Stafford Construction Co.

National Labor Relations Board - Board Decisions

Aug 8, 1980

250 N.L.R.B. 1469 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stafford Construction Co. and International Union
of Operating Engineers, Local No, 9, AFL-
CIO. Case 27-CA-6025
August 8, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEILO, AND
TRUESDAI E
On April 30, 1980, Administrative Law Judge
James S. Jenson issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
brief, and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge, and to adopt his recommended Order, as
modified herein.3
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc. 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951), We have
carefully examined the record and find no basis for reversing his findings.
We find no merit in Respondent's exception to the Administrative Law
Judge's reliance on the affidavit of Charles Luther rather than on a por-
tion of his testimony at the hearing in which he repudiated his earlier af-
fidavit. Alvin J Bart and Co., Inc., 236 NLRB 242 (1978).
In fn. 9, as well as in the text of his Decision, sec. III, D, par. 5. the
Administrative Law Judge noted that Steven Smith was reinstated in ac-
cordance with a determination by the Mining Safety and Health Adminis-
tration. The record establishes that Smith filed a complaint with MSHA,
but it is unclear with respect to the circumstances surrounding his rein-
statement in May 1979. We therefore place no reliance on this comment
by the Administrative Law Judge concerning the reason for Smith's rein-
statement.
In adopting the Administrative Law Judge's finding that four appli-
cants were refused employment because of their union membership or
sympathies, we note that the individuals involved were qualified for the
jobs which they sought. In this respect, we note that Jim Gillian was a
greaser and oiler who had experience operating scrapers and loaders;
Ron Oxnan had 6 years of experience as a mechanic welder; George
Lovato had completed an apprenticeship program and could operate a
backhoe, compactor, bulldozer, scraper, grader, or loader; and Alvin Ste-
vens had 4 years of experience operating a compactor.
2 In the final paragraph of sec. IV, D, of his Decision, the Administra-
tive Law Judge inadvertently neglected to include complaint par Vl(d)
among the complaint allegations which he did not find to be violations of
the Act. That omission is hereby corrected.
Conclusions of Law 3 and 6 will be amended to reflect the finding of
the Administrative Law Judge that Respondent violated Sec. 8(a)(3) and
(I) of the Act as alleged in complaint par. Vl(c), rather than Sec 8(a)(1)
alone, by maintaining a policy of not hiring active union members
I We shall modify the Administrative Law Judge's recommended
Order to reflect the Amended Conclusions of Law and substitute a new
notice for that of the Administrative Law Judge
In accordance with his dissent in Olympic .lcdical Corporation, 250
NLRB No 11 (1980), Member Jenkins would award interest on the back-
pay due based on the formula set forth therein
250 NLRB No. 128
Amended Conclusions of Law
Delete Conclusions of Law 3 and 6 and substi-
tute the following:
"3. By telling employees and applicants for em-
ployment that it will not hire active union members
and that they must withdraw from the Union in
order to be employed; by questioning employees
regarding their union membership; by questioning
employees about whether they attended a union
meeting, what transpired at the meeting and who
attended it; by threatening to lay off or replace em-
ployees who attended a union meeting; by telling
employees that Respondent will get rid of union
card carriers; by instructing an employee not to
wear his union insignia on the job; by threatening
to have an observer present at union meetings; by
creating the impression of surveillance of union ac-
tivities and by engaging in surveillance of union
meetings; by telling an employee he would not be
discharged if he kept his 'nose clean' and did not
talk about the Union; and by asking an employee to
compose a list of employees sympathetic to the
Union, Respondent has violated Section 8(a)(l) of
the Act."
"6. By maintaining a policy of not hiring active
union members and by refusing to employ Ron
Oxnan, Alvin Stevens, George Lovato, and Jim
Gillian because of their membership in or sympa-
thies for a union, Respondent violated Section
8(a)(3) and (1) of the Act."
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, as modi-
fied below, and hereby orders that the Respondent,
Stafford Construction Co., Grand Junction, Colo-
rado, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
I. Substitute the following for paragraphs I(a)
and (b):
"(a) Telling employees and applicants for em-
ployment that Respondent will not hire active
union members and that they must withdraw from
the Union in order to be employed; questioning
employees regarding their union membership; ques-
tioning employees about whether they attended a
union meeting, what transpired at the meeting, and
who attended it; threatening to layoff or replace
employees who attended a union meeting; telling
employees that Respondent will get rid of union
card carriers; instructing employees not to wear
their union insignia on the job; threatening to have
1469
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an observer present at union meetings; creating the
impression of surveillance of union activities and
engaging in surveillance of union meetings; telling
employees they will not be discharged if they keep
their 'noses clean' and do not talk about the Union;
and asking employees to compose a list of employ-
ees sympathetic to the Union.
"(b) Maintaining a policy of not hiring active
union members, discharging employees, refusing to
hire applicants, or otherwise discriminating against
employees with regard to their hire or tenure of
employment or any term or condition of employ-
ment for engaging in activities on behalf of a labor
organization or for engaging in activities protected
by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT tell employees and/or appli-
cants for employment that we will not hire
active union members and/or that they must
withdraw from the Union in order to be em-
ployed by us.
WE WILL NOT question employees or appli-
cants for employment regarding their union
membership.
WE WILL NOT ask employees whether they
have attended union meetings, what went on
at union meetings, or who attended them.
WE WILL NOT threaten to layoff or replace
employees who attend union meetings.
WE WILL NOT tell our employees that we
will get rid of union card carriers.
WE WILL NOT ask or instruct our employees
not to wear union insignia on the job.
WE WILL NOT threaten to have an observer
present at union meetings.
WE WILL NOT conduct surveillance of em-
ployees' union activities, nor will we create
the impression that we are conducting surveil-
lance of employees' union activities.
WE WILL NOT tell employees that they will
not be discharged if they keep their "noses
clean" and do not talk about the Union.
WE WILL NOT ask any employees to com-
pose a list of employees sympathetic to the
Union.
WE WILL NOT maintain a policy of not
hiring active union members, discharge em-
ployees, refuse to hire applicants, or otherwise
discriminate against employees with regard to
their hire or tenure of employment or any
term or condition of employment for engaging
in activities on behalf of International Union of
Operating Engineers, Local No. 9, AFL-CIO,
or any other labor organization, or for engag-
ing in activities protected by Section 7 of the
Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
the rights guaranteed you in Section 7 of the
National Labor Relations Act.
WE WILL offer Jack Luther immediate and
full reinstatement to his former position or, if
it no longer exists, to a substantially equivalent
position of employment, without prejudice to
his seniority or other rights and privileges pre-
viously enjoyed, and WE WILL reimburse him,
along with Steven Smith, for any loss of earn-
ings they may have suffered as a result of our
discrimination against them, with interest.
WE WILL offer employment to Ron Oxnan,
Alvin Stevens, George Lovato, and Jim Gil-
lian in the first available job openings for
which they are qualified, and reimburse them
for any loss of pay they may have suffered by
reason of our discrimination against them, with
interest.
STAFFORD CONSTRUCTION CO.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This
case was heard before me in Canon City, Colorado, on
July 17, 18, and 19, 1979. The original charge was filed
on November 16, 1978,1 was amended on November 21,
and again on December 27. The complaint was issued on
December 29, was amended on April 3, 1979, and fur-
ther amended during the hearing. The complaint as
amended alleges 20 incidents of 8(a)(1) conduct, includ-
ing the discharge of Steven Smith for engaging in a pro-
tected concerted activity, the discharge of Charles
Luther, Jerry Pearce, and Jack Luther because of their
membership or activities on behalf of the Union in viola-
tion of Section 8(a)(3), and the maintenance of a policy
refusing to hire applicants because of their membership
in or sympathies for the Union, including Ron Oxnan,
Alvin Stevens, George Lovato, and Jim Gillian in viola-
tion of Section 8(a)(3). Also alleged as a violation of Sec-
tion 8(a)(3) is the alleged change on November 17 of an
"existing overtime policy to revert to a prior more liber-
al overtime policy." Respondent denies the commission
of any unfair labor practices. All parties were afforded
full opportunity to appeal, to introduce evidence, to ex-
amine and cross-examine witnesses, to argue orally, and
i All dates hereafter are in 1978 unless otherwise staled.
1470
STAFFORD CONSTRUCTION CO.
to file briefs. A brief was filed by Respondent and has
been carefully considered.
Upon the entire record in this case, and from my ob-
servation of the witnesses and their demeanor, and
having considered Respondent's post-hearing brief, I
make the following:
FINDIN(iS 01 FACt
I. JURISDICTION
Stafford Construction Co., herein called Respondent, a
Colorado corporation, with its principal office located in
Grand Junction, Colorado, is engaged in the construc-
tion industry by contracting to do services with heavy
equipment. Respondent annually purchases and receives
goods and materials valued in excess of $50,000 directly
from outside the State of Colorado, and annually per-
forms services valued in excess of $50,000 to firms, each
of which annually purchases and receives goods and ma-
terials valued in excess of $50,000 directly from outside
the State of Colorado. Respondent admits, and it is
found, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THEI IABOR ORGANIZATION INVOI VIA)
It is admitted and found that International Union of
Operating Engineers, Local No. 9, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. ISSUES
I. Whether Jim Pospahala is a supervisor within the
meaning of the Act.
2. Whether the layoffs or discharges of Charles Luther
and Jerry Pearce on November 17, and Jack Luther on
November 22, were for discriminatory reasons.
3. Whether Respondent refused to hire Ron Oxnan,
Alvin Stevens, George Lovato, and Jim Gillian because
of their membership in the Union.
4. Whether Steven Smith was discharged because he
petitioned Respondent for better safety conditions.
5. Whether Respondent engaged in a variety of other
conduct alleged to independently violate Section 8(a)(1)
of the Act.
IV. THIF Al I.EGED UNFAIR I.ABOR PRACTICES2
A. The Setting and Supervisory Issue
Mountain States Mineral Enterprises, Inc., is the gen-
eral contractor on the Cotter Dam project located near
Canon City, Colorado. Respondent is one of Mountain
States' subcontractors on the project. At all material
times, Harold Stafford was Respondent's president and a
major stockholder, Rex Auten was superintendent, Mel
Provost and Mark Jackson were foremen, Ray Sullivan
was personnel manager, and Charles Luther was a fore-
2 The complaint allegations do not foillow in chronological sequence I
have however. attempted to organize and resolve issues as they happened
chronologically
man until October 19. a Respondent admits the foregoing
are its agents and supervisors within the meaning of Sec-
tion 2(11) of the Act, and it is so found. The amended
complaint alleges Jim Pospahala is also a foreman and an
agent and supervisor, and that he engaged in unlawful in-
terrogation, told an employee Respondent was making a
list of employees who were sympathetic to the Union,
and intimated that Respondent was trying to weed out
union employees. The testimony shows that Pospahala
was a "grade checker" whose work consisted of setting
the grade stakes which outline the areas the equipment
operators move dirt or rock into. Like the equipment op-
erators, he works under two foremen. While he works as
an assistant to one of the foremen and can have the
equipment moved from one zone to another, he does not
assign the operators to the equipment nor can he switch
an operator from one piece of equipment to another. He
has never been told he had any supervisory authority,
nor has he ever hired, fired, disciplined, or laid off em-
ployees, or made employee reports or any reports re-
garding the work being performed. He has nothing to do
with the rate of pay or hours the equipment operators
work. Unlike the foremen, he is hourly paid and Re-
spondent's payroll records, introduced in evidence as
General Counsel's exhibits, reveal his hourly rate of pay
is less than that of the equipment operators with whom
he works. The record is void of any evidence that Po-
spahala exercises any of the authority that would make
him a supervisor within the meaning of Section 2(11) of
the Act. In these circumstances, I find that he is not a
supervisor and accordingly recommend dismissal of para-
graphs V(q), (r), and (s) of the complaint which are
based upon his conduct as an alleged supervisor.
B. Hiring Policy
The main thrust of the complaint is the General Coun-
sel's contention that Respondent had a policy of refusing
to hire applicants who were members of the Union. Evi-
dence regarding Respondent's hiring policy predates by
several months the Union's efforts.
The record reveals that initial interviewing and hiring
took place from about May I until mid-July. Stafford
and Personnel Director Schneider did most of the inter-
viewing and hiring during that period. Thereafter, Fore-
man Charles Luther also interviewed and hired employ-
ees. It appears that Respondent's application forms did
not ask the applicant to state whether he was a union
member; however, it also appears that for some reason
or another-probably because Respondent ran short of
forms-a form used by Adair Rippy may have been used
on at least one occasion which asked that question. The
record shows Rippy owned some of the equipment
which Respondent leased. The complaint neither alleges,
nor does the evidence show, that Rippy either was a
: Luther was an equipment tiperator and lizI longer ai suprslsor from
about mid-October until hi' alleged discriminatolry discharge in Novem-
her 17. but returned as a foreman and supervisor after the first of the
year
1471
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joint employer or possessed any supervisory authority
over Respondent's employees.4
Paragraphs Vl(b) and (c) of the complaint allege the
policy of refusing to hire applicants because of member-
ship in the Union, and paragraphs V(a), (b), and (t)
allege specific incidents evidencing that policy.
Specifically, paragraph V(a) alleges that from mid-July
until October Charles Luther told many applicants for
employment that Respondent would not hire active
union members. Paragraph V(b) adds the allegation that
Luther told two employees that they must withdraw
from the Union. The evidence supporting these allega-
tions is overwhelming. Charles Luther, who was at times
an evasive witness, testified that "We explained to them
that we was not union and that we didn't want to have
conflict with the union, that we prefer that they with-
draw from the union." He acknowledged that he might
have said that there was no way Respondent was going
to hire active union members, and that he may have sug-
gested to an applicant that it would be better if he
weren't a union member, and that "I have requested that
I thought it would be best if they would take a with-
drawal to save problems. I have requested that." In an
investigatory affidavit Luther stated that, around the
middle of July, Stafford told him that "I should not hire
any operators from the union without a withdrawal card
even if they belonged to a union out of state. He said
there was no way he was going to hire any active union
members because he thought the union was going to try
to take over the job . . . that he was 'totally against the
union."' He received the same instruction several times,
and "I was also present when Stafford instructed Ray
Sullivan, personnel manager, that application should be
reviewed to find out whether or not the prospective em-
ployee was an active union member." The affidavit goes
on to state that "I followed these instructions. Probably
over 100 applicants I interviewed and turned down be-
cause they were active union members (any union-even
out of state). Because of this hiring practice I had trouble
filling the jobs because I was also instructed to hire an
operator for every machine. I mentioned to Stafford that
I was having trouble getting enough qualified operators
and suggested that we hire active members. He then told
me to hire anyone but active union members and that if I
had to set up a training program that I should."
Jack Luther, a cousin of Charles, testified that in late
June or early July, he filed an application for employ-
ment as a compactor operator but learned the compac-
tors hadn't arrived yet. Later, he learned that his cousin
Charles was a foreman on the job, so, along with Ron
Oxnan, they contacted Charles at his home and told him
they were looking for work. Jack testified that his cousin
told him, "Tex, I know you are active in the union ....
Our policy is to hire no union members unless you take a
withdrawal card." He testified Oxnan asked if Respond-
4 Par V(d) of the complaint alleges that on or about October 17 (prior
to the advent Of the Union). Respondent polled employees as to their
union sympathies The paragraph is apparently grounded on Charles
Luther's statement that Rippy made the statement at a safety meeting
that he had polled the employees and that they didn't want the Union
As Rippy was not shown to be an agent or supervisor of Respondent.
this allegation lacks merit.
ent needed mechanics and was told that they did. After
asking and learning that Oxnan belonged to the Union,
Charles asked if he would be willing to take a withdraw-
al card, to which Oxnan said no. Charles then asked Jack
if he would take out a withdrawal and was told he
would think about it. Jack later called Charles and told
him he would take out a withdrawal card and was then
hired. Oxnan testified that Charles said he could prob-
ably go to work "if you want to withdraw from the
union, but he didn't want to hire a union hand." Conse-
quently, he didn't file a written application. Manuel Jac-
quez, an employee called as a witness by Respondent,
testified without contradiction that when he applied for
employment Sullivan asked if he was a union member,
and upon receiving an affirmative answer was told that
he had to withdraw. Accordingly, he obtained a with-
drawal and was hired.
Alvin Stevens testified he applied for a job in late June
and was told to return in a month or so. Stevens was in-
terested in operating a compactor and was told later on
that they wouldn't have any for a week or two. It was
not disputed that Sullivan asked if he would join the
Union, and to which he replied that he would. Stevens
went back to check on the job once or twice a week
thereafter until Sullivan told him the job had already
been filled.
George Lovato testified that he first applied for a job
in May and was given an application form by an uniden-
tified woman. The form asked whether the applicant was
a union member.5 Since he had learned from the woman
that the job was nonunion, he asked her how to answer.
She told him that if he was presently in the Union to fill
it out accordingly, which he did. He testified she told
him they didn't want any trouble with the unions, to
which he responded that he was willing to work non-
union. She replied that she would talk to Sullivan for
him. He returned two or three times a week until June
27 when he took another job. He was laid off from that
job on August 26 and contacted Respondent several
times a week from then until November 7. Sullivan told
him he might receive a call since they had more equip-
ment coming in. He was never hired.
Jim Gillian testified without contradiction that he went
out to the jobsite on Monday, August 21, and talked to
Sullivan outside the office trailer within earshot of the
guard. He testified Sullivan asked what experience he
had and "he seemed very enthused. I had been in busi-
ness for 15 years, and he seemed very enthused that
someone would come out with experience, and he was
getting ready to hire people. The conversation went on,
and he said, well, I don't have the equipment in right
now, it will be in within a few days. He asked me what I
had been running, and I told him that I had been running
a scraper and a loader. lie said that whichever one I
wanted at the time he hired me, I could take either one
of them. I said fine. He said, why don't you come back
toward the tail end of the week, and I will let you know
more about when to go to work. I said, can I help you
fairy the equipment in? He said, no, just check about
" Personnel Director Schneider teslified he had been unable to locate
L.ovalo's application.
1472
STAFFORD CONSTRUCTION CO.
Wednesday or the tail end of the week, and he said, 'Do
you belong to the union?' I said yes, I belong to the
Teamsters No. 13. At that point, he became uninterested
. . .and there was no more said." When Gillian went
back on Wednesday, the guard at the gate told him the
equipment hadn't come in. When he returned on Friday,
the guard told him that Sullivan had "hired all the
people he wants."
In the case of Oxnan, Respondent argues that the in-
terview with Charles Luther was social and that Oxnan
never in fact filled out a job application form. It further
argues that Luther's statements show no union animus.
Respondent argues that Stevens was only interested in
operating a compactor, and that the next compactor was
given to Jack Luther, whom Respondent characterizes as
"a union man." No mention is made of the fact that Jack
Luther was not hired until he said he had obtained a
withdrawal from the Union in compliance with Respond-
ent's clearly established policy of not hiring active union
members. Respondent argues that the statements made
by the unidentified girl that Lovato spoke to at the time
of filing an employment application are irrelevant and do
not indicate antiunion bias inasmuch as Stafford hired
many active and nonactive union members. Instead, it is
argued, there were no openings on either the backhoe or
compactor until Jack Luther "a union man" was hired
for the latter. In Gillian's case, Respondent notes that
Gillian didn't actually complete an employment applica-
tion, and goes on to make the incredulous observation
that Sullivan was a purchasing agent with no hiring au-
thority. Respondent's answer not only admits Sullivan
was the personnel manager, but that he was an agent and
supervisor within the meaning of the Act. Furthermore,
the record evidence establishes conclusively that he pos-
sessed hiring authority.
The credited evidence outlined above establishes, as al-
leged in the complaint, that Respondent had a policy of
refusing to hire applicants because of their membership
or sympathies for a union. The fact that neither Oxnan
nor Gillian actually completed a written application form
is of no moment. It is clear from the evidence that each
spoke to an agent of Respondent that was authorized to
hire employees, and there can be no doubt that in both
instances it was made clear that the individual was seek-
ing employment. In neither instance is there any evi-
dence to indicate that they were told a written applica-
tion was required. Moreover, it is clear that Oxnan was
told employment was conditioned on his withdrawal
from the Union. Further, Charles Luther admitted in his
investigatory affidavit that he had personally interviewed
and turned down "probably over 100 applicants" because
they were union members. In these circumstances, I find
that Respondent violated Section 8(a)(1) of the Act as al-
leged in paragraphs V(a), (b), and (t), and Section 8(a)(3)
and (1) as alleged in paragraphs VI(b) and (c).
Paragraph V(e) alleges that on or about October 17
Provost interrogated an employee concerning his union
membership. Jerry Pearce testified that about the time he
was hired he was riding in a truck with Provost, who
asked him if he was a member of the Union, to which he
replied affirmatively. While Provost denied generally en-
gaging in any unlawful conduct, his testimony was not
directed to conversations with specific individuals, nor
did he explain how he knew that Pearce was a union
member. As will be seen hereafter, Provost engaged in a
variety of unlawful conduct following the union meet-
ings, all of which he denied. The employees who testi-
fied to his alleged unlawful conduct did so in more detail
and impressed me as more reliable witnesses. Therefore,
where Provost's testimony is in conflict with the testimo-
ny of the employee witnesses, I credit the employees.
Accordingly, I find Respondent violated the Act as al-
leged in paragraph V(e) of the complaint.
Paragraph V(g) alleges that on or about November 9
Jackson interrogated an employee concerning the Union,
and told him that Rex Auten had instructed Jackson to
get rid of his union card carriers. It appears from the tes-
timony of both Wayne Adams and Jackson that the al-
leged conversation occurred on November 14, the day
before the Union's organizing meetings. Adams testified
that Jackson told him that Auten had told Jackson there
was going to be "a big union blow up" and for Jackson
to start getting rid of all his union card carriers. Jackson
acknowledged a conversation with Adams and testified
"I would imagine I asked Wayne [Adams] if he was
going to the union meeting or he asked me if I was
going ... and he told me yes, he was going to go . . . .
And then I brought up Rex Auten, I believe and . . . we
talked .... I told Wayne that Rex didn't like union
hands and I'd imagine that he would try to some way
weasel his way in and try to get rid of my union opera-
tors." On the basis of the foregoing, I find Respondent
engaged in the unlawful conduct alleged in paragraph
V(g) of the complaint.
Paragraph V(c) alleges that about the first week of
September Rex Auten, Respondent's superintendent, in-
terrogated an employee concerning his membership in
the Union. Larry Hoff testified without contradiction
that, 3 or 4 weeks after he had been hired by Sullivan,
Auten "asked me if I packed a union card, and I said
yes, I packed one for quite a few years." Hoff was wear-
ing a cap that had a union button on it at the time. Later
in the day, Auten either asked or told Hoff that he
wanted him to remove the union button "because it was
a nonunion job."
Paragraph V(f) alleges that on or about November 8
Auten instructed an employee that he could not wear a
union insignia. The right to wear a union insignia is pro-
tected unless legitimate business or safety considerations
justify their removal. In the absence of a showing of
such considerations, as here, the Board has held that re-
questing the removal of union insignia interferes with its
employees' right to self-organization and to assist labor
organizations in violation of Section 8(a)(1) of the Act.
See, e.g., Dependable Lists, Inc., 239 NLRB 1304 (1979);
Capital Records, Inc., 232 NLR8 228 (1977). According-
ly, I find that by interrogating Hoff regarding his union
membership, and by requesting him to remove his union
button, Respondent violated Section 8(a)(1) as alleged in
paragraphs V(c) and (f) of the complaint.
1473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Union Enters the Picture
The first open union activity appears to be handbilling
at the entrance to the jobsite by Alvin Sandidge, the
Union's business representative, on November 14, an-
nouncing union meetings at the Ramada Inn in Canon
City the following day at 10:30 a.m. and 1:30 p.m. It is
undisputed that Stafford asked Sandidge to do his hand-
billing at another location, and called the sheriff in an ap-
parent attempt to force him to move, but that the sheriff
let Sandidge remain where he was.
The same day the handbilling occurred, an employee
safety meeting was held. It is undisputed that Auten
spoke and made mention of the union meetings the fol-
lowing day. There is a dispute regarding what Auten
said. In general, the General Counsel's witnesses attribut-
ed statements to Auten that Respondent's witnesses did
not recall. Larry Hoff testified that Auten told the men
that they could go to the union meeting if they wanted
to, but that they could be replaced. Wayne Adams testi-
fied that Auten said he did not know who carried a
union card, but that if the card carriers did not like the
job or were going to attend the meeting, that they could
look for jobs elsewhere. Tom and Steven Smith both tes-
tified that Auten stated that if the men joined and
wanted to organize a union that they would or could be
replaced. Personnel Director Schneider denied Auten
stated that the men attending the union meeting could be
replaced. Scraper Operator Jack Rieter recalled that
Auten mentioned the union meeting the following day
but did not remember any further comment. Gerald
Claghorn remembered only safety matters being dis-
cussed. Sam Whittier remembered Auten said something
about the union meeting, but he did not say they could
be replaced. A number of other employee witnesses for
Respondent were not questioned about the meeting.
Foreman Mark Jackson testified, however, that "Rex
was a real strong nonunion type person . . . He'd always
made verbal threats of not liking union hands and wished
he didn't have union hands and so forth." On the basis of
all the evidence presented heretofore, I am convinced
the General Counsel's witnesses were telling the truth
and credit their testimony over that of Respondent's wit-
nesses. While Auten's statements were not alleged in the
complaint to be violative of the Act, the incident is suffi-
ciently related to the subject matter of the complaint to
justify a specific finding. In this regard, it is noted that
the threat is consistent with Respondent's antiunion cam-
paign and the matter was fully litigated at the hearing.
See, e.g., Alexander Dawson, Inc., d/b/a Alexander's Res-
taurant and Lodge, 228 NLRB 163 (1977). Accordingly,
it is found that the threat to replace union members vio-
lated Section 8(a)(l) of the Act.
Paragraph V(h) alleges that on November 15 Mel Pro-
vost told an employee that Respondent would have an
observer present at the union meeting. Charles Luther,
who at the time of testifying herein was a foreman-super-
visor, was an evasive witness when asked questions
about his investigatory affidavit. With respect to the alle-
gation herein at issue, the statement recites as follows:
"Before the meeting (approximately 2 hours before) Mel
Provost, foreman, told [me] that Stafford would have an
observer at the union meeting and asked me to make a
list of all the employees I hired that would be in favor of
the union." It is not disputed that Luther had been re-
duced from foreman to an operator at the time of the
conversation and was no longer a supervisor. As noted,
Luther was evasive and fenced with the General Counsel
when asked about that statement. He did not, however,
contradict the first portion of the statement relating to
Provost's having told him that Stafford would have an
observer at the union meeting. I therefore credit the
statement made in the affidavit and find that Provost's
statement constitutes a threat of surveillance as alleged in
paragraph V(h) of the complaint. With respect to the
portion of the alleged statement dealing with the request
to compose a list of employees sympathetic to the Union,
Luther admitted he and Provost discussed such a list
before the meeting, and that "yes, he would like to know
who they was, and I would have told him but I didn't
know." While he denied at one point that Provost asked
him to prepare a list, he next admitted Provost asked him
"who all the union members are." While Provost ad-
mitted talking to Luther prior to the union meeting, he
denied the statements attributed to him. He claimed in-
stead that Luther did all the talking. I credit the state-
ment made in the affidavit as corroborated by Luther's
oral testimony, and find Respondent violated the Act as
alleged in paragraph V(o) of the complaint.
At the time both union meetings were scheduled to
commence on November 15 in a meeting room which
the Union had engaged at the Ramada Inn in Canon
City, Stafford was observed sitting in the Ramada Inn
restaurant directly across from, and with an unobstructed
view of, the entrance to the meeting room. At the time
of the morning meeting, Stafford was sitting with Adair
Rippy, allegedly pursuant to an interoffice communica-
tion from Stafford's secretary stating that Rippy wanted
to meet him for breakfast at 10:30. While no mention of
the location of the meeting is set forth in the memo, Staf-
ford lived in an apartment located next to the Ramada
Inn, and he testified he held business meetings in the cafe
as much as five or six times a day. At the time of the
afternoon union meeting, Stafford was seated in approxi-
mately the same location with Tom Bluebaker, an em-
ployer with whom Sandidge was also acquainted. Before
the meeting commenced, Sandidge went over to the
table and spoke to Bluebaker. Some of the employees at-
tending the meetings observed Stafford in the cafe, and
others did not. Being mindful of the union animus al-
ready directed against the Union by Respondent, I find it
more than a coincidence that Stafford was sitting direct-
ly in the line of view of the union meeting room at pre-
cisely the times announced for the union meetings in the
handbill distributed the day before. Accordingly, I find
that Stafford engaged in surveillance of the union meet-
ing as alleged in paragraph V(i) of the complaint.
Paragraphs V(j) and (m) allege that on November 16,
Provost interrogated an employee about the union meet-
ing. Paragraph V(k) alleges that on the same date Pro-
vost created the impression of surveillance by telling an
employee there were 39 union members on the job, and
paragraph V(I) alleges Provost told an employee he
would not be discharged if he kept his "nose clean" and
1474
STAFFORD CONSTRUCTION CO.
did not talk about the Union. While Provost denied en-
gaging in any of the alleged conduct, the testimony of
Jerry Pearce, whom I credit, corroborated in part by
Charles Luther, convinces me otherwise. Pearce testified
that on the day following the union meetings, Provost
asked if he had gone to the meeting, which he con-
firmed, and then "how it turned out?" Pearce responded
"not very good" and that he didn't "think they will get
enough operators for a . . . election." Pearce testified
Provost then stated that "they had 39 union men on the
job." He testified that later in the day he talked to Pro-
vost again who told him "you keep your nose clean
about this number 9 business and you will have a job all
winter. We have lots of rock to haul." Charles Luther,
who had been reduced from a supervisory foreman to an
equipment operator in mid-October, testified that after
the meeting, Provost "asked me who showed up" at the
meeting, and that he said it was a very poor turnout. 6
His investigatory affidavit and testimony also disclose
that Provost told him that "all the people attending the
meeting probably would be laid off." This threat is al-
leged in paragraph V(n) to be unlawful. On the basis of
the testimony of Pearce and Charles Luther, whom I
credit, I find that Respondent violated the Act as alleged
in paragraphs V(j), (k), (1), (m), and (n) of the complaint.
Paragraph VI(d) of the complaint alleges that on No-
vember 17 Respondent changed its existing overtime
policy to revert to a more liberal overtime policy be-
cause of the employees' membership and activities on
behalf of the Union. Jack Luther testified that about a
week or two before the union meeting, Auten "an-
nounced that there would be no more overtime pay
unless you had 40 hours work in. That concerned
Thanksgiving; we would work Monday, Tuesday,
Wednesday, and Thursday, being that was Thanksgiving,
straight time, and get off Friday, Saturday, and Sunday."
Prior to that, anything over 8 hours was time and a half,
and Saturday was automatically time and a half. Without
the benefit of additional testimony or a brief from the
General Counsel setting forth his theory, I am at a loss
to understand how the Act has been violated. Luther tes-
tified that "there was a lot of complaining among the
men" at the meeting at which the change was an-
nounced. Were the men complaining about the policy
before or after the change, and did it work to their ad-
vantage or disadvantage, and was it invoked only for the
Thanksgiving week? These questions are not answered.
Further, if, as Jack Luther testified, the announcement
was made a week or two before the union meeting, it oc-
curred prior to any union organizing activity. Accord-
ingly, I recommend dismissal of paragraph VI(d).
D. Layoffs and Discharges
Paragraph Vl(a) alleges the discharges of Charles
Luther and Jerry Pearce on November 17, and Jack
Luther on November 22 because of their membership in
and activities on behalf of the Union.
The record shows that Respondent was operating with
two rock crews prior to November 17, one crew work-
a Luther testified Provost had told him earlier that "neither he nor his
boys were union members "
ing from 3:30 a.m. until noon and the other crew from
11:30 a.m. until I a.m. On November 14, Stafford met
with E. M. Nicholson, resident manager for Mountain
States, the general contractor. It had earlier been deter-
mined that there was more rock to be moved than origi-
nally contracted for, so Mountain States had hired Staf-
ford to move the excess on an hourly basis. Lee Carlson,
Mountain States' construction manager, testified that a
problem had arisen over the rock removal which oc-
curred during the nondaytime hours when he was not
present to keep track of it. He characterized the problem
as one where Stafford was "cheating a little bit and haul-
ing more dirt than they was rock and this was what
caused us to stop it." Carlson discussed the matter with
Nicholson and it was determined that Stafford should be
directed to haul rock only during the hours Carlson was
present, 7 a.m. to 3:30 p.m., so that he could oversee the
work. Consequently, the meeting on November 14 with
Nicholson was to instruct Stafford to cut back to a one-
shift rock operation so that Carlson could keep track of
the work. In compliance, Stafford laid off the first shift
rock crew which consisted of Charles Luther, Jerry
Pearce, Carl Proper, and Leo Kowakawski.7 The termi-
nation notices have a check mark beside "reduction in
force" and contain the handwritten notation "change
production operation." Provost, who had supervised that
crew, took over supervision of the remaining rock crew
from 8 a.m. until noon, and Jackson, who had supervised
the second crew, continued to supervise it during the
afternoon. Kowakawski was rehired the following work-
day because of his experience in operating the "air 9
cat," which is an older machine, more difficult to run
and which many "dozer operators" refuse to operate.
There was testimony that Respondent's overall operation
was in the process of cutting back due to the inclement
winter weather. By the end of December, the only rock
crew employees were those engaged in "drilling, shoot-
ing and ripping rock." Charles Luther, who had been
working as a loader operator at the time of his layoff,
was rehired as a foreman in early January, and Proper
was rehired in March. Pearce has neither reapplied nor
been recalled. In these circumstances, I conclude the
General Counsel has not proven by a preponderance of
the evidence that Charles Luther and Jerry Pearce were
unlawfully discharged as alleged in paragraph Vl(a) of
the complaint.
Jack Luther received a termination slip on November
22, with "reduction in force" checked as the reason, and
containing the further notation "Machine rented returned
to owner. Did not need operator." The testimony shows
that Jack had operated compactor number 826, the
newest of the five compactors. 8 He testified that con-
trary to the legend on the termination notice, compactor
number 826 was not returned to the owner, but that his
brother, Mike Todd, was assigned to operate it after his
termination. He also claimed that another compactor op-
erator was hired. When he was on the jobsite in late Jan-
7 This name appears in the official transcript as Kovakawski It ap-
pears in the exhibits as Kosakaswskl
* There was also a "Wagner" compactor on the iohbie 'shich had
been proven unsuitable for use on the project
1475
DECISIONS ()OF NATIIONAL IAB()R RELATIONS BOARD
uary, he saw number 826 still there. Stafford testified
that he had intended returning number 826 to the lessor,
but after it had been prepared for return, it was discov-
ered that number 828 was leased for more money, so it
was decided to return the more expensive unit. He
claimed that number 828 was returned within a few days
of December 5, and that the transmission went out on
number 826 in early December and that it had to be
taken to Denver for 2 or 3 weeks for repairs. The equip-
ment list (G. C. Exh. 13), which Stafford produced pur-
suant to the General Counsel's request, lists five compac-
tors, numbers 825 thru 829. There are two notations on
the equipment list regarding number 826, which Stafford
testified he eventually purchased in 1979. One notation,
to the left of the list, states "Returne [sic] 826 on 11/5/
79-." The notation along the line containing other data
on the machine is "returned 12/5/79." These notations
supposedly were made in 1978. The fact both bear the
date 1979 leads me to conclude those notations were
made sometime in 1979 instead of 1978. While it may be
a natural and common error to continue using the old
year (1978) into the new year (1979), I have never
known the reverse to be true. Thus, it appears to me the
notations may very well have been deliberately made to
support a defense to Jack Luther's layoff. Nor do the
construction daily reports support Stafford's testimony
that one of the compactors was returned in early Decem-
ber and that number 826 was "down for 2 or 3 weeks."
To the contrary, those records show that there were five
compactors in use on at least one, and sometimes both
shifts on the following dates: December 1, 5, 15, 18, 19,
20, 26, 27, 28, and 29. In addition, four compactors were
utilized on at least one of the shifts on December 12, 13,
14, 21, and 22.
Sometime around the middle of January 1979, accord-
ing to Jack Luther, whom I credit, he called Charles
Luther and learned he was back at work as a foreman.
He testified that Charles asked if he would be interested
in a foreman's job. While Jack stated he didn't think he
was interested in a foreman's job, he stated he would like
to go back to work as an operator. Jack agreed, howev-
er, to talk to an official of Respondent whose office was
located in a bank building in Canon City. Before talking
to him, however, Jack learned the official was in the
hospital. Charles testified that he called Jack later on and
asked if he wanted to go to work, and that Jack "said
not at that time, that he wasn't really interested in get-
ting involved in it again." His testimony in this respect,
however, is proven false by the fact that on January 29,
1979, Jack filed his third application for employment. In
a later conversation, Charles testified he told Jack that
he was "leery about hiring him because of problems with
the union .... " Upon this evidence, I conclude that
Respondent's decision to lay off Jack Luther on Novem-
ber 22 was not motivated by the reasons advanced by
Respondent. I am convinced the motivating force in Re-
spondent's action was its decision to eliminate a known
long-time union adherent. In the circumstances of this
case, such an inference seems appropriate under the
rationale of the court in Shattuck Denn Mining Corp. v.
NL.R.B., 362 F.2d 466, 470 (9th Cir. 1966):
Actual motive, a state of mind, being the question,
it is seldom that direct evidence will be available
that is not also self-serving. In such cases the self-
serving declaration is not conclusive; the trier of
fact may infer motive from the total circumstances
proved. Otherwise no person accused of unlawful
motive who took the stand and testified to a lawful
motive could be brought to book. Nor is the trier of
fact . . . required to be any more naif than is a
judge. If he finds the stated motive for a discharge
is false, he certainly can infer that there is another
motive. More than that, he can infer that the motive
is one that the employer desires to conceal-an un-
lawful motive-at least where . . . the surrounding
facts tend to reinforce that inference ....
Here, the "surrounding facts" preponderate in favor of a
finding that Respondent, in laying off Jack Luther on
November 22, and subsequently refusing to reemploy
him, was motivated of its knowledge that he was a union
adherent, and that the reasons advanced by Respondent
are false. By engaging in such conduct, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
Paragraph V(p) alleges that on December 20 Respond-
ent discharged Steven Smith because he petitioned Re-
spondent for better safety conditions on behalf of the em-
ployees. Smith was hired initially on July 10 as a ma-
chine operator and during the course of his employment
ran all of the equipment. At the time of his "layoff" he
was operating a D-9 dozer. His termination notice lists
the reason as "Reduction in force." It is not disputed
that on December 18 a safety meeting was held at which
time new company safety policies were explained. One
new policy involved the length of hair and beards.
Smith, who wore a beard, reacted with an expletive.
However, nothing more of moment appears to have hap-
pened that day except that Smith may have gone home
sick. On December 19, Smith called in and reported he
was sick and asked for the day off, which was granted.
Prior to going to work the afternoon of December 20,
Smith went through the safety rules under the Mine
Safety and Health Administration, herein called MSHA,
and prepared a list of what he thought were safety viola-
tions being committed by Respondent, and asked MSHA
to inspect the jobsite. He showed the list to some of the
employees and asked them to sign it. Some did and
others didn't want anything to do with it. One of the
items listed involved riding in the back of a pickup truck
with materials. Smith testified he showed the list to both
Rex Auten, who laughed and drove off, and to Mark
Jackson who was waiting in a pickup truck to take the
machine operators, who were sitting in the back, out to
the jobsite. Smith told Jackson that he would be glad to
go to work, but that he would like to ride in the front of
the pickup instead of the back. Smith testified Jackson
said to wait and he would be back and pick him up.
After delivering the men, which took about 25 minutes,
Jackson came back and told Smith he wouldn't be
needed the rest of the day. Smith asked, and was told
that another man was operating his dozer. As he was
leaving, Smith asked the safety officer, Adair Rippy,
why "he was being sent home and Rippy said he didn't
147h
STAFFORD CONSTRUCTION CO()
need any trouble on the job." When Smith returned to
the jobsite that evening to pick up his brother, several
men told him they were sorry he was fired and Jackson
drove up and handed him his paychecks. Jackson stated
the order "came from the office." Smith apparently filed
a charge with MSHA, which resulted in his reinstate-
ment in May 1979. He was put back on a scraper which
pays 15 cents per hour more than a dozer, but the scrap-
er bothered his back and he quit for that reason about
July 1. Jackson testified Smith had complained about
being sick the afternoon of the safety meeting and that
he let Smith go home, and that he didn't show up the
following day. On December 20, Jackson was in the
front of the pickup truck with Sam Bowker, another
equipment operator, when Smith refused to get into the
back of the pickup truck and tried to persuade the other
operators to refuse also. After delivering the other men
to their equipment, Jackson returned and told Smith he
was sending him home for the day. He acknowledged
that Smith had tried to show him the MSHA paper, but
he declined reading it. He testified Smith was not a good
worker and a decision to lay him off had already been
made but that he did not know about it until later in the
afternoon when Personnel Director Schneider gave him
the termination slip and checks. Schneider testified that
Stafford had made the decision to lay off Smith and that
the reason was because they were starting a major layoff
because of the bad weather and that Smith was the least
experienced operator.
In my opinion the evidence, as set forth above, fails to
prove that Smith was terminated because he was not a
good worker, as claimed by Jackson, or that it was due
to the bad weather and his job inexperience as contended
by Schneider. Rather, I conclude those reasons are a pre-
text. It is true that Respondent was in the process of re-
ducing its work force because of the cold weather, but
the evidence convinces me it seized upon those reasons
as a pretext for laying him off earlier than it would have
had he not raised the safety issues and threatened to go
to MSHA. The true reason for a discharge can be in-
ferred from the timing-Smith was fired as soon as possi-
ble after he threatened to report safety violations to
MSHA. Making safety-related complaints to a govern-
ment agency is a protected concerted activity. Accord-
ingly, I find that Respondent violated Section 8(a)(l) of
the Act by discharging Smith for engaging in protected
concerted activity.9 B & P Motors Express. Inc., 230
NLRB 653 (1977).
To summarize, I have found that the Respondent vio-
lated the Act as alleged in paragraphs V(a), (b), (c), (e),
(f), (g), (h), (i), (j), (k), (I), (m), (in), (o), (p), and (t) and
paragraphs VI(a), with respect to the discharge of Jack
Luther, (b) and (c). I have further found that Respondent
did not violate the Act as alleged in paragraphs V(d),
(q), (r), and (s) and paragraph VI(a) in so far as it alleges
the unlawful discharge of Charles Luther and Jerry
Pearce.
9 As Smith was reinstated in accordance ,with a determinralion by
MSHA, it would appear that agency arrived at the same conclusion As
Smith's quitting his employment with Respondent in July 197'9 is not al-
leged as a constructive discharge. and as the issue was not fully Ihtigaled.
no finding is warranted
V. THEI FlFFCI OF 1HE ULINFAIR I lBOR PRACTICEIS
UPON COMiN RCEI
The activities of Respondent set forth in section IV,
above, occurring in connection with the operations of
Respondent as described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States, and tends to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
VI. I Hf RI MIDi)Y
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(3) and (I) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate
the policies of the Act. I shall recommend that Respond-
ent be required to offer Jack Luther immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority and other rights and privileges and
make both Jack Luther and Steven Smith whole for any
loss of earnings they may have suffered by reason of the
discrimination against them, by payment to each of them
of a sum of money equal to that w hich he normally
would have earned as wages from the date of his respec-
tive discharge to the date of the respective offers of rein-
statement, less net earnings during such period. I shall
also recommend that Ron Oxnan, Alvin Stevens, George
Lovato, and Jim Gillian be made whole for any loss of
earnings they have suffered as a result of Respondent's
discriminatory refusal to hire them. See, e.g., Amerace
Corporation, Swan HIlo Division. 217 NLRB 942 (1975).
Loss of earnings for all individuals shall be computed as
prescribed in F: W. Woollworth Company, 90 NLRB 289
(1950), plus interest as set forth in Isis Plumbing & Hleat-
ing Co., 138 NLRB 716 (1962), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).
It is also recommended that Respondent make availa-
ble to the Board, upon request, all payroll and other re-
cords to facilitate checking the amount of backpay due
CON[ I 'SIONS 01 LAW
1. Stafford Construction Co. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. International Union of Operating Engineers, I ocal
No. 9, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By telling employees and applicants for employmnent
that it will not hire active union members and that they
must withdraw from the Union in order to be employed:
by questioning employees regarding their union member-
ship; by questioning employees about whether they at-
tended a union meeting, what transpired at the meeting.
and who attended it; by threatening to layoff or replace
employees wsho attended a union meeting: by telling eni-
ployees that Respondent swill get rid of union card carri-
ers: by instructing an employee not to s car his union in-
signia on the job; by threatening to have an observer
present at union meetings: by creating the impression of
1 477
I)ECISIONS OF NATIONAL LABOR RELAl IONS BOARD
surveillance of union activities and by engaging in sur-
veillance of union meetings; by telling an employee he
would not be discharged if he kept his "nose clean" and
did not talk about the Union; by asking an enployee to
compose a list of employees sympathetic to the Union;
and by maintaining a policy of not hiring active union
members, Respondent has violated Section 8(a)(I) of the
Act.
4. By discharging Steven Smith because he engaged in
protected concerted activity, Respondent has violated
Section 8(a)(1) of the Act.
5. By discharging Jack Luther, and by refusing to
reemploy him because of his membership in the Union,
Respondent violated Section 8(a)(3) and (1) of the Act.
6. By refusing to employ Ron Oxnan, Alvin Stevens,
George Lovato, and Jim Gillian because of their mem-
bership in or sympathies for a union, Respondent violat-
ed Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER l°
Respondent, Stafford Construction Co., its officers,
agents, successors, and assigns shall:
1. Cease and desist from:
(a) Telling employees and applicants for employment
that Respondent will not hire active union members and
that they must withdraw from the Union in order to be
employed; questioning employees regarding their union
membership; questioning employees about whether they
attended a union meeting. what transpired at the meet-
ing, and who attended it; threatening to layoff or replace
employees who attended a union meeting; telling em-
ployees that Respondent will get rid of union card carri-
ers; instructing an employee to not wear his union insig-
nia on the job; threatening to have an observer present at
union meetings; creating the impression of surveillance of
union activities; engaging in surveillence of union meet-
ings; telling an employee he would not be discharged if
he kept his "nose clean" and did not talk about the
Union; asking an employee to compose a list of employ-
ees sympathetic to the Union; and maintaining a policy
of not hiring active union members.
(b) Discharging, refusing to hire, or otherwise discrim-
inating against employees with regard to their hire or
tenure of employment or any term or condition of em-
i' In the event no exceptions are filed as provided by Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions. and Order, and all objections thereto
shall be deemed waived for all purposes.
ployment for engaging in activities on behalf of a labor
organization or for engaging in activities protected by
Section 7 of the Act.
(c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the right of
self-organization, to form labor organizations, to join or
assist International Union of Operating Engineers. Local
No. 9, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all such
activities, except to the extent that such rights may be af-
fected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized
in Section 8(a)(3) of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Jack Luther immediate and full reinstatment
to his former or substantially equivalent job, without
prejudice to his seniority or other rights previously en-
joyed, and make him, along with Steven Smith, whole
for any loss of pay suffered by reason of their unlawful
discharges, in the manner set forth in the section entitled
"The Remedy."
(b) Offer to employ Ron Oxnan, Alvin Stevens,
George Lovato, and Jim Gillian in the first available job
openings to which they are respectively qualified, and
make them whole for any loss of pay they may have suf-
fered by reason of Respondent's discrimination against
them, in the manner set forth in the section entitled "The
Remedy."
(c) Post at its places of business, including construction
site hiring offices, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms provided
by the Regional Director for Region 27, after being duly
signed by an authorized representative of Respondent,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to emloyees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that Respondent
violated the Act otherwise than found herein.
I' In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant it a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
1478