J. A. Jones Construction Co.

744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J. A. Jones Construction Company and Lodge 1743, International Association of Machinists, AFL-CIO. Case No. 19-CA-2400. January 22, 1963 DECISION AND ORDER On September 11, 1962, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, find- ing that the Respondent had engaged in unfair labor practices in vio- lation of Section 8(a) (3) and (1) of the Act, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the attached Intermediate Report. Thereafter, Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the Trial Examiner's rulings and finds no prejudicial error. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Trial Examiner's Recommended Order with the modifications noted below.' 1 Absent exceptions, we adopt pro forma the Trial Examiner's finding that Respondent is to make Redd whole only for the period between March 13, 1962 , and the date when, upon Respondent's request for machinists, the Union might have referred Redd The appendix attached to the Intermediate Report is hereby modified by adding the following immediately below the signature line at the bottom of the notice: NOTE -We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act after discharge from the Armed Forces. In adopting paragraph 2(b) of the Trial Examiner's Recommended Order, we hereby amend the last sentence thereof which concludes : "plus interest on the sum due at the rate of 6 percent per annum ," to read "plus interest on the sum due at the rate of 6 per- cent per annum as set forth in Isis Plumbing & Heating Co , 138 NLRB 716 For reasons stated in the dissenting opinion in the Isis case, Member Rodgers would not grant interest on backpay." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On March 19, 1962, Lodge 1743, International Association of Machinists, AFI- CIO, herein called the Union, filed a charge against J. A. Jones Construction Com- pany, herein called the Respondent. Upon this charge, the General Counsel of the National Labor Relations Board, herein called the Board, on May 11, 1962, caused a complaint to be issued, alleging that the Respondent had committed unfair labor 140 NLRB No. 73 J. A. JONES CONSTRUCTION COMPANY 745 practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U S C. Sec. 151 et seq., herein called the Act. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent on about March 13, 1962, laid off its employee James B. Redd and thereafter refused to reinstate him because of his membership in and activities on behalf of the Union. The Respondent's answer, filed on May 24, 1962, admits that Redd was laid off on March 13, 1962, alleging, however, that he was laid off tem- porarily in a reduction of force but was at all times thereafter eligible for reemployment. Pursuant to notice, a hearing was held in Richland, Washington , on June 21 and 22, 1962, before Trial Examiner James R. Hemingway. The General Counsel and the Respondent were represented by counsel and the Union was represented by an Inter- national representative. At the close of the General Counsel's case-in-chief, the Respondent moved to dismiss the complaint on the grounds of failure of proof. The motion was denied. At the close of the hearing, at the request of the parties, a date was fixed for the filing of briefs. On that date, briefs were received from the General Counsel and the Respondent and both have been considered. From my observation of the witnesses and upon the entire record in the case, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material hereto has been, a North Carolina corporation engaged in providing construction and engineering services at various locations throughout the United States, including the Atomic Energy Commission at the Hanford Works, Richland, Washington. At all times material hereto, the Re- spondent has operated a machine shop at Richland, Washington (the only facility involved herein). Within the past 12 months, the Respondent has received goods for use at Richland, Washington, directly from outside the State of Washington valued in excess of $50,000 and has performed services for the Atomic Energy Com- mission for which it received in excess of $1,000,000. Jurisdiction is not contested I find that the Board has jurisdiction and that it will effectuate the policies of the Act to assert jurisdiction.' II. THE LABOR ORGANIZATION The Union is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Discrimination in hire and tenure of employment 1. Background evidence The Operation of Respondent and the Jurisdictional Dispute The Respondent has a prime contract with the AEC on a basis of a fixed fee plus total reimbursement of cost It commenced operations at Richland, Washington, in about 1948 but not at the building presently occupied It moved to its present plant in 1961 The new plant, rectangular in shape, is composed of three main work sec- tions-the pipe shop, the machine shop, and the ironworkers-boilermaker shop, in that order. Three electrically operated cranes service the area of the building. Each of these cranes can be moved horizontally as well as vertically by electricity The machine shop, which covers more than one-third of the building floor space, has practically exclusive use of one of these cranes-the one in the center of the build- ing-and the other two electric cranes are available for use of machinists as well as of the other crafts working at each end of the building. If a crane can be moved horizontally by electricity, the electricians union claims the right to exclusive opera- tion of the crane. When the machinists began operating these cranes in their depart- ment in the new building, a jurisdictional dispute arose. The Respondent awarded the operation of the electric cranes to the electricians and the machinists then refused to use those cranes; that is, they refused to use the cranes operated by an electrician As a result, the Respondent, on July 26, 1961, filed a charge and, under Section 10(k) of the Act, on February 28, 1962, the Board issued its Decision and Determination of Dispute, ruling that the work of operating the overhead electric cranes at the 1 Jurisdiction was previously asserted by the Board in the CD case hereinbelow mentioned 746 DECISIONS OF NATIONAL LABOR RELATION S BOART) plant here involved belonged to the electricians and not to employees engaged as machinists.2 2. Employment and layoff practices The Respondent and the Union have a collective-bargaining agreement containing a union-security provision. Although the latest agreement does not provide for an exclusive hiring hall (the 1959-60 contract did), the Respondent, as a matter of practice, calls the Union to supply machinists when it needs them. From time to time machinists are laid off by the Respondent as the condition of the workload requires The men so laid off are eligible for rehire should the Union dispatch them in response to the Respondent's next requisition for machinists. Before the period of the contract in effect from 1960 to 1962, there had been a conditional seniority pro- vision in the contract-seniority being the controlling factor in layoffs if "all other considerations" were equal. This provision was eliminated from the 1960 contract although, in practice thereunder, seniority was given weight, other considerations being equal. 3 History of Redd's employment and union activities James Redd, a precision machinist, was first employed by the Respondent June 8, 1955, and worked for about 2 years. After a period of separation, Redd was rehired on September 30, 1957, following which time he was continuously employed until the date of his layoff in March 1962 as hereinafter related. At the time of his layoff, Redd was sixth oldest machinist in length of service among 29 employees on both shifts and also sixth among 18 employees on the day shift, the shift he worked on for the last 2 years of his employ. For a large proportion of the time during his first term of employment, Redd was the union steward on his shift, and he again served as steward from late 1957 to early in 1959, at which time he became a foreman as hereinafter related. While a steward in this period, an apprentice, Bobbie Williams, protested to the foreman, Edward Smith, the repeated assignment of one particular type of work depriving him, I infer, of the opportunity to broaden his experience. Smith threatened to discharge Williams if the latter did not do the work assigned. Williams consulted Redd, the steward. Redd carried Williams' grievance to General Manager Ira Dunn.3 During his periods of service as steward between 1955 and 1959, Redd took up a number of other matters with management. Under the Respondent's contract with the Union, the Respondent was required to retain the steward, whenever possible, in a layoff. In the spring of 1959, because of an increase in staff, the Respondent added a foreman to each shift, the day and swing shift They rotated once a month and were subordinate to Edward Smith, who became general foreman. Redd was appointed as one of the two additional foremen.4 This required him to give up his position of shop steward. Toward the end of the year 1959, when the work fell off and a number of men had been laid off, Redd was relieved of his supervisory duties and was then returned to his former work as a machinist. Following this, Redd did not again hold office in the Union until January 1962, following his election as president Early in February 1962, Foreman Smith called a meeting after lunch one day to discuss the care and maintenance of company tools. Most of the company tools were marked with the Respondent's name or with the initials "AEC" or "HOO." Drills and taps, however, being expendable, were unmarked. Under the then current labor agreement between the Respondent and the Union, the machinists were re- quired to furnish certain tools, a list thereof being included in the contract, and the machinists had their own toolboxes therefor It was the retention of company tools in these toolboxes that Smith sought to correct, since it might deprive others of the use of such tools. Drills and taps were among the tools not required by the contract to be furnished by the machinists. The retention of these company tools by any machinist often resulted in the necessity for the grinding by a machinist of a bit for a particular job When Smith told the machinists to return these tools to 2 International 4 ssociatron of Vachirkts, Lodae No 17 1i7 1 PI-C10 (.T 1 Jones Construction Compan',), 135 NLRB 1402 Smee Dunn became manager in 1959 and since Williams finished his inprentleesh1p 91 on July 29, 1960 I conclude that the incident occurred in early 1959 while Redd was still a steward and before he became a foreman 4 The record is not too clear as to when or how Redd was made foreman. Redd's own testimony was that when he hocame foreman, the Resnondent had a big workload and it was necessarv to have two foremen on dave and ens on nights (i P, the swan- shift from 4 30 n m to midnicht) Shields Turner testified that lip had been foreman for 5 or R months just before Redd's term as foreman Turner had requested relief from the supervisory position J. A. JONES CONSTRUCTION COMPANY 747 the crib, one machinist protested that the machinists had brought some of their own taps and drills on the job with them . Smith said that the men should remove unmarked tools from their boxes and after they had had time to do this , all unmarked tools would be confiscated as company property . Although Smith intended this statement to apply to unmarked taps and drills, some of the men understood that it applied to all unmarked tools in excess of those listed in the contract. Redd then suggested that the machinists take home all their own tools not called for by the contract and other machinists concurred. The result of this act was to require the Respondent to purchase additional tools over and above the taps and drills which the men had brought on the job with them . Smith, agreeing that the ma- chinists had the right to take their excess tools home with them, reported to Super- intendent Joe Kirkpatrick the fact that the machinists were going to take home their tools in excess of the contract list. Kirkpatrick met with General Superintendent "Shorty" Marsh, Assistant Manager Karl Wait, and General Manager Ira Dunn. As a result, Kirkpatrick was instructed to ascertain what tools were needed and to get them on order. A day or so after the machinists decided to take their excess tools home, Marsh and Kirkpatrick met with the machinists in the lunchroom just before the end of the lunch period , and Marsh explained that it would take at least 30 days to get some of the tools in quantities sufficient to supply each man, and he said that meanwhile if the men had a job for which the Respondent did not have the requisite tools, the job would have to wait . He proposed that they meet again in 30 days to discuss the progress on the acquisition of tools. Following this time, some of the men began bringing back their excess tools. According to the Re- spondent's witnesses, production was not appreciably slowed down by the fact that the machinists took home their excess tools, and the expense to which the Respond- ent was put to supply the additional tools was reimbursable as a cost item under their cost-plus-fixed-fee contract. This evidence of the Respondent was adduced to show that Redd was not responsible for inconveniencing the Respondent to an extent that it would create an animosity against Redd , tending to cause the Respond- ent to discriminate against him . This will be weighed hereinafter. In mid-February 1962, the Union arranged a meeting with Kirkpatrick, the shop superintendent, to discuss the policy to be followed in transferring men from the swing shift to the day shift. At the appointed time, five representatives of the Union met with Superintendent Kirkpatrick and Foreman Smith. The Union's repre- sentatives were Gene Pollard, Grand Lodge representative, Jim Ray, business agent, Day Steward Francis Scott, Night Steward A. W. Campbell, and Redd, the Union's president. Scott testified that he asked that Redd attend. Redd testified that he attended at the request of Pollard. Neither Kirkpatrick nor Smith objected to Redd's presence. Kirkpatrick testified that, toward the end of the meeting, Pollard said, "Mr. Redd is our president, which automatically makes him bull steward." Kirk- patrick testified that he did not say anything about Redd's presence because his own relations with Pollard and Ray had been pleasant and he did not think it advisable to make a scene by asking someone to leave, as well as because he, himself, would have felt free to bring one of the machinists in when shop problems were being discussed. New men customarily started on the night shift . The Union was seeking to have openings on the day shift filled by men from the night shift in the order of their seniority. That had at one time been the practice, but Kirkpatrick on one occa- sion had departed from it. Redd testified that at this meeting he proposed that the Respondent resume its previous practice, that Kirkpatrick agreed to do so, and that he (Redd) had also proposed that a three-man shop committee be appointed by management, composed of the two stewards and another , to meet with manage- ment periodically to discuss conditions in the shop with a view to correcting them. Redd testified that Smith and Kirkpatrick concurred in this and appointed the com- mittee "within the next few following days." He did not, however, testify as to the names of those whom the Respondent appointed, nor did he testify further concerning the functioning of such committee After the Board's decision in the proceeding under Section 10(k) issued, as here- inafter related, one of the machinists asked Foreman Smith if he should use the electric crane or the A-frame (which the machinists had used instead of the electric crane since the time in 1961 when the Respondent had awarded operation of the electric crane to the electricians), saying that the steward, Scott, had told him that it was for Smith to decide. Smith refused to tell the machinists what to do, saying that they knew what to do. On about March 9 or 10,5 Scott went to Kirkpatrick 6 Kirknatrick testified that it was the day before the next related meetinr However. -,s the dote of the next meeting was Monday, March 12, T infer that if Scott went to Kirknatriek beforehand , he must have done so either the week before or earlier on the •.•,mc morning 748 DECISIONS OF NATIONAL LABOR RELATION BOARD and asked if he had received a copy of the Board's decision in the 10(k) proceedings. Kirkpatrick said that he had not. Scott said that it was complicated and, according to Kirkpatrick, that he (Scott) did not want to be subjected to a fine "because of the way it was awarded in the shop." Kirkpatrick said that if it was that com- plicated, there should be a ruling from his superiors as to how the machinists were to perform their duties . Scott said that he would like to talk it over with Kirkpatrick. Kirkpatrick said that he was busy at that time but would be glad to meet him the next day. Scott said he'd like to have Redd come with him , as Redd was better acquainted with the decision and understood it better than he did and could explain it better than he could.6 Kirkpatrick apparently consented to this. On March 12, just after the shift started, Scott and Redd went to see Kirkpatrick. Redd told Kirkpatrick that the machinists were ready to comply with the Board's decision and asked when the electric cranes were to be used in performance of their work. Kirkpatrick replied, according to Redd , that in the boring mill and planer area, the electric crane would be used at all times to make a lift and that in the end area it would be used 90 percent of the time. Presumably this contem- plated using the A-frame for some lifts. Redd or Scott asked Kirkpatrick to post a notice of procedure to be followed , including, I deduce, a procedure for getting an electrician when needed to operate a crane. Kirkpatrick said that he would be glad to post the notice. He never did, however. He testified that he was to post the notice only if the matter was complicated and that it was not complicated, so there was no need to post it. Redd testified that this meeting lasted 20 to 30 minutes. Having forgotten to discuss the situation on the night shift, Redd testified, he returned alone to see Kirkpatrick, and told Kirkpatrick that he assumed that Kirk- patrick would have an electrician available for the operation of the cranes on the night (swing) shift Kirkpatrick replied, according to Redd, that there would not be at all times an electrician available that night or in the future on the night shift. Redd testified that he said he felt that this was not in accordance with the Board's decision and that it would mean trouble. Kirkpatrick, according to Redd, said that there would be no trouble, that Redd should just go along with this and every- thing would work out all right. Redd replied, he testified, "Well, Joe, it's over our heads. It's too big for us. We will refer the problem back to my International " Kirkpatrick, on direct examination, testified that he did not remember Redd's coming back to talk about an electrician for the night shift On cross-examination he testified positively that he had had no conversation with Redd about an electrician after the morning meeting. It may be that the incident was blended by Kirkpatrick's memory into the morning meeting, or it is possible that, if the topic of the night shift was mentioned , it was raised at the morning meeting and Redd's memory was faulty. In my opinion this variance is not of much importance. Kirkpatrick testified in substance that he instructed the night-shift foreman that if an electrician was needed there to operate an electric crane, he should telephone Kirkpatrick, who would get one to come but that if he could not reach Kirkpatrick, he should use existing facilities, i e., the A-frame, unless he considered that unsafe, in which case the lift should be left for the day shift. Harold Kohler, the night- shift foreman, did not testify as to his instructions, but he testified that, on the night shift, they used only the A-frame and then only if he considered it safe. If it was not safe, this job was left for the day shift. Kohler's testimony leads me to the conclusion that, if Kirkpatrick did say anything to Kohler about getting an electrician, the situation when he would request an electrician would have to be an unusual one. Scott, the day-shift steward, testified without contradiction that on the morning of the next day, March 13. he told Kirkpatrick that the machinists would not use the A-frame for lifts. Kirkpatrick made no comment. I infer that Scott included the night-shift machinists in his statement, for Scott testified that later that morning General Superintendent Marsh came to him and asked him if Scott had made that statement When Scott said he had, Marsh said, according to Scott,7 that if that was their (the Union's) stand there would be plenty of firing "over this." Scott said that was their stand 8 4. Redd's layoff At 2 p.m on the same day, March 13, Foreman Smith informed Redd that he was being laid off at the end of that shift Redd said that this came as quite a 8 rcott did not testify as to an advance conversation with Kirkpatrick 7 \iarch did not testify, and the Respondent did not attempt to show that be was unavailable 8 This position was changed a few days later on the instruction of the union business agent How the business agent came to give this instruction does not appear J. A. JONES CONSTRI CTION COMPANY surprise and asked why, since he had been there for quite a long time . The testi- mony of Redd and Smith differed in part as to what was said in this conversation. I shall first relate the conversation as given in Redd's testimony. Smith replied to Redd's question by saying that the workload had fallen off, that someone had to be laid off and that Redd was one of them (i.e., one of those to be laid off). Redd asked if the layoff had anything to do with his workmanship, his ability. Smith said it had not. Redd asked him who had made the determination to lay him off. Smith replied that he, himself, had Redd said he felt that that was not true, that he thought it had something to do with the stand he was taking on the "10(k) hearing." Redd quoted Smith as then saying, "When pressures get great enough above, you have to do what they say; so I have to say that I am the one who made the determination." Redd testified that, at this time, Smith handed him two checks and a termination slip, the latter signed, in the space marked for the foreman's signature, "W. W Call," which was the name of the personnel director. Redd accepted his normal paycheck but refused to accept his final paycheck or the termination notice. He told Smith that the termination notice was not properly signed. Smith said that the termination slip did not have to be signed by him. Smith's version of the layoff conversation with Redd was that he went to Redd and told him that two men had to be laid off. Redd asked who they were. Smith replied that one was John Glover and the other was himself-Redd. Smith testified, "He wanted to know the reason, that was account of him talking and leaving his work." Smith quoted Redd as saying, "You know I am the best machinist in this shop," and that he replied, "Jim, you do good work." Smith went on to quote Redd as saying, "Well, the National Labor Relations Board won't hold still for this " Smith jumped from this to ". . . and I told him of an instance, I said, `For instance yesterday, there were six people from AEC in the shop inspecting these ball hoppers when Jim happened to be down talking to Mr. Scott at the other end'; and I said, . . `It's a wonder that the AEC hasn't put pressure on us about that because seeing one man so many times talking to another one away from his work'; and he [Redd] left it at that." According to Redd and Scott, Redd then went to Scott, the steward, told Scott that he had been terminated, and asked Scott to accompany him to Smith's office to hear Smith's explanation of the layoff. According to Redd and Scott, they went to Smiths' office and asked why Redd was terminated.9 Smith said it was a reduction of force, that they had to let men go and Redd was one of them. Scott testified that he had asked Smith why it should be Redd, who had been there for 41/2 years, and asked Smith who it was that had made the determination as to who was to be laid off. Redd did not mention Scott's having asked these two questions but testified that he, himself, had asked Smith again if it was his (Smith's) determination and that Smith had again said that he "had to say" that it was his determination. Scott corroborated this testimony as to what Smith said, but he did not testify to any response to the first of the foregoing two questions he testified he had asked Smith. Smith testified that he did not recall that Redd and Scott came to his office that day and that he was sure the conversation had not taken place. He testified that the only time (after the notice of layoff) when he had talked to Redd was before Redd went home that night when Redd had remarked to Smith, "I hope you sleep good tonight." At the end of the shift, Redd collected his tools and and made arrangements to leave. In doing so, he went to the office and encountered General Superintendent Marsh Redd told Marsh that he felt his termination was in error and that he in- tended to contest it and take it to a hearing. Marsh asked through what channels Redd would take it-the Company's or the Union's. Redd replied that that was not for him to decide. In resolving the conflict in the testimony of Redd and Smith as to the conversation at the time, and shortly after, the notice of layoff had been given, I have taken into account not only my observation of the witnesses and their demeanor on the stand but have examined their testimony for consistency and probability in the setting of all the occurrences and the sum of the evidence However, T_ have considered not only probabilities but I have also given consideration to the question of interest-would the witness' testimony insure to his own interest or at least to the interest of one with whose interest he is aligned' It would, of course, be to Redd's interest that Smith should make a statement tending to show that Smith had been subjected to pressure or influence from one of his superiors, and it would be in the interest of the Respondent, and indirectly of Smith, that such purported statement be 0 Redd testified that he, himself, asked Smith this question Scott testified that he was the one who asked the question. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denied. It would also be in the interest of the Respondent that the corroboration of Scott be denied, and the most effective way to deny it would be to deny the entire conversational incident and not merely the words spoken in the conversation. Since each side would therefore gain as a result of the respective testimony of, or for, each, interest alone cannot solve the issue. Smith's recounting of remote events tended to be vague and general. Even as to more recent events his testimony lacked coherence. Smith's testimony, because of his generalizations and bias arising from his self-interest, created what I evaluate as a distorted picture of Redd's proclivity for talking. Although Smith testified that Redd was only an average talker (at least in a group sitting around talking), he portrayed Redd as a man given to ex- cessive talking in the shop. Yet a close scrutiny of the record will show that the periods of Redd's purported loquaciousness coincide generally with the times when he was a steward or the president of the Union, with one possible exception- a time which might easily coincide with the period during which a campaign for union officers could have taken place, late in 1961, just before Redd was elected president. I conclude, therefore, that Redd's alleged proclivity for conversing with other workers was the result of Redd's belief, right or wrong, that the duties of his office called for such conversation. Smith did not appear to be a malicious individual. On the contrary, he appeared to be one who would be sensitive to adverse criticism. Consistent with this trait, Smith, I conclude, gave Redd a hint that the selection of Redd for layoff was not entirely his (Smith's) act. To this extent, I find support for Redd's testimony of Smith's statements to him when Smith informed Redd of his selection for layoff. When a union member feels aggrieved at his selection for layoff, it is a natural course for him to speak to the steward and ask the steward to talk with the foreman as the first step in processing a grievance through whatever channel might seem most appropriate. The testimony of Redd and Scott is, therefore, consistent with the probability that Redd did carry to Scott his tale of grievance and that Scott did go with Redd to speak with Smith. But I am not fully convinced that Smith would repeat before a witness what he might have intimated to Redd in private. Smith's lack of recollection that there was such a conversation appeared to me to be grounded on a fear of admission, presumably because if the conversation were admitted, the Trial Examiner or the Board might more readily find Redds' corroborated testimony to be true. On the other hand, the testimony of Redd and Scott concerning an alleged admission by Smith was not only favorable to Redd's case but, except by the weight of numbers, it was lust as incapable of being tested for veracity as was Smith's testimony. Although I do not find that any of the three men involved in this conversation gave false testimony, I am sufficiently doubtful of the accuracy of the testimony to disregard it in reaching the conclusions hereinafter reached.io After the layoff of Redd, Scott telephoned James Ray, the Union's business representative, and told him of Redd's layoff. Ray called Gene Pollard, the Grand Lodge representative for the Union, and they arranged for a meeting with the Re- spondent on the afternoon of March 15, 1962. Present for the Respondent were several supervisors.ii According to Smith, Pollard asked him why Redd was laid off. Smith said it was a reduction of force, that the workload had dropped off Pollard said he would not "buy" that. Ray testified that at this meeting Smith said, "Jim Redd will be a better boy when he comes back next time." Smith denied the accuracy of this quotation and testified that he had said, "When Mr. Redd comes back, he may be a different man," and that Pollard had retorted, "Oh, he'd be a better boy." Smith testified that what he meant was that Redd would probably come back and take care of his job. 5. Respondent's contention, and pertinent evidence affecting conclusions The Respondent's principal justification for the selection of Redd for layoff despite his comparatively long service was that Redd was away from his job too much and that this interfered with his production. The cause of Redd's being away from his job too much was attributed by the Respondent to excessive talking by Redd. The 1o The testimony of Redd and Scott did not give the appearance of falsehood, but I rloem it likely that Redd told Scott of Smith's so-called admisslon and that Redd and Scott had discussed the matter often enough to have confused the subjects of their own ^nnvsrsations with what was said in the conversation with Smith 11 Ray testified they were Call, personnel manager, Kirkpatrick, Marsh, and Smith cimith testified that they were Kirkpatrick, Wait, and himself. Smith also put Scott there for the Union. J. A. JONES CONSTRU CTION COMPANY 1a1 Respondent also gave evidence that, apart from his time lost, Redd was not a fast worker, although this was not emphasized as a factor in the selection of Redd for layoff. The evidence was vague about incidents when Redd was away from his job aside from the several incidents related hereinbefore when Redd went to talk with, or meet with, Kirkpatrick. It was indirectly suggested by Smith that, on one occasion, Redd was away from his machine, when Smith testified that, at the time he notified Redd of his layoff, he told Redd that, when AEC representatives were in the shop, Redd was "at the other end" talking with Scott. This incident, if it occurred, apparently took place the day before the layoff when Redd and Smith were concerned with the electric crane procedure. No testimony was given as to the time of day when it occurred. Redd was not questioned about this incident. Smith could have seen Redd and Scott together just a moment before both left, as pre- arranged with Kirkpatrick, to talk with the latter about the procedure to be followed in the use of the electric cranes. Smith testified that it was not necessary for a machinist to get permission from him to go to Kirkpatrick's office There was no prohibition against a machinist's talking when he was standing by his machine while it was running. Smith testified that, at times, a cut (by a machine) might take several hours, and the machinist would then have nothing to do except to observe the ma- chine. If he left the machine, however, safety rules required that the machine be stopped. I infer from Smith's testimony that the safety rule was not always complied with. The evidence adduced in an attempt to prove that Redd talked more than other than men in the shop did not go to show that each time he engaged in conversation he was away from his machine. Because Redd's appearance and demeanor in the hearing room did not create the impression either of a garrulous person or of a gossipy person, because the testimony appeared to me to show that Redd's periods of alleged talkativeness coincided with periods when he held office in the Union either as steward or as president, because Redd appeared to me to be the sort of individual who would take seriously, perhaps more so than average, his duties or supposed duties of office, as well as because those who testified in the most damaging way against Redd appeared to be biased and to exaggerate, I am inclined to give such evidence of Redd's talkativeness little weight as evidence of the Respondent's grounds for selecting him rather than anyone else for layoff. By Smith's own testimony, in the 41/2 years that Redd had worked during his last period of employ, Smith had spoken to Redd only twice about talking. The first time was fixed by Smith as about 3 years before Redd's layoff, and the second almost 2 years before his layoff. On one of these occasions, at least, Redd appeared to be performing the duties of steward, who, under the contract, was authorized to leave his work to attend to union business in the shop. The details of the other incident were so sketchy as to render impossible a conclusion with respect thereto. It does not appear whether or not Redd was away from his machine on those two occasions. Smith apparently intended to create the appearance that he was, however, for Smith testified that a man "who is working on one end of the shop and say that he wants to talk to a man on the other end, you know he is not producing like a man that stays at his machine." This "example" could have had reference to the incident alluded to by Smith as the one which took place the day before the layoff of Redd. The least biased of the witnesses called by the Respondent to testify about i?edd's talkativeness was Shields Turner who had, in late 1958 and early 1959 before Redd became foreman, been a foreman under whom Redd had worked. Turner tertificd that during the time he had been foreman, Redd's work was of fine quality and that "the biggest share of his jobs were made on time." Although Turner indicated that Redd talked more than other men, he gave the impression that this was while Redd was at his machine, for he testified, "It seems to me, I don't know, since the first of the year [1962] that Jim [Redd], it seems to me he has been more lenient, I'll say, in talking to men again, not only machinists but other crafts just walking through the shop, if they want to stop and talk, it seems like Jim Redd is always willing to stand there and talk with them." I note that this correlated the time of Redd's talkativeness with the time of his presidency. Without giving percentages of jobs which Redd finished within the estimated scheduled and of jobs on which he was late, Smith testified merely that sometimes Redd was on time and sometimes he was not. Such vagueness appeared to me to be intentional. There was no evidence as to how frequently other men finished work behind schedule. Despite the presumed importance of the Respondent's work, the evidence as a whole gave the appearance that the Respondent was not under pressure from AEC or General Electric Company to speed deliveries and that it was 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not having difficulty in maintaining its schedules .12 Had Redd been behind schedule in his work, I would expect that Smith would have spoken to Redd about it in an effort to speed up his work. From Smith's testimony, I conclude that a comparison of the work of machinists quantitatively is difficult because they usually work on different jobs. One witness for the Respondent, Alfred Denton, testified that Redd was one of the slower workers. By a slower worker, I understood him to mean that Redd would set his machine at a slower speed or shallower cut than some of the others. This, in itself, does not signify to me that Redd was necessarily dragging his heels. It is conceivable that, by a slower machine setting, a higher quality of work might in some cases be attained. Smith testified that before the layoff, although not on the day of the layoff, Redd had worked on the cutting and grinding of pipe coupons-2-inch sections of a 20-inch pipe cut off of 4-foot lengths of the pipe. They had a half-inch cutout between each coupon and they were machined down to within a few thousandths of the thickness and then ground to get the finish on both sides. There was no testimony that the Respondent was behind schedule on that job. No set number of the pipe coupons had to be made, although it was estimated as a 200-hour job; they were just made as the sections of pipe were sent to the Respondent by General Electric. Smith testified that Redd had done the bulk of the work by that a machinist by the name of Ralph Stout had done the grinding work on them after Redd had been laid off and that Stout had ground 12 of these in an 8-hour shift each day for 3 days whereas Redd had been getting 4 to 6 of them on a shift. Testimony was lacking to show that Redd was doing no other work when he was getting 4 to 6 a day, nor was there any testimony as to the comparative quality of the work on the coupons finished by the two men. However, even if it be assumed that Redd was working on nothing else and that the quality of Stout's work was equal to that of Redd, this obviously did not influence Smith in selecting Redd for layoff because he concededly had no basis for comparison until after Redd had been laid off. Smith himself testified that it was difficult to compare the performance of the men. Hence, unless a man takes longer than the estimated number of hours on the work, his rate of speed would not likely be thought of as inadequate. 1 conclude that quality of work and the capacity to do all kinds of work would be prime considerations in retaining men when selecting a man for layoff. If Smith had concluded that Redd was too slow, he did so not because of the number of pipe coupons finished by Redd but on the assumption that his absence from his machine necessarily slowed Redd down. Prior selections for layoff by Smith had not been of machinists capable of all types of work, of fine quality, who had been retained for 41 years, or who was a president of the union. Hence, the Respondent had had no occasion to question Smith's prior selections as it would be expected to have where the selection is an unusual one. To me, a significant element in this case is that Smith's selection of Redd for layoff (assuming for the sake of argument that it was solely Smith's selection) caused so little question from his superiors. The Respondent explains this on the basis of its general practice in layoffs-that the superintendent decides how many men are to be laid off and that the selection of men to be laid off is left solely with the fore- man. That this was the general practice is not doubted. The question here, how- ever, is whether or not the Respondent had cause to question the properiety of the foreman's selection or (more to the fact) whether or not an exception to the general rule occurred and the foreman's selection was in fact influenced by his superiors. As stated, Smith justified his selection of Redd on the ground that Redd was away from his work too much and that this must have affected his rate of production. Taking into account the time that Redd had taken off on union business, I assume that his production was pro tanto affected. From the manner in which Smith testified when he was not led by Respondent's counsel, I deduce that Smith put quality of a man's work ahead of quantity, barring the machinist's failure to meet the estimated completion dates. Except for the testimony of one witness , Denton, all other witnesses, including Smith, himself, testified that the quality of Redd's work was good. Denton appeared to me to have a personal bias against Redd. From all the evidence, I also deduce that those who had achieved long employment without n When orders come to the Respondent from General Electric, they come with an esti- mnte of man-hours for the job and a completion date. There is no penalty for not finish- ing a job in the estimated time although tardiness is explained, and, according to Dunn, if the Respondent were consistently late he doubted that he would have a contract Some- times the Respondent runs under the estimate time. Smith testified that the Respondent tries to make each job stand on its own feet, "but we do have to average them out a lot of times." Smith also testified, "Maybe we won't start an order the day I get it If the completion date and the time will allow it, we might keep it for a week before starting." J. A. JONES CONSTRUCTION COJIP-1NY 753 layoffs were those whose work was valued and who, accordingly, were retained when a layoff occurred. When Redd was a foreman he was required to make a selection of men for layoff After consultation with Smith, Redd decided to lay off a man named Schneider, al- though Schneider was not the machinist with the least seniority. The reason for this deviation from the practice of selecting on the basis of seniority was that Schneider was not qualified for the work available. From exhibits introduced by the Respondent, I find that Schneider had been employed off and on by the Respond- ent (presumably because the Union would dispatch him when the Respondent requisi- tioned men rather than because the Respondent chose him). Schneider was em- ployed first on May 12, 1959, was laid off on August 28, 1959, along with six other machinists. He was again employed on September 23, 1959, and was again laid off on November 20, 1959, along with four other men; was reemployed on Decem- ber 11, 1959, and was laid off on February 26, 1960. He was again employed on March 16, 1960, and was still employed when Redd was laid off.13 On all the evi- dence, I infer that the quality of Schneider's work was not equal to that of Redd's The fact that Schneider had been in the Respondent's employ for about 11/2 years at the time of the March 13, 1962, layoff, does not, in itself, signify that Schneider had overtaken Redd in the quality of his work. Since the date when Schneider was last hired, there had apparently been no occasion for a layoff until March 13, 1962. Schneider's retention during that time signifies to me only that his work was not so poor as to require his discharge. The Respondent also introduced in evidence a list containing the names of ma- chinists who i'ad from time to time been laid off (other than where a single man had been laid off) showing the names also of men with less seniority who had been re- tained at the time of each layoff. from this, the Respondent argues that it was not the usual practice to lay off the man with the least seniority even during the time when the contract contained the qualified seniority clause, which it did not when Redd was laid off. I have examined this exhibit and i find that it shows (as men with less seniority who were retained at the time of the several layoffs) the name of at lest one apprentice (O'Brien), if not more, in addition to the names of journeymen Sniiul testified that apprentices were generally retained at the time of a layoff; so their reten- tion is normally based on a consideration other than length of service or qua:ity of work. The list does not differentiate the apprentices from the journeymen to elim- inate the former as examples of men with less seniority who were retained at the time of a layoff, so one cannot ascertain how many of the men on the list of junior men who were retained were apprentices. Furthermore, it cannot be determined whether or not any man with less seniority who was retained was a shop steward, who, under the Union's contract, would have retention rights. Furthermore, the Respondent's list fails to show on what shift the man laid off or retained worked. In the March 13, 1962, layoff, two men were taken from the day shift and two from the night shift. It is uncertain that this was always the procedure followed. The newer men are usually on the swing shift. If it was the Respondent's practice to reduce the force of both at the same time rather than just the night shift, there would naturally be junior men retained. Even if the day-shift journeyman machinist with the shortest period of service (Boyd 7/6/61) had been laid off on March 13, 1962, there would "The General Counsel was supplied by the Respondent with a list of names of em- ployees working on the day shift and a list of those on the night shift On the day- shift list is shown, 13th in order of length of service, the name Snyder, without initials An exhibit introduced by the Respondent purports to show the names of all employees hired by the Respondent on the project from 1953 to May 8, 1962 No name of Snyder appears on this list, nor is there a similar sounding name other than Schneider This exhibit of the Respondent also bears asterisks before certain of the names . An examina- tion of all exhibits indicates that the asterisks denote men in the Respondent's emnloV at the time the list was made. There is an asterisk before the name of Schneider Because of these considerations , because there were several other names on the list furnished by the Respondent to the General Counsel to be used as an exhibit which were apparently misspelled, and because of the similarity in sound between Snyder and Schneider, I find that Snyder and Schneider are one and the same person . When I sent notice to the parties of errors in the transcript, I also called attention to the apparent error in the exhibit. The parties raised no objections to corrections I suggested. When I ordered the transcript corrected, I did not correct the exhibit because I felt that the proper pro- cedure to correct an exhibit should have been by stipulation or motion However, since the parties did not contest the statement I made that the exhibit appeared to be erroneous in the spelling of Schneider's name, I assume that they concur in my conclusion 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been four employees junior to him on the swing shift who were retained i4 But even disregarding these defects in the exhibit, it shows that, where men with less seniority were retained, the ones laid off seldom had more than a few days' or a few months' seniority over those retained in any layoff before the layoff of March 13, 1962 There had never before been a layoff in which the men laid off had as much as several years' seniority and who had been retained at times of other layoffs as was the case with Redd Of course, the qualified seniority provision had been omitted from the 1960 con- tract, but seniority was still considered an important factor at the time of any layoff. Both Smith and General Manager Dunn so testified. Two of the men laid off on March 13, Glover on the day shift and Walsh on the night shift, had been employed since late 1960. The night-shift foreman testified that he selected Walsh for layoff because he was slow. But Walsh was not shown to have survived previous layoffs. There had been no layoff, so far as appears, since February 1960; so the layoff on March 13, 1962, was the first time Glover and Walsh had come into competition for retention The second swing-shift man to be laid off, Pomeroy, was the last man hired (March 5, 1962). Smith testified that he chose Glover for layoff because Glover was handicapped by having only one leg and could not perform so well. On all the evidence, it appears that the selection for layoff of a man with 4ih years' continuous service was unique in the Respondent's history of operations at this plant. Yet despite its uniqueness , Kirkpatrick did not question Smith's selection of Redd for layoff. General Manager Dunn testified that, when he was told the names of the men to be laid off, he told Kirkpatrick that he was "a little surprised that we had one of the older men on it [the list]" and that Kirkpatrick had said, "I'm told that he is the one to be laid off by Mr. Smith He is not performing as much work as the new men." 15 No curiosity was expressed, however, as to whether or not the selection of Redd had anything to do with Redd's being president of the Union or with his activities as such. A normal reaction, I believe, would have been concern by management personnel that such a layoff might result in an unfair labor practice charge by the Union with the attendant cost in time and expense of litigation resulting therefrom. In weighing the advisability of running a risk of inducing a charge, an employer might well choose to follow the more expedient course unless the cost in time and money resulting from the layoff of the union president were to be considered well worth it.16 I am led to the conclusion that the Respondent desired Redd's layoff and that Smith, as he intimated to Redd when he notified Redd of his layoff, was merely yield- ing to pressure. The Respondent argues that it had neither the desire nor disposi- tion to resort to discriminatory measures and points to its past history of friendly labor relations and the absence of any history of unfair labor practices That this had been true in the past may be conceded The Respondent had conducted itself in an easygoing and tolerant, if not long-suffering way. But just as one additional straw was sufficient to break the fabled camel's back, so one additional trial of the Respondent's patience could drive it to unprecedented recourse The Respond- ent had, for 7 or 8 months, endured the inconvenience resulting from the jurisdic- 14 Those junior to the most junior day -shift employee included Strosser (7/31/61), Wingerter (3/7/61). Neis ( 1/31/62 ) Tate [Letzel9l (3/1/62 ), and Pomeroy (3/5/62) Of these, only Pomeroy was laid off 13 This was Dunn's testimony on cross-examination On direct examination he had testified , " . . they [Kirkpatrick , Wait , and 3iargh ] mentioned that Redd was being terminated , and I did raise an eyebrow and say why, 'Is he producing', and they said he isn 't producing as much as some of the other men " I am not convinced that the record accurately reflects what was said by these men when they were discussing the layoff and the selection of men therefor ie As it appears to me , the Respondent showed a disposition to resort to the expedient when it awarded the operation of the electric cranes in the North Richland plant to the electricians in July 1961 . If it had regarded itself as a manufacturer ( which at that plant it essentially was), it probably would have left the operation of the cranes ( electric or not ) with the craft requiring the occasional use of them , because the rules of the AFL-CIO regarding jurisdictional disputes in the construction industry and the opera- tion of electric cranes in that industry would have been inapplicable . However , most of the Respondent's other operations are in the construction industry . As I view it , there- fore, the Respondent apparently considered it important to its construction operations that it favor the electrical workers union , since the machinists are less frequently used in the construction industry Presumably this fact influenced the Board' s decision, since the Board gave considerable weight to the fact that the Respondent was in the con- struction industry. J. A. JONES CONSTRUCTION COMPANY 755 tional dispute about the operation of the electric cranes. The evidence is conflicting with regard to the extent of inconvenience which may have been suffered by the Respondent as a result of the machinists' refusal to use the electric cranes during that time. Smith testified that they were "getting by" with the A-frame (the hand operated crane). Dunn testified that the machinists "went to methods [use of the A-frame] which my supervision assured me was costmg us time and money." The evidence was that use of a crane was fairly frequent on one of the jobs on which the Respondent was working-the ball hopper job. I conclude that there was some measurable effect on the speed of production by the use of the A-frame instead of the electric crane. The Respondent had also suffered some inconvenience as a result of the flareup over tools Occurring as it did before the crane dispute was settled, the tool incident added that much more delay in production, even if it did not cripple production. On top of that, after the Board's decision in the 10(k) proceeding came out, the Union gave evidence of making further difficulty if the Respondent did not furnish an electrician to operate the crane on the night shift. This was evidenced by Redd's telling Kirkpatrick that failure to furnish an electrician on the night shift was contrary to the Board's decision and would mean trouble and by Scott's telling Marsh on the morning of March 13 that the machinists would not use the A-frame. Marsh's reaction that there would be "firings over this," an understandable display of exasperation, clearly indicated, however, that the last straw had been added. Whatever doubt might otherwise exist, Marsh's counter- threat, followed the same day by a layoff in which the president of the Union was included, considered in the entire setting, leads to the inescapable conclusion that Redd's union position and union activities were motivating factors in the decision to lay hum off. From the Respondent's point of view, Redd may well have been the primary cause of the latest friction Smith had observed him and Scott with their heads together and Redd had voiced the prospect of trouble. Looking back at the tool incident, the Respondent could see that Redd and Scott were the proponents of what the Respondent might consider to be retaliatory action. Adding it all up, the Respondent may have had reason to believe that, but for Redd, its operations would not encounter the same crises. In the light of all these considerations, I can- not agree with the Respondent's contention that it had no motive to get rid of Redd. There are in evidence several termination slips such as the Respondent used in the case of layoffs and discharges. At the bottom of the form is a space in which the Respondent indicates whether or not the person involved is eligible for rehire. I observe that on the one slip in evidence of a person who had been discharged, this space was left blank, i.e , the question was left unanswered without either a "Yes" or a "No." In the case of the termination slips of employees laid off, on the other hand, I note that, except in the termination slip of Redd, this space contains the word "Yes " The same space on Redd's termination slip was left blank. The inference could be drawn that the Respondent did not wish to encourage the Union to dispatch Redd in a later requisition of machinists. Although the Respondent, within about 10 days or 2 weeks after the layoff, requisitioned an additional number of machinists, Redd was not among those dispatched Dunn testified that he had been informed that two of the former employees were returned but that Redd had not been I note that three new employees were added by the Respondent on April 7, and more were added in May. Considering all other evidence, I interpret Smith's comment at the March 15 meet- ing with the union representafives, that Redd would come back a better man or boy, as having reference to Redd's leaving his work to talk about matters having to do with the Union. It is doubtful that Smith was aware of the fact that Redd's termination slip omitted to state that he was eligible for reemployment. He ap- parently assumed that Redd was eligible for reemployment Dunn appeared to assume that Redd was eligible for reemployment also. If the Union was misled by the termination slip into believing that Redd could not be re^dispiatched to the Respondent, however, I find that Smith's remark at the March 15 meeting put the Union on notice that the Respondent considered Redd reemployable On the entire record, I conclude and find that the Respondent laid Redd off, rather than a junior employee, as a disciplinary measure to discourage the kind of union activities in which Redd engaged The Respondent argues that, urder the collective-bargaining contract with the Union, only the steward was privileged to take time off from work to handle union business in the shop and that, therefore, if Redd left his work, whether to engage in union business or any other kind of activities, he was subject to discipline or at least that his absence from work might be taken into account in determining which employee to lay off To the extent that Redd might have absented himself from his job without express or implied permission of 681-492-63-vol. 140-49 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent, the Respondent's argument might have some ment, especially if a supervisor had cautioned Redd against such conduct. True, Smith testified that he had spoken to Redd twice before about talking in the shop, although whether at his machine or away from it does not appear. But in any event, the latest time (as fixed by Smith) could not have been less than 11/2 years before March 13, 1962, and might have been longer than that. Failure more recently to criticize Redd indicates to me that Redd had not given cause for criticism, at least not -before he had become union president. Because Redd was permitted by Kirkpatrick to remain at the meet- ing in February 1962 without question, because Kirkpatrick had consented to Scott's bringing Redd to the discussion about the 10(k) decision on March 12, 1962, and because the union representatives had told the Respondent's representatives at the February meeting that Redd was the Union's bull steward, and because the Re- spondent did not take issue with that statement or notify Redd that he had acquired no rights or privileges of a steward in the shop because of his presidency or bull steward status, Redd had been led to believe that his use of working time for union business was sanctioned I reach the same conclusion. In any event, however, I am doubtful that Redd's use of working time for his union activities alone, without more, would have resulted in his selection for layoff. The real cause, I deduce, was the fact that the Respondent viewed Redd's insistence on an electrician at all limes for the night shift so that the electric crane could be used by the night-shift ma- chinists and his warning of the Respondent that there would be trouble if the Re- spondent failed to furnish such electrician, as evidence that Redd was demanding a reprisal for the Respondent's assignment of the operation of the electric cranes to the electricians. Scott's announcement to Marsh on March 13 that the Union was going to implement its demand by refusing to use the A-frames may well have given the Respondent cause to believe that the Union was going to proceed with the plan to exact a reprisal. The Respondent perhaps had some basis to believe that Scott and Redd were plotting a course of action more for the purpose of reprisal than to settle a grievance of swing-shift machinists because it introduced evidence to show that the night-shift steward had not complained to the night-shift foreman about the lack of an electrician on the night shift. The General Counsel did not undertake to refute this or to show that any named machinist had enlisted Redd's assistance. Redd testified that he had expressed the view to Kirkpatrick that there might be trouble because the night-shift men felt aggrieved at unequal treatment. Because of Kirkpatrick's instructions to the night-shift foreman, there was little likelihood that any electrician would ever be needed on the night shift, much less is full-time electrician. From the Respondent's point of view, Redd was creating a tempest in a teapot. I deduce that the Respondent was, therefore, choosing to lay Redd off as a means of eliminating Redd's effort to get a fulhtime electrician for the night shift. The Respondent's contention that Redd was selected for layoff because of his tendency to talk lacks substance in view of the fact that talking while one stood watching his machine operate was not prohibited by the Respondent. If, as the Respondent contended, it selected Redd for layoff because he was away from his machine, talking, then, since I have found that he had not been reproached for such talking for nearly 2 years before his layoff, and since the Respondent had every reason to believe that Redd was discussing union matters 'as president of the Union, its failure to inform Redd that his position as president did not give him the right to handle union business on working time and that he should leave the handling of union grievances or other union business in the shop to the steward or to the business agent would justify -a conclusion that the Respondent sought to rid itself of the president of the Union not because of his absence from his machine (which Kirk- patrick tolerated), but because of his union activities As I have found, although the Respondent relies on Redd's absence from his machine and his propensity to talk as a justification for his layoff, the reason given is not convincing if Redd's absence from his machine on matters of union concern be excluded. Since I have found that the real reason for Redd's selection was the Respondent's displeasure over the stand taken by Redd in connection with the Board's decision in the 10(k) proceeding, it must be decided whether or not Redd 's activities and the position he adopted for the Union was protected concerted activity. This is less simple than it might appear, because it might be argued that Redd was using his union position to vent his personal feelings regardless of what might be in the best interests of the Union. It is conceivable that Redd had mixed motives. How- ever, whatever other motivations conceivably might have prompted Redd to take the stand he did, it can still be said that, although Redd was taking what many might regard as a hypertechnical attitude, the end result he sought was one which would have benefited all machinists impartially rather than have benefited only those on the day shift. From my observation of Redd, I judge that he is, by nature, a J. A. JONES CONSTRUCTION COMPANY 757 man who requires preciseness in all things. Thus, the attitude he took with respect to the application of the Board's 10(k) decision was in keeping with his character, Such characteristic, injecting, as it naturally would, an element of formalism and inflexibility, was undoubtedly irritating to the Respondent, accustomed as it was to working out conflicts in industrial relations on an informal basis. Its attitude in many instances was to yield to the Union on matters not worth raising a serious issue over. As irritating to the Respondent as Redd's attitude may have been, how- ever, the inflicting of a personal penalty on an agent of the Union for what that agent does in an official capacity is not justified and is, under the Act, a discrimina- tion against the individual, and it has a natural tendency to discourage union mem- bership and activity. I find, therefore, that the selection of Redd for layoff because of his union activities and dealings with the Respondent and his layoff thereafter was a discrimination in violation of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations 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 of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend an order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since I have found that the Respondent discriminated in regard to the hire and tenure of employment of Redd, I shall recommend that they notify Redd and the Union that Redd is still eligible for employment and that it will hire Redd im- mediately, in replacement if necessary of any machinist previously dispatched by the Union and employed by the Respondent since Redd's layoff. I shall also recom- mend that the Respondent make Redd whole for any loss he may have suffered as a result of the discrimination by paying him a sum of money equal to that which Redd would have earned between March 13, 1962, the date of his layoff and the date thereafter when the Union, upon requisition for men from the Respondent, could have dispatched Redd for reemployment. Upon the foregoing findings of fact and 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 The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the hire and tenure of employment of James B. Redd, the Respondent has discouraged membership in a labor organization within the meaning of Section 8(a) (3) of the Act. 4. By such discrimination the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guarantee in Section 7 of the Actin violation of Section 8(a)(1) of the Act. 5. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, I recommend that the Respondent, J. A. Jones Construction Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Union or any other labor organization of its employees by laying off any of its employees because of their union membership or activity Orin any other manner discriminating in regard to their hire or tenure of employment or any term or condition thereof. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Lodge 1743, International Association of Machinists, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities, 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8 (a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Notify James B. Redd and the Union in separate letters that Redd is eligible for reemployment and offer Redd immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, dismissing, if necessary, any machinist hired since the date of Redd's layoff. (b) Make Redd whole for any loss he may have suffered as a result of the dis- crimination by paying him a sum of money equal to that which he would have earned in the Respondent's employ, but for the discrimination , between March 13, 1962, and the date when, upon requisition for machinists by the Respondent, the Union might have dispatched Redd, less Redd's net earnings elsewhere during said period, computing said amount according to the Board's customary procedure,17 plus interest on the sum due at the rate of 6 percent per annum. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or appropriate to permit an analysis of the backpay amount due to Redd. (d) Post at its place of business in Richland, Washington, copies of the notice attached hereto marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region shall, after having been duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days from the date of posting in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 20 days from the date of service of this Intermediate Report and Recommended Order what steps the Re- spondent has taken to comply herewith.19 It is further recommended that, unless within said 20 days the Respondent shall have notified the said Regional Director that it will comply herewith, the National Labor Relations Board issue its order requiring the Respondent to take the action aforesaid. 17 See F W. Woolworth Company, 90 NLRB 289 18 In the event of Board adoption of this Recommended Order, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Ex- aminer" in the notice In the further event of enforcement of the Board 's Order by a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." i9 In the event of Board adoption of this Recommended Order , this provision will be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply heiewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and inorder to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT discourage membership in Lodge 1743 , International Associa- tion of Machinists , AFL-CIO, or any other labor organization , by the layoff of employees, or by discrimination against them in any other manner in regard to their hire and tenure of employment , or any term or condition of their em- ployment, except as authorized in Section 8(a)(3) of the Act, as amended. WE WILL NOT interfere with, restrain , or coerce our employees in any other manner in the exercise of their right to self-organization , to form , join, or assist Lodge 1743, International Association of Machinists , AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own free choice, or to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an LOCAL 409, IATSE 759 agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the Act, as amended. WE WILL offer immediate and full reinstatement to the following employee, and we will make him whole for any loss he may have suffered as a result of the discrimination against him: James B. Redd All our employees are free to become, remain, or refrain from becoming or re- maining, members of any labor organization, except as that right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8 (a) (3) of the Act, as amended. We will not discriminate in regard to hire or tenure of employment, or any term or condition of employment, against any employee because of membership in or activity on be- half of any labor organization. J. A. JONES CONSTRUCTION COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle 1, Washington, Telephone No. Mutual 2-3300, Extension 553, if they have any question concerning this notice or compliance with its provisions. Local 409, International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators of the United States and Canada, AFL-CIO [RCA Service Company] and Harvey M. Dubner. Case No. 3O-CB-896. January 2°2, 1963 DECISION AND ORDER On July 19, 1962, Trial Examiner E. Don Wilson issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent had not engaged in the alleged unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a brief in support thereof. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and, except as noted below,' hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner. [The Board dismissed the complaint.] MEMBER LEEDOM took no part in the consideration of the above Decision and Order. i In view of our agreement with the Trial Examiner that the percentage levy consti- tuted "periodic dues" within the meaning of the Act, we find It unnecessary to adopt or consider the Trial Examiner's alternative holdings based on an assumption that the levy constituted an "assessment." 140 NLRB No. 74.