O'Connor, Inc.

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O'Connor, Inc. and Raymond E. Miller and Melvin E. Miller. Cases 25-CA-3449-1 and 25-CA-3449-2 June 30, 1970 DECISION AND ORDER By MEMBERS FANNING, MCCULLOCH, AND JENKINS On February 17, 1970, Trial Examiner William F. Scharnikow issued his Decision in the above-en- titled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Trial Examiner's Decision. Thereafter, the Respondent and the General Counsel filed excep- tions to the Trial Examiner's Decision with support- ing briefs and the Respondent filed an answering brief to the General Counsel's exceptions. 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 exceptions and sup- porting briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additional remedial provisions described below. Raymond E. Miller and Melvin E. Miller, in writing, at their respective last known places of residence, that, despite their discharges at the Howard John- son Motel project in Michigan City, Indiana, each of them will be considered eligible for preferential hiring at any of Respondent's projects if he should choose to apply for employment at any of them," and make the corresponding changes in the notice by adding the quoted language at the end of the second paragraph. 3. Insert the following as paragraphs 2(b) and (c) of the Trial Examiner's Recommended Order, and renumber the paragraphs presently designated as 2(b), (c), and (d), as 2(e), (f), and (g), respec- tively: "(b) Notify Raymond E. Miller and Melvin E. Miller if presently serving in the Armed Forces of the United States of their right to preferential rehir- ing upon application in accord with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. "(c) Accompany any letter written to Raymond E. Miller and Melvin E. Miller in accord with the provisions of paragraph 2(a) and (b) of this Order, with a copy of the Appendix." 4. Insert the following language below the signa- ture line of the notice: "We will notify Raymond E. Miller and Melvin E Miller if presently serving in the Armed Forces of the United States of their right to preferential rehir- ing upon application in accord with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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 as modified below and hereby orders that the Respondent, 0'- Connor, Inc., Hammond, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Insert in the Recommended Order as para- graph 1(b) the words "Interrogating employees concerning their union activities." and renumber 1(b) as 1(c); make a corresponding insertion fol- lowing the second indented paragraph of the notice. 2. At the end of paragraph 2(a) of the Trial Ex- aminer's Recommended Order change the period to a comma and add the words "and notify TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: The complaint alleges, but the answer of the Respond- ent denies, that the Respondent. O'Connor, Inc., has engaged in unfair labor practices affecting com- merce within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Rela- tions Act, as amended, 61 Stat. 136, 73 Stat. 519 (herein called the Act), by interrogating its em- ployees concerning their membership and activities in Laborers International Union of North America, Local Union No. 81 (herein called the Laborers), and by discharging employees Melvin E. Miller and Raymond E. Miller on February 17, 1969, because they had joined and assisted the Laborers and en- gaged in other union and concerted activities for the purpose of collective bargaining and mutual aid and protection. 184 NLRB No. 25 O'CONNOR , INC. 221 Pursuant to notice , a hearing was held in Michigan City, Indiana, on November 18 and 19, 1969, before me. The General Counsel and the Respondent appeared by counsel and the Charging Parties appeared on their own behalf. All were af- forded full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence upon the issues. Counsel for the General Counsel and for the Respondent have submitted briefs which have been duly considered. Upon the entire record in the case, and from my observation of the witnesses , I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, O'Connor, Inc., an Indiana cor- poration with its principal office and place of busi- ness in Hammond, Indiana, is engaged in the busi- ness of plumbing and heating contracting and other mechanical contracting. During the year preceding the issuance of the complaint, the Respondent, in the course and conduct of its business, purchased, transferred, and delivered to its various jobsites in Indiana, goods and materials valued in excess of $50,000, which were transported to said jobsites directly from States other than the State of Indiana. During the same year, the Respondent performed services valued in excess of $50,000 in States other than the State of Indiana. I find that the Respondent is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to entertain ju- risdiction of this case. II. THE LABOR ORGANIZATION INVOLVED Laborers International Union of North America, Local Union No. 81, hereinafter sometimes referred to as the Laborers or the Laborers Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The General Facts and the Evidence Relating to the Reasons for the Discharges of Ray and Melvin Miller Between August 1968 and September 1969, Di- Com Corporation, a Chicago general contractor with Joseph Spina serving as its job superintendent, built a 108-room motel for Howard Johnson in Michigan City, Indiana. All the work was let to various subcontractors and none of the workers on the project was employed by the general contrac- tor. The Respondent, a Hammond, Indiana, con- tractor, was the mechanical subcontractor and in- stalled the plumbing, heating, and sheet metal equipment. Raymond and Melvin Miller, the Charging Parties in the present cases, are brothers and members of Laborers Local No. 81, t who were employed by the Respondent as laborers on the job for several months until they were discharged on February 17, 1969. The reason for the discharges is the issue in these cases. Much of the Respondent 's plumbing and heating work on the Howard Johnson Motel was subsoil work, requiring throughout almost the entire period of construction the laying and completion of the sewer, water, and underground drainage systems (work normally performed by plumbers) and the underground portion of the heating system (which was extensive on this particular project and is nor- mally work performed by pipefitters). For the per- formance of this subsoil work and the work within the building itself, the Respondent employed a regular group of four or five plumbers, and at vari- ous times, also one or two pipefitters and one or two laborers (like the Millers) to assist the plumb- ers and pipefitters by performing unskilled work, principally by digging ditches. Lawrence O'Meara was the Respondent' s general superintendent in overall charge of its work and the hire and discharge of its personnel. From the beginning of its operations on the site in August or September 1968, the Respondent employed Angelo Pompilone as its general foreman and Robert Fritts, as its "plumbing foreman" in charge of the plumb- ers and the few pipefitters and laborers whom it also employed from time to time. Later, in January 1969, the Respondent also hired Gordon Krachey, a pipefitter as its "pipefitter foreman." General Su- perintendent O'Meara was vice president of Local 433 of Gary, Indiana, a "plumbers"' local of which Foreman Fritts and the Respondent's four or five plumbers were also members. Krachey, the "pipe- fitter foreman," was a member of Local 597 of Chicago, a "pipefitters' local." Raymond and Melvin Miller were hired as laborers by Superintendent O'Meara on Plumbing Foreman Fritts' recommendation in October and early December 1968, respectively, and from the times of their hire until their discharge on February 17, 1969, were the only laborers employed by the Respondent on the plumbing and heating work then in progress at the Howard Johnson Motel Before the Millers' hire, Foreman Fritts with a crew of plumbers and several earlier laborers had begun laying the underground sewer, water main, and drainage systems. The first pipefitter on the job was hired to work on the heating system in December 1968, but worked for the Respondent for only about a week. Thereafter, for about a month, Fritts and the plumbing crew, with the Millers assisting them as laborers under Fritts' supervision, con- tinued to work not only on the plumbing but also on the underground portion of the heating installa- tion. But in January 1969, two representatives of I Laborers International Union of North America, Local Union No 81 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 597 (the pipefitters ' local) visited the job, objected to the plumbers' doing pipefitters' work, and insisted that pipefitters be employed. As a result, the Respondent hired Gordon Krachey, a member of the pipefitters' local, as a working pipefitters' foreman on January 14 , 1969. There- after Krachey, and, for brief periods in February 1969, also another pipefitter, worked on the heating installation. Before Krachey 's coming to the job as pipefitting foreman , the Millers worked under the supervision of Plumbing Foreman Fritts and there was no dif- ficulty in their work for, nor in their relationship with, Fritts . But, after Krachey came as pipefitting foreman , both the Millers were required to perform labor, such as the digging, of ditches , for Krachey as well, although Melvin d more of this work for Krachey than did Raymond Miller. The Millers did not get along with Krachey who annoyed them by ming them relocate , lengthen , widen, or deepen ditches after they had dug them in accordance with what they understood to have been his original in- structions . According to Krachey's testimony, this was the result in different instances of the Millers' "misunderstanding " of his instructions, of errors on his part, or of the constant changes being made in the blueprints with the respect to the elevation and location of the pipelines. According to the Millers' testimony , however, Krachey complained to them without justification almost every time they dug a ditch for him , and they could not satisfy him. Right from the beginning of Krachey 's employ- ment in January , both of the Millers told Plumbing Foreman Fritts " many times," usually at cof- feebreaks or lunchtime and sometimes in the presence of the Respondent 's plumbers ( but never in Krachey 's presence), that they did not like to work for Krachey; that Krachey did not know what he was doing; that Krachey complained to them about everything they did for him ; that they did not know " what the guy wants" and could not satisfy him; and that they objected to his complaints and the way he talked to them . Foreman Fritts thereu- pon told the Millers that Melvin would generally do Krachey's work and that , when necessary, Ray would work for Krachey only upon particular as- signments made by Fritts. At the same time, Fritts told Melvin that he would be working for Krachey and that, although Krachey was "hard to get along with ... you will just have to get along with him. That's your job." But, in spite of this arrangement, with Ray working for Krachey only on Fritts' assig- ning him , both of the Millers continued to complain to Fritts about Krachey, and Fritts kept reporting these complaints and the irritating situation to O'- Meara, the Respondent's general superintendent. Melvin Miller was sick and did not work on Thursday or Friday, February 13 or 14. On Thursday, Foreman Fritts told Ray Miller to dig a ditch for Krachey and then to come back to work for Fritts . Krachey, marked out the area to be dug, Ray dug the ditch , and then , on Krachey's request, deepened it and laid a sand base . Krachey said he was to stay there and fill in the trench after Krachey had laid the pipe Ray told him he had a small job to do for Fritts and did in fact leave and start digging for Fritts at another spot . Later in the afternoon , Krachey asked Ray Miller, " What the hell are you digging there for?" and in spite of Ray's explanation that he was digging the ditch for Fritts, insisted that Ray immediately dig another ditch for Krachey so that an expansion loop could be laid and cement could be poured over it. By quitting time at 4 . 30, Ray had dug the expansion ditch at the place marked out by Krachey, cut the wire mesh on which the concrete was to be poured, and temporarily covered the ditch with plywood and a layer of dirt . Although Krachey asked him to work overtime , Ray said he had made other plans, and Krachey said "Okay." Krachey and another pipefitter , however , worked late that Thursday evening and also an hour early on Friday morning , the 14th , in order to be ready for the pouring of the cement that morning. As he himself testified , Krachey discovered he had made a "mistake" in the length of the pipe and, in recutting it, also an "error" on the line and width of the ditch dug by Ray , since the ditch was too nar- row for Krachey to stand in and work on the pipe. As a result, Krachey and the other fitter redug the ditch on Thursday evening. When Ray Miller came to work at 8 a.m. on Friday, February 14, he saw that the expansion ditch had been redug , and that the plywood and wire mesh were scattered . Krachey was standing alongside the ditch and asked Miller to fill the ditch over the pipe with sand and an upper layer of clay. Miller asked Krachey what was wrong with the ditch and why it did not please Krachey . Krachey said it was not wide enough nor deep enough nor long enough . Miller filled the ditch as directed but later in the morning again spoke with Krachey. Ray Miller's exchanges with Krachey on both oc- casions were bitter and loud as is apparent not only from the testimony of both men but from the testimony of Foremen Fritts who was attracted to the scene of the argument by what he said was "yelling." Both Miller and Krachey apparently colored their testimony as to the substance, lan- guage, and course of the argument somewhat, but, making allowance for this and adopting plausible and not inconsistent elements from the testimony of each of them, I make the following findings con- cerning the argument . Miller asked Krachey, "What's the matter, can't I do anything to please you9 Can't we do anything to please you? Everything we do is wrong."2 Krachey asked, "What the hell are you talking about9" and told ' The quotation is taken from Krachey 's testimony but Miller testified to the same effect O'CONNOR , INC. 223 Miller that he had redug the expansion ditch because he himself had made a "mistake" in "cutting off the line."3 But Miller referred to earlier incidents in which Krachey had made him and his brother redig ditches, and said that Krachey "treated us like dogs."4 Krachey called Miller a "god damn liar," and Miller in turn called Krachey a "sonofabitch," and although he did not swing at Krachey, he admitted in his testimony he "was mad enough to." Krachey then left Miller as Foreman Fritts came up to the two men. Miller told Fritts he "wasn't a dog and ... didn't have to be treated like one and [he] thought he would quit." Fritts said that it was "up to [Miller] if [he] wanted to quit," but that Miller was a good worker and Fritts did not want him to quit and would speak to Krachey. Miller further testified, and in absence of any denials by Fritts, I find that Fritts also told him that Fritts had spoken with Superintendent O'Meara about Krachey's difficulties with the Millers and that O'- Meara said "there was nothing he could do about it, that we had to get along with [Krachey]," because the pipefitters' local had insisted upon the Respondent's hiring Krachey as a pipefitter. Finally, according to Ray Miller's further uncontradicted testimony which I credit, Fritts told him he had authority from O'Meara to hire and fire and Miller should not worry "as long as [he] thought he could get along with [Krachey]." After lunch that same day, Friday the 14th, Ray Miller and Bill Aytes, one of the Respondent's plumbers, saw a man operating a high lift and then manually helping laborers carry mortar and brick from the lift to bricklayers working for Larson- Danielson, the block and brick subcontractor on the job. Miller and Aytes, the plumber, decided to check to see whether the man, apparently working as an engineer, also had a Laborers ' book. Miller accordingly went up to the man, asked to see his union book, and the man showed him a Laborers' book. Joe Spina, the job superintendent for Di-Com, the general contractor, had come to the project after spending the earlier part of the day at Benton Harbor, where his daughter was to be married the next day, and noticed Ray Miller speaking to the high lift operator in an area where Miller had no work to do . Spina either saw and overheard Miller checking the high lift operator's Laborers' card (as Miller testified ) or Miller ( as Spina testified) told him in answer to Spina's question, that he was checking the man's union card because "the man was doing two jobs." According to Spina's testimony he was preoccupied with his daughter's wedding preparations, and all he said to-Miller was that, if the high lift operator was in fact doing two jobs, "It's no concern of yours .... Don't start nothing"; and "I don't want no problems on this job." Furthermore, Spina denied having threatened Miller with discharge. But Ray Miller testified, and I credit his testimony and find, that Spina said to him, "You are causing union trouble on my job"; that Miller replied that "This was a union job .... The men working on it should be union members, and ... I had. the right to check this man's union book"; and that Spina said he "was going to see that [Miller] was fired for causing union trouble." There was no evidence that Spina spoke to any- one connected with the Respondent about this in- cident. Spina denied having done so, or having asked or "advised" the Respondent to discharge either of the Millers. O'Meara, the Respondent's superintendent, and Foreman Fritts also denied that either of them had any conversation with Spina about discharging the Millers. But it does appear from Ray Miller's uncontradicted testimony (and I find) that, immediately after Spina had spoken with him that Friday afternoon, Ray Miller himself told Foreman Fritts about the incident and about Spina's threats to have him discharged for having checked the high lift operator's union book, but that Fritts thereupon reassured him by saying that he should not worry", that Spina was upset about his daughter's marriage, that Fritts had been given authority to hire and fire his man, and that Miller "would be there until the job ended."5 Ray Miller finished his day's work on Friday, February 14, with no warning that he and his brother, Melvin, were actually to be discharged during the morning of the next workday, Mon- day, February 17. Superintendent O'Meara and Foreman Fritts testified, however, that O'Meara (who was "convalescing" at home from an illness) had learned by telephone about 10 a.m. on Friday from General Foreman Angelo Pompilone and again from Foreman Fritts between 5 and 6 p.m the same day, that "conditions hadn't improved one bit between the Miller brothers and Gordon Krachey" and that there had been "almost a fight on the job" between Ray Miller and Krachey that morning; and that, as O'Meara told Fritts in their conversation, he had decided to discharge the Mil- lers by having Fritts hand them their terminal paychecks when he could get them to the job from the Respondent's office in Hammond, Indiana, on Monday morning, February 17. According to O'Meara's testimony (but not Fritts' testimony), O'Meara's decision to discharge the Millers was at least supported by Fritts who told O'Meara in their conversation that "he was tired of listening to the problems [of the Millers with Krachey] and the best thing ... to do was to get rid of them." From neither O 'Meara 's nor Fritts' testimony does it appear that there was any men- tion of the card-checking incident or of Spina's threat to have Ray Miller discharged. Instead, it would appear (if we accept O'Meara's and Fritts' Krachey testified that he admitted his error in this particular instance Miller's testimony Although Fritts testified as a witness for the Respondent he was not even questioned about this conversation with Ray Miller 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony ) that O 'Meara 's decision to discharge the Millers was reached by O'Meara sometime during the day on Friday, February 14, and was based, as O'Meara testified , solely upon the intolerable "fric- tion" between the Millers and Krachey which inter- fered with the Respondent 's work , or (as Fritts described it) upon the " tension " caused by the Mil- lers on the job not only between them and Krachey but also between "the fitters and the plumbers " Despite Foreman Fritts ' assurances to Ray Miller on Friday that he would not be discharged either for his argument with Krachey or for the card- checking incident , provided he could manage to get along with Krachey ; Ray Miller and Melvin Miller visited the Laborers ' dispatch office in Michigan City before going to work on Monday morn- ing, February 17. They told the Laborers' dis- patcher that Ray had been threatened with dis- charge on Friday for having checked a man's union book and said that "we would like to have a [Laborers'] representative come to the job that morning to represent us." The dispatcher said he would call the Laborers' main office in Gary that morning and transmit their request to a business agent After leaving the Laborers ' dispatch office on Monday, February 17, the Millers reported for work at the jobsite at 8 a.m., the regular starting time. Foreman Fritts said nothing to them about their being discharged . On the contrary , according to his testimony , he just told them what work they were to do and they began working in the back part of the building. Ray Miller testified that at 10 a.m., Fritts called him over and asked him whether he had been to see his business agent; that when Ray admitted he had, Fritts asked him why , that Ray told Fritts that, because of Spina's threat to have him discharged , he thought he "needed some representation on the job"; and that Fritts said he was speaking to Miller because he had been told by Spina "There were two of [Miller 's] union representatives out front." There is no direct evidence that any representa- tive or representatives of the Laborers' union had actually come to the site that morning in response to the Millers' request . If they did, their testimony was not produced by the General Counsel and the omission is unexplained. Fritts did not testify whether he himself saw any representatives there, and even Ray Miller as well as Spina testified that they did not see them. But Fritts did not deny Ray Miller's testimony about the conversation Miller said they had at 10 o'clock , and Fritts ' failure to do so supports Miller's testimony despite the lack of any direct affirmative evidence from any of the wit- nesses of the business agents' actual appearance on the site . For it should be expected that Fritts at the " Fritts testified merely that he gave the Millers their checks, and was not asked , nor did he testify, whether there was any conversation at the time The finding setting forth Ray Miller 's question and Fritts ' answer is based upon Ray Miller 's uncontradicted testimony 'This element of the finding in the text is based upon Melvin Miller's time of his testimony only 9 months later would have remembered whether any such conversation had taken place between him and Ray Miller just before he handed the Millers their terminal paychecks that morning , and that, if no such con- versation had occurred , he would be able to deny it, and would deny it in his testimony . Yet, with respect to the possibility of such a conversation, counsel for the Respondent asked Fritts merely whether he recalled ' having any conversation with either of the Miller brothers or both of them that morning with respect to any business agent of the Union" and Fritts replied merely : " No, I don't re- member." Accordingly, in the absence of a denial by Fritts, I credit the substance of Ray Miller's testimony that at 10 a.m. on Friday, February 17, Fritts came to him while he was working, and told him that Spina said two business agents of the Laborers ' union were on the site , and that Miller, in answer to Fritts' questions , said. that he had asked the business agents to come to the site to protect him against Spina's threats to have him discharged because of the card-checking incident the preced- ing Friday. The Millers continued working until about 11 a.m. At that time, Ray had just begun digging a ditch for Fritts and Melvin was about to break a hole in a wall on Krachey's instructions . Fritts called them from their work and handed each of them two checks, one for the pay of the preceding week and the other for 4 hours' time that day although they had worked only 3 hours . Fritts had just received these checks from General Superin- tendent O'Meara who testified that he had gotten them at the Respondent's Hammond office at 8 a.m. and had brought them to the site , and that since he did not know exactly when he would get to the site, he had the checks for that day cover 4 hours. When Fritts handed each of the Millers these checks, he said nothing except that he was "sorry," and gave no reason for his action . Ray Miller asked Fritts if he knew "that this was going to happen" and Fritts said, "No. 116 Understanding that they were being discharged , the Millers left the jobsite. At lunchtime the same day, the Millers met Fritts at the Sumriata Tavern and there was a brief con- versation between them in the presence of plum- bers Bill Aytes and Art Jones. Only the Millers testified concerning this conversation . Fritts was not asked during his testimony about the conversa- tion and therefore did not confirm or deny the Mil- lers' version . Upon the Millers' testimony I find that Ray Miller asked Fritts why the Millers were laid off or fired , that Fritts replied , " Let's just say you were laid off";7 and that, in answer to Ray 's further questions , Fritts said there was still plenty of work testimony rather than Ray Miller 's testimony that Fritts said, "Let's just say you were laid off because of lack of work " Because of the doubt suggested by this difference in the brothers' testimony , i have adopted Melvin Miller's lesser version of Fritts ' remark in other respects , the substance of the testimony of both brothers was the same O'CONNOR, INC 225 for laborers to do on the motel job and that to get the laborers it needed , the Respondent would have to call the union hall B. Conclusions Relying upon the Millers' testimony and the cir- cumstances of their discharges ( including their con- versations with Foreman Fritts ), the General Coun- sel contends that the Millers were discharged by the Respondent on the morning of Monday , February 17, because on Friday , February 14, Ray Miller "had checked an employee 's union book and because [on the morning of February 17, the Mil- lers] had called their Union representative out to the project site to protect them." (G.C. br., p. 8.) Stressing the obvious interest of the Millers' as parties in the present case , the Respondent attacks the sufficiency and credibility of their testimony to support the General Counsel 's contention by the required preponderance of the evidence , especially against Superintendent O'Meara 's and Foreman Fritts' testimony (1) that O'Meara ( without knowledge of the card -checking incident and well before Foreman Fritts knew the Laborers' union would be called upon to protect the Millers), had decided on Friday, February 14, to discharge the Millers solely because of the "near fight " between Ray Miller and Foreman Krachey which culminated weeks of "friction" between the Millers and Krachey and " tension " between " the plumbers and fitters" that had interfered with the Respondent's work on the project ; and (2 ) that , although O'- Meara had made this decision while he was at home on Friday, February 14, on the basis of a telephoned report of the "near fight " from his general foreman , he had reasonably decided to ef- fect the discharges on the site on Monday , the earli- est time he could conveniently procure the Millers' terminal paychecks from the Respondent's Ham- mond office and have Fritts give the checks to the Millers on the jobsite O'Meara's and Fritts' testimony would be persua- sive if viewed solely against the admitted background of the Millers' difficulties with Krachey and the last eruption between Ray Miller and Krachey on the morning of February 14. But, as the General Counsel points out in his brief, there is other evidence, including weak elements in 0'- Meara's and Fritts' testimony itself , which is not only inconsistent or incongruous with O 'Meara's explanation of the reason for, and the timing of, the discharges , but which in its combined effect also furnishes strong affirmative support of the General Counsel 's contention as to the actual reasons for the discharges It appears questionable even from O'Meara's and Fritts' testimony that O 'Meara actually decided by at least mid-day on Friday to discharge the Millers on Monday because of the report received by him from the general foreman of the "near fight" between Ray Miller and Krachey . For, as the General Counsel points out , he could easily have arranged by telephone to have the Respondent's of- Tice make out their terminal paychecks that after- noon and have them delivered to the site and to the Millers either the same afternoon or at the latest before work began on Monday morning. Yet, not only did he not take this course , but, as Fritts him- self testified , when the Millers came to work on Monday Fritts actually put them to work for 3 hours without saying a word to them or otherwise indicating that he knew they were being discharged. And, still according to Fritts' testimony , even when he discharged them by giving them their checks at 1 1 a.m., he gave them no reason for their discharge nor, for that matter, did he tell them whether they were being discharged or merely laid off-a curious omission if, as he testified , he had known since Friday of O'Meara's decision to have him discharge the men and the reasons for the discharge. But the full strength of the evidence requiring a finding that the Millers were discharged not because of Ray's "near fight " with Krachey on Friday morning but because of the card -checking incident and their calling in their business agents to represent them on Monday morning lies not merely in the Respondent 's discharging them only late on Monday morning, and in Fritts ' giving them no reason for their discharges , but also in the damag- ing and inescapable accompanying inferences to be drawn from Fritts' failure while on the witness stand to deny or explain his having made the state- ments attributed to him by the Millers in conversa- tions which occurred before , at the time of, and im- mediately after he effected their discharges . Indeed, in his testimony, Fritts did not even touch upon- much less make any denial or explanation of-the conversation with Ray Miller at 10 a.m . on Monday nor the conversation with both of the Millers that noon at the Sumriata Tavern. As I have already found upon Ray Miller's un- contradicted testimony , the first of these critical conversations occurred on Friday morning when Fritts assured Ray Miller that he had authority from O'Meara to hire and fire and that in spite of Mil- ler's "near fight" with Krachey, Miller should not worry "as long as [he] thought he could get along with [Krachey ]." And yet ( in spite of Fritts' failure to deny he had given Miller this assurance ), accord- ing to both O'Meara's and Fritts testimony, when Fritts spoke by telephone with O 'Meara that even- ing and O 'Meara said he had decided to discharge both the Millers because of the "near fight ," Fritts not only made no mention to O'Meara of his having spoken to and reassured Ray that he would not be discharged on this occasion, but, according to 0'- Meara's testimony , agreed with O'Meara that "the best thing . to do was to get rid of [the Millers]." The second of the undenied critical conversa- tions, which I have found Ray Miller had with Fritts, occurred at 10 a.m . on Monday after both the Millers had worked for 2 hours on assignments given them by Fritts without any intimation from 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fritts that they were about to be discharged The damaging significance of this conversation lies not only in the fact, as I have found, that Fritts told Ray he believed that two of the Laborers' representa- tives were on the site and Ray admitted that he and his brother had asked them to come to the site to protect them against discharge because of the card- checking incident, but also in Fritts' inexplicable failure as a witness either to dey there was such a conversation or, if there had been, to explain (or even merely to assert) that it had no connection with O'Meara's previously reached decision to discharge both of the Millers because of the Ray Miller-Krachey incident the preceding Friday. The third critical conversation occurred when, 3 hours after Fritts had put the Millers to work that morning and 1 hour after Fritts learned of the visit of the Laborers' representatives in connection with the card-checking incident, Fritts handed the Mil- lers their terminal paychecks at 1 1 a.m. on Monday without telling them whether they were discharged or laid off and, whichever it was, without giving any reason to them for the Respondent's action. Even then, according to Ray Miller's credited testimony which Fritts did not bother to deny, Fritts informed Ray Miller that he did not know "this was going to happen," a statement squarely contradictory of his testimony that he had known since Friday that O'- Meara had decided to discharge the Millers and that Fritts himself was to give them their terminal paychecks on Monday. The fourth and final conversation with Fritts oc- curred about noon of the same day and as to this conversation Fritts gave no testimony at all. At this time, according to the Millers' credited testimony, Fritts again avoided giving any reason for the discharges when asked by the Millers, by saying merely, "Let's just say you were laid off," although when pressed by the Millers, he did eliminate lack of work as the reason by admitting that there was still plenty of work for laborers on the project and that the Respondent would have to call on the Laborers union to supply them. In sum , upon my foregoing consideration of all the evidence as to the events preceding the discharges, and the failure of the Respondent through the available testimony of Foreman Fritts to deny the substance of, or otherwise avoid the clear implications of, the Millers' testimony as to their conversations with Fritts, I make the following material and ultimate findings of fact: (I) That, contrary to the testimony of Superin- tendent O'Meara and Foreman Fritts, O'Meara did not decide to discharge the Millers on Friday, February 14, either because of their difficulties with Krachey or for any other reasons. (2) That, because no such decision had been reached, Foreman Fritts put the Millers to work on Monday, February 17 (3) That at 10 o'clock that morning, Foreman Fritts questioned Ray Miller about the appearance of two Laborers' business representatives on the site and learned from Ray that the Millers had asked for the protection of their union against Ray Miller's possible discharge because of the Friday in- cident in which, as he had told Fritts, he had checked the union book of an employee of another subcontractor on the site and had been threatened with discharge by Joe Spina, the general contrac- tor's job superintendent. (4) That an hour after Fritts had received this information, Fritts discharged both of the Millers without giving them the reason or reasons for the discharges, stating merely that he was "sorry" and had not known in advance that "this was going to happen." (5) That, within an hour or so later at the Sum- riata Tavern, Fritts still refused to give any reason to the Millers for their terminations. (6) That the actual reasons for the discharges were Ray Miller's checking the union card of another employee on the site and both the Millers' asking to have their union, the Laborers' union, to come to the site, to represent them, and to protect them against discharge. I conclude that, these being the actual reasons shown by the evidence and the only reasonable in- ferences therefrom, the Respondent discharged the Millers because they engaged in, and enlisted their union's support in, activities protected by Section 7 of the Act, and discriminated against the Millers in their hire and tenure of employment, and thereby discouraged membership in the Laborers' union in violation of Section 8(a)(3) and (1) of the Act. I further conclude that Foreman Fritts' interrogation of Ray Miller as to whether Miller had asked the Laborers' representatives to appear at the site and why, was such an interference with Ray Miller's right to engage in collective activities protected by Section 7 of the Act, as to be an independent viola- tion of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above , occurring in connection with the operations of he Respondent described in section I, above, have a close, intimate, and substantial rela- tionship 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 unfair labor practices within the meaning of Sec- tion 8(a)(1) and (3) of the Act, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the poli- cies of the Act. It has been found that the Respondent dis- criminatorily discharged Raymond E. and Melvin O'CONNOR, INC. 227 E. Miller on February 17, 1969. Since the Millers were employed only for work on the Howard John- son Motel in Michigan City, Indiana, and the pro- ject was completed in September 1969, there is no reason for an order that they be reinstated to their jobs. However, I shall recommend that the Respon- dent make them whole for any loss of earnings suf- fered by them by reason of the discharges, by pay- ment to each of them of a sum of money equal to that which he would have earned from the aforesaid date of his discharge until the Respon- dent's completion of its work on the aforesaid Howard Johnson Motel, less his net earnings during said period. The backpay shall be computed in ac- cordance with the formula stated in F. W. Wool- worth Company, 90 NLRB 289. Furthermore, it will be recommended that the Respondent pay interest on the backpay due to each of these employees, such interest to be computed at the rate of 6 per- cent per annum and, using the Woolworth formula, to accrue commencing with the last day of each calendar quarter of the backpay period on the amount due and owing for each quarterly period. Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Laborers International Union of North Amer- ica, Local Union No. 81, herein referred to as the Laborers Union, is a labor organization within the meaning of the Act. 2. Respondent, O'Connor, Inc., an Indiana cor- poration, is an employer engaged in commerce within the meaning of the Act. 3. On February 17, 1969, the Respondent inter- rogated Raymond E. Miller as to whether he had requested representatives of the Laborers Union, of which he and Melvin E. Miller were members, to appear on their behalf at the Howard Johnson Motel jobsite in Michigan City where both Millers were employed by the Respondent, and by thus in- terfering with, restraining , and coercing the Millers in the exercise of their rights as employees guaran- teed by Section 7 of the Act, the Respondent com- mitted an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 4. On February 17, 1969, the Respondent discharged Raymond E. Miller and Melvin E. Miller because Raymond E. Miller checked the union book of another employee on the Howard Johnson Motel project in Michigan City, Indiana , and both Raymond E. Miller and Melvin E. Miller, fearing discharge therefore, requested representation by representatives of the Laborers Union of which they were members. 5. In thus discharging Raymond E. Miller and Melvin E. Miller, the Respondent interfered with, restrained, and coerced the Millers in the exercise of their rights as employees guaranteed by Section 7 of the Act, discriminated in regard to their hire and tenure of employment in order to discourage their membership in, and reliance upon representa- tion by, the Laborers Union, and thereby com- mitted unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that the Respondent, O'Connor, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Laborers Inter- national Union of North America, Local Union No. 81, or in any other labor organization of its em- ployees, by discriminatorily discharging any of its employees, or by discriminating in any other manner in regard to their hire and tenure of em- ployment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form or join labor organizations, and to engage in any other concerted activity for the purpose of collective bar- gaining or other mutual aid and protection, or to restrain from any or all such activities except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8(a)(3) of the National Labor Relations Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Make Raymond E. Miller and Melvin E. Miller whole for any loss of earnings suffered as a result of their discharges on February 17, 1969, in the manner set forth in the section entitled "The Remedy. " (b) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for examination and copying, all records necessary for the determination of the amount of backpay due under the Order herein. (c) Post at its place of business in Hammond, In- diana, copies of the attached notice marked "Appendix."s Copies of said notice, to be furnished " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, he adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 228 DECISIONS OF NATIONAL by the Regional Director for Region 25, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' " In the event that this Recommended Order is adopted by the Board, this provision shall he modified to read "Notify the Regional Director for Region 25, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT discourage membership in Laborers International Union of North Amer- ica, Local Union No. 81, or any other labor or- ganization, by discriminatorily discharging any of our employees, or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of em- ployment. LABOR RELATIONS BOARD WE WILL make Raymond E. Miller and Mel- vin E. Miller whole for any loss of earnings suf- fered as a result of their discharges on Februa- ry 17, 1969. WE WILL NOT in any manner interfere with, restrain, or coerce any of our employees in the exercise of their right to self-organization, to form labor organizations, to join, or assist the aforementioned union, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mu- tual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized in Sec- tion 8(a)(3) of the National Labor Relations Act. O'CONNOR, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.