Carlson Corp.

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carlson Corporation and Walter J. Santwer. Case 1- CA-7428 January 31, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On June 9, 1971, Trial Examiner James V. Constan- tine issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a support- ing 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recom- mended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, Carlson Corporation, Cochituate, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.' MEMBER KENNEDY , dissenting: I cannot join my colleagues in their adoption of the Trial Examiner's finding of a violation of Section ' Our dissenting colleague would find no 8(a)(1) violation based upon Santwer's discharge , viewing it as occasioned by poor work performance not long after an earlier discharge and rehiring We note that it is not clear that the earlier discharge was for nonperformance of work That Santwer failed to "shape up" after being given a second chance is a conclusion that misses the main thrust of the case Santwer was a general laborer, assigned by the construction superintendent specifically to assist the carpenters working on the roof of the project when, in late October, it came to the superintendent's attention that carpenters were doing laborers' work In November, Santwer complained of the carpenters getting their own materials from the stockpile, using shovels, and applying wood preservative-work normally done by laborers. This provided an opportunity for the carpenters to complain of Santwer's not being available when he left the area to report the situation The union steward looked into these complaints, found them to have merit, and a resolution concerning the work to be performed by carpenters was achieved No criticism of Santwer's work habits was ever made to him His testimony that the labor foreman had complimented him on his work on one occasion, and, in paying him off on November 18, had said there was no work, was not refuted In the circumstances we agree with the Trial Exam- iner that Santwer was actually prevented from performing his work properly before his discharge, and that the real reason for his discharge, as reflected in comments by the labor foreman, was his complaint that carpenters were doing laborers' work-a type of employee activity protected by Section 7 and Section 8(a)(1) 8(a)(1) of the Act herein. I would dismiss the complaint in its entirety. The Trial Examiner's ultimate conclusion as to the discharge is predicated, I believe, upon a number of erroneous or irrelevant premises. Thus, the Trial Ex- aminer states that Santwer was a "satisfactory" em- ployee and "At no time was Santwer criticized for his work." He finds that Santwer was "precipitately" and "abruptly discharged before the end of the work week" without a warning. The Trial Examiner observes that "Failure to warn his probative value," and "abrupt- ness, timing, and manner of discharge shed light as to whether a termination is not for cause and whether the asserted cause is offered as a pretext to disguise the employer's antipathy to protected activity which prompted the dismissal." The Trial Examiner's analysis, adopted by my col- leagues, ignores the fact that Respondent had dis- charged Santwer on October 30, less than 3 weeks ear- lier, for nonperformance of work. The General Counsel does not contend that the October 30 discharge was discriminatorily motivated. The uncontroverted tes- timony is that Santwer was reinstated on November 2, when the union business agent agreed to talk to Santwer and expressed confidence that he could con- vince Santwer to improve his work. In my view, it is illogical to characterize Santwer as a "satisfactory employee" when he had been recently discharged for unsatisfactory performance. The undisputed fact is that when Santwer was rein- stated he did not do the work assigned to him. He was supposed to help the carpenters on the roof of the building. He did not stay on the roof and he did not help the carpenters. The Trial Examiner blames the carpenters for not working with Santwer. Apparently, the Trial Examiner reasoned that Santwer was not ne- glecting his work since Santwer had nothing to do and he was therefore free to wander about the construction site. As I see it, the record amply supports Respondent's defense that after it reinstated Santwer on November 2 his work was the same as it was before his discharge on October 30. He was not a productive employee. In my opinion, no adverse inference can be drawn from Re- spondent's failure to give Santwer warnings after he was reinstated on November 2. He well knew he was obliged to "shape up" after being given a second chance. My review of the record convinces me that it does not sustain the Trial Examiner's finding of a violation of Section 8(a)(1) of the Act. 195 NLRB No. 15 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE CARLSON CORPORATION 219 III THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence JAMES V. CONSTANTINE, Trial Examiner: This is an unfair labor practice case instituted pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act. 29 U.S.C. 160(b). It was initiated by a complaint issued on Feb- ruary 9, 1971, by the General Counsel of the National Labor Relations Board, herein called the Board, through the Acting Regional Director for Region 1 (Boston, Massachusetts), naming Carlson Corporation as the Respondent. Said com- plaint is based on a charge filed on December 16, 1970, and an amended charge filed on January 22, 1971, by Walter J. Santwer, an individual. In substance the complaint alleges that Respondent vi- olated Section 8(a)(1) and (3) and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered admitting some of the allega- tions of the complaint but denying that it committed any unfair labor practices. Pursuant to due notice this case came on to be heard and was tried before me at Boston, Massachusetts, on April 27, 1971. All parties were represented at and participated in the trial and had full opportunity to introduce evidence, examine and cross-examine witnesses, file briefs, and offer oral argu- ment. At the close of the case Respondent argued orally. Briefs have been received from Respondent and the General Counsel. This case presents the issues of whether Respondent (1) denied overtime to Walter J. Santwer and (2) discharged said Santwer because he assisted a labor organization (Laborers' International Union of North America, Local 429, AFL- CIO) in the enforcement of its work rules and contract. Upon the entire record in this case, and from my observa- tion of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I AS TO JURISDICTION Respondent, a Massachusetts corporation with its princi- pal office and place of business in Cochituate, Massachusetts, is engaged in the business of general contracting and building construction. Pursuant to one of its contracts, that with Mac- Bick, a medical supply company, Respondent is constructing a warehouse building valued in excess of $1 million for Mac- Bick in Billerica, Massachusetts. Said building is herein called the Billerica jobsite. During the past 12 months Respondent purchased building materials valued in excess of $50,000 from points outside the Commonwealth of Massachusetts. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction over Respondent in this proceeding. II THE LABOR ORGANIZATION INVOLVED Laborers' International Union of North America, Local 429, AFL-CIO (herein called the Union), is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. As noted above, Respondent is constructing a warehouse building for Mac-Bick in Billerica, Massachusetts. On or about September 9, 1970,' the Union, located in Lowell, Mas- sachusetts, dispatched Walter J. Santwer to the Billerica job- site , where he was hired as a general laborer. The union steward on that job was Thomas Welch. At that time Re- spondent also had another laborer, Fitzgerald, on the job. Later Respondent hired 9 more laborers at this site, making a total of 12 laborers employed there in early October. In mid-October, however, Respondent laid off six laborers but retained Santwer, among others. Then on Friday, Octo- ber 30, it laid off Santwer and William Donahue, another laborer. However, John Emerson, the Union's business agent, on October 30 directed Santwer to return to the job the following Monday, November 2. Santwer did so and was again assigned to work as a general laborer. A week after returning to work on November 2 Santwer observed that the carpenters on the job were performing some of the work which he considered to belong to laborers. Ac- cordingly he spoke about this situation to Gerald Fields, Respondent's foreman of laborers. I find that Fields is a supervisor within the meaning of Section 2(11) of the Act and an agent of Respondent acting on its behalf. During this conversation Santwer told Fields that carpenters were doing the work of the laborers, mentioning as an example that "a carpenter was using a shovel which is not to be done [by him], according to the Union agreements." Fields promised to look into this. During that same week Santwer also discussed the foregoing conditions with Thomas Welch, the Union's job steward at the site. Santwer also observed that during the week commencing on November 9 laborers other than he were performing over- time work on the job. As a result he asked Welch, the Union's steward, why Santwer had not been assigned to any of his overtime. Nevertheless Santwer did not thereafter receive any overtime work. On Monday, November 16, Santwer reported for work about 7:15 a.m. He regularly started at 8 a.m. and worked until 4:30 p.m., with a break at noon of a half hour for lunch. Although the other laborers, five or six in number, started to work at 7:30 a.m., thus being awarded a half hour of over- time, Santwer was not invited to work before 8 a.m. Yet Gerald Fields, Respondent's foreman of laborers who was present at the time and saw Santwer there, did not grant Santwer any overtime that day. At 8 a.m. on November 16 Santwer was instructed by Fields to work with the carpenters on the roof of the building by carrying stock and materials to them whenever they needed the same. Upon arriving there Santwer noticed that the carpenters on the roof not only were carrying their own stock and materials but they would not let him carry such for them. Soon Santwer visited Fields, informed him of what had occurred, and asked for further instructions. Fields replied that he would "look into the matter." Not long thereafter Santwer also called to the attention of Thomas Welch, the union's steward on the job, that carpenters were carrying their own stock and materials and had forbidden Santwer from doing this work. On Tuesday, November 17, Santwer again arrived at the jobsite at 7:15 a.m., but he was not given any overtime work. Nevertheless all the other laborers were directed to begin work at 7:30 a.m., thus working a half hour overtime. Some I All dates mentioned hereafter refer to 1970 except where otherwise specifically noted 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time during November 17 Santwer repeated to Welch, the job steward, Santwer's complaint that carpenters on the job were performing some of the work of laborers. On Wednesday, November 18, Santwer arrived at the job- site before 7 a.m. At that time he saw the other laborers working overtime. They were being supervised by Foreman Fields. But Fields did not ask Santwer to join these laborers in overtime work. As a result Santwer complained to Welch, the union job steward, about not receiving any overtime. At or about 3:30 p.m. on November 18 Fields presented Santwer with a "payoff check" and told Santwer that Fields had no more work for him. Continuing, Fields said that Welch was "arguing too much about the overtime and we [Welch and Santwer] were arguing too much about who was doing what work on the job." Although Santwer insisted that Fields was "kidding," he quickly became convinced that Fields was serious. Notwithstanding that Fields laid off Santwer for lack of work, Santwer on November 19 noticed that Respondent had "two additional laborers" working at the jobsite. While employed by Respondent Santwer neither received warnings, written or oral, from his superiors concerning his work performance for Respondent, nor had his work per- formance been criticized by Respondent. In fact, some time in October Foreman Fields told Santwer that two other labor- ers there (Welch and Donahue) were not doing the work and that Santwer and Fitzgerald, another laborer on the fob, "were the only two guys that were doing anything on the job." After Respondent laid off Santwer he discovered that he had been paid for 1 hour more than he had worked during his last week at the jobsite. Although this hour was for over- time, Santwer insisted at the hearing that he did not work overtime during that week. Santwer's job of supplying with "nails ... boards, what- ever they had to have that a laborer would normally do," was "specifically confined to the location of the carpenters." How- ever, while he was "in other parts of this job" he "talked to other people." He so left his assigned job to talk to other people because the carpenters "would not let him bring to them lumber, or nails, or wheelbarrows, or anything else," and thus there were occasions when he did no work. This action on the part of carpenters caused Santwer to complain that they were violating "the jurisdictional rights of the labor- ers." The foregoing essentially constitutes Santwer's evidence on behalf of the General Counsel. Thomas Welch's testimony as witness for the General Counsel follows. Welch, who is employed by Respondent as a laborer, is also the job steward for the Union on the Mac-Back jobsite. His regular working day at that site commences at 8 a.m. and ends at 4:30 p.m. On November 16 and 17 he and all the other laborers except Santwer worked overtime from 7:30 a.m. to 8 a.m Nevertheless Santwer had arrived at the site by 7:30 a.m. on both days and could have been assigned to overtime work. Sometime during November 16, as a result of a conversa- tion with Santwer, Welch spoke to the labor foreman, Gerald Fields, the carpenter foreman Walter Chipman, as well as the carpenter steward on the job. In talking to Field's, Welch complained that the work of the laborers on the roof of the building was being performed by carpenters; that such work had been assigned to laborers, and belonged to the laborers; and that he, Welch, desired that a laborer be "sent back up . to perform this work." Fields answered that he would take care of it. Later in the day on November 16 Welch again spoke to Santwer. This led Welch to another talk with Fields, Chip- man, and the carpenter steward. Welch repeated to Fields that the carpenters persisted in performing the work of the laborers and, "if it wasn't resolved," Welch would be con- strained to request the laborers' business manager, Emerson, to "let him [Emerson] take it from there if it wasn't reached satisfactorily." Still later on November 16 Welch contacted Mr. Emerson and told him what had transpired on the job. The following day, November 17, Emerson visited the jobsite and spoke to Jim Canning, the job superintendent, in the presence of Welch. I find that Canning is a supervisor within the meaning of Section 2(11) of the Act, and an agent of Respondent. After some discussion, all three decided that the work of moving materials from stock piles on the roof belonged to laborers and not to carpenters, and that the laborers would do it. On November 17 Welch again spoke to Santwer. From what he ascertained in this conversation Welch protested to Foreman Fields that a carpenter was applying cupinol to lumber and that this was a job that should be done by a laborer. Replying, Fields said that Santwer should not be complaining about overtime. Welch answered that he himself had noticed this violation and that Santwer had not told him about it. Then Welch telephoned to the Union's business manager. Following this call Welch and Canning discussed the cupinol work. On November 17 Foreman Fields notified Welch that "they would be starting work at 7 o'clock in the morning" the next day. Welch and all the other laborers except Santwer started work at 7 a.m. on November 18. Although Santwer arrived about 7 a.m. on November 18, he was not instructed to work overtime. On the other hand a new laborer employee, Dave Milinazzo, reported to Welch on November 18 and worked an hour of overtime on that day. Sometime during November 18, following a conversation with Santwer, Welch spoke to Foreman Fields relative to Santwer's not obtaining any overtime work that day. Welch asserted that Santwer and Welch both felt that Santwer should be getting overtime as were the other laborers on the site. Fields replied he did not know what Santwer was com- plaining about. Between 3:30 and 4 p.m. on November 18 Welch learned that Santwer had been laid off. Shortly thereafter Welch in- quired of Fields how many laborers had been laid off. When Fields answered that only Santwer had been affected thereby, Welch asked why a new laborer had been hired that morning. Fields replied, "There wasn't any work." (This is so recorded in the transcript. Apparently Fields meant that Santwer was laid off because there was no work for him.) On November 19 two newly hired laborers, Tom Sheehan and Ed Reynolds, reported for work for the first time at the jobsite. According to Welch, no representative of the Respondent spoke to him concerning Santwer's job performance. On cross-examination, Welch testified in part that "all of the overtime work in connection with the heater" had been assigned to him, and that he was to receive "preference in overtime" on any other type of work. Because of this Santwer had "no basis for any complaint on overtime ... on the heat- ers." Further, Welch asserted that he knew of no instance in which another laborer, other than himself, "received three consecutive hours of overtime and Santwer didn't get an hour in the same period." Welch also on cross-examination tes- tified that at no time did any representative of Respondent suggest that anyone other than a laborer should do the work of laborers, and that on "questions of a jurisdictional matter, there was cooperation upon the part of the employer." Fi- CARLSON CORPORATION 221 nally, Welch on cross-examination stated that "jurisdictional matters" are settled between the two unions involved. The General Counsel' s final witness , John Emerson, tes- tified substantially as follows: On November 17 Emerson, the Union's business manager, spoke to Canning, Respondent's project superintendent, con- cerning the work of laborers in connection with stock piling of lumber and taking it from the stock piles to the carpenters. As a result of this conference "the work was awarded to the laborers by the superintendent." B. Respondent's Evidence Respondent's construction superintendent is James Can- ning. About October 22 or 23 he became job superintendent on the Mac-Beck job. Thereafter it "came to his attention" that carpenters were doing work which the laborers should do. As a result he "assigned a laborer to work specific with the carpenters, so there would be no complaint about who was carrying what, etc." The laborer so assigned was Walter Santwer. In addition Canning also learned that "carpenters were pouring cupinol, a wood preserver, and it was another jurisdictional thing and we resolved" it. At the time the laborers were working on the roof putting in the wood blocking. It was Santwer's "specific, total, and sole duties to tend the carpenters, and nothing else." But Canning observed that Santwer's work "was below par." By this Canning meant that Santwer "at least a dozen times a day ... was never with the carpenters, he was off some place talking to somebody ... [in another area than that assigned to Santwer]. And never where he was supposed to have been." In fact the carpenter foreman on two or three occa- sions told Canning that, when stock was needed for the car- penters, "there was no way to find his laborer who was sup- posed to bring his stock to him." Consequently on October 30 Canning laid off or "released" Santwer and Donahue, another laborer, because neither was performing his work. Although Canning instructed the fore- man to lay off Donahue and Santwer, the decision to lay off was Canning's. But Canning did not confer with their fore- man prior to doing so. However neither the foreman nor Canning communicated or told Santwer why the latter was laid off. Such layoff was not because of lack of work but, rather, "because of his [Santwer's] inability to work," accord- ing to Canning. Then Canning called Emerson, the business agent of the Union, and asked him to replace Santwer and Donahue with two other laborers on the ground that the work of these two "was below par; they weren't holding up their end." Nevertheless Emerson asked Canning to take back Santwer and Donahue, promising to "tell them the situation and . . convince them to pick up their end." On the basis of this assurance Canning agreed to reinstate the two men. They came back to the job on the following Monday, November 2, each resuming the same job he had been doing. Donahue's work became acceptable after November 2, but Santwer's performance was "exactly the same [as it was] before I [Canning] laid him off. He wasn't performing his job at all. So I [Canning] released him [Santwer] " Upon returning to work on November 2 Santwer's duties required him "to be at and working assisting carpenters." But Santwer "was never there"; from the time he came back until November 18 Santwer did "exactly what he had done before" which led to his discharge "the first time." Thus Santwer did not assist the carpenters. Canning observed Santwer "every day ... off the roof, walking on the stairs, talking to other laborers or somebody else or what-have-you." Canning further testified that in assigning overtime no dis- crimination was practiced against Santwer. Continuing, Can- ning averred that no definite pattern existed on overtime; that as occasion required, men were assigned to work overtime before the 8 a.m. regular starting time or after the usual quitting hour; and that "no one was singled out by name or number" to be assigned or to be excluded from such overtime. On November 18 Canning instructed the labor foreman to start the men to work at 7 a.m. to carry some quite heavy frames, and since, "to my [Canning's] knowledge ... Santwer was there with the group" of those arriving by 7 a.m., Santwer enjoyed some overtime that morning. On this same day Canning hired two additional laborers. Resp. Exh. 1-f and 2 indicate that Santwer was paid for 1 hour of overtime for that day. (As recited above in connection with Santwer's testimony, Santwer denied he worked overtime but claimed that his last check erroneously included payment for an hour's overtime during his last week on the job.) At no time did Canning warn Santwer after November 2 that the latter was not attending to his duties. Although Canning "would go to my foreman" whenever he desired to convey messages or warnings to employees, Canning did not notify Santwer's foreman to warn Santwer that Santwer was not performing his work. This is because Santwer was "shirk- ing off a little bit" and, therefore, Canning felt it was unneces- sary to "scream and holler" about this "little bit" to the foreman. On November 17 Canning met with Emerson, business agent of the Union, regarding the cupinol work. During the course of the conversation the two resolved the question of applying cupinol and also "it was decided that the laborers would do the work" of distributing stock and materials to the carpenters on the roof. C. Concluding Findings and Discussion Initially I find that, crediting the General Counsel's evi- dence, the record fails to disclose that Santwer was engaged in union activity at any material time alleged in the com- plaint. Hence I find that Respondent did not violate Section 8(a)(3) of the Act in denying overtime to, and discharging, Santwer . Cf. Rotax Metals, Inc., 163 NLRB 72, 79; Pacific Electricord Company, 153 NLRB 521, affirmed 361 F.2d 310 (C.A. 9). The question then is whether Santwer's conduct is otherwise protected by the Act. Cf. Ben Pekin Corporation, 181 NLRB No. 165. 1. As to Santwer's discharge It is my opinion, and I find, that Santwer was engaged in activity safeguarded by Section 8(a)(1) of the Act when he protested or complained that carpenters were performing some of the work of laborers; that he was terminated because he so protested or complained; and that the reason given at the hearing, i.e., that he was laid off for unsatisfactory service, is a pretext to disguise the true reason for his discharge. That such conduct is protected by the Act is axiomatic, for an employee may with impunity request that his employer abide by the terms of his collective-bargaining contract, pro- vided said claim is colorable and advanced in good faith. Interboro Contractors, Inc., 157 NLRB 1295, 1298, enforced 388 F.2d 495 (C.A. 2); Procon, Inc., 161 NLRB 1304, 1307. I find that Santwer acted in good faith and that his contention was colorable that the work involved belonged to the labor- ers. Cf. Ben Pekin Corporation, 181 NLRB No. 165; Rotax Metals, Inc., 163 NLRB 72 And I find that Santwer was discharged for espousing the claim that such work belonged to laborers and that the reason given for his discharge is a pretext. Of course I recognize that "No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or dis- charged ... for cause." Section 10(c) of the Act; Wellington Mill v. N.L.R.B., 330 F.2d 579, 586-587 (C.A. 4); Mitchell 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Transport, Inc., 152 NLRB 122, 123. And I have been guided by the rule, which I have followed, that the burden of proof to establish an unlawful discharge rests upon the General Counsel and that I may not pass upon the reasonableness or severity of an employer's judgment in discharging an em- ployee for legitimate cause, N.L. R. B. v. Prince Macaroni Co., 329 F.2d 803, 809 (C.A. 1); N.L.R.B. v. United Parcel Ser- vice, 317 F.2d 912, 914 (C.A. 1); J. P. Stevens & Co., Inc., 181 NLRB No. 97 The finding that Santwer was discharged for engaging in protected activity and the reason assigned is a pretext is based on the entire record and the following subsidiary findings, which I hereby find as facts. The fact that I reject the defense as a pretext is not enough to sustain the General Counsel's burden of proof, for denial of a defense does not amount to affirmative evidence capable of sustaining that burden of proof. NL.R.B. v. Joseph Antell, Inc., 358 F.2d 880, 883 (C.A. 1); Guinan v. Famous Players, 167 N.E. 235, 243 (Mass.); Council of Bagel and Bialy Bakeries, 175 NLRB No. 148. a. I find that the carpenters would not let Santwer perform the labor work involved. In this respect I credit Santwer. This caused Santwer occasionally to speak to others, as he had nothing to do. But I find that in doing so Santwer was not neglecting his work, for he was prevented from working. Respondent's evidence inconsistent therewith is not credited. b. Santwer was not effectively warned that he exposed himself to the risk of discharge by talking to others when he had no work to do. Failure to warn his probative value E. Anthony Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); N.L.R.B. v. Melrose Co., 351 F 2d 693, 699 (C.A. 8); Talon, Inc., 170 NLRB No. 42, fn. 1. c. Santwer was abruptly discharged before the end of the workweek and at a time when his complaints about the work were current. Abruptness, timing, and manner of a discharge shed light as to whether a termination is not for cause and whether the asserted cause is offered as a pretext to disguise the employer's antipathy to protected activity which prompted the dismissal E. Anthony Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); Arkansas-Louisiana Gas Company, 142 NLRB 1083, 1085-1086. "The abruptness of a discharge and its timing are persuasive evidence as to moti- vation." N.L.R.B. v. Montgomery Ward & Co., Inc., 242 F.2d 497, 502 (C.A. 2), cert. denied, 355 U.S. 829. d. At no time was Santwer criticized for his work Hence it is difficult to understand why a satisfactory employee was precipitately discharged unless it is inferred-and I do so- that his protected activity, which the employer resented, prompted the discharge. In this connection it is well to bear in mind that if Santwer had been derelict in duty, his conduct had been overlooked or condoned, for Superintendent Can- ning admits he did nothing about what he considered work "below par" by Santwer. Moreover, "the continuance of em- ployment after the discovery of the claimed malfeasance was of such duration as to provide inescapable indicia of after- thought." N.L.R.B. v. Fairview Hospital, 443 F.2d 1217 (C.A. 7) decided April 28, 1971. See Evans Packing Com- pany, 190 NLRB No. 70. e. Fields told Santwer that the latter was laid off for lack of work. But admittedly two new laborers were hired within a day or two after that. Hence I find that a false reason was given to Santwer to explain his being terminated. Giving a false reason warrants the inference, which I draw, that the true reason was his activity protected by the Act. Joseph Antell, Inc. v. N.L.R.B., 358 F.2d 880, 883, (C.A. 1); Sterling Aluminum v. N.L.R.B., 391 F.2d 713, 723 (C A. 8). Further, Canning claimed Santwer was discharged because his work was "below par." Thus Canning and Fields have attrubuted different reasons for Santwer's termination. This inconsist- ency indicates that the true reason is unlawful. f. "Direct evidence of a purpose to discriminate is rarely obtained, especially as employers acquire some sophistication about the rights of their employees under the Act; but such purpose may be established by circumstantial evidence." Cor- ne Mills v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). "Nowadays it is usually a case of more subtlety." N.L.R.B. v Neuhoff Bros., 375 F.2d 372, 374 (CA. 5). 1 1 . .. the existence of valid grounds for punitive action is no defense unless such action was predicated solely on these grounds and not by a desire to discourage protected activity." N.L.R.B. v. Fairview Hos- pital, 443 F.2d 1217, decided April 28, 1971 (C.A. 3). g. Finally it is not necessary that activity protected by the Act be the only reason for Santwer's discharge in order to render it unlawful. If his discharge was inflicted substantially because of his protected activity it transgresses the Act not- withstanding that a valid ground for discipline may exist Betts Baking Co. v. N.L.R.B., 380 F.2d 199 (C.A. 10); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 885 (C.A. 1). I expressly find that Santwer's protected activity was a substantial or motivating-but not necessarily the only- reason for his discharge. N.L.R.B. v. Fibers International Corp., 439 F.2d 1311 (C A.D.C.), upon which Respondent relies, does not dictate a different result. If material, I find that protesting being deprived of over- time is protected by Section 8(a)(1) of the Act Cf. Northern Metal Company, 175 NLRB No. 145, enf. denied 440 F. 2d 881 (C.A. 3), decided April 7, 1971, Rotax Metals, Inc., 163 NLRB 72, 76-77. Nevertheless, I specifically find that Santwer was not discharged for such protest. 2. As to Santwer's loss of overtime On the record developed in this case I conclude and find that the General Counsel has failed to demonstrate by a preponderance of the evidence that Santwer was denied over- time for reasons proscribed by the Act At most, it has been shown that Santwer was not assigned to overtime work and that he objected to this treatment. But the record is bare of evidence that such loss of overtime can be traced to his com- plaining about the performance of work by carpenters which he maintained came within the jurisdiction of laborers. On this issue I find, crediting Santwer, that at all times material he did not work overtime, notwithstanding that Re- spondent's records reveal that he was paid for an hour's overtime in the week ending November 20. I find that such records do not accurately reflect th facts on this issue. Nor do I credit Canning, Respondents superintendent, that Santwer worked overtime on November 18, as I believe that his recollection, upon which he relied, is faulty on this aspect of the case, especially since Canning did not make the assign- ments of overtime. In fact Fields, the foreman of laborers who actually assigned overtime and would be in a better position to testify on this issue, failed to testify corroborating Canning. The unexplained failure to call Fields convinces me that he was unable to contradict Santwer's contention that the latter did not work overtime on November 18. Accordingly I shall recommend that this facet of the case be dismissed for want of proof. IV THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activity of Respondent set forth in section III, above, found to constitute an unfair labor practice, occurring in connection with its operations described in section I, above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to CARLSON CORPORATION labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY As Respondent has been found to have engaged in an unfair labor practice I shall recommend that it be ordered to cease and desist therefrom and that it take specific action, as set forth below, designed to effectuate the policies of the Act. In view of the finding that Respondent unlawfully dis- charged Santwer, it will be recommended that Respondent be ordered to offer him immediate and full reinstatement to his former position or, if such is not available, one which is substantially equivalent thereto, without prejudice to his se- niority and other rights and privileges. It will further be recommended that Santwer be made whole for any loss of earnings suffered by reason of his discharge. In making Santwer whole Respondent shall pay to him a sum of money equal to that which he would have earned as wages from the date he was terminated to the date of rein- statement or a proper offer of reinstatement, as the case may be, less his net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated according to the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and make available to the Board or its agents, upon reasona- ble request, all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Finally, it will be recommended that Respondent post appro- priate notices. Santwer's discharge does not reflect a general disregard or hostility to the Act, and I so find. Accordingly, I find that a broad remedial order against Respondent is not warranted. Rather, I find it will effectuate the policies of the Act to enjoin Respondent from repeating the conduct found above to be a violation of the Act and similar or like conduct Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Sec- tion 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By discharging employee Walter J. Santwer for present- ing a complaint relating to work of laborers done by carpen- ters, Respondent committed an unfair labor practice prohib- ited by Section 8(a)(1) of the Act. 4. The foregoing unfair labor practice affects commerce within the purview of Section 2(6) and (7) of the Act. 5. Respondent has not committed any other unfair labor practices alleged in the complaint Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:' 3 In the event no exceptions are filed as provided by Section 102 46 of the Board's Rules and Regulations, the findings, conclusions, recommenda- tions, and recommended Order herein shall, as provided in Section 102 48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be waived for all purposes ORDER 223 Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees, or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment, because they engage in activity having as its purpose the submission, presentation, and processing of protests relating to the assignment of work to craft alleged to be not entitled thereto. (b) In any similar or like manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaran- teed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectu- ate the policies of the Act: (a) Offer Walter J. Santwer immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent one, without prejudice to his senior- ity and other rights and privileges previously enjoyed by him, and make him whole for any loss of pay he may have suffered, with interest at the rate of 6 percent, by reason of Respond- ent's discrimination against him, as provided in the section above entitled "The Remedy." (b) Notify immediately Walter J. Santwer, if presently serv- ing in the Armed Forces of the United States, of his right to reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. (c) Preserve and, upon reasonable request, make available to the Board or its agents, for examination and copying, all payroll records and reports and all other records necessary to ascertain the amount, if any, of backpay due under the terms of this recommended Order. (d) Post at its place of business at Cochituate, Massa- chusetts, and its construction site in Billerica, Massachusetts, copies of the notice marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for Region 1, after being signed by a duly authorized representative of Respondent, shall be posted by it immediately 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 displayed. 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 1, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' IT IS ALSO ORDERED that the complaint be dismissed inso- far as it alleges violations of the Act not found herein. ' In the event 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 National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the 1mted States Court of Appeals Enforcing an Order of the National Labor Relations Board " ' In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX of pay he may have suffered by reason of his discharge, with interest thereon at the rate of 6 percent. 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 discharge employees, or otherwise dis- criminate in any manner in respect to their tenure of employment or any term or condition of employment, because they engage in activity having as its purpose the submission, presentation, and processing of protests relating to the assignment of work to craft alleged to be not entitled thereto. WE WILL NOT in any similar or like manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL offer Walter J. Santwer immediate and full reinstatement to his former position, or if such position no longer exists, to a substantially equivalent one, with- out prejudice to his seniority and other rights and privi- leges enjoyed by him, and make him whole for any loss CARLSON CORPORATION (Employer) Dated By (Representative) (Title) We will notify the above-named individual, if presently serv- ing in the Armed Forces of the United States, of the right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended. This is an official notice and must not be defaced by any- one. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.