Daniel Construction Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Daniel Construction Company, a Division of Daniel International Corporation and Southeastern Okla- homa Building and Construction Trades Council, AFL-CIO. Cases 16-CA-7592 and 16-CA-7690 March 22, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On December 5, 1978, Administrative Law Judge Phil W. Saunders issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,' and the General Counsel re- submitted his brief to the Administrative Law Judge in support of the Administrative Law Judge's Deci- sion.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,3 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein.4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- In its brief, Respondent moves that the Administrative Law Judge's cita- tion in fn. 2 of his Decision of two Board decisions involving Respondent be stricken from the record. Respondent argues that by taking judicial notice of these two prior unfair labor practice cases, as requested by the General Counsel, the Administrative Law Judge considered evidence irrelevant to the issue of whether Respondent acted with union animus in the instant case. We find that the Administrative Law Judge did not rely on these two prior decisions in making his findings in the instant case. Accordingly, Respon- dent's motion to strike is hereby denied. 2 Afer the submission of its brief, Respondent filed a motion to strike the General Counsel's brief on the grounds, inter alia, that the brief "raises new issues which were not raised in exceptions to the Board and grossly mischar- acterizes the record in relation to these issues." Respondent's motion to strike is hereby denied as lacklng in merit. 3 Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3rd. Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 4 Although the Administrative Law Judge found that on two occasions Respondent violated Sec. 8(aX3) by discharging employees because of their union activities, he failed to provide in his recommended Order that Respon- dent shall cease and desist from such conduct. Accordingly, we shall modify the recommended Order in this regard. Additionally, the Administrative Law Judge omitted from his recommend- ed Order the proper remedial language used in Board orders directing rein- statement of employees. Accordingly, we shall modify the recommended Order in this regard. der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondent, Daniel Construction Company, a Division of Daniel Interna- tional Corporation, Muskogee, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Insert the following as paragraph l(f) and re- letter the present paragraph l(f) as (g): "(f) Discouraging membership in the Union, or any other labor organization, by discriminating against employees in regard to their hire and tenure of employment or any terms and conditions of em- ployment." 2. Substitute the following for paragraph 2(a): "(a) Offer Greg Runyon, D. D. McDougal, Robert Yeager, William Shell, Joseph Johnson, George Trammel, Lee Goforth, Lee Sickler, Teddy Muskrat, Bryan Sickler, and James Scott Shell immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision enti- tled 'The Remedy.'" 3. 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 After a hearing in which all sides had the opportunity to give evidence, the National Labor Relations Board has found that we violated the National Labor Rela- tions Act, as amended, and has ordered us to post this notice. WE WILL NOT solicit employees to engage in surveillance of union activities. WE WILL NOT threaten employees that the job will be shut down because of their union activi- ties. WE WILL NOT threaten or give warnings of dis- charge to employees because of their union ac- tivities. WE WILL NOT create the impression that union activities are under surveillance. WE WILL NOT threaten loss of work and other benefits because of union activities. WE WILL NOT discourage membership in the Union, or any other labor organization, by dis- 241 NLRB No. 50 336 DANIEL CONSTRUCTION COMPANY criminating against employees in regard to their hire and tenure of employment or any terms and conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. WE WILL offer Greg Runyon, D. D. McDou- gal, Robert Yeager, William Shell, Joseph John- son, George Trammel, Lee Goforth, Lee Sickler, Teddy Muskrat, Bryan Sickler, and James Scott Shell immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights and privileges previously enjoyed, and WE WILL pay them for any loss of pay they may have suffered by reason of our discrimination against them, with interest. DANIEL CONSTRUCTION COMPANY, A DIVI- SION OF DANIEL INTERNATIONAL CORPORA- TION DECISION STATEMENT OF THE CASE PHIL W. SAUtNDERS, Administrative Law Judge: Based on charges and amended charges filed by Southeastern Oklahoma Building and Construction Trades Council, AFL-CIO, herein called the Union,' a consolidated com- plaint was issued on February 24, 1978, against Daniel Construction Company, a Division of Daniel International Corporation, herein called Respondent or Company, alleg- ing violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Respondent filed an an- swer denying it had engaged in the alleged matter. Both Respondent and the General Counsel filed briefs. Upon the entire record and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent is a Delaware corporation engaged as a gen- eral contractor in the building and construction industry with its principal office in Greenville, South Carolina, and is the general contractor for the construction of the Fort Howard Paper Company facility near the port of Musko- gee, Oklahoma; such site and facility is the only location involved in these preceedings. During the past year, Re- spondent, in the course and conduct of its business opera- tions, performed services valued in excess of $50,000 in I In Case 16-CA-7592 the original and first amended charges were filed herein by the Union on November 4 and December 7, 1977, respectively. The original, first, and second amended charges were filed in Case 16-CA- 7690 on January 10, 1978, February 6 and 21, 1978. respectively. States other than the State of South Carolina wherein Re- spondent's principal office is located. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(6) and (7) of the Act. III. THE UNFAIR LABOR PRACTICES The consolidated complaint, as amended, alleges various 8(a)(1) violations including threats of discharge, threats that the jobsite would be shut down if the Union came in, solici- tation of employees to engage in surveillance of employees' union activities, creating the impression of surveillance, and threats that certain employees would be discharged due to their union activities. The General Counsel is also alleging that Respondent violated Section 8(aX3) and (1) of the Act by discharging 10 employees because they engaged in union activities. These discharges occurred on November 3, 1977, and on January 7, 1978. Finally, the General Counsel al- leges that Respondent violated Section 8(a)(1) of the Act by discharging its Supervisor James Scott Shell because he re- fused to terminate certain of his employee crew members who were engaged in union activities. This case arose out of a construction project in Musko- gee, Oklahoma, where Respondent is constructing a large paper mill for the Fort Howard Paper Company. Work on phase one of the project began in late December 1976; in February 1977, Fort Howard Paper Company awarded Re- spondent a second contract for the construction of another paper machine, a turbine generator, and additional pulping and warehousing facilities. It appears that Respondent is conducting its operations at the Fort Howard project on an "open shop" basis. As a result, employees are hired at the construction gate, and in general its manpower levels have been co-ordinated with the work progress and requirements. Moreover, like most construction projects, there have been significant fluctu- ations in manpower. At the beginning, in January 1977, there were some 250 employees on the job. This number increased to 1,000 just before the night shift began in Octo- ber 1977, and peaked at 2,000 in November or December 1977. There are now approximately 1,100 employees on the job. It further appears that in mid or late summer of 1977, the Union began discussing with its members the organizing of Respondent's employees, and between late October 1977 and early January 1978, the Union engaged in an organiza- tional campaign at the Fort Howard jobsite.' The complaint alleges that in October 1977, Respondent, through Supervisor Malcom Rainwater, solicited an em- ployee to engage in surveillance of union activities and also I As a further preliminary matter. it should also be noted that I have taken judicial notice, as requested, of two National Labor Relations Board Deci- sions which found that Respondent had engaged in unfair labor practices. The first case, Daniel Construction Company. Inc., a Division of Daniel Inter- national Corporation, 195 NLRB 213 (1972), enfd. 480 F.2d 921 (4th Cir. 1973), and the second case, Daniel Construction Company, a Division of Dan- iel International, 229 NLRB 93 (1977). 337 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatened employees that the Fort Howard job would be shut down if the employees selected the Union to represent them. Steven Craig credibly testified as to several conversations he had with Malcom Rainwater, Respondent's personnel administrator. Craig first met Rainwater when he was hired by Respondent onto the project. Craig stated that during the middle of October 1977, while he was working on the job, he approached Supervisor Rainwater to see if it would be possible to get a friend of his hired; during their conver- sation Rainwater asked Craig if he had heard any rumors on the job. Craig responded by voicing some of the usual construction gripes, but Rainwater did not drop the subject and asked Craig if he had heard rumors about union activi- ties and continued his interrogation by asking if Craig had attended union meetings. Finally, Rainwater asked Craig to do him a favor by going to the union meeting the coming Thursday and report back to him. Craig agreed to do as Rainwater requested. About I week later after he had at- tended the union meeting as requested, Craig noticed Rain- water walking through the work area; after establishing contact with each other, Rainwater asked about the meet- ing, and Craig informed Rainwater that the Union had gone to great expense in their campaign and were also offer- ing good benefits. Craig asked Rainwater how the Fort Howard Company felt about union activity on the job, and Rainwater replied, "If it got to that point, Fort Howard would shut this place down."3 I have concluded that Craig credibly portrayed the above-described interchanges with Supervisor Rainwater. As pointed out, it is also consistent to believe that Rain- water may have felt that Craig would make an excellent employee "snitch;" such an arrangement is suggested by Rainwater's testimony that during the union campaign he was under the mistaken belief that Craig's father was an upper level member of Respondent. In fact, Rainwater ad- mitted that he did not realize Craig's father's actual posi- tion with another employer until the week of the hearing in the instant case. I am also in agreement that Rainwater's statement relative to the Fort Howard Paper Company shutting the plant down is most certainly a statement which inherently communicated a threat of plant closure and especially so since Rainwater admits making the statement to several employees. In accordance with the above, I find that Rainwater solicited an employee to engage in surveil- lance of union activities, and he also threatened employees that the job or project would be shut down if the employees selected the Union to represent them, thereby violating Sec- tion 8(a)(1) of the Act. It is alleged in the complaint that in late October 1977, Supervisor Walter Menees threatened an employee of Re- spondent with discharge if the employee continued to en- gage in union activities. Gregg Runyon testified that he had two conversations with Respondent's Foreman Walter Menees in late October 1977. On October 27, 1977, as Run- yon was leaving the jobsite, he first encountered Menees.4 I Rainwater denied asking Craig to attend union meetings, but as to clos- ing the job, he admitted that he "probably" has told employees that the Fort Howard Company would shut the project down rather than build it on a "union basis;" however, he could not recall telling this to any particular employee. 4 Foreman Walter Menees is Runyon's father-in-law. At this time Foreman Menees told Runyon: "You better slow it down, I have got word you are going in the next layoff." The next day Runyon went to his father-in-law's house and asked what he meant by the above remarks, and Menees told him the following: Breezy [Breece] had come up to him . . . and asked if he knew anything about the union. He said that he did and he said, "Well, we are going to have to let your son-in-law go in the next layoff. We think he is taking an active part in the union and he is passing out cards all over the job and we are going to have to let him go in the next layoff. We can't fire him for that reason, but there are other ways. Foreman Menees corroborated the testimony of Runyon by stating that in late October 1977, his foreman, Barry Breece, told him on the jobsite that "the head office was getting hot on him about people talking union out there." Breece also told Menees that "[your] son-in-law [is] the big- gest one in the middle of it," and, "the first layoff, he [will] be in it, but it [won't] be for that reason." Foreman Breece testified in this proceeding but did not confirm or deny the above statements attributed to him. As pointed out, the statements made by Foreman Menees to Runyon do not lose their coercive nature by virtue of their in-law relationship and especially so since Menees informed Runyon that Foreman Breece was the source of the threat. Accordingly, I find that Runyon was threatened with discharge because of his union activities. It is alleged that on October 27, 1977, Respondent's Su- pervisor Ray Weaver also threatened an employee with dis- charge if his union activities continued. D.D. McDougal testified that approximately I week before his discharge on November 3, 1977, he had a conversation near the print- room with Supervisor Ray Weaver. He stated that prior to this conversation he had entered the printroom and ob- served Foreman Weaver and Superintendent Gray Angel talking; after he had returned to his work Weaver ap- proached him and informed McDougal that after he had left the printroom, Angel had made the statement that he (McDougal) was "a good man," but they were going to have to let him go because of his union activities. Foreman Weaver testified that he was in the office with Gray Angel when McDougal walked in; when McDougal left Superintendent Gray turned to Weaver and said, "That is one of the best craftsmen on this job, but, I am going to have to let him go [because] he is talking union all over this job." Weaver then replied, "Well, if we are going to let him go for talking union, we are going to let everybody go that is talking union, we will have to let half the people on this job go, including myself." Angel replied, "Well, I am not going to let nobody go. Somebody above me will have to do it." Weaver testified that soon thereafter he told McDougal about Angel's comments-that they were going to have to let him go for union activity. Angel's remarks to Weaver are undenied on the record as he did not testify. I find that the above-described actions of Respondent constitute a threat in violation of Section 8(a)(1) of the Act, as Foreman Weaver informed McDougal that Superinten- dent Angel had made the statement that he would be dis- charged for his union activities. 338 DANIEL CONSTRUCTION COMPANY It is alleged that Respondent, by its Supervisor Jim Co- ker, on or about the first day of September 1977, in a con- versation with employees, stated that Respondent knew they were talking union and that the employees were being watched; in so doing it thereby created the impression that Respondent had knowledge of their union activities and was engaged in surveillance of their union activities. Employee William Shell testified that he was hired by Respondent at the Fort Howard jobsite in late July 1977, and between the time he was hired and the middle of Octo- ber 1977, he worked under Foreman Jim Coker on a mill- wright crew; approximately 1-1/2 months after he was hired, he had a union conversation with Supervisor Coker. Shell asked Coker if he had been in a union, and Coker replied that he had been a member, and "he didn't care one way or the other whether it went union or not and to be careful, if we were writing names down or anything like that. If they caught us, they were watching us he said they were watching us." Employee Ted Muskrat overheard the first half of this conversation between William Shell and Foreman Coker but did not recall any of the other parts of this conversa- tion. Scott Shell also testified to a similar statement made to him by Coker while he was a journeyman millwright in October 1977. Initially, Foreman Coker informed Scott Shell that it did not make any difference to him how the Union went "one way or another," but then he told Scott Shell that the, had "better be careful about the activity because they were laying people off when they caught them." Foreman Coker did not testify at the hearing. I find that Coker's statements to Shell and Muskrat are violative of the Act. As pointed out, Coker obviously left the impression that union activities were under surveillance. Such statements restrained and coerced the employees of Respondent in the exercise of their rights to attempt to or- ganize a union on the project. It is alleged that in the late fall or early winter of 1977, Respondent, by its Supervisor William Spivey, announced to Respondent's employees working in his crew that if the job went union the crew would lose the sheetmetal work they had been doing previously, thus reducing their work hours and income. Employee Lee Goforth testified that he had a conversa- tion with Spivey during October 1977. Goforth stated that he approached Supervisor Spivey and "told him about the union, how I thought things would go better and everything else with the union in there." Spivey then replied: If you organized a union and got it in here, you would be screwing yourselves as far as the work, because the duct work belonged to some other craft. Employee Lee Sickler testified that he talked with Super- visor Spivey in November and December 1977. Sickler stated that he approached Spivey in a work area and "just asked him what he thought about the Union getting in there ... , if he would be interested in seeing it get in and if he would be interested in signing a card." Spivey then re- plied, "No, [I don't] want to see it come in out [here].... We would lose a lot of work, work we [are] doing .... We [will] lose the duct work." I Supervisor Spivey confirmed having a conversation in November with Sickler and also confirmed that he had spoken with Goforth. However. Spi- I am in agreement with the General Counsel that in the context of the Union's organizational campaign, Spivey's comments and remarks threatened the loss of work, income, and benefits if the Union was accepted by the employees, and therefore were violative of Section 8(aXl) of the Act. It is further alleged that on or about January , 1978, Respondent, by its Supervisor Scott Shell, created the im- pression of surveillance of its employees' union activities by informing employees that a list of names of union organiz- ers was in Respondent's office. Foreman Scott Shell testified that during the last week of December 1977, he had a conversation with Supervisor Warren Harrell, his general foreman, at the jobsite. During this conversation Harrell told Shell "that there were three or four of my men's names over in the office for union activities." Shell stated that he then returned to his crew and informed his employees of what Harrell had told him. Foreman Scott Shell further testified that a few days later Foreman Harrell again approached him. On this occasion Harrell told Foreman Shell that he had four of his men's names in the office, and if Shell would lay them off and let the office know it would "put him in solid with the Com- pany." This time Harrell named four of Shell's crew mem- bers-Bryan and Lee Sickler, Lee Goforth, and George Trammel. After this second conversation with Harrell, Foreman Shell informed the four employees that because of union activities their names were on a list in Respondent's office. At least two of the employees involved corroborated the testimony of Shell as to being informed that their names were on a list in the office. General Foreman Warren Har- rell did not testify at the hearing. Therefore, the statements attributed to him by Scott Shell are undenied. The nature of Shell's statement to his crew was such that Respondent's surveillance was clearly communicated to them. As indicated, Shell had no control over the list, and this fact was communicated to the crew. In so doing Re- spondent was again in violation of Section 8(a)(l) of the Act. At the hearing the General Counsel amended the com- plaint to allege that on or about December 10, 1977, Re- spondent's supervisor, Jim Coker, informed its employees through a second supervisor, Louie Fritts, by citizens band radio, that employees would be laid off or discharged be- cause of their activities on behalf of the Union. George Trammel, a millwright employee, and another journeyman millwright on the same crew, Joe Johnson, regularly switched off rides to and from work. Trammel testified that as he left the jobsite on the way home in the morning, he would call for Louie Fritts over his CB radio. In early December 1977, Trammel and Johnson were re- turning home and while so doing a message came over the CB radio from Foreman Louie Fritts. Trammel testified that Fritts told them that your "old buddy [Foreman] Co- ker... had a message for you," to which Trammel replied, "Well, let's hear it," and Fritts stated, "You are going to get the axe ... you've been caught dealing in the union thing, activity ... you know they are going to get you." Johnson corroborated the above testimony, and he also stated that it vey defended the statements attributed to him by contending that he had been involved in jurisdictional disputes in the past and realized that the ductwork his crew was doing was either sheetmetalwork or boilermak- erwork. 339 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was his understanding from the conversation over the CB radio that the layoff was due to the crew's union activities. Fritts stated that while he was employed as a carpenter foreman on Respondent's jobsite, in or about December 1977, he had a conversation with Respondent's Supervisor Jim Coker; in this conversation Coker told him that George Trammel, Joe Johnson, and other members of Scott Shell's crew were going to be fired because of their union activities. Fritts further testified that on the following morning he contacted Trammel and informed him and Johnson over his CB radio, that "Mr. Coker had told me to get ahold of [you], that [you] was going to be fired because of [your] union activities on the job." From this record it is clear that both Coker and Fritts occupied supervisory positions with Respondent at the time the above warning or threat was made, and regardless of the "friendly" nature of the warning, the message was clear-you will be fired because of your union activities. The coercive impact of the statement is clear, and therefore Respondent was again in violation of Section 8(a)(1) of the Act. Respondent argues that Supervisors Walter Menees, Ray Weaver, Scott Shell, and possibly others were allied with the organizational activities of the Union, and therefore they acted as agents for the Union rather than for the Com- pany in the specific instances noted above. Walter Menees testified for the General Counsel; in doing so he freely admitted that he engaged in numerous activities designed to organize Respondent's jobsite and stated that on January 3, 1978, he was called into Respon- dent's office and summarily discharged because he was en- gaging in union activities. Ray Weaver testified that he too was engaged in union activities and attended union meetings while an ironworker foreman at Respondent's jobsite. Weaver also discussed his union affiliation with Respondent's Project Manager Don Buck on November 3, 1977, and during the course of this conversation Buck interrogated Weaver as to the names of those attending union meetings, 6 asked if Foreman Menees was in attendance at such meetings, and also inquired about the benefits being offered, the crafts involved, and the amount of support among the employees for the Union. Buck then informed Weaver that ne would not tolerate his foreman campaigning for the Union. Later the same day Weaver was laid off. Scott Shell was another foreman who was active for the Union. Shell had authorization cards which he passed out, he talked to employees, and he went to the union meetings. Respondent's argument to the effect that certain foremen were aligned with the employees' attempts to organize rather than with the interests of management-does not ob- viate the fact that these people were still Section 2(11) su- pervisors. Moreover, it appears to me that the interrogation and discharge of certain supervisors known by Respondent to be sympathetic toward, if not active in the union cam- paign, is indicative that Respondent did not "roll over" and 6 Weaver stated that during this meeting Buck handed him a yellow sheet of paper which had a list of names on it and requested Weaver to examine the list and determine if they had attended any of the union meetings. Weaver said that he recognized some of the names on the list-the names of his crewmembers as well as Scott Shell and other millwrights. Buck denied that such a list ever existed. "play dead" during the organizational campaign. However, at no time were there any pronouncements or indications by management that the supervisors involved were not act- ing within the realm of their designated authority. In ac- cordance therewith, I have found that coercive statements made or relayed by them, as aforestated, are attributed to Respondent. The two ironworkers involved herein as alleged discrimi- natees, Gregg Runyon and D. D. McDougal, were dis- charged on November 3, 1977. Both were employed at the jobsite as ironworkers on Ray Weaver's crew. Runyon testi- fied that he was hired by Respondent on September 26, 1977, and was employed as an ironworker first class. Run- yon's organizational activities on the jobsite consisted of talking favorably about the Union to fellow employees and attending union meetings. However, as pointed out, it is clear from this record that Respondent felt that Runyon was actively engaged in the organizational activities of the Union. Foreman Barry Breece talked with Runyon's father- in-law, Walter Menees, and Weaver noticed Runyon's name on the list he was shown by Project Manager Buck. Both incidents have been discussed previously. McDougal testified that he was employed by Respondent in September 1977 as an ironworker, and that he started noticing employees on the jobsite engaging in union activi- ties during mid-October 1977. During October, McDougal also began engaging in activities designed to further the Union's organizational objective. Initially, he attended union meetings and wrote down names and badge numbers of the employees in his area to get an accurate count of the employees, and he also discussed the pros and cons of the Union with other employees during lunch and breaktimes. He also signed a card. McDougal was the employee that Foreman Ray Weaver talked with about his union activities. This discussion oc- curred in late October after Weaver was told by Foreman Gray Angel that McDougal was going to be discharged because he was engaging in union activities. There can be no serious question but that Respondent had knowledge of Runyon's and McDougal's union activities prior to the dis- charges, and this record contains ample evidence in support thereof. McDougal testified that on November 3, 1977, he and Runyon were on the jobsite when they were informed that they had been laid off. Both of them then encountered Foreman Ray Weaver, and Weaver told them that he too had been laid off and mentioned that there had been a reduction of force. McDougal also testified to a conversa- tion he had with Foreman Barry Breece after he learned of the layoff. McDougal approached Breece and asked, "How come we are getting laid off?" Breece replied, "Well, be- cause of your high numbers, because you were last hired in." McDougal then stated, "Well, Ray Weaver, myself and Raymond Fox were all hired in the same day ... how come Raymond Fox wasn't laid off?" McDougal continued, "This man doesn't produce ... why not lay a man off that doesn't produce as opposed to other men that do?" Breece replied, "Well, I don't know." Gregg Runyon corroborated this testimony. Project Manager Buck testified that the decisionmaking process to lay off ironworkers on the jobsite started in late 340 DANIEL CONSTRUCTION COMPANY September or early October 1977, as by this time most of the structural steel had been erected and the remaining work to be done involved only miscellaneous ironwork such as platforms, stairways, and handrails; at this time there were approximately 100 ironworkers on the payroll. Man- ager Buck also testified concerning the business consider- ations underlying the decision to lay off ironworkers. He stated that in order to meet the budget and at the same time increase efficiency of operations, the number of ironworkers would have to be cut in half. Buck stated that the first layoff of the ironworkers in October 1977 resulted in the transfer of a number of them to other crafts, as some had abilities to do more than one job. Barry Breece, the ironworker general foreman, was ad- vised by ironworker Superintendent Gary Angel, that Re- spondent had decided to reduce the number of ironworkers by approximately 40 people. Breece, who was responsible for selecting the individuals, testified that the first reduction took place in late October and consisted of "people we didn't want to keep," volunteers, and transfers-involving 26 employees. Breece also testified that the layoff of No- vember 3, 1977, was necessary to meet the required 40-man reduction in force, that additional transfers of ironworkers to other crafts could not be accommodated, and that with some exceptions the selections for the layoffs were made in accordance with seniority; he then explained the exceptions to the seniority rule. He stated that three of these men (Dennis, Isom, and Clemons) were still working on the night shift, that an exception was made for one man (Mayes) because he was a leadman, that another was made for one man (Lester) who was a connector, and that the only other exception made was for one individual (Scott) in order to keep a sufficient number of helpers on the job. The General Counsel points out and argues that Respon- dent's contention that the November 3, 1977. layoff of Weaver's ironworkers crew was based on "the numbers" is clearly inaccurate, and notes the admission by Foreman Breece that exceptions were made in the cases of several ironworkers who were on the second shift. It is further pointed out that examination of General Counsel's Exhibits 8 and 9 reveals that no less than seven ironworkers with less seniority than the discriminatees continued to work for Re- spondent for various periods after the discharges here in question. Therefore, as further argued by the General Counsel, a minimum of 10 ironworkers (hired after the dis- criminatees but prior to their layoff) retained their jobs de- spite the fact that they possessed higher numbers than Run- yon or McDougal. After filing briefs in this matter, Respondent also filed a motion with me seeking permission to either file a reply brief, to reopen the record, or to strike a certain portion of General Counsel's brief on the basis that it raises a new issue which he failed to raise in his pleadings or at the hearing and has "mischaracterized" the record in relation to this new issue. Respondent further argues that the Gen- eral Counsel alleges, on page 24 of his brief, that 10 iron- workers with less seniority than Runyon or McDougal con- tinued to work as ironworkers after the termination of Runyon and McDougal on November 3, 1977; that the cir- cumstances of 6 of these 10 ironworkers were litigated at the hearing, at which time evidence was introduced which explained why these 6 were not terminated before Runyon or McDougal, but as to the remaining 4-Robert G. Wil- liams, Terry M. Maxwell, J.H. Aldredge, and A. McEI- haney-neither their names nor circumstances were raised before or during trial. Moreover, as also maintained by Re- spondent, General Counsel's inference that these four named employees were classified and employed as iron- workers on the Fort Howard job during the week of No- vember 3, 1977, is a mischaracterization of the record- that Respondent maintains weekly payroll prelists for each craft which denote each employee classified in that craft- that the payroll prelist for the ironworker craft for the week of November 3 was marked as Respondent's Exhibit 6, but was never introduced into evidence however, a witness for Respondent did read into the record every name which ap- peared on this list; those named on this list were the only ironworkers employed during the week of November 3, 1977, and Williams, Maxwell, Aldredge, and McElhaney were not on the November 3, 1977, payroll prelist. Thus it is clear, argues Respondent, that although the four employ- ees were initially hired as ironworkers, they' had been trans- ferred out of the craft before the November 3, 1977, termi- nations of Runyon and McDougal. The General Counsel opposes the motion on the follow- ing basis: (1) At the hearing the parties stipulated that (en- eral Counsel's Exhibits 8 and 9 were authentic records kept in the ordinary course of business and which rep- resent a complete record of Respondent's newly hired had terminated employees between October 1, 1977 and March 1, 1978. (2) General Counsel's Exhibits 8 and 9 were there- after duly received into evidence for all purposes. Re- spondent's Counsel was given an opportunity to rebut any and all reference that could fairly be drawn from said documents, and, in fact, offered an explanation for six of the ten employees listed in General Counsel's Brief Appendix A. (3) Sections 102.35 and 102.48(d)(1) of the Board's Rules and Regulations set out the requirements which Respondent must allege in order to sustain a Motion to Reopen the Record or Conduct a Rehearing. Counsel alleges that Respondent has not specified error which would require a trial de novo or that its proffered evi- dence is newly discovered or only became available after the close of the hearing. Counsel for the General Counsel would therefore oppose these portions of Re- spondent's Motion. (4) Counsel for the General Counsel also opposes Respondent's Motion for leave to file a Reply Brief unless Respondent's proposed arguments relate to in- accuracies in General Counsel's Appendix A. As previ- ously stated, the records from which Appendix A was derived were introduced for all purposes and Respon- dent was afforded an opportunity to rebut or reply to any inference that could be raised concerning the hire or discharge of its employees listed thereon. (5) In addition, Counsel states that he is unable to locate in his brief to the Administrative Law Judge where it is argued that the transfer of certain ironwork- ers employees, which was not conclusively shown to have occurred in the record, was violative of the Act or 341 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not bonafide. Indeed, Counsel for the General Coun- sel's arguments represent only a fair reading of Gen- eral Counsel's Exhibits 8 and 9. General Counsel's Appendix A shows that ironworkers William and Maxwell were still working as of November 1, 1978, and that A. McElhaney and J. H. Aldredge were also still working during the period in question. However, from the record and exhibits before me, I am unable to specifi- cally ascertain the exact status of these four ironworkers on the dates in question; there is some testimony in this record indicating that five or six ironworkers with less seniority did remain on the jobsite, and explanations were given as to why they remained. In evaluation of this testimony it may well be that the four ironworkers here in question had been transferred out of the craft prior to the November termina- tions of Runyon and McDougal. But in view of the fact that Respondent did not introduce Respondent's Exhibit 6, and on the basis that General Counsel's Exhibits 8 and 9 were received into evidence (and out of which Appendix A was compiled), I must conclude that the General Counsel could reasonably draw adequate inference from all such circum- stances in this record to sustain his argument that the four men here in question were still employed in the ironworker craft on the jobsite as of November 3, 1977. On this basis, and for the other reasons stated by the General Counsel, I hereby deny Respondent's motion. However, in the final analysis, I place little or no reliance on the contentions and arguments that these terminations were based on seniority. In fact, Foreman Breece admitted that only "to a degree" is there a seniority system of any kind at the Fort Howard project. Furthermore, various exceptions involving particu- lar skills were also pointed out wherein such employees with less seniority were retained while older employees were discharged. As detailed earlier, Foreman Walter Menees informed Runyon that he had received word from Supervisor Barry Breece that management knew Runyon was active in union activities, and that they would have to let him go in the next layoff. Breece did not confirm or deny these statements at- tributed to him, and therefore this record stands with at least one open admission by management that Runyon was discharged because of union activities. Likewise, McDougal was informed that he would be discharged for union activi- ties. Foreman Weaver readily admits to such a conversation with Supervisor Gray Angel and passing on the message to McDougal; Angel's remarks to Weaver in these respects are undenied. Breece also testified that in a conversation ap- proximately I week before the November layoff, Gray An- gel told Weaver that McDougal was "going to make a fine man, you know, make a good foreman," and Breece also stated in his testimony that he felt McDougal was a good man. It is, of course, readily understood and accepted that as the Fort Howard project reached the completion stages, employees in the craft would be laid off at various times depending on all circumstances then existing, and eventu- ally McDougal and Runyon would be included in such le- gitimate reductions in force unless they were successful in transferring to other jobs, as admittedly frequently hap- pened on this project. However, for the reasons previously set forth, I am convinced that the real motivating factor triggering the discharge of McDougal and Runyon on No- vember 3, 1977, was based on their union activities; I there- fore find that Respondent's discharge of employees D.D. McDougal and Gregg Runyon violated Section 8(a)(3) and (I) of the Act. It is alleged that Respondent discriminatorily terminated the employment of eight millwright employees on January 7, 1978.' All of these employees worked on the night crew of Foreman Scott Shell. It appears that during October 1977, Foreman Warren Harrell approached him about be- coming a crew foreman, and Shell then agreed and selected the individual named below to fill his crew. Shell's crew was first assigned to construct and erect the hood for a paper drying machine called the "yankee dryer," and the work on the dryer hood was completed in late November 1977. Project Manager Buck testified that he instituted a night shift at the jobsite so that the work schedule could be met, and that the principal reasons requiring use of millwrights on the night shift were the availability of the overhead crane and safety factors. It appears from this record that there were three mill- wright crews on the night shift. Scott Shell and his crew had responsibility for assembling and erecting the dryer hood, but the erection of the ductwork was initially a joint effort between Bill Spivey and his crew (working nights), and Rex Lopez and his crew (working days). The third night-shift crew of millwrights was a small group of riggers under Foreman Ingram. In the middle of December 1977, when the ductwork was close to completion, Foreman Spivey and Ingram and some of their respective crew members were transferred to the day shift; during the same period of time several of the millwrights were terminated, but Shell's crew remained on the night shift and continued to work on the dryer hood, completing the job the last week they were employed. Foreman Scott Shell testified that in late November 1977, he was complimented by management in the fast and effi- cient way he and his crew had performed, and about this time Foreman Harrell told Scott Shell "that Spivey wasn't getting along too good and that he was afraid he wouldn't get the duct work done in time for the schedule they had set up, and he wanted us to get on it and help them finish it." Foreman Shell then went to his men and asked if they would stay on nights, and they agreed to do so although they would have preferred to work the day shift. In fact, Foreman Shell testified that he had several conversations with his supervisors about returning his crew to the day shift. He stated that shortly after the crew completed the hood and started on the ductwork, Millwright Superinten- dent Rhyne and Foreman Harrell told them that they could return to the day shift when the ductwork was completed. During the middle of December 1977, Shell testified that Harrell told him that "he was going to get our brass charged over so we could pick it up on Monday morning on the day shift," but later Foreman Harrell returned and re- ported that "[the office] had orders not to charge and brass over," you will "have to work another week on nights." During the next week, Shell was confronted by Superinten- 'The employees so named in the complaint are: Bryan Sickler, Lee Sick- ler, Teddy Muskrat, William Shell, Joseph Johnson, Lee Goforth, George Trammel, and Robert Yeager. 342 DANIEL CONSTRUCTION COMPANY dent Jerry Rhyne near the gate, and Rhyne informed Shell that the crew was going to have to stay on nights. Shell then inquired, "I would like to know why. I need to tell my people something about why they are staying on nights." Shell further testified, "He [Rhyne] just 'hum-hawed' around a little about, you know the reason. I can't tell you in plain words." Shell asked him if it was union activity and he did not say yes or no. and he said, "You know and I know the reason." Supervisor Shell further testified that on January 4 or 5. 1978, he had one further conversation with Foreman Harrell, and during this conversation Harrell stated that Shell's crew was scheduled to return to the day shift on the following Monday to work on the roll grinder. This conversation is corroborated by George Trammel. On January 7, 1978, Shell's crew was engaged in the final stages of the ductwork; late in the shift, at approximately 4:15 a.m., Shell observed Superintendent Jerry Rhyne in their work area, and other members of his crew also noticed the appearance of Rhyne. The crew members were all en- gaged in ductwork on different pieces of equipment at var- ious distances from the actual site of the ensuing conversa- tion. Foreman Shell testified to the following conversation: And he came up to me and I told him we were about finished with our job we were doing and he kind of hung his head and walked on up to me and said, "Scotty, I am ashamed to tell you this, but they have laid your whole crew off." I asked him what was the problem was it our work. He said, "No, the work is satisfactory. You have got the best crew on the job." Said him and Warren didn't have anything to do with it. I asked him what was the reason. union activities and he nodded his head yes. said yes. Q. (By Mr Ellis) Did he say anything else? A. Well, I told him, "I guess you know we are going to file charges against the Company." He said, "I had hoped we would have better partings."8 This record further reveals that other members of the crew also overheard this conversation. Lee Sickler and Lee Goforth were working directly above where the conversa- tion took place, approximately 10 to 20 feet from the floor, and during the conversation in question Goforth recorded "bits and pieces" of what was said on the back of a Skoal can. George Trammel, who was about 10 feet or so above the floor, also overheard the conversation. When the conversation with Rhyne ended, Shell yelled up to his crew that they were laid off, and Goforth and Sickler came down from the ductwork with the rest of the crew. However, before they packed their tools, Goforth took out a small notebook he used on certain occasions, and with the aid of Sickler's memory and the Skoal can, copied the "bits and pieces" of the Rhyne-Shell conversation onto two pages in the notebook.9 Respondent maintains and argues that Shell's crew was terminated because of lack of work as part of a reduction of force, that the decision to reduce the number of millwrights was justified, that the selection for the layoff was made on a I Supenntendent Rhyne denied that at any time dunng the conversation with Shell-did he indicate either by speaking or nodding his head, that the crew was being terminated because of union activity. 9 See G.C. Exh. 4. neutral basis, and that the decisionmaking responsibility rested with Project Manager Buck, who initially determined that it was time to cut back on the night shift by transfer- ring some employees to the day shift but did not play a role in selecting which individuals or crew would be involved. leaving such decisions to Supervisor Rhyne. It is also pointed out by Respondent that their initial plan was to transfer the majority of night shift employees to the day shift, but when it was determined that additional reductions were necessary management attempted to find work on the dav shift for Shell and one or two of his men. Finally it was decided that there was not enough millwright work to ac- commodate further transfers, and therefore when the night shift millwrights completed their work on January 7, 1978, they were laid off, and the night shift ended at a time when the manpower level for the entire job was being reduced. Respondent also maintains that the General Counsel failed to show by substantial evidence that management had knowledge of the millwright employees' union activity, and that knowledge on the part of supervisors in the same "league" with union organizers (i.e., Scott Shell) cannot be inferred to Respondent. Respondent also makes reference in its brief to the con- versation between Rhyne and Shell on January 7. 1978, wherein Shell attributed to Rhyne the nod of his head when Shell inquired if union activities were the reason for the layoff. Respondent argues that it is inconceivable that Jerry Rhyne, an experienced, upper-level member of manage- ment, would state or indicate to Shell that he and his crew were being laid off because of union activities, even if this was the reason for their layoff. Respondent further argues that the witnesses the General Counsel presented to cor- roborate Shell's testimony in this respect, were intentionally presented to give them access to a hearing before the Na- tional Labor Relations Board, that they were obviously aware of what was needed to support their case and so came up with this "fabricated story" about Jerry Rhyne shaking his head and uttering the word "yes." Moreover. that at the time in question there was welding and grinding going on in the area, and therefore the noise level would make it impossible for someone to overhear the conversa- tion between Shell and Rhyne, and that the notes made by Goforth do not appear to be trustworthy. In summary' counsel for Respondent states that there is no basis in the record for concluding that the millwrights were terminated because of their union activity: that by December 1977, the manpower level on the Fort Howard job was being re- duced, that on January 7, 1978, Scott Shell and his crew had completed their work. and that the other crews of night shift millwrights had been disbanded. Furthermore, from November I. 1977, to March 1, 1978, 63 millwrights were terminated, and thus statistics confirm that there was not only a lack of millwright work on January 7, 1978. but from that date on the millwright work on the Fort Howard proj- ect has substantially diminished. In making my final conclusions as to the millwrights, I will initially consider their union activities and whether management had knowledge of such activities. Lee Goforth testified that he was hired by Respondent in August 1977. as a journeyman millwright. Goforth stated that he realized that the organizational campaign was in progress almost from the first day he began work, and that 343 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he personally engaged in various activities designed to aid the organizational campaign. Among other things, he went to union meetings, distributed union leaflets, talked with employees about the benefits of the Union, and distributed approximately 100 union authorization cards. It appears that Goforth freely and openly discussed the Union with several foremen on the jobsite. In August 1977, Goforth told Gerald Goss, his foreman at the time, that he "thought the job would be run a lot better and everything else with a union in there and it would be a lot safer job." Goss did not testify at the hearing. Goforth talked with Bill Spivey, mill- wright foreman, in the middle of October, and this conver- sation is documented previously herein, and found violative of Section 8(a)(l) of the Act. In November 1977, Goforth and Lee Sickler also talked with Joel Black, a supervisor. Sickler and Goforth approached Black, and Goforth ex- tended his hand to give Black a union authorization card, and said, "I reckon you know that I am for the Union and I would like you to sign this card;" Black immediately jumped back and said he did not want to see them or have anything to do with them, but that he did not care if the other men took one. Goforth and Sickler then proceeded to distribute cards to employees in the area, and Black re- mained and watched their activities. Lee Sickler corrobo- rated Goforth's account of the incident and also stated that he knew Black was the sheetmetal foreman. Black did not testify. Lee Sickler stated that he was hired by Respondent in early August 1977 as a journeyman millwright, and that in mid-October 1977, he first observed union activities on the jobsite. It appears that Sickler personally engaged in the distribu- tion of 50 to 100 union cards, took part in the distribution of union literature, and attended union meetings. In addi- tion, throughout the union campaign, Sickler also talked with at least two supervisors--Joel Black and Bill Spivey. Both conversations are previously documented herein. Bryan Sickler was hired by Respondent on August 15, 1977, as a journeyman millwright. He testified that he at- tended most of the union meetings. talked with employees about the Union, contacted about 200 employees while he was employed on the jobsite, and also passed around ap- proximately 50 union cards to his fellow employees. Bryan Sickler further testified that during the first part of Decem- ber 1977, he and his brother talked with a pipefitter fore- man at a local store; he stated that he knew the man was a foreman because he was wearing an appropriately stripped hard hat, and in their conversation convinced him to take a couple of authorization cards. It is also clear from this rec- ord that Sickler got the cards from his "psychodelic" painted van while the pipefitter foreman was standing nearby. The General Counsel argues that such a van would be most noticeable and obviously quite unique for the Mus- kogee area. Robert Yeager was hired by Respondent in October 1977 as a millwright helper. Yeager testified that while on the jobsite he engaged in certain union activities-he solicited signatures on several authorization cards, attended union meetings, and signed a union card. William Shell was hired by Respondent near the end of July 1977 as a journeyman millwright. He stated that around the middle of October 1977, he became aware of the union organizational activities on the jobsite, and that he personally engaged in these activities-he took down names of employees on the job, talked to employees on the job, handed out about 30 union authorization cards, and at- tended union meetings. This record also clearly reflects that William Shell discussed the merits of the organizational campaign with Respondent's Supervisor Jim Coker. This conversation has been previously detailed herein and was found to contain a statement showing surveillance and to be violative of Section 8(a)(1) of the Act. Joe Johnson was hired by Respondent in June 1977 as a carpenter; he was then transferred to a crew which was composed of millwright employees. Johnson stated that he noticed union organizational activity on thejobsite after the first union meeting he attended, and that he engaged in several activities on behalf of the Union while on the job- site. He testified that he talked to employees about the Union, passed out approximately 10 union cards, and he attended union meetings. Johnson also testified that while on the jobsite he discussed the Union with one supervisor and an electrical foreman, and that this conversation took place during the second week of November 1977. Johnson stated that he noticed a union handbill on the floor, and that he was going to read it but the foreman said, "[you] don't want to read that, it [is] just some of that union trash." Nevertheless, Johnson picked it up and proceeded to read it, and the foreman stated, "You don't want to get involved in it. The union won't do anything but just cost you money. You'll have to pay donations and death bene- fits and all of that sort." Johnson replied "that [he] was a member of the Muskogee local here and [he] knew that it wasn't that way here." During this conversation Johnson wore his hard hat, which had on it his craft and badge number. Ted Muskrat was hired by Respondent around the first of October 1977 as a journeyman millwright. He stated that beginning in mid-October 1977, he first observed employees engaging in union activities, and that he too engaged in such activities. He attended six union meetings, handed out approximately 20 to 25 authorization cards, and spoke with employees around the jobsite. As pointed out, Muskrat was another of the millwright employees on Scott Shell's crew that openly spoke about the Union, and during the middle of October 1977 he accompanied his brother-in-law, Bill Shell, when they spoke with Foreman Jim Coker, as afore- stated. Coker did not testify. George Trammel was hired by Respondent during the middle of August 1977 as a journeyman millwright. He tes- tified that during September 1977, he, Shell, and other mill- wright employees began to think about organizing the job- site, and in October 1977, he began engaging in union activities. Initially, he took down names of employees, talked to people about the Union and about signing autho- rization cards, passed out handbills on the parking lot, and solicited signatures on authorization cards. Trammel fur- ther testified that during October 1977, while he was en- gaged in writing down names on a list for the Union, he was approached by Foreman Jim Coker. On this occasion Co- ker asked, "What is this?" Trammel replied, "Well, we are taking down a bunch of names of people on the job. We are thinking about making a move to organize the job here. 344 DANIEL CONSTRUCTION COMPANY Later we may even have some cards to sign," and Trammel then asked Foreman Coker if he would like to sign a card. Trammel stated that he also spoke with two other supervi- sors about the Union, Bill Spivey and Joel Black. He testi- fied that during the middle of November 1977, Trammel approached Spivey and asked him to sign a union card. Foreman Spivey denied that this occurred, but admitted that on one occasion he overheard Trammel state, "That this damn job is going union." Trammel further testified as to a conversation with Foreman Black in November 1977. Trammel said that he approached Black on the jobsite and stated, "Some of the people have approached you about signing a card and you wouldn't sign one. You made some false statements here and I would like to discuss them with you if you would." Black then informed Trammel that he did not really want to talk about it, but since they were still on breaktime he would listen. Trammel then proceeded to tell Black about the benefits of unionization. When he was finished Foreman Black then turned to his crewmembers and said, "Do you people know if organized labor moves on this job we are going to hit the road, we are going to be dismissed. People out of the local in this area are going to be without a job." This conversation is undenied as Black did not testify. As indicated, it is also evident that Trammel did not restrict his union discussions to the lower echelon supervisors. He testified that on one occasion he also asked General Foreman Warren Harrell if he had a book, and then explained the Union's position on purchasing books. On another occasion in early December 1977, Trammel said that he was engaged in the solicitation of union cards during breaktime, and as he handed the cards to two labor- ers he looked up and saw Superintendent Cato staring at him. In addition to the individual crewmember's accounts of their union activities, the record also reveals several other instances when Scott Shell spoke with other supervisors about his activities and the union activities of his crew. Foreman Shell testified that shortly after his crew went on nights, he had a conversation with Foreman Warren Har- rell on the machine floor. Shell asked Harrell what he thought about the union organizing, and in reply Harrell stated he used to belong to a union but let his card go. Shell informed him that if he waited around he could buy a card for $25. This conversation also stands undenied as Harrell did not testify. Scott Shell further testified that in Novem- ber 1977, he had a conversation with the night Superinten- dent Cato. Cato had called Shell aside and told him that someone had stated that he (Shell) was passing out union cards and that it was not on breaktime or lunchtime. Shell told him that he had been misinformed, that he was not passing out cards. Shell then further stated to Cato that "my men [are] passing out cards, but it was on break time and lunch time." Again, there can be no serious question but that the mill- wright employees involved herein were all extremely active for the Union, and Respondent had specific knowledge of their activity. On several occasions Goforth. Lee Sickler, and Trammel informed at least two or three supervisors of their union activity. William Shell and Ted Muskrat dis- cussed the Union with Foreman Jim Coker, and the others involved also made their union activities quite plain and open to management. It would also appear that this crew was unusually active for the Union and, as indicated in the testimony, assumed the leadership in the organizational campaign. Goforth distributed about 100 cards; Lee and Bryan Sickler distributed between 50 and 100 cards; Wil- liam Shell distributed about 30 cards; Ted Muskrat distrib- uted 20 to 25 cards; and George Trammel passed out union handbills on the parking lot. The General Counsel maintains and argues that the evi- dence in this case clearly reflects that Respondent manipu- lated Shell's crew into staying on the night shift in order to provide it with a quasi-justifiable excuse for their removal from the jobsite, and that these actions were motivated by Respondent's animus towards the crew's union activities. Further, General Counsel maintains that the nature of the layoff and the reason Shell and his crew were given for the layoff plainly show Respondent's motivation, and that the circumstances were setup to show the other night-shift em- ployees that union organizational activities on the jobsite would not be tolerated. I am convinced that the actual motivating factor trigger- ing the discharge of the millwright crew on January 7, 1978, was based on their union activities. To find otherwise. I would first have to ignore the fact that this entire crew was extremely active for the Union and were the leaders in the organizing campaign, and also made their extensive partici- pation for the Union noticeable to all, particularly to sev- eral supervisors. To find for Respondent I would also have to ignore the fact that people working at thejobsite, includ- ing immediate supervisors, considered this crew to be an excellent one, deserving of the compliments it received. I would further have to ignore reliable and credited testi- mony to the effect that supervisors promised Scott Shell on several occasions that his crew would be returned to the day shift, and that Spivey's and Ingram's night crews were split and returned to day work, as testified to by Superin- tendent Rhyne, which shows that there was still work avail- able. Moreover, I would also have to ignore that on the night of the discharges, when specifically confronted by Foreman Shell as to the reason for the terminations, Super- intendent Rhyne registered agreement when Shell suggested it was because of their union activities. This event and con- versation were corroborated by three millwrights in the im- mediate area, and I see no valid basis to discredited them. It appears that they were also close enough to hear regardless of the noise level elsewhere. Based on the events and circumstances in this record, the numerous and serious 8(aXl) statements attributed to su- pervisors, and on the testimony and evidence in this record as stated above, I am not prepared to ignore or disregard the overriding facts outlined herein, which most assuredly reveal that the layoff of the crew in question, was violative of Section 8(a)(3) and (1) of the Act, and I so find. It is also alleged that Respondent discharged its Supervi- sor Scott Shell because he refused to carry out instructions of Respondent to harass or discharge employee union sup- porters or to otherwise restrain and coerce these employees or, in the alternative, as argued by the General Counsel, Shell was discharged in order to provide a legitimate excuse for the termination of certain of Respondent's employees who were engaged in union activities. 345 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scott Shell testified that he had been a union member (Local 1072 in Muskogee) for a number of years and was a member of this local throughout the time he was employed by Respondent at the Fort Howard jobsite. Moreover, there is no question, as Shell freely admits, that he engaged in certain activities for the Union here involved while at the jobsite which were designed to further organization of the Union. Even as a foreman, Shell took numerous authoriza- tion cards to the job, passed them out, and was able to get a good number of them signed. He also talked to the em- ployees about the Union and even went to most of the union meetings. He discontinued his active participation in the union campaign when he was told that foremen were not supposed to participate, and he remained one of Re- spondent's supervisors until his discharge along with his night crew on January 7, 1978. Foreman Shell testified that he had a conversation with Foreman Warren Harrell during the last week in December 1977. During this conversation Harrell told Shell that "there was three or four of my men's names in the office for union activities." Shell said that he reported this conversa- tion to his crew, and that I or 2 days later he had another conversation with Harrell. On this occasion Harrel told Shell that he had four of his men's names in the office. Harrell said the men were two Sickler boys, Lee Goforth, and George Trammel. Harrell then stated, "If you [will lay them off] and let the office know that I laid them off for union activities it [will] get [you] in solid with the Com- pany." Shell stated that he did not believe he ought to do this, but Shell did tell the four men Harrell had named, as well as the rest of his crew, about the conversation. Approximately 2 or 3 days later, Shell had another con- versation with Supervisors Harrell and Jerry Rhyne in the field office. During this conversation Harrell asked Shell if, "he had thought about laying the guys off' that he had mentioned previously. Shell told him, "No." As also pointed out, the record clearly indicates that Shell kept his crewmembers informed about what manage- ment was doing. Shell testified that "most of the time I would tell them everything that was going on, try to keep them informed about what was happening." Bryan Sickler testified that he was informed by Shell that his name was on the list, and George Trammel testified that he too was so informed. Scott Shell testified that during November 1977, he found out that a foremen's meeting was going to take place, but he was a little late in getting there. He stated that when he arrived counsel for Respondent was "telling the people about what to do and what not to do about the union orga- nizing, do's and don'ts," and that following these remarks Manager Buck also gave a short talk. Buck, according to Shell, informed the foremen that, "if we seen anybody doing any organizing, why we could always find something else to lay him off for, fire him or reprimand him." The General Counsel maintains that Buck's statement fit in with the overall strategy Respondent employed to ride itself of the union infestation at its Muskogee jobsite. Respondent argues, inter a/ia, that even if it can be as- sumed that Shell's testimony regarding his conversation with Warren Harrell is truthful, Respondent did not in any way indicate to Shell that he would be discharged if he refused to lay off the four men. It is further argued that Manager Buck credibly denied telling his foremen to fire people engaged in union activity and then make up another reason for the discharge; what Buck did tell the foremen was that they should continue to enforce Respondent's es- tablished rules and regulations against all employees whether the employees were supporting the Union. The National Labor Relations Act, specifically through Section 2(3) and (11) and Section 14(a), withholds from supervisors the comprehensive protection which it provides for employees, as statutorily defined. Nevertheless, this Board had held-with judicial concurrence-that an em- ployer's conduct which prejudically or detrimentally affects supervisors' interests-may constitute a proscribed unfair labor practice where it directly infringes certain statutorily guaranteed rights of employees. For example, the Board has held that concerned employers may not lawfully dis- charge or otherwise discipline supervisors because they have refused to commit unfair labor practices against rank- and-file workers, because such employers may wish to pun- ish the protected activity of their supervisor's employee- relatives, or because such conduct provides a pretext for the termination of rank-and-file participants in concerted ac- tivity for mutual aid or protection. The Board and court decisions have been based primarily upon the proposition, inter alia, that discriminatory treatment directed against su- pervisors would likely generate fears within the concerned employer's rank-and-file worker complement, and that like conduct by them would lead to some like retaliation. How- ever, discharges or discipline directed against supervisors have likewise been found subject to statutory proscription because such conduct persuasively demonstrates the con- cerned employer's determination to forestall or combat unionization--thus calculatedly interfering with, restrain- ing, and coercing employees, with respect to their exercise of rights statutorily guaranteed. See Fairview Nursing Home, 202 NLRB 318, footnote 2 (1973); Heck's Inc., 170 NLRB 178, 184 footnote 8 (1968), in this connection. The credited evidence in this record clearly reveals that management knew of at least four employees in Shell's night crew who were engaging in union activities, and Shell was then told by Supervisor Harrell "to lay them off," as aforestated. Scott also attended a meeting of the foremen, wherein they were instructed to terminate union adherents one way or another.' 0 It appears convincing to me that Respondent violated Section 8(a)(1) of the Act by discharging Foreman Shell because of his refusal to engage in unfair labor practices- his refusal to discharge and/or layoff certain of his em- ployee-crewmembers because of their union activities. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. '° The facts found herein are based upon the entire record, from my obser- vation of the witnesses and their demeanor, and upon substantial reliable evidence, "considered along with the consistency and inherent probability of testimony" Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496 (1951). 346 DANIEL CONSTRUCTION COMPANY It having been found that Respondent discriminatorily discharged Gregg Runyon. D. D. McDougal, Robert Yeag- er, William Shell, Joseph Johnson, George Trammel. Lee Goforth. Lee Sickler, Teddy Muskrat, Bryan Sickler, and James Scott Shell, I shall recommend that Respondent offer them immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earn- ings they may have suffered by payment to them of the amount they normally would have earned as wages from the date of their termination to the date of an offer of rein- statement. Backpay shall be computed on a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289, 291-294 (1950), with interest thereon computed in the manner and amount prescribed in Florida Steel Corporation, 231 NLRB 651 (1977)." CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By engaging in conduct described in section II, above, Respondent has engaged in, and is engaging in, un- fair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 The Respondent, Daniel Construction Company, a Divi- sion of Daniel International Corporation, Muskogee, Okla- homa, its officers, agents, successors, and assigns, shall: I. Cease and desist from: ' See, generally. Isis Plumbing Heating Co.. 138 NLRB 716 (1962). 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall. as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Soliciting employees to engage in surveillance of union activities. (b) Threatening employees that the job would be shut down because of union activities. (c) Threatening and warning employees with discharges because of union activities. (d) Creating the impression that union activities are un- der surveillance. (e) Threatening loss of work and other benefits because of union activities. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to the people named above immediate and regular full-time employment without prejudice to their se- niority, or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Decision. (c) Post at its place of business and construction site, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 'J 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 347