 (C.A. 5, 1959); Russell Stover Candies, Inc, 223 NLRB 592 (1976). That the General Counsel's theory is legally suffi- cient, however, is not enough. The General Counsel also had the burden of proving the facts to support the theory. Thus, in order to prove a case against the Respondent, the General Counsel must show first that there was a defin- itive company policy of engaging in illegal antiunion activi- ty. Second, that Hobbs was instructed, or could reasonably presume from the surrounding circumstances, that as a su- pervisor he must participate. Finally, that his failure to do so was one reason at least why the Company discharged him. Notwithstanding my conclusion that the Respondent did discharge two employees in violation of Section 8(a)(3), there is insufficient evidence that the Company instructed its supervisors to engage in 8(a)(1) type acts or that Hobbs was discharged for his refusal to do so. The record amply demonstrates that the Company was opposed to having its employees represented by any labor organization. Butters so testified. It is also clear that the union talk and the organizational effort begun in August by Hobbs and Rome were well known to the Company from highest management down. The facts surrounding the discharge of Ronje and Martin further show a willingness on the part of at least two line supervisors-Wyatt and Dameron-to discharge union adherents when an excusing cause presented itself. And Scoville's unrebutted statement to Martin shows high management approval of such acts. But there is no real evidence of an antiunion campaign waged by the Company or that the Company undertook to interfere with, restrain, or coerce employees by surveil- lance , interrogation, threats, and the like, Nor are indepen- dent violations of Section 8(a)(1) alleged. Some such evi- dence, however, would be necessary to support a conclusion that the Respondent instructed Hobbs to en- gage in unfair labor practices. An antiunion campaign, including instructions to super- visors to violate the Act, cannot be inferred from two dis- charges. Thus the only evidence that Hobbs was instructed to violate the Act is Hobbs' testimony concerning supervisor meetings held by Carpenters Superintendent Billy Wilson. Even if Hobbs' testimony is wholly credited, which it is not, there is still insufficient evidence that he was instruct- ed to commit unfair labor practices. And it is only a supervisor's refusal to follow those kinds of instructions which protects him from discharge. Hobbs testified to several meetings wherein Wilson is said to have suggested that the foremen should engage in surveillance of union activity among their employees and report back and that union adherents would be fired. Wilson denies this and while I do not find Wilson a particularly credible witness, neither do I credit Hobbs. Beyond that, at best, Hobbs' testimony is not strong and it is uncorroborated. There is simply no independent evi- dence of a company plan to engage in surveillance of em- ployees' union activity. To the contrary, I believe, as testified to by the Re- spondent's president and project manager, that on proj- ects of this size, there are always rumors about a union coming in and this is always of some interest and concern to management. I have no doubt that Wilson in meetings with foremen discussed the matter of union activity and to this extent, I do not credit Lund's testimony that such nev- er occurred. Conversations among supervisors in which union activi- ty is mentioned, when in fact an organizational effort is taking place, is one thing. Quite another is to impute there- from a company policy to have supervisors violate the Act. I cannot infer that the Company instructed its supervisors to engage in surveillance or other unlawful acts based upon this evidence. And, even though the Company is responsi- ble for the unlawful discharges of Rome and Martin, it does not necessarily follow that the discharges were part of a grander design. The General Counsel having failed to establish that Hobbs was instructed to engage in illegal antiunion activi- ty, it follows that his failure to do so could not have been a cause for his discharge. As Hobbs testified on cross-examination, he was dis- gruntled because he had not been made the carpenter gen- eral foreman. Hobbs was hired as a journeyman, and rath- er shortly thereafter was made a carpenter foreman. Thereafter, Wilson, his immediate supervisor, said he was going to get the general foreman's job and Butters also told him that he had an excellent chance for it. He did not, however, get the promotion which went to Lund in the latter part of July. Hobbs testified that he was unhappy he had been passed over for a job which he felt he could do better than Lund. Lund credibly testified that after he became the general foreman, Hobbs was not a willing worker for him. Lund asked that Hobbs be transferred to a different part of the project. This was done within the week or so before Hobbs was discharged. Hobbs' testimony generally corroborates that of Lund's with regard to the fact that after Lund was made the gener- al foreman, they did not get along. Hobbs, however, says Lund was not a good general foreman and generally made him look bad. In any event, it is clear from the record that Hobbs was an unhappy person for having been denied the general foreman's job-a job which pays more than fore- man and is, of course, more prestigious. It was after Hobbs was passed over for the position of general foreman that he began actively engaging in union activity. Indeed, it was only after Hobbs was passed over did any serious union activity begin at the project. I find on the record before me that it is more probable Hobbs engaged in union activity in August because he was disgruntled than for any other reason. I further find that the reason that Hobbs was discharged was because he was engaging in union activity. In fact, as far as can be determined from the record, he was the prin- cipal organizer of the union activity during the summer of 1975. The Respondent, as admitted by the General Counsel, clearly has a right to discharge a supervisor for engaging in union activity and it did so. While there may have been other factors involved in Hobbs' discharge, including the fact that he was not getting along with Lund and did not 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD show up for work the day before he was discharged, it is reasonable to conclude that the principal and motivating cause of his discharge was his deep involvement in union activity. But to fire a supervisor for this reason is clearly not an unfair labor practice. Farm Stores, Inc., supra. I conclude that the facts do not sustain the General Counsel's allegation that Hobbs was discharged for failing to carry out the Company's policy of engaging in unfair labor practices. E. The Discharge of Jess W. Gurwell Jess Gurwell was a journeyman carpenter. He also en- gaged in some union activity which may or may not have been known by the Company. He testified that Lund opened his lunchbox one day and must have seen some union cards in it . Lund, on the other hand, testified that he never opened Gurwell's lunchbox or anyone else's. Without resolving this obvious conflict, it is noted that Gurwell and one other employee who is not alleged to have been discriminated against, presumably because he was not involved in union activity, were discharged for violat- ing Lund's specific instructions concerning the supporting forms used in a concrete pour. A few days prior to Gurwell's discharge, as Gurwell ad- mits, the Company almost lost a pour when some carpen- ters had put wedges in behind the forms. This had the effect of causing an uneven load on the forms, which caused bulging and resulted in an uneven wall. Lund testi- fied that such is, of course, not desirable but more to the point, when this happens there is the risk of losing the entire wall-and that is a very time-consuming and expen- sive thing to fix. Thus Lund specifically told the crew on which Gurwell was working not to do that anymore, and he took about 10 minutes prior to work on the day Gurwell was fired to instruct them. That day, for a different pour, Lund was inspecting the forms and he noticed that again wedges had been driven in behind the forms. Lund testified that this made him angry in that it was directly in opposition to his instructions. He then told the foreman of the crew to find out which jour- neymen were responsible for this and to discharge them immediately. Lund testified, with credit, that at the time he did not know who was responsible and who would be fired. It turned out to be Gurwell, Scott, and an apprentice whom it was determined not to discharge because of his short ten- ure as an apprentice carpenter. Gurwell testified concerning this incident, in part: Q. (By Mr. Broun) You mentioned that you told you wife you figured you would be fired. Fired for what, in your figuring? A. Just because that form did break While Gurwell did engage in some union activity and this may have been known by the Company, the evidence is that Gurwell was ordered to be discharged for having done something Lund specifically told carpenters not to do. The question is not whether discharge was an appropn- ate discipline, but whether Gurwell's union activity was casually related to the discharge. Accepting generally Gurwell's testimony and crediting Lund's as well, it is my conclusion that Gurwell' s union activity, if any, was not a factor involved in his discharge. He was discharged for having put wedges behind the forms. Of significance is that the decision to discharge was made before it was known that Gurwell would be one of the ones let go. Such being the case, his union activity could not have been a factor. Nor is there evidence that union activity in general was causative, particularly in view of Lund's warning. The mere fact that one participates in union activity does not insulate him from discharge. "[T]he fact that a lawful cause for discharge is available is no defense where the employee is actually discharged because of his Union activities A fortiori, if the discharge is actually motivated by a lawful reason, the fact that the employee is engaged in Union activities at the time will not tie the employer's hands and prevent him from the exercise of his business judgment to discharge an employee for cause." N.L R.B v. Ace Comb Co and Ace Bowling Co., Division of Amerace Corp., 342 F.2d 841, 847 (C.A. 8, 1965). Gurwell did testify that a laborer foreman by the name of Jones told him at or about the time he was hired that "you don't want to mention union around here or you'll be fired." This, however, was remote in time to his discharge and, in any event, cannot be imputed to Lund. I therefore conclude that the allegation in the Gurwell complaint has not been sustained. Based upon the foregoing findings of fact, and the re- cord as a whole, I make the following: CONCLUSIONS OF LAW 1. National Industrial Constructors, Inc., is an employer engaged in interstate commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Carpenters Local 1181, United Brotherhood of Car- penters and Joiners of North America , and Local 571, In- ternational Union of Operating Engineers , at all times ma- terial have been labor organizations within the meaning of Section 2(5) of the Act 3. The allegation in Case 17-CA-6760 that James S. Hobbs was discharged in violation of Section 8(a)(1) of the Act has not been sustained. 4. As alleged in Case 17-CA-6771, the Respondent dis- charged David H. Martin in violation of Section 8(a)(3) and (1) of the Act on or about September 5, 1975. 5. The allegation in Case 17-CA-6783 that Jess W. Gur- well was discharged in violation of Section 8(a)(3) and (1) of the Act has not been sustained. 6. As alleged in Case 17-CA-6788 , the Respondent dis- charged James V. Rome in violation of Section 8(a)(3) and ( 1) of the Act on or about August 19, 1975. THE REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, it will be recommended that the Respondent NATIONAL INDUSTRIAL CONSTRUCTORS 677 cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. The Re- spondent will be ordered to offer James V. Rome and Da- vid Martin immediate and full reinstatement to their for- mer jobs, or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and that they be made whole for any loss of earnings. Any backpay found to be due shall be computed in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962). Upon the basis of the entire record, the above findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER2 The Respondent, National Industrial Constructors, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Local 571, International Union of Operating Engineers, or any other labor organization, by discharging or other- wise discriminating against employees in any manner with regard to the rates of pay, wages, hours of employment, hire or tenure of employment, or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them to self-organization, to form, join, or assist the above- named or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to James V. Ronje and David M. Martin im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earn- ings in the manner set forth in the section of this Decision entitled, "The Remedy." (b) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other documents necessary and relevant to analyze and compute the amount of backpay due under this Order. (c) Post at its facility at the Gerald Gentlemen Power Station copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's authorized representative, shall be posted by it immediately upon receipt thereof , and maintained by it for 60 consecutive days thereafter , in conspicuous places, including all places where notices to employees are cus- tomarily posted . Reasonable steps shall be taken by the Company to insure that said notices are not altered, de- faced , or covered by any other material. (d) Notify said Regional Director , in writing , within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith. IT IS FURTHER ORDERED that the complaints in Cases 17- CA-6760 and 17-CA-6783 be, and the same hereby are, dismissed in their entirety. 2 In the event no exceptions are filed as provided by Sec 10246 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 3In the event that the Board's 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 " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in or activities on behalf of Local 571, International Union of Oper- ating Engineers, or any other labor organization, by discharging or otherwise discriminating against em- ployees in any manner with regard to their rates of pay, wages, hours of employment, hire, or tenure of employment, or any other term or condition of em- ployment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form or join labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer to James V. Ronje and David M. Martin immediate and full reinstatement to their for- mer jobs or, if such jobs no longer exist, to substantial- ly equivalent positions, without loss of seniority or other rights and privileges, and WE WILL make them whole for their lost earnings plus 6-percent interest per annum. NATIONAL INDUSTRIAL CONSTRUCTORS, INC.