Everett L. Harper

320 DECISIONS OF NATIONAL Everett L. Harper, A Sole Proprietorship and Laborers District Council of Charleston, West Vir- ginia, Laborers International Union of North America, AFL-CIO. Case 9-CA-4248 January 24, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On October 2, 1967, Trial Examiner Louis Lib- bin issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that he cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the Respondent's ex- ceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Everett L. Harper, a sole proprietorship, Parkersburg, West Virginia, his agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order. Respondent has excepted to certain of the Trial Examiner's credibility findings. As the clear preponderance of the relevant evidence does not persuade us that the Trial Examiner 's resolution of credibility issues was incorrect , we find insufficient basis for disturbing his credibility findings. Standard, Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C. A. 3). TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on April 4, 1967, by Laborers District Council of Charles- ton, West Virginia, Laborers International Union of LABOR RELATIONS BOARD North America, AFL-CIO, herein called the Laborers or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9 (Cincinnati, Ohio), issued a complaint dated May 29, 1967, against Everett L. Harper, a sole proprietorship, herein sometimes called Respondent. With respect to the unfair labor practices, the complaint alleges that Re- spondent violated Section 8(a)(1) and (3) of the Act by terminating the employment of two named employees on March 28, 1967, and thereafter failing and refusing to re- call or reinstate them and by certain specified acts of in- terference, restraint, and. coercion. In its duly filed answer, Respondent denies, generally, all unfair labor practice allegations. Pursuant to due notice, a hearing was held before me at Huntington, West Virginia, on August 14, 1967. All parties appeared and were given full opportunity to par- ticipate in the hearing, to adduce relevant evidence, to ex- amine and cross-examine witnesses, to argue orally on the record, and to file briefs. Thereafter, the General Counsel and the Respondent filed briefs, which I have fully considered. For the reasons hereinafter stated, I find that Respond- ent violated Section 8(a)(1) and (3) of the Act. Upon the entire record' in the case, and from my obser- vation of the demeanor of the witnesses. while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent Everett L. Harper, a sole proprietorship, maintains his principal offices in Parkersburg, West Vir- ginia, and is engaged as a water systems contractor in the States of West Virginia, Kentucky, and Ohio. During the 12 months preceding the issuance of the instant com- plaint, a representative period, Respondent performed services, valued in excess of $50,00, for customers located outside the State of West Virginia. Upon the above admitted facts, I find, as Respondent admits in its answer, that Respondent is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find, that Laborers District Council of Charleston, West Vir- ginia, Laborers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction: the Issues Everett. L. Harper, Respondent herein , is a sole proprietorship engaged primarily as a waterline contrac- tor. His son, Donald, has worked for him for a number of years and is the only one whom Harper has given a ' I hereby note and correct the following obvious inadvertent errors in the typewritten transcript of testimony: On p.12, I. 25, the number "4" is corrected to read "6"; on p. 69, 1. 13, the word "him" is corrected to read "me"; on p. 69, 1. 16, the word "them" is corrected to read "him"; and on p.78, I. 14, the words "to confirm identities" are corrected to read "for af- firmative evidence." 169 NLRB No. 54 EVERETT L. HARPER 321 guarantee of at least 40 hours a week . Hereinafter, Everett Harper will be referred to as Harper, and his son will sometimes be referred to as Donald. During February and March 1967, Respondent was working on waterline construction in Lavellette, West Virginia. During that period, the Union attempted to or- ganize and obtain a contract from Respondent. Employee Joe Watts signed a union card on February 20. During the afternoon on March 27, two union business agents spoke to Everett Harper on the job about signing a union contract, stating that the employees wanted the Union. Harper refused to sign a contract. Later that day, em- ployee Robert Trevathan spoke to another employee on the job about organizing , and that evening also signed a union card. Later that evening, Union Organizer Cisco Watts , his son, Joe Watts , and his son-in-law, Robert Trevathan, visited the home of employee James Hunley and solicited him to sign a union card. Hunley refused. Early the next morning, Hunley informed Donald Harper on the job about the three men visiting his home and sol- iciting him to sign a union card, and that he had refused to sign one. Very shortly thereafter, Donald Harper in formed Joe Watts, Robert Trevathan, and another em- ployee Edward Adkins, that they were laid off, and gave them two checks covering the entire wages due them. Three days later, Adkins, who had never signed a union card, was recalled to work Joe Watts and Trevathan have never been recalled, although work which they could per- form later became available. The issues litigated in this proceeding are (1) whether Donald Harper was a supervisor or agent of Respondent for whose conduct Respondent was liable, (2) whether the layoff of, and failure to recall, Joe Watts and Robert Trevathan were discriminatorily motivated in violation of Section 8(a)(3) and (1) of the Act, and (3) whether Respondent engaged in specified conduct alleged in the complaint to be violative of Section 8(a)(1) of the Act, in- cluding interrogation and threats of discharge. B. Sequence of Events' Cisco Watts, hereinafter sometimes referred to as Cisco, worked for Respondent from November 1966 until about the middle of February 1967. During that period, he tried to orgainze the employees and talked to some of them about signing for the Union. On one rainy day in February, Donald asked him to go with him to get a load of stone in Ashland, Kentucky. During the trip, Donald asked Cisco if he belonged to the Union. Cisco replied that he belonged to the Laborers Union, Local 543, at Huntington, West Virginia. Cisco asked if Donald belonged to a union, and Donald replied that he did. Donald then asked if Cisco would cross a picket line. Cisco replied, "no, sir, for nobody." Cisco then asked if Respondent would sign up with the Union. Donald replied that they would never sign a union contract as long as he had anything to do with it.3 Cisco Watts helped his son, Joe Watts, obtain a job with Respondent about the middle of February 1967. The following day Cisco quite his employment with Respond- ent but continued his efforts to organize Respondent's employees. About a week later when there was no work because of the inclement weather, Joe Watts met Harper in front of a hardware store. Because he had just signed a union card a few days earlier, Watts asked Harper what chance the Union had to get in. Harper replied that there wasn't much chance, and asked Joe Watts if he belonged to the Union. Joe answered in the negative , not disclosing that he had already signed a union card.4 Between 3:30 and 4 p.m. on Monday, March 27, Union Business Agents Spry and Shy came onto the pro- ject and spoke to Harper. Spry asked Harper to sign a union contract with them. Harper stated he was not going to sign. Spry assured Harper that it would not cost him a cent extra to sign. Harper explained that he was not in- terested in signing a union contract because if the pipefit- ters were to come out and picket his project he would then have union men on the job who would not cross the picket line to go to work. He also added that he did not think his men were interested in it either. Spry replied, "Oh, yes they are," stating that they all wanted it. Harper told Spry that if the men wanted it, he should go sign them up. Spry remarked that he "will organize them one way or the other," and left.5 Robert Trevathan, the son-in-law of Cisco Watts, started working for Respondent as a flagman on Wed- nesday, March 22, 1967. He saw the two union business agents talking to Harper on Monday afternoon, March 27. Indeed, Harper admitted that it was no secret that the two union agents had been there . While on the job later' that day, Trevathan talked to employee Marvin Carter about organizing. Near the end of the day while Trevathan was flagging on State Route 75, Harper was walking down to his truck and asked Trevathan what was going on, stating that someone was trying to get a union in. Harper then warned that whoever signs for the Union "would be going down the road." Employee Joe Watts, the son of Cisco Watts, had also observed the two union business agents on the project talking to Harper on Monday afternoon, March 27. About quitting time that day, which is about 4:30 p.m., Harper spoke to Watts and two other employees who were standing close together . Harper asked who had signed a union card, stating that the union official had said that most of the men had signed . Harper added that he did not know for sure how many had signed but warned that he would find out and send the ones who had signed "down the road."6 After quitting time that day, Joe Watts tried to get his cousin, Clifford Agates, a job with Respondent. He talked to Donald about it, assuring him that his cousin was a very good and steady worker. Donald stated that he could not use anybody there at that time. Agates asked if it was because of the Union that Donald could not hire him. Donald replied in the negative , stated that he did not know how many men signed up with the Union, and warned that they would find out the next day and send those who signed "down the road." The last part of 2 Unless otherwise indicated, the findings in this section are based on credited evidence which is either admitted or undemed. 3 The foregoing findings are based on the credited testimony of Cisco Watts Donald did not deny this specific conversation. He merely denied saying anything to the men about signing a union contract or ever discussing the Union with any employee . I do not credit Donald's denials. 4 The findings concerning the conversation with Harper are based on the credited testimony of Joe Watts . Harper did not deny this specific con- versation. He merely denied ever talking to any of the men about the Union. I do not credit Harper's contrary testimony > These findings are based on a composite of the mutually consistent testimony of Harper and Spry. 6 The findings in the preceding two paragraphs are based on the credited testimony of Trevathan and Joe Watts As previously noted, Harper merely denied ever talking to any of the men about the Union I do not credit Harper's denials 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Donald's warning was overheard by Trevathan who had been called off the road from flagging and was walking down the road to where Donald was talking to Joe Watts and Clifford Agates.7 About 5 to 6 p.m. on Monday, March 27, Harper ad- mittedly discussed the visit of the two union business agents with Donald. He and Donald then talked about laying off Joe Watts, Trevathan, and Edward Adkins, another flagman. Harper admitted that "we [Harper and Donald] discussed it and we decided we didn't need them" and that Donald "said he didn't think we needed them." Harper then told Donald to go home that night to Par- kersburg, West Virginia, that in the meantime Harper would call home and instruct his wife to make checks out for these three men, and that Donald should return with the checks the next morning. Donald then left for Parkersburg, a distance of about 100 miles. Donald lived with his parents in Parkersburg, and he and Harper generally went home only for weekends. About 6 or 6:30 that same evening, March 27, Trevathan was at a filling station near Spry's house and signed a union card which he got from Spry. Sometime between 7:30 and 9 that same night, Cisco Watts, his son, Joe Watts, his son-in-law, Robert Trevathan, and his nephew, Clifford Agates, all went to employee James Hunley's home where they remained for 15 to 20 minutes in an effort to persuade Hunley to sign a union card. Joe Watts and Trevathan each told Hunley that they had signed a union card. Trevathan also asked Hunley why he would not sign, urging him to sign up now so that he could help them. Hunley remained adamant and refused to sign. Respondent's employees worked 5 days a week, with Tuesday being the regular payday for the preceding week. Payment is made by check, signed by Harper or his wife. The Harpers live in Parkersburg, West Virginia. When working on a project, Harper stays in Barboursville, West Virginia, and goes home to Parkersburg on weekends. The payroll records and timecards are kept at home in Parkersburg. Harper records the employees' worktime in a book which he keeps with him on the project, takes it back with him to Parkersburg on weekends, and turns it over to his wife. Mrs. Harper then makes out the checks and mails them, unsigned, to Harper on Monday. Harper picks them up on Tuesday morning at the post office, located about 7 or 8 miles from Barboursville, signs them, and has them distributed to the employees. On Monday, March 27, Mrs. Harper had already mailed the checks for the preceding week. That night Harper had telephoned his wife and informed her to make out additional checks for Joe Watts, Trevathan, and Ed- ward Adkins for Monday, March 27, and for 2 hours re- porting time for Tuesday, March 28, and to give them to Donald who was driving to Parkersburg that night. Donald drove to Parkersburg that night, as previously 7 The findings in this paragraph are based on the credited testimony of Joe Watts and Trevathan. According to the record, Trevathan at the hear- ing referred to Joe's cousin as Clifford Adkins. I find that, due to Trevathan's failure to enunciate distinctly, this is an obvious'error by the reporter in confusing the sound of Agates with that of Adkins whose first name is Edward. As previously noted, Donald denied, generally, ever discussing the Union with any employees or ever threatening any em- ployees about joining the Union. I do not credit his denials. " The findings in this paragraph are based on the credited testimony of Cisco Watts, which was not disputed in any significant respect by Donald noted. The next morning, Mrs. Harper gave Donald the three unsigned checks, stating "here are the checks Dad sent you after." He returned with the checks to the job about 10 or 15 minutes before 8 a.m., the start of the regu- lar workday. However, it was raining that day and, while the employees were all on the job, they did not work that day. Shortly after his return, Donald was sitting in his car with employee James Hunley near the jobsite, waiting for Harper who had gone to the nearby post office to get the checks which had been mailed the preceding day. While sitting in the car, Hunley told Donald "about the guys" coming to his house the preceding night to solicit him to sign a union card, and named who they were. Hunley also stated that he had not signed a card. Cisco Watts, a former employee of Respondent, ap- peared at that time on the project to return a wrench which he had borrowed from an employee. Donald asked Cisco to come into the car, and asked, "What have I done to you?" Cisco replied, "personally, nothing, why?" Donald then upraided Cisco for trying "to get the boys to sign union cards." When Cisco first denied it, Donald re- torted, "there is no use denying it, Mr. Hunley told me that you were up to his house trying to get him to sign and he wouldn't sign." Donald then pointed out that he had given Cisco's son and son-in-law, Joe Watts and Trevathan, a job when nobody else would, and ex- claimed, "you see what I did for them ... now, look at the trouble you have caused your son and son-in-law and myself [Donald]." He then added that he did not want any "picketing around the job" and "nobody fooling with the machinery," emphasizing that he had "a good high- powered rifle and could use it." Cisco replied, "you are not the only one that has a high-powered rifle," and as- sured him that the "machinery would never be bothered."8 After picking up the checks from the post office, Harper signed them and at the same time also signed the three checks which Donald had brought back from Par- kersburg that morning. He then gave all the checks to Donald to pass out to the men and told Donald that there were two checks for Joe Watts, Trevathan, and Adkins. Harper admitted that he told Donald to tell these three employees that they were being laid off and that "we would call them back." Donald testified that that was what his father had told him to tell these three employees and that he had in fact "told them just that" when he gave them their two checks. However, after giving Trevathan his checks, Donald asked Adkins, who was standing next to Trevathan, to come with him behind his truck, stating that he wanted to talk to Adkins "privately." They went behind a Dodge pickup truck. He then gave the two checks to Adkins, stated that he would have to lay him off for a few days, and explained that "the Union was there and when he got everything straightened up over the and Hunley. Donald admitted that while he was in his car with Hunley that morning, he started a conversation with Cisco who had come on the scene, telling Cisco that he (Donald) thought Cisco had caused the "union trouble." He further testified that he did not "recall" what else he told Cisco, but did not deny the other statements attributed to him in the text. Hunley testified that Donald had asked Cisco to come into the car, that he told Cisco that he (Donald) "had just mentioned his [Cisco's] name and asked him if he tried to organize a Union or something like that," and that Donald said "that Cisco would mess up his [Cisco's] family." He also did not deny that Donald made the other statements attributed to him in the text. EVERETT L. HARPER Union he would call me [Adkins] back in maybe a week or two." Adkins had not signed a union card.9 Union Business Agents Spry and Shy returned to the project on Wednesday morning, March 29, and talked to Harper and Donald about signing a union agreement. Donald stated that he was afraid to sign an agreement with the Laborers because the Pipefitters would come out there and it would cost him more money. Spry replied that laying pipe was Laborers work and that they had an "understanding with the Pipefitters on it." Donald still stated that they were not interested in signing a union agreement. 10 On Thrusday, March 30, employee Marvin Carter came to Adkins' home and told him that Harper wanted him back to work the next day. Adkins returned to work on Friday, March 31, as aflagman on State Route 75, and continued to work for about a week when he voluntarily quit. About a week after the layoffs, Respondent also hired Hunley's nephew as a flagman while Adkins was still flagging. Donald first asked Hunley if his nephew had a union book. When Hunley replied in the negative, Donald told Hunley to tell his nephew to report for work. Most of the time Respondent had two men flagging. In addition, Respondent also hired two or three men within a short time after the layoffs to do labor work. Harper ad- mitted that he had the addresses of all' his employees because these were noted on the withholding slips at the time of employment. He also admitted that he had the telephone numbers of some of his employees because he would ask their number so that he could, call them if he wanted them. He further admitted that he knew that Joe Watts and Trevathan were related to Cisco Watts, that both Trevathan and'Joe Watts lived with Cisco, and that both could be reached at Cisco's address and telephone number. Despite all the foregoing, Harper admittedly never recalled Joe Watts and Trevathan. i t C. Responsibility for the Conduct of Donald Harper Everett Harper testified that March 1967 was a busy time for Respondent and that during that period he had a work force of about 13 men. He further testified that he is the only supervisor and that Donald has no supervisory authority. Donald also testified that he does not have charge of any employees and does not give any orders. Donald is the 26-year-old son of Harper, the sole proprietor of Respondent, and has been employed by 0 The finding concerning Donald's procedure and conversation with Adkins is based on Adkins' credited and undenied statements contained in his affidavit, dated May 4, 1967, which was admitted by stipulation of the parties as the testimony of Adkins who was then residing in Colorado. As previously noted, Donald merely denied ever discussing the Union with any employees or ever threatening employees about joining the Union. I do not credit his denials 10 The findings in this paragraph are based on the credited and undenied testimony of Spry. Harper did not testify with respect to this meeting. Donald admitted seeing the business agents again on the project after March 27 and testified that "I don't remember whether I talked to them or not." He did not deny having made the statements attributed to him on that occasion 11 In finding Harper and Donald not to be credible witnesses, I was motivated not only by the demeanor of the witnesses who testified but also by significant contradictions in the testimony of Harper and Donald Thus, when first called as an adverse party by the General Counsel, Harper testified while Donald was absent from the hearing room (1) that Donald was not present during and did not join in the conversation which Harper had with the two union business agents on the afternoon of March 27, (2) that he discussed with Donald the visit of the two business agents 323 Harper for a number of years. He worked on the project as an equipment operator. Although paid by the hour, he admittedly is the only one who has a guarantee of at least 40 hours a week, thus making him in effect a salaried em- ployee. Harper admitted that Donald sometimes tells the employees what to do. He also admitted at one point that whenever he has to be off the job, Donald, pursuant to Harper's instructions, "goes ahead and he helps us look after the job to keep it going." He further admitted that he would tell Donald to relay instructions to employees, that he expected the employees to do what Donald told them, and that he has never heard employees complain about Donald's instructions. Donald admitted that whenever he needs any help, he asks an employee to help him and the employee does so. He also admitted that when employees are not doing what has to be done, "I ask them if they would do it." Donald sometime distributes the weekly-paychecks to the employees and, pursuant to Harper' s instructions, in- forms employees of their layoff. Harper admitted that he would consider Donald's recommendations on hiring and flring. Indeed, as previously noted, he admittedly discussed with Donald the advisability of effecting the layoffs on March 28. Thus he testified, "We [Donald and himself] decided we did not need them," and Donald said "he didn't think we needed them." In addition, Donald was present at, and participated in, the conversa- tions which the two union business agents had with Harper. And Harper admittedly discussed this matter with Donald after the business agents left on March 27. According to the credited and undenied testimony of Flagman Trevathan, Donald told him where to start, what position to take, and to move up or down the road. During the period when Cisco Watts worked for Respondent from November 1966 until the middle of February 1967, Donald would tell him to perform various jobs. Mr. Harper had told Cisco to do whatever Donald would tell him to do, and Cisco and the other employees whom he observed always did what Donald told them to do. When- ever he had any questions about his work, Donald was one of the men to whom he talked about it. If it started to rain, Donald was one of the men who would inform the employees that they did not have to work. The findings with respect to Cisco Watts are based on his credited and undemed testimony. About the middle of February 1967, Cisco tried to get a job for his son, Joe Watts, with Respondent. He went between 5 and 6 p.m. that same day, and (3) that at the same time on March 27 he and Donald discussed the layoff of the three employees and "we decided we did not need them" and that Donald said "he didn't think we needed them " However, when later called as a witness in the presen- tation of Respondent's case, Harper testified that "we were going to cut the crew down" because "we were figuring on going back to boring holes and making tie-ins, what we had left out." On the other hand, Donald, as a witness for Respondent, later testified in Harper's presence with respect to item (1) that he was present during Harper's conversation with the two union business agents on the afternoon of March 27 and that he (Donald) talked to them but did not remember what he said, with respect to item (2), he denied that he and his father talked about the Union after work that same day; and as to item (3), he testified on direct examination that his father told him they would not need any flagmen any more because they had moved out of Route 52, that they did not need so many men because they were going to lay 4-inch pipe instead of the 6-inch pipe they had been laying, and that he was going to lay off these three employees. However, on cross-examination, he denied that he and his father ever had a discus- sion about laying off these three employees and testified that he did not know when his father decided to lay these men off 350-212 0-70-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD out to the project, introduced Joe Watts to Harper, stated that his son was a good man, and asked if Harper could use him. Harper replied he would see what he could do, and then went and talked to Donald who came nearby. Harper then returned and told Joe Watts to report for work the next morning. This was how Joe Watts was em- ployed by Respondent. These findings are based on the credited and undenied testimony of Cisco Watts and Joe Watts. On March 27, 1967, Joe Watts told Donald that he would like to get a job for his cousin, Clifford Agates, recommending his cousin as a good and steady worker. Donald replied that he could, not use anybody at that time. These findings are based on the credited and unde- nied testimony of Joe Watts. About a week after the March 28 layoffs, Hunley talked to Donald about a job for Hunley's nephew. Donald asked if the nephew had a union book. When Hunley replied in the negative, Donald told Hunley to tell his nephew to report for work. The nephew commenced working as a flagman during the period when Adkins had been recalled to work. These findings are based on the credited and undenied testimony of Hunley who was still employed by Respondent when he testified under sub- pena while Harper was present in the hearing room. Upon consideration of the foregoing and the entire record as a whole, I am convinced and find that Donald Harper possessed, and in fact exercised, authority which rendered him a supervisor within the meaning of Section 2(1'1) of the Act. Moreover, in view of Donald's relation- ship to the sole owner of Respondent, the small size of the work force, and the similarity of his concurrent state- ments regarding the Union to those of his father, I find that the employees were given reason to believe that Donald was speaking for management and that he was in fact acting as a management agent.12 I therefore find that Respondent is responsible for the statements and conduct of Donald Harper. D. Interference, Restraint, and Coercion In line with well-established precedents, I find that Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) of the Act, by the previously detailed conduct of: Edward Harper (1) In the latter part of February 1967, interrogating employee Joe Watts as to whether he belonged to the Union. 13 (2) On March 27, 1967, asking employee Trevathan What was going on, stating that someone was trying to get a union in, and warning that whoever signs for the Union "would be going down the road." In the setting and cir- cumstances previously detailed, I find that the quoted phrase constituted a threat of discharge and would reasonably so be construed by the employees. (3) On March 27, interrogating employee Joe Watts and two other employees with him about who had signed a union card, warning that he would find out how many had signed, and threatening to send the ones who had signed "down the road." Donald Harper (1) About the middle of February 1967, asking em- ployee Cisco Watts if he belonged to a union and would he cross a picket line, and stating that Respondent would never sign a union contract as long as he had anything to do with it. 14 (2) On March 27, warning employee Joe Watts and his cousin, who was applying to Donald for a job, that they would find out how many men had joined the Union, and threatening to send those who had signed "down the road." (3) On March 28, telling union organizer and former employee Cisco Watts, in the presence of employee Hun- ley, that Cisco had caused trouble for his son and son-in- law, employees of Respondent, by trying to get the boys to sign union cards. (4) On March 28, telling employee Adkins privately, while informing him of his layoff, that the "Union was there" and that Adkins would be recalled when he got everything "straightened up over the Union." I find that this constituted a threat that continued employment de- pended upon keeping the Union out. E. Discrimination in Hire and Tenure of Employment of Joe Watts and Trevathan 1. The layoffs on March 28 When first called as an adverse party by the General Counsel, Harper testified that Joe Watts was laid off because "we were cutting the crew down" and that Trevathan was laid off because he had been hired as a flagman only for the time they were working on U.S. Route 52 and they had finished on U.S. Route 52 on Monday, March 27. He further testified that Adkins, who had been laid off at the same time, was hired back when they started to work on State Route 75 where they needed only on flagman. When called as a witness by Respondent's counsel in the presentation of its case, Harper testified that Watts, Trevathan, and Adkins were laid off for lack of work because "we were going to cut the crew down, for one thing, we were figuring on going back to boring holes and making tie-ins, what we had left out," that Trevathan and Adkins had been hired tem- porarily as flagmen as long as Respondent worked on U.S. Route 52, and that they were automatically out when the work on U.S. Route 52 was completed on Mon- day, March 27, and they had to finish out the day on State Route 75. However, Donald testified that at the time when he was instructed to go to Parkersburg on the even- ing of March 27, his father told him he was going to layoff these three men because they were going to lay 4-inch pipe instead of the 6-inch pipe which they had been laying and that would not require as many men, and because they would not need any flagmen as they had moved out of Route 52. No reason at all was given to the men at the time of their layoff unless a discriminatory'reason may be inferred from what Donald told Adkins privately, as previously set forth. In any event, it appears from the credited and undisputed testimony of Business Agent Spry, who had experience in this type of work, that the size of the crew is not affected by a mere 2-inch reduction in the diameter of pipe. Moreover, Harper admitted that 1 Z Continental Motors, Inc., 145 NLRB 1075, 1076-77; Piggly Wiggly El Dorado Co, 154 NLRB 445, 446, fn 1 13 Webb Tractor and Equipment Company, 167 NLRB 383 '4 Webb Tractor and Equipment Company, 167 N LRB 383 EVERETT L. HARPER 325 the month of March 1967, was a busy time, and that in April he still had enough work to keep the crew going. In addition, the record shows, as previously found, that at least one, and most of the time two, flagmen were in fact used by Respondent on State Route 75. Finally, Harper also admitted that while his work did not require the same number of men all the time and there were times when "there were hardly any men working at all, then, I just go ahead and keep the men so that they will be there" even though "there are days when I have lost money on ac- count of" doing so. In this instance, whatever reduction in work force may have occurred as a result of these layoffs existed for only a few days. For, as previously found and admitted by Respondent, within 3 days after the layoffs Respondent recalled Adkins and then hired other flagmen and laborers. Furthermore, although the work on Route 52 was completed before the end of the workday on March 27, requiring the flagmen to finish out the day on State Route 75, Harper gave no explanation as to why he did not lay off Trevathan and Adkins at the end of the workday at 4:30 p.m. and thereby save the addi- tional 2 hours reporting pay for Tuesday morning. In- deed, the sudden decision to lay off these three men ad- mittedly was made between 5 and 6 p.m. after the regular quitting time on Monday. I am convinced and find that the reasons advanced for the sudden decision to lay these men off are pretextuous and that the true motivating reason for Respondent's de- parture from its customary practice of keeping its work force intact during a slow period lies elsewhere. Both Harper and Donald admitted that the reason they did not want the Laborers Union to come in and were opposed to signing a contract with it was because they were afraid of a jurisdictional dispute between the Pipefitters Union and the Laborers over the laying of pipe. Harper admittedly felt that the Pipefitters would put a picket line around his project; that if his workers were union men, they would not cross the picket line; that in order to get his men back to work, he would have to hire a pipefitter at an increase of $5 per hour; and that if his workers were not unionized, he did not have to worry about such a dispute ever aris- ing. Although Harper had known that Cisco Watts was the chief union organizer on this job both before and after his employment with Respondent, nothing had ever come of it until he was confronted by the demands and claims of the two union business agents between 3:30 and 4 p.m. on Monday afternoon, March 27. When Spry claimed that most of Respondent's employees wanted the Union and remarked that they would be organized one way or another, Harper realized for the first time that the problem which he was afraid would arise if his workers became union members was no longer remote. Harper ad- mitted that everything had been working smoothly until the two union business agents had appeared on the pro- ject. Donald also admitted that he did not want any union troubles on the job. Immediate and drastic action to head off this threat was therefore necessary. First, as previ- ously found, Harper and Donald individually interrogated Joe Watts, Trevathan, and others with them, about sig- ning union cards, warned that they would find out who had signed, and threatened to send those who had signed "down the road," a phrase tantamount to a discharge. At the end of the workday, between 5 and 6',p.m., Harper ad- mittedly discussed the visit of the business agents with Donald and then they admittedly reached a decision to lay off these three men. They were aware that Joe Watts and Trevathan were the son and son-in-law, respectively, of Cisco Watts, the known chief organizer for the Union on this job. I am convinced and find that the sudden deci- sion to layoff these two men under the circumstances previously detailed was a reprisal prompted by, and in response to, the visit and claims of the business agents that afternoon in an effort to forestall and hamper suc- cessful organization by eliminating the relatives of the known chief union organizer, Cisco Watts. Adkins, I am further convinced and find, was included in the layoffs as a decoy in an effort to cover up the true motivating reason for the layoffs of the other two. Further supporting these findings and conclusions are the following facts, as previ- ously found. (1) Donald told Adkins, privately, at the time of his layoff that the Union was there and that Ad- kins would be called back when Donald got everything straightened out over the Union; (2) Donald told Cisco Watts on Tuesday morning, March 28, before passing out the checks and informing the men of their layoff, that Cisco had caused trouble for his son and son-in-law by his organizing efforts after Donald had been good enough to give them jobs; (3) Adkins, who had neither signed a union card nor was related to Cisco Watts, was in fact re- called by Respondent a few days later to work as a flag- man on State Route 75; (4) Joe Watts and Trevathan were never recalled; and (5) instead, new men were hired within a week after the layoffs to work as flagmen and as laborers, the same work previously performed by Joe Watts and Trevathan. Upon consideration of all the foregoing, I am con- vinced and find that in laying off Joe Watts and Robert Trevathan on March 28, 1967, Respondent was motivated by antiunion considerations. By such conduct, Respondent discriminated with respect to their hire and tenure of employment in violation of Section 8(a)(1) and (3) of the Act. 2. The failure to recall Whether or not the layoffs are found to be violative of the Act, I am convinced and find that the failure to recall Joe Watts and Trevathan when work for them became available was in any event discriminatorily motivated. Thus, Harper admittedly told Donald to tell these men that they would be recalled, and Donald admitted that he told them "just that" at the time of the layoffs. Adkins, who had less seniority than Joe Watts, was recalled as a flagman within 3 days after the layoffs. Harper testified that he recalled Adkins in preference to the other two because Adkins had eight dependents and needed the work more.15 However, when, shortly after Adkins' return, work became available for additional flagmen and laborers, Respondent hired new men instead of recalling Joe Watts and Trevathan. When questioned on'cross-ex- amination as to why he had not recalled them when work for them became available, Harper testified that he "didn't really know where to get hold of them." Yet, he later admitted that he knew they lived with Cisco Watts and could be reached at the same address and telephone number. He admittedly knew the address of Cisco Watts 15 However, Respondent relies on seniority when it suits its purpose Thus, Respondent's counsel states in his brief that "the three men who were laid off were the last men hired, which, as Respondent understands it, is a standard and desirable practice approved by, in fact demanded by, a number of unions." 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who had previously worked for him. When pressed further for an explanation of his failure to recall them, Harper testified that "they never showed up for work and I just figured they didn't want to come back to work." However, Adkins' failure to show up for work after his layoff did not deter Harper from sending an employee to Adkins' home to instruct him to come back to work. Besides, the men could reasonably be expected to rely on Harper's promise to call them, as he did in the case of Ad- kins who did not even have a telephone. Presumably realizing the hollowness of his excuses, Harper further testified that Joe Watts had gotten to the point where his work was not too satisfactory. This reason is no more sound than the others. For Harper admitted that he had never so informed Joe Watts or complained to him about his work in anyway. Conclusive proof that Joe Watts' work performance was not a factor in the failure to recall him, is Harper's further admission that they would have been reemployed if they had showed up on the job. 16 Counsel for Respondent states in his brief that Re- spondent "was not obliged" to recall them. The issue here however is whether Respondent was discriminatorily motivated in failing to keep its promise to recall them. In view of the fact that Respondent was opposed to the Union for the reasons previously indicated, that Re- spondent became aware on the morning of March 28 that Joe Watts and Trevathan had accompanied Cisco Watts to Hunley's home the preceding night to solicit him to join the Union, Donald's warning to Cisco Watts that same morning that Cisco had caused trouble for Joe Watts and Trevathan by trying to get the boys to sign union cards, Donald's private statement to Adkins at the time of his layoff that he would be recalled when Donald got everything "straightened up over the Union," Donald's inquiry of Hunley as to whether his nephew had a union book when Hunley talked to Donald about a job for his nephew about a week after the layoffs, the hiring of Hun- ley's nephew as a flagman at that time after Hunley an- swered Donald's query in the negative, the recall of Ad- kins, the only one of the three who had not and was not known to have engaged in any union activities, and the absence of any plausible reason for Harper's failure to keep his promise to recall Joe Watts and Trevathan when additional work became available, I am convinced and find that Respondent was motivated by antiunion con- siderations in not recalling them as it had promised. Ac- cordingly, I find that Respondent thereby discriminated with respect to their hire and tenure of employment in violation of Section 8(a)(3) and (1) 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 the operations described in section II, above, have a close, intimate, and substantial relationship 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. CONCLUSIONS OF LAW 1. Laborers District Council of Charleston, West Vir- ginia, Laborers International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By laying off Joe Watts and Robert Trevathan on March 28, 1967, and thereafter failing and refusing to re- call them, under the circumstances set forth in section III, D, supra, Respondent has discriminated with respect to their hire and tenure of employment, discouraging mem- bership in the above-named labor organization, and thereby 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 and by the conduct of Everett and Donald Harper, detailed in section III, C, supra, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby has engaged in 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 commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain un- fair labor practices, I will recommend that it cease and de- sist therefrom and take certain -affirmative action which will effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily laying off and failing to recall Joe Watts and Robert Trevathan, I will recom- mend that Respondent offer them immediate and full rein- statement to their former or substantially equivalent posi- tions without prejudice to their seniority or other rights and privileges, and make each whole for any loss of earnings he may have suffered as a result of Respondent's discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his layoff to the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb- ing & Heating Co., 138 NLRB 716. Because of the character and scope of the unfair labor practices found to have been engaged in by Respondent, I will recommend that Respondent cease and desist from in any other manner interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Respondent , Everett L. Harper , a sole proprietorship, Parkersburg , West Virginia, his agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Laborers District Council of Charleston, West Virginia, Laborers Interna- tional Union of North America , AFL-CIO, or any other labor organization, by discriminatorily laying off or failing 16 Harper also admitted that he had never fired anyone since he has been in business. EVERETT L. HARPER 327 to recall any employees or by discriminating in any other manner with respect to their hire and tenure of employ- ment or any term or condition of employment. (b) Interrogating employees about their union mem- bership and sympathies and about signing union cards, in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (c) Telling employees Respondent would never sign a union contract, warning them that Respondent would find out how many had joined the Union and how many had signed union cards, and threatening to discharge those who had signed union cards. (d) Telling employees or former employees that the or- ganizing activities of a union organizer had caused trouble for the organizer's relatives who were employed by Respondent. (e) Threatening employees that their continued em- ployment with Respondent depended on keeping the Union out. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Joe Watts and Robert Trevathan im- mediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to the seniority or other rights and privileges previously en- joyed, and make each whole for any loss of pay suffered by reason of his employment termination, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify Joe Watts and Robert Trevathan if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) 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 other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its place of business in West Virginia copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by'the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' $ Region 9, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, I hereby notify my em- ployees that. I WILL NOT layoff, refuse to recall, or discharge, andy employees because of union activities or for an- tiunion reasons. I WILL NOT ask my employees if they are union members, or if they have signed union cards. I WILL NOT tell my employees that I will never sign a union contract, or that I will find out who has joined the union or signed a union card, or threaten to fire or not employ you or punish you or to treat you differently in any way because you joined a union or signed a union card or favor a union or because a relative is trying to organize you. I WILL give back to Joe Watts and Robert Trevathan their jobs and seniority, and I will make up the pay they lost and also pay them 6 percent in- terest. [I WILL notify Joe Watts and Robert Trevathan if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces.] I WILL NOT do anything to interfere with your rights to join Laborers District Council of Char- leston, West Virginia, Laborers International Union of North America, AFL-CIO, or any other union of your choice. The National Labor Relations Act, as amended, gives all employees these rights: To organize themselves To form, join, or help unions To bargain as a group through a representa- tive they choose To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things I WILL NOT interfere with any of these rights. EVERETT L. HARPER, A SOLE PROPRIETORSHIP (Employer) Dated By " In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 16 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Room 2407 Federal Office Building, 550 Main Street, Cincinnati, Ohio 45205, Telephone 648-3686.