Pete O'Dell & Sons Steel Erectors

National Labor Relations Board - Board Decisions

Dec 31, 1985

277 N.L.R.B. 1358 (N.L.R.B. 1985)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pete O'Dell & Sons Steel Erectors and Southwest-
ern Virginia Building and Construction Trades
Council , AFL-CIO and International Associa-
tion of Bridge, Structural and Ornamental Iron
Workers, Local Union No. 697 . Cases 5-CA-
13558 and 5-CA-14079
31 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 27 September 1982 Administrative Law
Judge Frank H. Itkin issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, i and
conclusions as modified.
The judge found, inter alia, that the Respondent
violated Section 8(a)(1) of the Act by discharging,
and then subsequently laying off after rehiring, em-
ployee Danny Quesenberry because he cooperated
with a United States Army Corps of Engineers
(Corps) investigation designed to bring the Re-
spondent into compliance with the Davis-Bacon
Act. The judge also found that several statements
the Respondent's officials made to Quesenberry re-
garding his Corps- related activities violated Sec-
tion 8(a)(1) of the Act. We agree, but only for the
reasons set forth below, that Danny Quesenberry
was engaged in protected concerted activity when
he testified before the Corps.
The Respondent, a steel subcontractor on a
project at the Radford Army Ammunition Plant in
Radford, Virginia, is subject to the Davis-Bacon
Act, requiring the payment of prevailing wages to
employees employed on Government construction
projects.2 On 25 September 1980 the United States
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951),
We have carefully examined the record and find no basis for reversing
the findings
We amend the remedy section of the judge's decision to provide that
the computation of backpay due employees as a result of the Respond-
ent's illegal refusal to sign and abide by the collective-bargaining agree-
ment shall not be on a quarterly basis as provided in F W Woolworth
Co, 90 NLRB 289 (1950) See Ogle Protection Service, 183 NLRB 682
(1970), enfd 444 F 2d 502 (6th Cir 1971) To correct this and certain
other inadvertent errors in the judge's recommended Order, we shall
issue a new Order
2 40 U S C §276a
Department of -Labor ruled that the carrying and
placing of reinforcing steel from stockpiles to in-
stallation was classified as ironworkers' work and
that the prevailing collectively bargained wage
rates must apply. The Union had complained
during the same month to the Corps that the Re-
spondent was violating the law by having employ-
ees classified as laborers rather than ironworkers
perform the work in question at a correspondingly
lower wage rate.
In the summer of 1981,3 the Union began orga-
nizing the Respondent's site, and on 14 September
the employees elected the Union as their bargain-
ing representative. Also in September the Corps
began to interview the Respondent's laborer em-
ployees concerning their wage rates.
Laborer Danny Quesenberry attended three
union meetings during the organizational period
and, as the judge found, was the subject of an un-
lawful threat and several interrogations. Foreman
Rocky O'Dell, who frequently drove Quesenberry
to work, told him that if the Union won the elec-
tion, ironworkers and laborers would be replaced
with journeymen ironworkers. Rocky O'Dell also-
asked Quesenberry whether he attended the union
meetings, who else attended them, what was dis-
cussed, and how he intended to vote.
In September, Quesenberry received a letter
from the Corps requesting he contact the Corps
concerning his hourly wage rate. Thereafter, the
Respondent's owner Pete O'Dell asked Quesen-
berry if he had received a letter from the Corps,
whether he intended to comply with its request,
and what information he would give. The day after
Quesenberry reported to the Corps offices, Pete
O'Dell approached him and told him that "you
screwed me" and that he was fired for speaking
with the people at the Corps office. Later that day,
however, O'Dell admitted he had been a "little
hot-headed" and rehired Quesenberry.
About the same time, Project Superintendent
Charles O'Dell asked Quesenberry to sign a letter
stating he did not perform ironwork or use iron-
workers' tools. Quesenberry refused to sign, al-
though he was told that everyone else who had
been asked had signed. O'Dell threatened that if he
did not sign "all the laborers will have to be re-
placed with ironworkers." On 1 February 1982
Quesenberry was laid off by Rocky O'Dell, who
told him "it was because of people running their
mouth to the Corps."
The judge found that the Respondent fired and
laid off Quesenberry for engaging in protected con-
certed activity while assisting his coworkers and
8 All dates are in 1981 unless otherwise stated
277 NLRB No. 140
PETE O'DELL & SONS STEEL
the Union in the effort to obtain an `ironworkers
wage rate, and therefore his discharge 'violated
Section 8(a)(1) of the Act. The judge' also 'found
that the Respondent violated Section 8(a)(1) when
Pete O'Dell interrogated Quesenberry about ap-
pearing before the Corps and told him the day fol-
lowing that appearance that he was fired because
"you screwed me"; when Charles O'Dell solicited
him to sign a letter to the Corps stating he neither
performed ironworkers' work nor used ironwork-
ers' tools, and threatened that ironworkers would
replace laborers if he did not sign; and when
Rocky O'Dell questioned him as to why he did not
sign the letter and later told him he was laid off
"because of people running their mouth to the
Corps." The judge found that, as Quesenberry was
engaged in protected concerted activity, these
statements , which were designed to deter him from
that activity, were unlawful.
Although we agree with the judge's conclusions,
we do not subscribe to his rationale. The facts of
this case show that Quesenberry was not acting in-
dividually, but was acting with the assistance of the
Union, in his attempt to compel the Employer to
pay ironworkers' wage rates. See Meyers Industries,
268 NLRB 493 (1984), remanded sub nom. Prill v.
NLRB, 755 F.2d 941 (D.C. Cir. 1985).
The Union filed the initial wage complaint with
the Department of Labor and the Corps. Quesen-
berry's subsequent cooperation with the Corps' in-
vestigation was therefore actual concerted or union
activity.4 In addition, the Respondent linked the
wage complaint to concerted or union activity, as
evidenced by Rocky O'Dell's threat to Quesen-
berry that journeymen ironworkers would replace
laborers "if the Union was voted in" and Charles
O'Dell's later threat that laborers would have to be
replaced with ironworkers if they did not sign the
Respondent's draft letter to the Corps.
The timing of various events buttresses the con-
clusion that the Respondent linked the Corps activ-
ity to the Union. The Respondent's threat to Que-
senberry and interrogations of him about union
meetings occurred in July or August 198.1. The Re-
spondent asked Quesenberry about the Corps' letter
to him 11 September, which is approximately when
the Respondent also asked how Quesenberry
would vote. The Respondent's demand that Que-
senberry sign its draft letter to the Corps was about
the same time. The Union was elected 14 Septem-
ber. Quesenberry was discharged 1 February 1982,
with Rocky O'Dell telling Quesenberry that the
4 Danny Quesenberry testified that the Corps contacted him because
the Union's business agent "had mentioned something to the Corps about
our wages "
1359
action was taken "because of people running their
mouth to the Corps."
These facts lead us to conclude that the Re-
spondent believed that Quesenberry acted in con-
cert with other employees and the Union in trying
to force ironworkers' rates for laborers. Quesen-
berry's actual concerted activity, the Respondent's
knowledge of it, and the subsequent' retaliatory dis-
charge establish a violation of Section 8(a)(1) of the
Act.
ORDER
The National Labor Relations Board orders that
the Respondent , Pete O'Dell & Sons Steel Erec-
tors, Pulaski , Virginia , its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Telling its employees that they have been laid
off because they were attempting to get union rep-
resentation and engaging in protected concerted
activities.
(b) Threatening its employees with layoffs and
related reprisals if they persist in engaging in union
and protected concerted activities.
(c) Coercively interrogating employees about
their union and protected concerted activities.
(d) Creating the impression of engaging in sur,
veillance of employee union activities.
(e) Soliciting employees to sign a letter renounc-
ing their protected concerted activities and threat-
ening them with discharge if they refuse to sign
such a letter.
(f) Discharging, laying off, or otherwise discrimi-
nating against any employee for engaging in pro-
tected concerted activity or for supporting Interna-
tional Association of Bridge , Structural and Orna-
mental Iron Workers, Local Union No. 697; South-
western Virginia Building and Construction Trades
Council , AFL-CIO; or any other labor organiza-
tion.
(g) Refusing to bargain with International Asso-
ciation of Bridge , Structural and Ornamental Iron
Workers, Local Union No. 697 as the exclusive
representative of the employees in the bargaining
unit.
(h) Refusing to execute the collective-bargaining
agreement with the Union which was agreed upon
7 December 1981 and which should have taken
effect 1 January 1982.
(i) Failing and refusing to give effect to the
terms of the agreed -upon collective -bargaining
agreement with the Union.
(j) In any like or related manner interfering with,
restraining , or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Robert L. Quesenberry, John S. Ed-
wards, Arthur H. Wilson, Leslie Schlesher
(Slusher), and Danny Quesenberry immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and
other benefits suffered as a result of the discrimina-
tion practiced against them in the manner set forth
in the remedy section of the administrative law
judge's decision.
(b) On request, bargain collectively with the
Union as the exclusive representative of the em-
ployees in the following appropriate unit on terms
and conditions of employment:
All employees employed by the Respondent
located at its jobsite at the Radford Army Am-
munition Plant, Radford, Virginia, but exclud-
ing all office clerical employees, guards and
supervisors as defined in the Act.
(c) Execute the collective-bargaining agreement
with the Union agreed on 7 December 1981.
(d) Give effect to the terms and provisions of
that collective-bargaining agreement retroactively
from 1 January 1982.
(e) Make employees whole for any loss of earn-
ings and other benefits which are provided in the
agreement for the period on and after 1 January
1982, plus interest, as set forth in the remedy sec-
tion of the administrative law judge's decision, as
amended by this Decision and Order.
(f) Expunge from its files any reference to the
layoffs of Robert L. Quesenberry, John S. Ed-
wards, Arthur H. Wilson, and Leslie Schlesher
(Slusher), and the layoff and discharge of Danny
Quesenberry, and notify them in writing that it has
done so and that evidence of the unlawful layoffs
and discharge will not be used as a basis for future
personnel actions against them.
(g) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(h) Post at its Radford, Virginia jobsite copies of
the attached notice marked "Appendix."5 Copies
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
of the notice, on forms provided by the Regional
Director for Region 5, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(i) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT tell our employees that they have
been laid off for attempting to obtain union repre-
sentation and engaging in protected concerted ac-
tivity.
WE WILL NOT threaten our employees with lay-
offs and related reprisals if they persist in engaging
in union and protected concerted activities.
WE WILL NOT coercively question you about
your union support or protected concerted activi-
ties.
WE WILL NOT create the impression of engaging
in surveillance of your union activities.
WE WILL NOT solicit our employees to sign a
letter renouncing their protected concerted activi-
ties and threaten them with discharge if they refuse
to sign such a letter.
WE WILL NOT discharge, lay off, or otherwise
discriminate against any of you for engaging in
protected concerted activity or for supporting
International Association of Bridge, Structural and
Ornamental Iron Workers, Local Union No. 697;
Southwestern Virginia Building and Construction
Trades Council, AFL-CIO; or any other union.
WE WILL NOT refuse to bargain with Internation-
al Association of Bridge, Structural and Ornamen-
tal Iron Workers, Local Union No. 697 as the ex-
clusive representative of the employees in the bar-
gaining unit.
WE WILL NOT refuse to execute the collective-
bargaining agreement with the Union which was
agreed upon on 7 December 1981, and which
should have taken effect 1 January 1982.
'PETE O'DELL & SONS STEEL
WE WILL NOT fail and refuse to give effect to
the terms of the agreed-upon collective-bargaining
agreement with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Robert L. Quesenberry, John S.
Edwards, Arthur H. Wilson, Leslie Schlesher
(Blusher), and Danny Quesenberry immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and
make them whole for any loss of earnings and
other benefits resulting from their layoffs, less any
net interim earnings, plus interest.
WE WILL, on request, bargain with the Union on
terms and conditions of employment for our em-
ployees in the bargaining unit:
All employees employed by us located at our
jobsite at the Radford Army Ammunition
Plant, Radford, Virginia, but excluding all
office clerical employees, guards and supervi-
sors as defined in the Act.
WE WILL execute the collective-bargaining
agreement which the Union agreed upon 7 Decem-
ber 1981.
WE WILL give effect to the terms and provisions
of that collective-bargaining agreement retroactive-
ly from 1 January 1982.
WE WILL make you whole for your loss of earn-
ings and other benefits which are provided for in
the agreement for the period on and after 1 Janu-
ary 1982, plus interest.
WE WILL remove from our files any reference to
the layoffs of Robert L. Quensenberry, John S. Ed-
wards, Arthur H. Wilson, and Leslie Schlesher
(Slusher) and the layoff and discharge of Danny
Quesenberry, and notify them in writing that we
have done so and that evidence of the unlawful
layoffs and discharge will not be,used as a basis for
future personnel actions against them.
PETE O'DELL & SONS STEEL EREC-
TORS
Lecia Eason, Esq., for the General Counsel.
Charles Allen Jr., Esq., for the Respondent.
Lawrence Musgrove, Esq., for Iron Workers Local 697.
DECISION
STATEMENT OF THE CASE
FRANK H. ITKIN, Administrative Law Judge. An
unfair labor practice charge was filed in Case 5-CA-
13558 on July 29, 1981, and a complaint was issued on
1361
November 9, 1981.1 An unfair labor practice charge was
filed in Case 5-CA-14079 on February 16, 1982, and a
complaint was issued on March 25, 1982. The two pro-
ceedings were later consolidated and a hearing was held
in Roanoke, Virginia, on July 13 and 14, 1982. Briefly,
the General Counsel alleges that the Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act by, inter alia, telling employees that they were being
laid off because of the Union; by telling an employee
that he could not be recalled from layoff until "after the
Union thing dies down"; by coercively interrogating em-
ployees about their protected union activities; by creat-
ing the impression of engaging in surveillance of employ-
ee protected union activities; by informing an employee
that all laborers would have to be fired because of the
Union; by soliciting employees to sign a letter renounc-
ing their protected concerted rights; by threatening em-
ployees with discharge if they refused to sign the above
letter; by informing employees that they were laid off be-
cause they had complained to the United States Army
Corps of Engineers about their wages, hours, and work-
ing conditions; by laying off employees John Edwards,
Robert Quesenberry, Leslie Schlesher, and Arthur
Wilson Jr. because of their union activities; and by laying
off and discharging employee Danny Quesenberry be-
cause he had complained to the United States Army
Corps of Engineers and had attempted to cause the Em-
ployer to comply with the Davis-Bacon Act with respect
to the employees' wages, hours, and working conditions.
In addition, the General Counsel further alleges that the
Respondent violated Section 8(a)(5) and (1) of the Act
by withdrawing from and repudiating an agreement
which it had reached with the Union providing that unit
employees would receive $1.90 per hour in additional
health and pension benefits and wages and that these
terms were to be incorporated in a collective-bargaining
contract to be effective January 1, 1982. The Respondent
denies that it has violated the Act as alleged.
On the entire record, including my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
1. ALLEGED UNFAIR LABOR PRACTICES
A. The Employer's Opposition to the Employees'
Organizational Efforts and Related Activities
About July 17, 1981, the Charging Party Trades Coun-
ciI filed a representation petition with the Board's Re-
gional Director in Case 5-RC-1 1589, seeking an election
among the Respondent's employees in the following ap-
propriate unit:
All employees employed by Respondent located at
its jobsite at the Radford Army Ammunition Plant,
Radford, VA, but excluding all office clerical em-
ployees, professional employees, guards and super-
visors as defined in the Act
1 The complaint was amended on March 29, 1982
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
An election was conducted on September 4, 1981, timely
objections were filed by the Employer on September 14,
1981; a Report on Objections was issued on September
22, 1981 ; and certification was issued to the Trades
Council on October 14, 1981.
Arthur Wilson testified that he was hired by the Em-
ployer at its Radford jobsite as an ironworker on June
15, 1981; that he was then a member of Charging Party
Iron Workers Local Union No. 697; that he worked for
the Employer on June 29 , 1981; and that he later report-
ed at the site on July 13, 1981. Wilson then had the fol-
lowing conversation with Charles O'Dell, the Employ-
er's project superintendent:
I [Wilson] asked him [Charles O'Dell] how come he
didn't have any work for me? ... He told me it
was on account of the Union was in there, and I
was part-time Union. . . . I asked him . . . if he
thinked that I would be able to return to work be-
cause I needed the work, and he told me as soon as
the Union quit passing those handbills out.
Later that day, Wilson again asked Charles O'Dell "did
he have any idea about how long it would be before I
would be able to go back to work," and "he said just as
soon as the Union deal had blown over . He said that his
brother didn't want the Union in there . They was afraid
that I was a Union member . .. I could hurt them in
some way." Wilson received a "layoff slip " about July
13, 1981.
Subsequently , about July 16 , 1981, Wilson had the fol-
lowing conversation with Pete O'Dell, the Employer's
president and proprietor:
I [Wilson] asked him [Pete O'Dell] when did he
think that I would be able to go back to work, be-
cause I needed the work real bad, and he told me
I wouldn't be able to go back to work until the
Union had got out of there.
O'Dell, in the same conversation , "asked [Wilson] who
was trying to organize his Company down there."
Wilson replied, "It wouldn't leave," and "I didn't know
who was doing it." O'Dell warned Wilson that "he knew
I [Wilson] wasn't the only Union member down there,
that he would find out for himself who was doing it."
About 3 days later, on July 19, Wilson approached
Charles O'Dell at his home and "asked Charles when did
he think I could get back to work , and he told me .. .
hell, you know the reason you're not working, it 's on ac-
count of the damn Union is down there . . . He said,
just as soon as this Union business had blowed over."a
John Edwards testified that he was hired by the Em-
ployer as an ironworker at the Radford site during late
September or early October 1980 ; that he has been a
member of Iron Workers Local Union No 697 since
1974; and that , during the pertinent period, his wage rate
2 On cross-examination , Wilson noted that he was recalled to work by
the Employer about October 4, 1981 Wilson was uncertain whether he
had worked between June 29 and July 13, 1981 His "recollection" was
that he "wasn 't there" Wilson, on rebuttal , also explained that "there
was plenty of work" prior to his layoff in July
was $12 per hour. Edwards testified that he reported for
work as scheduled at the site on July 13, 1981. At the
time, Pete O'Dell instructed Charles O'Dell, in the pres-
ence of Edwards and other employees, "[W ]e don't have
any work, just send them all home." Charles O'Dell then
stated to Edwards and the other employees that he
"[Charles] was going to lay us all off , and it was all over
the Union."3
Later, about July 15, 1981, as Edwards further testi-
fied, "I asked Rocky O'Dell [Pete O'Dell's son] why I
was laid off," and "he said that they didn't bid the job to
work Union and if they worked Union it would cost
them $3 .00 on the hour and they couldn't pay it." Rocky
O'Dell then advised Edwards that Edwards "would have
to talk to Pete O'Dell." Edwards subsequently tele-
phoned Pete O'Dell and "asked him the same thing."
Edwards testified:
And he [Pete O'Dell] told me, just to be honest
about it, it was over the Union, and when it died
down, he would try to get me back within two to
three weeks.
Robert Quesenberry testified that Pete O'Dell hired
him as an ironworker at the Radford site during late
March 1981; that his hourly rate was $12 ; and that he
has been a member of Iron Workers Local Union No.
697 for about 8 years. Quesenberry recalled that on July
13, 1981, at the site
the whole gang . you know, was gathered around,
and Charlie [O'Dell] said that he wasn't going to
have no work for us, didn 't have nothing for us to
do, and he said , as soon as, you know, as soon as
the Union deal blowed over, or whatever , that he
would try to get us back in there, but as far as right
now, he couldn 't work us.
Quesenberry was given a layoff slip that day.4
Danny Quesenberry testified that he was hired by the
Employer to work at the Radford site as a laborer about
mid-January 1981, and that his hourly rate of pay , during
the pertinent period, was $6.45. Quesenberry testified
that during July or August 1981, Rocky O'Dell drove to
work with him. On one such occasion , Rocky O'Dell
warned Quesenberry that "if the Union was voted in
... the ironworkers and the laborers will be replaced
with bookmen." Quesenberry explained : "He [O'Dell]
said if the Union was voted in . . . all the ironworkers
on the job and the laborers will be replaced with jour-
neymen ironworkers."
3 On cross-examination, Edwards noted that he was "recalled" by
O'Dell about September 4, 1981 Edwards, on rebuttal , explained that
during July 1981 "there was plenty of steel coming in and we made
up some of the pipe racks on the ground and there was steel work to
be done "
4 On cross-examination , Quesenberry explained that he was recalled
about October 3, 1981 Quesenberry, on rebuttal , denied that Dart
Struthers, the Employer 's clerk or bookkeeper whose testimony is noted
below , had "recalled" him to work He claimed that "she did not call
me " He also explained that , prior to his layoff, "we had work that we
could do" at the site
PETE O'DELL & SONS STEEL
In addition, Danny Quesenberry recalled how Rocky
O'Dell, "on the way to work ... would ask me if I was
attending a Union meeting or something like that" and "I
would tell him, yes." Quesenberry added-
At times he [O'Dell] would ask me who was at the
meeting or how many were at the meeting and
what was said, and I would tell him nothing.
Further, Quesenberry recalled how Pete O'Dell, "a day
or two before the election . . . asked me how I would
vote."
Danny Quesenberry, as he further testified, received a
letter from the United States Army Corps of Engineers
during September 1981, "stating that we should report to
the Corps of Engineers Office to discuss our hourly
wages." Thereafter, about September 11,
Pete O'Dell came up to me [Quesenberry] and
asked me if I had received a letter from the Corps
of Engineers. I told him yes. He asked me was I
going to the meeting. I said yes. He asked me what
would I tell them, the Corps. I told him that I
would tell them . . . what tools I used . stuff
like that.
Quesenberry later attended the meeting and was then
questioned by representatives of the Corps of Engineers
about his "hourly wages," "how [he] did his work," and
"what tools and things the] used."
On the following day, Pete O'Dell stated to Danny
Quesenberry, "[Y]ou drove your truck to work yester-
day and went to the Corps of Engineers Office and you
screwed me. . . . You're not working for me no more."
Quesenberry asked: "Am I laid off." O'Dell replied,
"No, you're fired." However, on the next day, when
Quesenberry "went to pick up [his] check," O'Dell "said
that he was a little hot-headed . . . and he felt sorry for
me and was going to give me my job back."
About this same time, as Quesenberry further testified,
Charles O'Dell "came around with a letter for me [Que-
senberry] to sign, stating that I didn't do any ironwork
. . . or use any ironworker's tools." This letter was for
the Army Corps of Engineers. Quesenberry said that he
would "like to keep" the letter "a while and think about
it." Charles O'Dell warned: "[I]f I [Quesenberry] didn't
sign, all the laborers will have to be replaced with iron-
workers." Rocky O'Dell also questioned Quesenberry
"why didn't [he] sign the letter." Quesenberry explained
that he "just wanted to think about it." All the "other
laborers" at the site, except Quesenberry, had signed
such a letter.
Subsequently, about February 1, 1982, Pete O'Dell in-
structed Rocky O'Dell "to lay me [Quesenberry] off."
Quesenberry testified:
On the way out, [ asked Rocky, what's going on
with me being laid off so many times, and he said,
just between me and him, it was because of people
running their mouth to the Corps. . He said that
my name was on several papers at the Corps' office.
1363
At the time, Quesenberry was the senior laborer at the
jobsite.5
Leslie Schlesher, also spelled "Slusher," testified he
was hired by the Employer during April 1981 to operate
a crane at an hourly rate of $7.62. About July 7, 1981,
Schlesher was "laid off." Charles O'Dell then apprised
Schlesher that "when the Union cools down and gets the
hell out of here," he "might be recalled." Schlesher
spoke to a union representative "outside the gates where
the Union was handing out leaflets" on "the day before
[he] got laid off." He also signed a union memership card
at that time. Schlesher, as he further testified, was ob-
served "speaking with this union representative" by Pete,
Charles, and Rocky O'Dell. And, about 1 week earlier,
Rocky O'Dell had informed Schlesher "that the Union is
no good in his book, we don't need a Union in here . . .
the ones that . . . votes or works for the Union don't
need to work for the O'Dells." Schlesher had then dis-
closed to Rocky O'Dell that he in fact had "joined the
Operating Engineers around 1971, and they had good in-
surance, good benefits, and they pay good."
Pete O'Dell testified that the Respondent is the steel
subcontractor at the Radford site; that the general con-
tractor is Centex; and that his Company started on this
project during early October 1980. O'Dell claimed that
"after February 1, 1982 . .. we did away with all the
laborers" employed by the Respondent at the site be-
cause "the Corps came to me" and stated "that we had
to pay everybody ironworkers' wages, and the laborers
who carried the iron . . . so it wasn't feasible . . . to
have a laborer do ironworkers work and pay him $12 an
hour." O'Dell acknowledged that one Larry Dalton had
been working for his Company as a laborer and "his
classification [was] changed from laborer to ironworker,"
O'Dell could not "recall when that occurred." O'Dell
denied, inter alia, laying off Danny Quesenberry because
of his union activities or his "conversations or corre-
spondence" with the Army Corps of Engineers-"he
wasn't a qualified ironworker." O'Dell denied asking
Danny Quesenberry "how he was going to vote in the
Union election." O'Dell recalled, however, that employ-
ees like Quesenberry received restitution for back wages
as a consequence of the investigation of the Army Corps
of Engineers with respect to the nature of the work per-
formed by them at the site.
Pete O'Dell further denied laying off any employees
because of the Union; interrogating employees about
union activities; and related conduct and statements at-
tributed to him as summarized supra. O'Dell claimed that
employees Edwards, Robert Quesenberry, Schlesher, and
Wilson were laid off during July 1981 because "we had
eight truck loads of structural steel on the jobsite that
5 Quesenberry claimed that Larry Dalton had been hired by the Em-
ployer as a laborer "after I was" and "still" works there
5 Schlesher has not been recalled since his "layoff." Schleser explained
that between his "layoff' and "last month," the Employer had his "cur-
rent address and phone number" The Employer also had his "parents'
phone number " Schlesher moved from this "current" address "last
month " On cross-examination, Schlesher acknowledged that his "phone
had been disconnected about three weeks"--"but it wasn't discon-
nected two months after [he] was out of work " He also telephoned
O'Dell's office about four times looking for work during his "layoff"
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been sitting there for two weeks and no place to
erect." Elsewhere, O'Dell acknowledged that the "steel
began to come in, and I didn't' have no place to erect it
... about April, May, in there"-"March, April, May,
right in the area there." O'Dell claimed that "we did
call" Schlesher "back, but we couldn't get no answer
from his home." Further, O'Dell "would have to check
the records to be positive" that no laborers were em-
ployed after February 1, 1982-"I'm not sure . . . could
have been." Finally, O'Dell was asked about certain per-
sons assertedly hired by the Company after the July lay-
offs. O'Dell responded, in part, "No, I would check the
records and see. I don't remember if they was hired or
not."7
Dana Wyman O'Dell, Pete O'Dell's son, explained
that he worked for the Respondent as a foreman and is
also known as Rocky O'Dell. He recalled that about July
1981 "they just ordered a whole lot of steel"; "it was
laying every where"; "we had to stockpile it." He fur-
ther claimed that Danny Quesenberry was laid off later
in February 1982 because the Army Corps of Engineers
had "informed us ... we would have to pay [the labor-
ers'] ironworkers' wages," and Danny Quesenberry is not
a qualified ironworker." He was asked if he "recalled"
observing Schlesher "talking to a Union official" and re-
sponded: "At the present, I don't recall." He denied,
inter alia, interrogating employees about union activities.
Charles O'Dell, job superintendent for the Employer,
claimed that employees, Robert Quesenberry, Wilson,
Edwards, and Schlesher were laid off during July 1981
because "I think we ran out of work." O'Dell cited as a
reason for the layoff the fact that "we had eight loads of
construction steel [that] came in on the job and we had
to store it in an area off the project." Elsewhere in his
testimony, O'Dell acknowledged that the presence of
"extra steel" on or near the Jobsite "doesn't give us any
less work . . . you use the same number of men . . . it
has to lay there until we get something ready for steel
erection."
Charles O'Dell further claimed, inter alia, "I didn't
know they [the laid-off employees] were having any
Union activities" and "the Union wasn't mentioned at
all." He denied various antiunion statements and conduct
attributed to him, as summarized supra. He asserted, in
particular, that Schlesher's layoff did not have "anything
to do with the Union." He added that "I don't recall
Schlesher being out there" outside of the gate with the
union officials "prior to the Union election"-"I saw
r Claudette Tripods, contract industrial relations specialist for the
United States Army Corps of Engineers, testified that the Respondent
Employer's contract at the Radford site was within the purview of the
Davis-Bacon- Act; that during late September 1980 the Department of
Labor determined, in effect, that "the handling of reinforcing steel from
the stockpiles to the place of installation was work that was . . under
the ironworkers' ,jurisdiction", that proceedings were instituted to bring
the Respondent into compliance with this determination, and that about
late January 1982 the parties reached a "negotiated settlement." In short,
laborers performing ironworkers' work were paid the ironworkers' rate
for such work 'tripodi recalled that some 19 laborers "testified at the ne-
gotiation." Tripodi also noted that, in the past, the "prevailing practice"
at the site was "to permit laborers to carry and place the reinforcing
steel " She further noted that Union Representative Clark first com-
plained to, her and the Department of Labor about this practice during
mid-September 1980
several people around [Union Representative Clark] out
there, but I don't recall Schlesher being there." He
claimed that "[we] tried to get in contact" with
Shclesher later to recall him "but I didn't think we were
able to get in contact with him."
In addition, Charles O'Dell explained that employee
Danny Quesenberry was later laid off by the Employer
because he was unable to perform satisfactorily iron-
workers' work. Danny Quesenberry had been employed
as a laborer and later requested "ironworkers' wages."
O'Dell acknowledged that Danny Quesenberry was paid,
in accordance with the proceedings noted supra before
the United States Army Corps of Engineers, for per-
forming ironworkers' work at the site. O'Dell claimed
that Quesenberry was, in effect, "paid for something that
he never did."
Dale Cox, foreman for the Employer, claimed that em-
ployees Robert Quesenberry, Edwards, Wilson, and
Schlesher were laid off because "we had the slow down
then as far as structural steel." He could not "recall" any
discussion "concerning their being laid off because of
Union activities." He further claimed that Danny Que-
senberry was not qualified to do ironworkers' work.8
B. The Bargaining Sessions
Cline Tonny, president of Charging Party Trades
Council, testified that the Trades Council and the Re-
spondent conducted negotiations for a collective-bargain-
ing agreement on October 28, November 9, and Decem-
ber 1, 3, and 7, 1981, and on March 17, 1982; that previ-
ously there had been "a breakdown in negotiations"; and
that the above sessions were "handled between the feder-
al mediator, the various crafts and Tonny" for the trades
council. Tonny recalled that present at the December' 7
bargaining session were Pete O'Dell and his attorney
Charles Allen for the Employer, Hugh Clark for Iron
Workers Local Union No 697, and the mediator. Ac-
cording to Tonny, at "the end of the negotiations that
day . . . they did say that they had reached an agree-
ment and what it was." Tonny explained that the "Com-
pany had offered the Ironworkers $1.95 an hour in
fringes" and Clark then asked the Employer's attorney
Allen "if he would go ahead and draw it up, and he [the
attorney] said that he would, and give him a copy .. .
a Dan Smithers testified that she is custodian of the Employer's pay-
roll and financial records She identified R. Exhs 2(a) and (b) which pur-
portedly show, inter alia, that in December 1981 "expenses .. exceeded
by $1000 what [the Employer] took m" She acknowledged that she is
not "really a bookkeeper per se" and "we do hire a CPA." She also ac-
knowledged that neither "of these sheets reflect a balance for any given
month." Further, Smithers testified that one Larry Dalton was
"changed" from a laborer to an ironworker during January 1982, that
one Dempsey Dalton was "promoted to a welder" from laborer "in
1981", that one Arliss O'Dell "was hired in the summer of 1981"; that
one Jerry Carroway was "hired in the summer of 1981 ", and that she
tried to "phone" Schlesher to recall him but "didn't have a phone
number for him." She claimed that Schlesher later called her in October
1981 She subsequently attempted "to call his parents" without success.
In addition, she testified that one Lance Blevins was hired as a "crane
operator" on September 12, 1981. Further, she recalled that one Charles
Wills was hired on July 20, 1981, as a crane operator, later, on September
25, one Paul Dalton was hired as a crane operator, and one Walter
Grubb, a third crane operator, was hired on September 26, 1981. In No-
vember, another crane operator was hired.
PETE O'DELL & SONS STEEL 1365
for approval " At no time during the negotiations did
Tonny witness any union representatives "tell the Com-
pany that any benefits would be paid only to those em-
ployees who actually joined the Union." Further, no rep-
resentatives of the Employer "ever asked if benefits
would only be paid to people who actually joined the
Union."9
Hugh Clark , financial secretary -treasurer and business
agent for Iron Workers Local No. 697, testified that at
the December 7 bargaining session
[Pete O'Dell's] last offer was that he would pay
$1.60 in fringes. . . . I [Clark] told Tonny [Stokes,
the mediator] "I will accept $ 1.00 in health and
welfare and .90 in pension and .05 for the appren-
tice fund ." . . . Tonny went back to the room with
Pete O'Dell and his attorney , and they came back
and said they would accept it.
The Employer 's attorney Allen agreed to prepare the
contract in typewritten form.
Later, however, on January 14, 1982, the Employer's
attorney Allen sent the Union's attorney Lawrence Mus-
grove a letter (G.C, Exh. 2), stating in part:
When Mr. O'Dell was engaged in the last negoti-
ating session , he misunderstood the tentative under-
standing reached with Local Union No. 697 con-
cerning the health and pension benefits. Mr. O'Dell
thought that these benefits would be paid to only
those employees who actually joined the Union.
However, as I advised him, any wage and benefit
agreement with Local Union No. 697 would apply
to all the employees of that respective craft, wheth-
er or not those employees were members of the
Union.
Mr. O'Dell employs approximately 20 iron work-
ers. He lacks the financial resources to pay $1.90 an
hour for each ironworker for health and pension
benefits above the $12 hourly wage these employees
now receive.
I certainly could not advise him to enter into a
contractual arrangement which would be impossible
for him to perform. 1
Clark explained that the Union had never stated or indi-
cated to the Employer during the negotiation "that the
benefit package would) go only to those persons who
were actual members of the Union ." He was "never
questioned " on this subject during negotiations.
Subsequently , on March 24 , 1982, Musgrove, attorney
for the Union, wrote Allen, attorney for the Employer, a
letter confirming an "agreement" as follows (G.C. Exhs.
3(a) and (b)):
On cross-examination , Tonny was also asked. "fOln December 7 was
the question ever raised about the benefits being paid only to Union
members or to a whole class of employees?" Tonny responded "It was
never raised to my knowledge "
10 Allen noted in his letter "Please accept this letter as his [O'Dell's]
request to continue the negotiations in good faith" and "he would be glad
to make his financial records available for inspection."
This letter is to confirm the agreement reached
between your client, Pete O'Dell and Sons Steel
Erectors, and Local Union No. ,697.
The term of the Agreement shall be for a period
of one year beginning January 1, 1982, and continu-
ing thereafter on a year-to-year basis unless 60 days
in advance of any termination date one party shall
give to the other party notice of their desire to
reopen the contract for negotiations.
It is understood and ageed that all terms of the
contract have been agreed upon and will be put into
effect as of January 1, 1982, except those provisions
pertaining to wages, fringes , and Industry Advance-
ment payments. The position of your client is as set
forth in a letter from you dated January 14, 1982,
directed to me, a copy of which is attached to this
Letter Agreement. The position of the Local Union
is that an agreement has been reached on wages,
fringes, and Industry Advancement contributions
and is not subject to unilateral change by the em-
ployer. The matter is now under consideration by
the National Labor Relations Board and is subject
to their determination . If the Board holds that an
agreement has been reached on the aforementioned
matter, then the wages, fringes, and Industry Ad-
vancement contributions shall be retroactive to Jan-
uary 1, 1982. If the Board should rule that no valid
agreement has been reached on these matters, then
they will be subject to further negotiations and such
amounts as are negotiated will be effective as of
January 1, 1982.
It is understood that our signatures to this Letter
Agreement evidences that a valid agreement has
been reached as set forth in the Agreement, each
page of which as been initialed by us and is at-
tached hereto, except as above set forth; that each
of us has authority from our client to bind them to
this Agreement by our signatures hereto. The
Agreement dated January 1, 1982 , this Letter
Agreement , and your letter of January 14, 1982,
constitutes the entire agreement between the parties.
No subsequent agreement shall be binding on either
of the parties unless the same is reduced to writing
and signed either by the parties or by their respec-
tive counsel after obtaining proper authorization
from the client. i i
Pete O'Dell generally acknowledged that "the negotia-
tions on December 7 in the Union hail" were "pretty
much as testified to by the Union representative earlier."
However, O'Dell claimed that his "understanding was
that [he] was to pay the men that belonged to the Union,
rather than the guys that [he] had that didn 't belong."
O'Dell also claimed , "I just didn't have the money to
pay them all . . . the benefits." On cross-examination,
O'Dell acknowledged, in effect , "at no time during nego-
tiations did any Union representative tell [him] that those
i i Both counsel signed the above Allen noted below his signature that
"Mr O'Dell wanted it understood that his misunderstanding concerning
the payment of any negotiated benefits continued until after the first
week in January when I went over these matters with him "
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
benefits were only going to the persons who actually
joined the Union." According to O'Dell, "it was never
discussed." O'Dell,, when asked if his contract with the
Laborers limits benefits "to persons who actually joined
[that] Union," responded in part: "You would have to
ask my secretary those questions . . I don't remember."
I credit the testimony of Arthur Wilson, John Ed-
wards, Robert Quesenberry, Danny Quesenberry, and
Leslie Schlesher as detailed in section A above. Their
testimony is in significant part mutually corroborative,
and they impressed me as trustworthy and reliable wit-
nesses . However, I do not credit the testimony of Pete
O'Dell, Dana Wyman "Rocky" O'Dell, Charles O'Dell,
Dale Cox, and Dari Smithers insofar as their testimony
conflicts with the above testimony of Wilson, Edwards,
Schlesher, and Robert and Danny Quesenberry. The tes-
timony of Pete, Charles, and "Rocky" O'Dell was at
times incomplete, vague, and evasive. Likewise, I was
similarly not impressed with the testimony of Smithers
and Cox, whose testimony was, in large part, incomplete
and vague. In short, I am persuaded here that the
O'Dells engaged in the conduct and made the above
statements attributed to them by Wilson, Edwards,
Schlesher, and Robert and Danny Quesenberry. Further,
I also credit the essentially uncontradicted testimony of
Cline Tonny and Hugh Clark summarized in section B
above. Insofar as Peter O'Dell's testimony differs from
the testimony of Tonny and Clark, I find the testimony
of the latter witnesses to be more complete, detailed, and
reliable. I note also that the testimony of Tonny and
Clark is corroborated in large part by uncontroverted
documentary evidence of record.
II. DISCUSSION
The credible evidence of record, recited supra, shows
that the Respondent, in opposing the Union' s organiza-
tional campaign at its Radford jobsite, engaged in con-
duct and made statements which plainly tended to inter-
fere with employee protected activities , in violation of
Section 8(a)(1) of the National Labor Relations Act.
Thus, Charles O'Dell, the Employer's project superin-
tendent, repeatedly apprised employees, inter alia, that
their layoffs were because "the Union was in there";
they would be recalled "as soon as the Union quit pass-
ing those handbills out"; they would be recalled "just as
soon as that Union deal had blown over"; "hell, you
know the reason you're not working, it's on account of
the damn Union is down there'"; "he [Charles O'Dell]
was going to lay us all off, and it was over the Union";
and they "might be" recalled "when the Union cools
down and gets the hell out of here." In like vein, the
Company's president and proprietor Pete O'Dell ap-
prised employees, inter alia, that they "wouldn't be able
to go back to work until the Union had got out of
there"; their layoffs "were over the Union"; and "when
it died down he would try to get" them "back."
Foreman Rocky O'Dell warned an employee, inter
alia, "if the Union was voted in ... all the ironworkers
on the job and the laborers will[ be replaced with jour-
neymen ironworkers." Rocky O'Dell, in addition, ques-
tioned this same employee about "attending a Union
meeting,"' "who was at the meeting," and "how many
were at the meeting." Indeed, shortly before the election,
Pete O'Dell asked this same employee "how [he] would
vote." And, as noted, Pete O'Dell pointedly asked an-
other employee "who was trying to organize his Compa-
ny," and warned the employee that O'Dell knew that the
employee "wasn't the only Union member down there
... he would find out."
Management, by the foregoing conduct and state-
ments, made clear to its employees that their layoffs
were solely because they were attempting to obtain
union representation. Management threatened employees
with layoffs and related reprisals if they persisted in their
union activities. Such conduct and statements clearly
tended to impinge upon employee protected activities, in
violation of Section 8(a)(1) of the Act. These repeated
threats and warnings cannot, on this record, be viewed
as privileged speech under Section 8(c) of the Act. We
do not have here statements by management which were
"carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably probable
consequences beyond his control." See NLRB v. Gissel
Packing Co., 395 U.S. 575, 616-620 (1969). Likewise,
management's repeated and unwarranted attempts to dis-
cover which employees were involved in the union cam-
paign and how,they would vote, and to pry into their
protected activities, coupled with management's stated
opposition to unionization and threats of reprisals, consti-
tuted the kind of coercive interrogation proscribed by
Section 8(a)(1). See NLRB v. Gladding Keystone Corp.,
435 F.2d 129, 132-133 (2d Cir. 1970). And, further, state-
ments by management to employees that, in effect, man-
agement is aware that there are other union protagonists
and will find out who they are creates the impression of
surveillance and is otherwise coercive, in violation of
Section 8(a)(1). Cf. NLRB v. Redwing Carriers, 586 F.2d
1066 (5th Cir. 1978).
The credible evidence of record also shows that the
Respondent's employees, with the assistance of the
Union, were attempting to get the Employer to pay them
the ironworkers' wage rate at the Radford site when
they were performing ironworkers' work. Thus, as the
representative from the Army Corps of Engineers, Tri-
podi, explained, the Union had complained to the De-
partment of Labor and the Corps that the Employer-by
not paying this higher rate to laborer employees when
they were in fact performing ironworkers' work-was
not complying with the Davis-Bacon Act. The Corps
thereupon conducted an investigation and instituted pro-
ceedings to bring the Employer into compliance. Some
19 employees appeared before the Corps and testified or
otherwise assisted in this investigation. The employees
were later awarded restitution and back wages as a con-
sequence of this proceeding. Danny Quesenberry, whose
testimony is summarized above, was one of those em-
ployees. His attempts and efforts, with the assistance of
his coworkers and the Union, to obtain the higher iron-
workers' wage rate when performing ironworkers' work,
as required by law, were protected and concerted activi-
ties under Section 7 of the National Labor Relations Act.
Cf. G.V.R., Inc., 201 NLRB 147 (1973); Synadyne Corp.,
PETE O'DELL & SONS STEEL 1367
228 NLRB 664, 685 (1977); J. N. Moser Trucking, 249
NLRB 720, 723 ( 1980).
Consequently , management 's coercive conduct calcu-
lated to deter employees like Danny Quesenberry from
participating and assisting in such an investigation and
proceeding tended to interfere with employee protected
concerted activities in further violation of Section 8(a)(1)
of the Act. See cases cited supra. Thus, as Quesenberry
credibly testified , Company President Pete O'Dell inter-
rogated the employee about his scheduled appearance
before the Corps and "what [he] would tell them." On
the day following Quesenberry 's appearance , O'Dell
faulted the employee because "you screwed me," and
then summarily "fired" the employee . In like vein, Su-
perintendent Charles O'Dell solicited Quesenberry and
his 'coworkers to sign a letter stating, in effect, that the
employees "didn't do any ironwork ... or use any iron-
workers' tools." Quesenberry , unlike his coworkers, de-
clined to sign this letter and was threatened by Charles
O'Dell that if he did not sign "all the laborers will have
to be replaced with ironworkers ." Foreman Rocky
O'Dell questioned Quesenberry about his reluctance to
sign such a letter and , later, apprised the employee that
his "many" layoffs were "because of people running
their mouth to the Corps . . . his name was on several
papers at the Corps ' office."
The Respondent , by the foregoing statements and con-
duct, was soliciting employees to sign a letter renouncing
their Section 7 rights ; coercively interrogating employees
about their Section 7 activities ; and threatening employ-
ees with layoff, discharge, and related reprisals if they
refused to sign such a letter or if they persisted in such
protected concerted activities , in violation of Section
8(a)(1). Moreover, here , too, management 's threatening
and coercive statements cannot be viewed, on this
record, as "carefully phrased on the basis of objective
fact to convey an employer 's belief as to demonstrably
probable consequences beyond his control ." See Gissel
Packing Co ., supra.
The General Counsel further alleges that the Respond-
ent violated Section $(a)(3) and (1) of the Act by laying
off employees Edwards, Robert Quesenberry, Wilson,
and Schlesher during mid-July 1981. The Respondent
claims that these layoffs were for lawful economic rea-
sons . In Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 ( 1st Cir . 1981), the Board held that in cases
raising the question whether the Employer's termination,
layoff, or discipline of an employee was motivated by
lawful or unlawful reasons, it would require the General
Counsel to make a prima facie showing that protected
conduct was a motivating factor for the employer's deci-
sion. The burden would then shift to the employer 'to
show that this same action would have taken place in the
absence of such protected activity.
The credible evidence of record here shows that the
summary layoffs in mid-July 1981 of Edwards , Robert
Quesenberry, Wilson, and Schlesher were solely motivat-
ed in response to the employees' union activities . Indeed,
the employees were told by management that they were
being laid off "on account of the Union was in there";
they "would be able to return to work . .. as soon as
the Union quit passing those handbills out"; they
"wouldn't be able to go back to work until the Union
got out of there"; "you' re not working . . on account
of the damn Union is down there"; "he was going to lay
us all off and it was all over the Union "; and employees
"might be recalled . . . when the Union cools down and
gets the hell out of here."
Accordingly, I find and conclude that employees Ed-
wards, Robert Quesenberry, Wilson , and Schlesher, all
union supporters , were summarily laid off in July 1981 in
an attempt by management to defeat the Union' s organi-
zational campaign , in violation of Section 8(a)(3) and (1)
of the Act. I reject as pretextual and unsupported by the
credible evidence of record the Employer's assertion that
these layoffs were, in effect, because of lack of work.
The Employer's evidence , in this respect , was incom-
plete, vague, and contradictory . And, as employee
Wilson credibly recalled , "there was plenty of work"
prior to the July layoff. Likewise , Robert Quesenberry
credibly recalled that "we had work that we could do"
at the site.
In addition , the credible evidence of record shows that
the Employer's 1 day firing of employee Danny Quesen-
berry about September 15, 1981 , and its subsequent
layoff of Quesenberry about February 1 or 2, 1982, were
in retaliation for his protected concerted activities , in fur-
ther violation of Section 8(a)(l) of the Act. Quesenberry,
as noted, had been warned by management that if he did
not sign management 's letter to the Corps of Engineers
renouncing, in effect, any claim to ironworkers' wage
rates for performing ironworkers ' work "all the laborers
will have to be replaced with ironworkers ." Quesenberry
was apparently the only laborer at the site who refused
to sign such a letter. Quesenberry appeared before the
Corps of Engineers and cooperated in their investigation.
On the following day, Pete O'Dell 'summarily fired Que-
senberry because "you [Quesenberry] screwed me."
O'Dell, however, withdrew this firing 1 day later, ac-
knowledging that he was "a little hot-headed ." Thereaf-
ter, about late January 1982, the Corps of Engineers and
the Employer arrived at a negotiated settlement of their
proceeding . Quesenberry and others were to receive
back wages under this settlement . Then, on February 1
or 2, 1982, Quesenberry was laid off. This time he was
told by management that his layoff was "because of
people running their mouth to the Corps . . . [his] name
was on several papers at the Corps' office."
The Respondent claims that Danny Quesenberry was
laid off on February 1 or 2, 1982 , with other laborers be-
cause the Employer now had to pay such employees
ironworkers ' wages and, therefore , would hire ironwork-
ers. The Employer argues that Quesenberry could not
perform ironworkers ' work. I reject this contention as
contrary to the credible evidence of record. Quesen-
berry, in fact, had performed ironworkers ' work at the
site, as the Corps had determined in its investigation
which resulted in an award or settlement in Quesen-
berry's favor. Further, this was not the reason given to
Quesenberry by management for his firing and layoff. He
was told that his cooperation with the Corps' investiga-
tion was the reason for his layoff. And, this record also
makes clear that there was, during the pertinent period,
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laborers' work which still remained to be performed at
the site , In sum , Danny Quesenberry was "fired" on Sep-
tember 15 and later "laid off" on February 1 or 2 in re-
taliation for engaging in protected concerted activities.
Cf. G. V.R., Inc., supra, and cases cited above.
It is settled law that "when an oral agreement is
reached as to the terms of a collective-bargaining con-
tract, each party is obligated , at the request of the other,
to execute that contract when reduced to writing, and
failure or refusal to do so constitutes an unfair labor
practice." Oil Workers (Capitol Packaging), 212 NLRB
98, 108 (1974). There must, of course, be a "meeting of
the minds" about essential terms of the ageement . (Ibid.)
Here , Pete O 'Dell claims that there was no such meeting
of the minds because he mistakenly believed at the De-
cember 7 bargaining session that the agreed -upon "health
and pension benefits" "would be paid to only those em-
ployees who actually joined the Union." Allan, O'Dell's
attorney who was present at the December 7 bargaining
session , did not share this asserted misunderstanding. The
Union , by its statements and conduct , did nothing to
cause O'Dell to have this claimed misunderstanding. On
this record , I find that O'Dell's alleged misunderstanding
is simply an afterthought in an attempt to void an agree-
ment reached by the parties . In short , I do not credit
O'Dell's asserted misunderstanding . Indeed, when asked
if he had a similar misunderstanding with respect to his
negotiated Laborers contract , O'Dell became vague and
evasive, 12
In sum, there was an agreement reached ; it is not void-
able as claimed ; and the Employer's refusal to sign it is
in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce as alleged.
2. The Charging Party Unions are labor organizations
as alleged.
3. The Respondent violated Section 8(a)(1) of the Act
by telling its employees that they had been laid off be-
cause they were attempting to get union representation
and engage in protected concerted activities; by threaten-
ing employees with layoffs and related reprisals if they
persisted in engaging in union and protected concerted
activities; by coercively interrogating employees about
their union and protected concerted activities; by creat-
ing the impression of engaging in surveillance of employ-
ee union activities ; by soliciting employees to sign a
letter renouncing their protected concerted activities and
by threatening them with discharge if they refused to
12 Although I do not credit O'Dell's assertion of a unilateral mistake, I
note that , even assuming he had such a misunderstanding , this agreement
would still not be voidable O'Dell's claimed misunderstanding is con-
trary to the clear and unambiguous terms negotiated by the parties and
was not caused by or known to the Union, and enforcement of this con-
tract has not, on this record, been shown to be "unconscionable." Cf. Re-
statement 2d, Contracts, § 153 (1979), and commentary. Also Cf Apache
Powder Co, 223 NLRB 191 (1976), where the Board pertinently noted-
[W]e agreed that rescission for unilateral mistake is , for obvious rea-
sons, a carefully guarded remedy reserved for those instances where
the mistake is so obvious as to put the other party on notice of an
error
The instant case does not,present "such an unusual instance."
sign such a letter ; and by firing and laying off employee
Danny Quesenberry because he had engaged in protect-
ed concerted activities.
4. The Respondent violated Section 8(a)(3) and (1) of
the Act by laying off employees Robert Quesenberry,
Edwards, Wilson, and Schlesher because they had en-
gaged in union activities.
5. The Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to bargain in good faith with the
Trades Council, or Iron Workers Local Union No. 697,
its duly designated member , as the exclusive bargaining
agent of its employees in the following appropriate unit,
by refusing to execute the collective-bargaining agree-
ment which it had negotiated (G.C. Exhs, 3(a) and (b))
effective January 1, 1982, and abide by that contract.
The appropriate unit is:
All employees employed by Respondent located at
its jobsite at the Radford Army Ammunition Plant,
Radford , VA, but excluding all office clerical em-
ployees, professional employees , guards and super-
visors as defined in the Act.
6. The unfair labor practices found above affect com-
merce as alleged.
REMEDY
To remedy the unfair labor practices found above, the
Respondent will be directed to cease and desist from en-
gaging in such unlawful conduct or like or related con-
duct and to post the attached notice. Further, the Re-
spondent will be directed to offer to employees Robert
Quesenberry, Edwards, Wilson, Schlesher (Slusher), and
Danny Quesenberry, insofar as the Respondent has not
already done so, immediate and full reinstatement to
their former jobs or, if their former jobs no longer exist,
to substantially equivalent jobs, without prejudice to
their seniority or other rights and privileges, and to make
them whole for any losses sustained by reason of their
layoffs and terminations , as found unlawful herein, by
making payment to them of a sum of money equal to
that which they would have earned but for their unlaw-
ful layoffs and terminations to the date of such offers of
reinstatement, less their net earnings during this period,
to be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest to be com-
puted as set forth in Florida Steel Corp., 231 NLRB 651
(1977).13
In addition, the Respondent will also be directed to,
on request, sign the collective-bargaining agreement con-
taining the terms and conditions of employment agreed
to by the parties, effective January 1, 1982 (see G.C.
Exhs. 3(a) and (b)), and abide by its terms; give retroac-
tive effect to those terms and conditions; and make the
employees whole for losses, if any, which they may have
sustained as a result of the Respondent 's refusal to sign
and abide by the agreement , with interest, in the manner
provided above.
[Recommended Order omitted from publication].
13 See generally Isis Plumbing Co, 138 NLRB 716 (1962)