Checical Construction Corp.

CHEMICAL CONSTRUCTION CORPORATION 593 Chemical Construction Corporation and Walter S. Lowry, Jr. Case No. 15-CA-1362. December 4, 1959 DECISION AND ORDER On July 8,1959, Trial Examiner Thomas A. Ricci issued his Inter- mediate Report in the above-entitled proceeding finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclu- sions, and recommendations 2 ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent, Chemical Construction Cor- poration, a Delaware corporation, with its principal offices !in New York City, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discharging employees or otherwise discriminating against them in their employment because of their concerted or union activities. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to 1 We agree with the Trial Examiner that the Respondent , in violation of Section 8(a) (3) and ( 1) of the Act, discharged Lowry because it resented Lowry's activities in processing grievances on behalf of employees as steward . However, insofar as the Inter- mediate Report indicates that Lowry's institution of a lawsuit against the Boilermakers Onion constituted a grievance, Chairman Leedom and Member Jenkins do not agree. Indeed, we note that the General Counsel did not rely on the lawsuit as a grievance. On the other hand, if the Respondent relies on the lawsuit as justification for the dis- charge, this would amount to penalizing Lowry for activities against the Boilermakers Onion and would clearly constitute a discrimination in violation of Section 8(a) (3) and (1 ) of the Act. In this connection, Member Rodgers would not rely either upon Lowry's filing of a suit against the Boilermakers , or upon Lowry's persistent complaint with respect to the anchor bolt jurisdictional dispute , after such dispute had been satis- factorily resolved by the Respondent and officials of the unions involved, as constituting Such grievances. 9 Accordingly , Respondent's motion to dismiss the complaint is denied herewith. 125 NLRB No. 69. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Sec- tion 7 of the Act, and to refrain from any or all of such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make whole Walter S. Lowry, Jr., for any loss of eanrings he may have suffered as a result of the discrimination against him, as provided in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post copies of the notice attached hereto marked "Appendix" at any project of the Respondent that may now be in process of opera- tion, or which may commence operation within 6 months from the date on which compliance with this Order begins, within the territorial jurisdiction of the South Mississippi District Council of Carpenters, and mail a duly signed copy of such notice to each of the carpenters who were employed at the completed Bayou Casotte, Mississippi, project of the Respondent at his last-known address. Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Notify the Regional Director for the Fifteenth Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. a In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Act, as amended, we hereby notify our employees that : CHEMICAL CONSTRUCTION CORPORATION 595 WE WILL NOT discharge or otherwise discriminate against our employees in their employment because they have engaged in union or concerted activities. AVE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self- organization , to form labor organizations, to join or assist any labor organization, to bargain collectively through representa- tives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL make whole Walter S. Lowry, Jr., for any loss of pay suffered as a result of the discrimination against him. All our employees are free to become or remain members of any labor organization. CHEMICAL CONSTRUCTION CORPORATION, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in Pascagoula, Mississippi, on May 19, 1959, on complaint of the General Counsel and answer by Chemical Construction Company, herein called the Company or the Respondent. The sole issue litigated was whether the Respondent had violated Section 8(a) (1) and (3) of the Act. The Respondent and the General Counsel filed briefs with the Trial Examiner after the close of the hearing. Upon the entire record, and from my observation of the witnesses, I make the .following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Chemical Construction Corporation is a Delaware corporation, with its principal office in New York City, engaged in the chemical engineer contracting business. During 1958, a representative period, Respondent received in excess of $1,000,000 for services performed outside the State of New York. During the same period it performed services for Coastal Chemical Company at a construction project in Bayou Casotte, Mississippi, the only project directly involved in this proceeding, for which services the Respondent received in excess of $50,000. I find that the Respondent is engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Brotherhood of Carpenters and Joiners of America, Local No. 569, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE The charge in this case was filed individually by Walter S. Lowry, Jr., a journeyman carpenter and member of Local 569 of the Brotherhood of Carpenters. He was the second of about 17 carpenters hired by the Respondent on a construction project it carried on in a location called Bayou Casotte near Pascagoula, Mississippi, in the 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD summer of 1958. Lowry became job steward and in that capacity processed a number of grievances. When the need for carpenters began to decline, Lowry found himself among the first four carpenters caught in a reduction-in-force. The complaint alleges that the Respondent selected Lowry because of his activities as union steward in urging grievances . Denying the allegation , the Respondent defends on the affirmative ground that Lowry was singled out because he caused dissension among the employees and was unable to get along harmoniously with the carpenter foreman. The discharge of an employee for advancing grievances being unques- tionably unlawful, the issue becomes whether the evidence as a whole supports the complaint allegation of unlawful motivation in the selection of Lowry. There is no substantial conflict in the testimony with respect to the pertinent facts. What seeming conflict may appear in the testimony of the various witnesses is more in the nature of conclusionary statements or descriptive characterizations of the undisputed facts; essentially, the disagreement goes to what inferences should or should not be drawn from the facts as they appear. The Respondent was in the process of constructing an ammonia plant for the Coastal Chemical Corporation. Lowry was recommended to Bricker, the Re- spondent's project superintendent, by Seable, the superintendent of the Fluor Cor- poration, another company which was about to complete a separate plant also for Coastal at the same location. Lowry had been employed by the Fluor Company, apparently to its satisfaction. The first carpenter to be hired by Bricker was Dickens, who became job foreman and, concededly, a supervisor representing the Company in first-stage grievances. Lowry was the second to be employed, on April 23, and, under the union conditions which were observed at the project, automatically became steward. A few weeks later additional carpenters were taken on until gradually the complement reached a maximum of 17 during the last week of June. Two oi:• three carpenters were released about the first week of July, the total went to 11 by the end of the month, returned to 14 at the beginning of August, and thereafter declined consistently until at the end of December there remained only 1. As soon as there were five carpenters on the job, 2 or 3 weeks after Lowry started, and again pursuant to union practice, an election was held among them and Lowry was elected steward for the project. The record as a whole shows that all carpenters on the job were members of Local 569. The first layoff, after the dis- charge of two or three carpenters in the beginning of July, came on August 13, when four carpenters were released, among them Foreman Dickens and Lowry. Lowry had six occasions, during the 4 months of his employment, to approach Foreman Dickens or Plant Superintendent Bricker with grievances concerning the employees or the work of the carpenters. Sometime early in July he noted a saw to be unsafe; he told Bricker about it and Bricker immediately discontinued the use of that saw. An apprentice who had been burned on the job was undergoing medical treatments and doing so on his own time after working hours. Lowry inquired of the front office whether company policy would permit the apprentice to take time off from work for the medical treatments; he was told it was not company policy to permit it. On another occasion the pipefitters were welding sleeves on certain anchor bolts. Lowry spoke to his superiors and claimed that that work fell within the Carpenters' jurisdiction. The work was discontinued. Moss, the business agent of Local 569, came to the project, supported Lowry's claim, and the work was then assigned to the carpenters and transferred to the carpentry shop. Thereupon the steward of the ironworkers on the project claimed that the work fell within the jurisdiction of his group. The matter was then considered by the respective business agents of the Ironworkers group and the Carpenters group; final agreement was that the work belonged to the ironworkers. It was thereafter given to them. Believing that such jurisdictional assignment was incorrect, Lowry voiced his dissatisfaction with the award to Superintendent Bricker several times. He also wrote a letter to a district board member of the Carpenters International in Atlanta, expressing his opinion that under applicable earlier jurisdictional awards the work properly belonged to the Carpenters. His letter, received in evidence, shows clearly that he sought clarifica- tion of the matter, still with the hope that the work might be assigned to the carpenters. The Company never varied from assignment of the work to the ironworkers. When Marino and Parker, journeymen carpenter and apprentice, respectively, were laid off in the beginning of July, Lowry spoke to Foreman Dickens about it because, as he testified, "Parker came to me and said he was laid off." He also spoke to Bricker about the layoff. It is quite apparent that Lowry, in his judgment, be- lieved the foreman to have made a mistake in selecting these two instead of others. On another occasion Lowry noticed the laborers removing certain pallet boards, work which he believed properly belonged to the carpenters. He raised the claim CHEMICAL CONSTRUCTION CORPORATION 597 with his superiors, but when the matter was taken up above Lowry with Union Business Agent Moss, the ultimate decision was to leave the work to the laborers. The last grievance advanced by Lowry, and the one which, according to the General Counsel, prompted the discharge, concerned overtime work allegedly per- formed by certain carpenters during their lunch hour. The established system set the lunch hour from 12 to 12:30 p.m., and provided that for any work performed ,during that 30-minute period carpenters would be paid overtime rate at time-and-a- half. On August 8, the Friday immediately before his discharge, Lowry spoke to Foreman Dickens, claiming that certain carpenters had performed lunchtime work and had not been paid. According to Lowry, whose testimony I credit, Dickens accompanied him to the men, looked at their paychecks, and told them to bring their check stubs to work the following Monday when the matter would be investigated further. Nothing was done about it the following Monday or Tuesday, and on Wednesday morning, at 8 o'clock, Lowry again went to the foreman and asked what was going to be done about the matter. Dickens gave him no satisfaction.' From Dickens, Lowry went directly to the superintendent. He complained and gave Bricker the names of the carpenters involved; Bricker called his timekeeper, passed along the names, and had the matter investigated. Lowry said the overtime had been performed on July 30, and when Bricker asked why the grievance was raised so late, Lowry explained that the previous Friday's checks were the first to reflect payment for July 30, and that he recalled the day precisely because he had that day gone to the doctor at noon. At 10 o'clock Bricker went to Lowry and said the record check showed no overtime pay was owed. He also disputed Lowry's assertion that the latter had gone to the doctor on July 30. As they talked, Lowry stressed the fact the foreman had told the men to bring in their paycheck stubs. The conversation ended, still according to Lowry, with Bricker telling him he had called Moss, the union business agent, to come out in the afternoon, and that the matter would be straightened out then. The foregoing are Lowry's recollections of his two conversations with Bricker that Wednesday morning and I credit them. Bricker contradicted no part of this. He said he did receive the grievance, inquired why so late, received some names, and had the civil engineer and the foreman check with the men themselves. He was vague on the date; he believed it was on a Monday, but added "to the best of my knowledge, it had to be either a Monday, Tuesday or Wednesday, August 11, 12 or 13, when Mr. Lowry brought this up to me." As to having spoken to Moss that day, he testified only that he had made a courtesy call to the union business agent that morning to advise him that he had decided to discharge Lowry. At 2 or 3 o'clock that day Bricker discharged Lowry, and told him the reason was Lowry's inability to get along with the men and the foreman and because he caused dissension among the men.2 Lowry accused Bricker of discharging him because of his stewardship and of having violated union rules thereby. Bricker denied it and reiterated his assertion of dissension. In his testimony, Lowry did not say that Bricker accused him of dissension, but he did not otherwise contradict Bricker as to the discharge conversation. As Bricker made the almost simultaneous entry in the company records, and as Foreman Dickens corroborated Bricker on this point, I find that Bricker did state that as his reason for the discharge on that day. There is no direct evidence in the record of opposition to the Union by the Respondent. As a member of the National Constructors Association it operates under direct written contract with United Brotherhood of Carpenters and Joiners of America; it also is bound by an agreement between the Gulf Coast Chapter of the Associated General Contractors of America and South Mississippi District Council of Carpenters. In keeping with these various agreements it observes the working conditions established by the Carpenters locally throughout the country. The General Counsel stated clearly it is not his contention that the Respondent violated the statute because early discharge of the steward contravened the union conditions of employment which it observed at this project or because discharge of 1 Dickens, called by the Respondent, did not expressly contradict Lowry respecting their conversation about this grievance. He admitted Lowry brought the matter to his atten- tion, first saying it had happened "within 2 weeks before I quit [August 13]," then "pretty shortly before I left the job out there," then "it could have been August 13," and "it could have been 2 or 3 days before." 2 Later that day, Bricker made the following entry in Lowry's employment record : "Layoff from the standpoint of causing dissension among his fellow-craftsmen and in- ability to work with the general foreman in an agreeable manner for the best interests of men and job." 535828-60-vol. 125-39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a steward before completion of a project is per se an unfair labor practice. His essential theory of the case is that Lowry's protected activities-processing of grievances as a steward on behalf of fellow employees-of which the Respondent, of course, always had knowledge, coupled with the timing of his discharge, coming, as it did in the very teeth of the last grievance which was rejected by both the foreman and the project superintendent, warrants an inference of illegal motivation. And it would appear that if the record showed nothing more a prima facie case of unlawful motivation is shown. The Respondent starts its defense with the broad contention that all that was involved here was a normal, economic reduction of staff; that because the need for carpenters on the job was lessening, four had to be released and Lowry was one of them. It is conceded that an economic layoff was in order. Bricker admitted, however, that he particularly selected Lowry for discharge for a special reason; he said that to Lowry on the day of the discharge. Thus, the fact that a reduction-in- force was then necessary is not determinative of the true issue raised by the pleadings. Rather, the question becomes whether or not Lowry was chosen for a reason proscribed by the statute. As the Board has stated: "the fortuitous coincidence of a slackening season cannot serve as a license for the employer to engage in discrimina- tory conduct clearly violative of the proscription of the act." 3 In view of Bricker's admission of his special selection of Lowry, the conflict between his and Dickens' testimony concerning which four carpenters Dickens had selected for layoff becomes almost academic. A week before August 13, Dickens was asked by Thompson, the civil engineer, to jot down on a piece of paper four names. Dickens testified he put his own first and added three others, not including Lowry's. Bricker testified Dickens had written Lowry 's name among the three, but that he himself had not seen the list. I credit Dickens and find he did not recom- mend Lowry's discharge. As stated above, the Respondent's main contention is that Lowry was discharged for causing dissension among the employees, including his relationship with Foreman Dickens. So stated, and as written into Lowry's personnel record, this is no more than an assertion, a conclusion as distinguished from supporting evidentiary fact. Asked to explain in what manner, or by what conduct Lowry had caused dissen- sion among the carpenters, or had been unable to get along with the foreman, Bricker testified as follows: (1) He said Lowry had brought a suit against the Boilermakers; (2) Lowry had criticized the foreman for showing favoritism to- wards certain men; he had claimed that some men had been given the dirty jobs and others easy jobs; (3) Lowry had criticized Dickens' qualification to select certain men for layoff; he had been outspoken in his opinion that others should have been chosen. Bricker explained that he was referring to the July layoff of Marino and Parker; (4) finally, Lowry had spoken to Bricker several times after the anchor bolt jurisdictional grievance had been finally determined adversely to the carpenters, and had repeated his.. Lowry' s, opinion that the work involved should have been awarded to the carpenters. Precisely in what manner the foregoing activities of Lowry, activities which he himself correctly described as grievance matters, caused dissension among the carpenters was not explicated on the record. Lowry had once been a member of the Boilermakers Union and had been expelled; the nature of his suit against that union is not explained. There is nothing to indicate that his prior boilermaker work or union membership had anything to do with the employment of the carpenters on the project in question. He urged retention of Parker, a discharged carpenter who had appealed to Lowry for help; but this is not an extraordinary representation for a union steward to make on any project. Likewise, if-and I do not doubt it to be true-Lowry protested that the foreman was assigning jobs in a discriminatory manner, again all that appears from the bare assertion of the fact is a steward concerning himself with equitable distribution of the more desirable and the less desirable assignments . And finally, as to the jurisdictional quarrel concerning the welding of sleeves on anchor boats, certainly the initial claim of work for the car- penters could hardly be called a disruptive activity calculated to divide the carpenters into quarrelsome groups. Nor does it appear that his continued belief that the work should have gone to the carpenters instead of to the ironworkers, and his letter to higher authorities within the carpenter brotherhood, tended to cause division among the various carpenter employees. The Respondent made no assertion that Lowry's activities in pressing the lunch- time overtime grievance was a contributing act on his part leading to management's conclusion that he had been a disruptive factor on the job. Without explaining its 3 Akin Products Company, 99 NLRB 1270, enfd . 209 F. 2d 109 (C.A. 5). CHEMICAL CONSTRUCTION CORPORATION 599 purpose, however, the Respondent attempted to prove that Lowry misstated some subsidiary facts in connection with his activities in processing that grievance. Lowry testified -that the overtime work was performed on July 30, a day which he recalled because of a visit he made to a doctor. Bricker attempted to show that Lowry had gone to the doctor on July 29 instead of the 30th. In terms of evidence, however, Lowry's testimony that he visited the doctor the day after he was hurt was not effectively contradicted. There was also some evidence by company witnesses apparently intended to establish that in fact there had been no such overtime work performed for which payment had not been made. If the purpose of this testimony was to prove that Lowry deliberately attempted to process a grievance which he knew to be groundless, it fell short. Lowry could well have been mistaken in his impression that overtime work had gone unpaid. Not all grievances are won, or have merit. I cannot say on this record that any deceit by Lowry has been estab- lished. In any event, the only disagreement or dissention that could have resulted from Lowry's mistaken sense of righteousness was between him, on behalf of the carpenters, and management, which believed him in error. I think it is clear on this entire record that the Respondent was dissatisfied with Lowry and considered him an undesirable employee because he processed grievances on behalf of the carpenters, because he was persistent in urging his point of view with respect to some of the grievances, and, perhaps, because Lowry was wrong in some of the grievances he pushed. Indeed, the specifications advanced by the Respondent in support of its conclusionary assertion virtually restate the very grievance activities carried on by Lowry. I can appreciate a steward, or any em- ployee, causing dissension among workmen-thereby interfering with proper per- formance of work by the employee complement, as distinguished from a steward, in the discharge of his representative duties, causing dissension between the employee group on the one hand and management officials on the other. It is the latter form of "dissension" that the Respondent has shown here. Foreman Dickens said he chose to quit on August 13 because he had been too much "dogged, worried and aggravated" by Lowry. All the record shows, however, is that Lowry went to him first with the grievances. This he was obligated to do, and it was part of Dickens' job in his capacity as the appointed foreman of the carpenters, to deal with Lowry as the Respondent's agent. And so the inconvenience caused the project superin- tendent; he, too, was management. The worst that can be said of Lowry's steward- ship on this record is that he was very persistent and determined. But the legality of -a steward's activities, or the degree of protection afforded it by the statute, cannot be measured in terms of the number of grievances or of the steward's fervor. Perhaps a clearer picture of the "dissension" which lay at the bottom of the Com- pany's concern appears in the testimony of the Respondent's witness, Dickenson, the carpenter who replaced Lowry as steward. Dickenson blandly testified Lowry was a bad employee, and he, Dickenson, a good one. He went on to say that whereas there had been dissension before Lowry left, there was none during his 5 months' stewardship. He also added he processed no grievances at all. I deem it significant that none of the grievances urged by Lowry involved himself personally. Apart from the jurisdictional claims, which necessarily would have benefited all the carpenters equally, all his disagreements with management arose over claims benefiting others. I cannot find, as the Respondent inferentially seems to argue, that Lowry used his steward position for personal gain or to foment discord among the workmen. Although some of his grievances may not have prevailed, his conduct was not immoderate.4 I find on the entire record that Bricker selected Lowry for discharge when he did because he resented Lowry's activities in processing grievances as steward. Bricker's description of Lowry's activities as a cause of "dissension" appears almost as a "transparent euphemism." 5 "It is obvious that concerted activities which are protected by the act often create a disturbance in the sense that they create dissatisfaction with the status quo. Such a fact without more can hardly justify a discharge." 6 And it is immaterial whether Lowry's activities be viewed as "union" activities or as concerted activities. In either posture -they were protected by the statute.? I conclude that by the discharge *Phoenix Mutual Life Insurance Company, 73 NLRB 1463, enfd. 167 F. 2d 983 (C.A. 7), cert. denied 335 U.S. 845. 5 See the language of the Court of Appeals for the Second Circuit, in N.L.R.B. v. Smith Victory Corporation, 190 F. 2d 56, enfg. 90 NLRB 2089. Salt River Valley Water Users' Association v. N.L.R.B., 206 F. 2d 325 (C.A. 9), enfg. 99 NLRB 849. ° N.L.R.B. v. Hymie Schwartz, Lion Brand Manufacturing Company, 146 F. 2d 773 (C.A. 5). 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Lowry on August 13, 1958, the Respondent violated Section 8(a)(3) and Section 8(a)(1) of the Acts In reaching this conclusion, I have carefully considered some indications in the record pointing to the existence of factions among the carpenters members of Local 569. Lowry recommended Bricker hire his friends among the carpenters and thereby assure a harmonious team on the project. He even told Bricker at the moment of discharge that things might have gone more smoothly had only Lowry's friends been hired. Whatever personal animosity may have been felt by some carpenters against Lowry it does not appear to have affected the job performance of any of them on this project. With the Respondent itself pointing to Lowry's grievance activities as the cause of the asserted "dissension," I could hardly search elsewhere for any hidden and unproved proper cause for discharge. Nor can I give any weight, on this record, to the testimony of Peterman, secretary of the District Council of Carpenters and member of another local, that in his opinion the Respondent did not commit an unfair labor practice. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against Walter Lowry with respect to his hire and tenure of employment, I will recommend that it be ordered to make him whole for any loss of earnings he may have suffered because of the discrimination against him, by payment of a sum of money equal to the amount he normally would have earned as wages from the date of the discharge to the date of the completion of the Bayou Casotte project in Mississippi, less his net earnings during the said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. Where, as in this case, the unlawful discrimination found consists of the selection of a particular employee to be included in a broader economic reduction-in-force, the Board normally requires that the employee involved be made whole only until such time as, pursuant to the employer's established nondiscriminatory practice, his employment would nevertheless have been terminated. There is no occasion for such uncertain provision here because the record shows when Lowry's job would have ended in accordance with the Respondent's lawful practice. As found above, it observed the working conditions established by the Carpenter Brotherhood locally throughout the country. Among these is a provision that the steward "shall be exempt from layoff unless all the carpenters are laid off a job or a job is entirely completed." Accordingly, I recommend that his make-whole period shall cease on the date the last carpenter was discharged. As the project has been completed, there is no occasion to order reinstatement. In view of the completion of the project, I shall also deviate from the standard remedial provision for the posting of notices. I shall recommend instead that the Respondent be ordered to post the notices at any project that may be in operation now, or within 6 months of the start of compliance, within the territorial jurisdiction of the South Mississippi District Council of Carpenters, and to mail copies of said notice to all the individual carpenter employees who worked on the Bayou Casette project. I will also recommend that the Respondent make available to the Board, upon request, payroll and other records to facilitate the determination of the amount due under this recommended remedy. As the discharge of an employee because of his union activity goes to the very heart of the Act, the commission of similar and other unfair labor practices reason- ably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. 1J. C. Boesptug Construction Co., 113 NLRB 330; H. Mauehlstein & Co., Inc., 118 NLRB 268. AINSWORTH 'PRECISION CASTINGS CO, DIV HARSCO CORP 601 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 By discharging Walter Lowry the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act 3 By the foregoing conduct the Respondent has interfered with, restrained, and coerced employees in the rights guaranteed in Section 7 of the Act and thereby has engaged and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication ] Ainsworth Precision Castings Company, Division of Harsco Corp. and Teamsters, Chauffeurs, Helpers and Taxicab Drivers, Local Union No. 327, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and The International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO. Cases Nos 10-CA-3630 and 10-CA-3969 December 4, 1959 DECISION AND ORDER On June 29, 1959, Trial Examiner George A Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto Thereafter, the General Coun- sel, the Respondent, and the UAW filed exceptions to the Intermediate Report and supporting briefs i Pursuant to the provision of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Chairman Leedom and Members Bean and Jenkins] The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the entire record in these cases, including the Intermediate Report and the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner 2 1 We hereby deny the UAW's request for oral argument, as the Intermediate Report, exceptions, and briefs herein adequately set forth the positions of the parties 2 We have adopted the Trial Examinhr's credibility findings in these cases for we are not convinced by a clear preponderance of all the relevant evidence that his credibility resolutions are incorrect Cadre Industries Corporation, 124 NLRB 278 125 NLRB No 65