Central Engineering and Construction Co.

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert J Horth, Donald A Horth, and Douglas R Horth, a partnership d/b/a Central Engineering and Construction Co and Edward Paul Couch and Ronald C Capps and William Muncy, Jr Cases 25-CA-4432, 25-CA-4466, and 25-CA-4530 November 29, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 13, 1972, Administrative Law Judge' Jerry B Stone issued the attached Decision in this proceeding Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent also filed exceptions and a supporting brief 2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Robert J Horth, Donald A Horth, and Douglas R. Horth, a partnership d/b/a Central Engineering and Construction Co, Indian- apolis, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order 1 The title of Trial Examiner was changed to Administrative Law Judge effective August 19 1972 2 Because in our opinion the record and the exceptions and the briefs adequately set forth the issues and positions of the parties the Respondent s request for oral argument is hereby denied TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B STONE, Trial Examiner This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on January 11, 12, 13, 14, and 15, 1972, at Indianapolis, Indiana The original charge in Case 25-CA-4432 was filed on July 19 and served on Respondent on July 21, 1971 The original charge in Case 25-CA-4466 was filed on August 5 and served on Respondent on August 5, 1971 The original charge in Case 25-CA-4530 was filed on September 14 and served on Respondent on September 16, 1971 Cases 25-CA-4432 and 4466 were consolidated on September 30, 1971 A consolidated complaint for these Cases was issued on September 30, 1971 Thereafter on October 29, 1971, Cases 25-CA-4432, 4466, and 4530 were consolidated On October 29, 1971, a complaint was issued with respect to Case 25-CA-4530 The issues essentially concern allegations of (1) unlawful interrogation and threats in violation of Section 8(a)(1) of the Act , (2) several layoffs of employees in violation of Section 8(a)(3) and (1) of the Act, and (3) several layoffs and terminations of employees in violation of Section 8(a)(3) and (1) of the Act All parties were afforded full opportunity to participate in the proceeding Oral argument was made by the Respondent at the hearing and has been considered Bnefs have been filed by the General Counsel and Respondent and have been considered Upon the entire record in the case and from my observation of witnesses, I hereby make the following FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Robert J Horth, Donald A Horth , and Douglas R Horth are, and have been at all times material herein, partners doing business under the trade name and style of Central Engineering and Construction Co Respondent is now, and has been at all times material herein, a partnership with its place of business at Indianapolis, Indiana It is engaged in the business of construction During a representative 12-month period , Respondent, in the course and conduct of its business operations, purchased, transferred, and delivered to its Indiana jobsites, 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 a representative 12-month period , Respondent, in the course and conduct of its business operations, performed services valued in excess of $50,000 in States other than Indiana wherein Respondent is located Annually, Respondent, in the course and conduct of its business operations, furnished services valued in excess of $50,000 which had a substantial impact on the national defense Based on the foregoing, and as conceded by Respondent, Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act It is so concluded and found II THE LABOR ORGANIZATION INVOLVED Local 716, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein referred to as Teamsters Union), and Local 274 and Local 204, Laborers' International Union of North America, AFL-CIO (herein referred to individually and collectively as Laborers Union), each is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act 200 NLRB No 71 CENTRAL ENGINEERING & CONSTRUCTION CO 559 III THE UNFAIR LABOR PRACTICES A Preliminary Issues Supervisory Status At all times material herein, the following named persons occupied positions set opposite their respective names, and have been and are now agents of the Respondent, acting on its behalf, and are supervisors within the meaning of Section 2(11) of the Act Robert J Horth-partner Donald A Horth-partner Douglas R Horth-partner George H Jones-foreman Bobby Swafford-foreman Howard Sizemore-foreman B Background The Respondent, Central Engineering and Construction Co , is a general partnership owned and operated by three brothers (Donald Horth, Robert Horth, and Douglas Horth) The enterprise was founded in 1934 by the father of the aforesaid brothers and has been operated since World War II by these three brothers It appears that union organizational efforts among Respondent's employees occurred in the late 1930's From that time to date Respondent has had collective -bargaining relationships and contracts with various unions, including the Laborers, Teamsters, and Operating Engineers From the late 1930's to 1970, the facts are clear that the Respondent has a clean record as regards questions of unfair labor practices, attitude toward unionism, and handling of grievances Union business agents, during such time, regularly visited jobsites and from time to time raised various issues Most of these issues were resolved informal- ly In sum, the evidence reveals that prior to mid- 1970, Respondent had an exemplary record with respect to its handling of labor relations Family Relationship of Employees and Supervisors The issue in this case concerns Respondent's conduct directed toward employees William Muncy, Edward P Couch, Ronald Capps, and James Gray Many of the supervisors and employees involved in the incidents in this proceeding are related (by blood or marriage) or have close family ties Thus Foreman Howard Sizemore, Ricky Sizemore, William Muncy, Ferns Couch, and Edward P Couch all appear to have some degree of relationship, one to the other Foreman George Jones, supervisor of Capps and Gray, has on his work crew a son, Roy Jones C Events Concerning Muncy The General Counsel contends that (1) Respondent, by Supervisor Howard Sizemore, on or about April 9, 1971, threatened its employees with physical violence and other unspecified reprisals for filing charges and giving testimo- ny to the Board, (2) Respondent, on or about April 15 and 16, 1971, discriminated against William Muncy, Jr, in regard to hire or tenure of employment, by refusing to permit said employee to start work upon his arrival, and (3) Respondent did discharge or lay off and failed and refused and has continued to fail and refuse to rt call or reinstate Muncy because he had filed charges with the Board, engaged in union activity, engaged in protected concerted activity, and because Respondent believed he had done so William Muncy, Jr, commenced working for Respon- dent as a laborer in mid-1970 His foreman was Howard Sizemore, his uncle (by marriage) Thereafter and until around the first of December 1970, it may be said that Muncy complained to his uncle and to the Laborers Union on a number of occasions that he was not being paid correctly according to the collective- bargaining agreement The problem seems to have been engendered by the fact that Respondent employs employ- ees for work on sanitary sewers and storm sewers The collective-bargaining agreements provide for different wage rates for employees, depending upon whether the work involved is sanitary sewers or storm sewers It appears that it is difficult to know which work is being performed by mere observation of the work As to whether Muncy was correct or not in his complaint, it may be said that the facts are insufficient for such a determination Further, if the facts submitted were to be sufficient to warrant a determination that Muncy was correct in his complaint, the facts are still insufficient to warrant a determination that Respondent had madt such improper determination of wage rates other than by simple mistake The Laborers Union's representative investigated Mun- cy's complaints about his wage rates and contacted the Respondent, and it was determined that Muncy was being paid according to the correct wage rates As indicated, Muncy made a number of complaints to his foreman and to the Union during the period of mid- 1970 to December 1970 about receiving an improper wage rate for his work After disposition of his second complaint around mid-1970, Foreman Howard Sizemore spoke to Muncy, told Muncy that he could call the union business agent if he had cause, but that he (Sizemore) didn't have time to spend with him if he didn't have a cause Foreman Sizemore told Muncy in effect that if he had the Union out on the job again without cause that he would have to let him go i As the facts otherwise reveal, Muncy had the Union out on the job on other complaints in 1970 The facts reveal, excepting for the December layoff, that Muncy was not laid off or discharged on such occasions Around the same time, Foreman Howard Sizemore spoke to employee Edward P Couch, at Couch's home, about Muncy As previously noted, Sizemore, Couch, and Muncy are all related by blood or marriage Couch's testimony as to what occurred is piecemeal in nature Considering the logical consistency of all the evidence, I am not persuaded that it reveals the facts completely I The facts are based on a composite of the credited aspects of the their conclusion of what had occurred and that each testified to the fact, in testimony of both Muncy and Sizemore The testimony of both witnesses a light favorable to himself The testimony of each witness to facts was presented in a piecemeal fashion I am persuaded that both testified to contradictory of the facts found is discredited 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, I am persuaded that Sizemore spoke of the fact that he considered that Muncy was making complaints which were without cause I credit Couch's testimony to the effect that as part of the conversation Foreman Howard Sizemore stated that "If Muncy had union men out on the job one more time he'd have to let him go " I am persuaded that this was in the context of other statements about Muncy making uncalled-for complaints and was intended to convey that Muncy would be laid off if Muncy made other uncalled-for complaints 2 Sometime in the fall of 1970, Muncy worked on a holiday According to the collective-bargaining agreement involved, this holiday work entitled him to premium pay for such work Respondent did not pay Muncy for such work at the premium rate It appears that Muncy complained to Foreman Sizemore about this matter It also appears that Foreman Sizemore expressed the position that the day involved was not a holiday under the contract Muncy contacted the Laborers Union 3 The Union thereafter settled this grievance with the Respondent with the result that Muncy was ultimately paid for the holiday at the contract premium rate After the union representative, around December 1, 1970, told Foreman Sizemore that Muncy (and apparently others) was entitled to holiday pay for the particular day's work On the same day Foreman Sizemore and Muncy had an argument In the conversation Foreman Sizemore told Muncy that he was a "troublemaker " Following the foregoing, the Respondent, on the same day, laid Muncy off from work Muncy was on layoff status from this date until March 26, 1971 After his layoff in December 1970, Muncy filed, on December 4, 1970, an unfair labor practice charge concerning his layoff This unfair labor practice charge was settled by Respondent on February 8, 1971 Muncy filed another charge on March 15, 1971 This charge was dismissed on April 30, 1971 Muncy testified to the effect that he filed the second unfair labor practice charge on March 15, 1971, because the rest of the crew had been returned to work after the settlement of the first charge and he hadn't been returned to work The record is silent as to whether Respondent, on December 1, 1970, or thereabout, laid off Muncy only or whether others on the crew were also laid off Muncy's testimony about the "rest of the crew" being returned to work suggests that he was not the only one laid off around the time In sum, the totality of the facts relating to Muncy's layoff on December 1, 1970, does not reveal a basis for inference that the layoff was discriminatorily motivated Muncy returned to work during the last part of March 1971 Muncy testified to the effect that he was late and that Foreman Sizemore required him to wait the rest of the half hour before starting to work Muncy in his testimony did not indicate how many minutes he was late Foreman 2 Couch testified that Foreman Sizemore also suggested that Don (Horth) had told him if he had the union men out there one more time to get rid of him Considering Couch s total testimony on this point I am persuaded that Couch s testimony is an interpretation of what he believed was said concerning Horth s alleged remarks and not what was said I therefore do not credit Couch s testimony to the effect that Sizemore related that Horth had in effect told him to get rid of Muncy if he had the Union Sizemore testified in effect that Muncy reported to work half an hour late and was immediately put to work As indicated later, there is a contention that Respondent on another date discriminated against Muncy by not allowing him to go to work when he and Couch were late and Couch was allowed to start work immediately In reference to this issue Muncy testified to the effect that he knew of an occasion in the summer of 1971 when a temporary replacement to employee James Turner, Jr, reported to work late around 15 minutes in the morning and afternoon of a Friday and was allowed to start work immediately 4 It is sufficient to say that the evidence as to Respondent's handling of latenesses is not sufficient to reveal that Respondent's actions with regard to Muncy as to lateness is discriminatory in nature Further, noting Muncy's testimony as to the number of minutes he was late on other occasions , I am persuaded that Foreman Sizemore's testimony is more correct as to the incident in late March, and I credit his testimony as to this incident over Muncy's I am persuaded that Muncy was either 30 minutes late or so close thereto that it would make no practical difference Events-Circa April 9 As indicated, the General Counsel contends in effect that Foreman Howard Sizemore threatened Muncy on April 9, 1971, because he filed charges with the National Labor Relations Board Witnesses Muncy, Couch, Turner , and Sizemore testified with reference to the events circa April 9, 1971 An examination of the exhibit relating to payroll records and the events concerning Muncy and Couch being late reveals such event to have occurred on April 20 and 21 Muncy testified to the effect that the event of the "threat" occurred about 2 weeks before the event of his and Couch's being late to work I find as a fact that the event of the "threat" occurred circa April 9 Around April 9, 1971, Muncy was at work He apparently was handling pipe which was being placed in a ditch Foreman Howard Sizemore came to the place where Muncy was working Sizemore and Muncy commenced a conversation Muncy asked Sizemore about the next job that the crew would be doing Sizemore told Muncy that they would finish the sanitary sewer work first and then start doing storm sewer work Muncy stated that he didn't like receiving the lower rate (for storm sewer) for the work, that he did not want to catch the truckdriver doing any work, and that if the truckdriver worked he would call the union business agent out Foreman Sizemore told Muncy to go right ahead and call the business agent and they would try to get this thing straightened out Foreman Sizemore told Muncy that he guessed that Muncy knew the contract pretty good Muncy replied in effect that he knew it fairly well Foreman Sizemore told Muncy that the only out one more time Considering the facts are whole I do not believe that North issued such instructions or that Sizemore had told Couch that such had been done 3 The two collective bargaining agreements relating to sewer and sanitary work differed as to the specific holidays 4 Apparently referring to employee Simms who worked in July 1971 CENTRAL ENGINEERING & CONSTRUCTION CO thing he knew about was getting into trouble, that he had lied on him (Sizemore) Muncy asked Sizemore in effect if he meant that he had lied on him when he went to the Board Sizemore replied in effect that this was what he was talking about What occurred at this puncture is best revealed from the following credited excerpts of Muncy's testimony 5 A Howard Sizemore and I said "are you meaning when I went to the Labor Board" and he said "yes," and I said, "no, I didn't lie You lied," and when he said that, I said "no," or rather I told him, I said "I didn't lie on you You're the one that was Tieing" and he started to swing back and I took it that he was going to hit me with his hand back, so he told me at the time "you call me again and I'll knock your ass off " Those were the words he used And when he said that, well one of the men standing by backed off and he thought we were going to fight so I told him, I said, "well I call it like I see it and that's the only way I see it" and then he told me again, we changed positions again, he was on the other side of me again and he told me again, he said, "if we were off the job and wasn't working on working hours I'd knock your ass off " That's what he said again, and I said "the day you hit me will be the day you die " Later that day the argument renewed What occurred is revealed by the following credited excerpts from the testimony of James Turner, Jr Q Tell us now right there when you were closing up the trailer, what did they say to one another, as near as you can remember? A As near as I can remember, Bill went up to Howard and was talking to him about, you know, who had lied earlier in the year and calling each other liars and Howard didn't like his being called a liar too much, you know They almost got into a fight over it and, well, there wasn't too much said He just said, "Howard, I am not scared of you You'd better go on ahead home " So, Howard went on back to his truck and got in his truck and then he drove off and we were sitting there, you know and he came over to us and was talking to us As indicated, the General Counsel contends that Respondent, by Foreman Howard Sizemore, threatened employees with physical violence and other unspecified reprisals for filing charges and giving testimony to the Board Considering the event in totality, I am persuaded that the "threat" by Sizemore was directed to Muncy's accusation that Sizemore had lied In total context the threat was not directed to the fact that Muncy had filed charges or given testimony In sum, the occurrence was a simple argument over who lied and reflected a threat to Muncy for stating that Sizemore had lied Accordingly, it will be recommended that the 8(a)(1) allegation as to threats relating to the filing of a charge or giving testimony be dismissed 5 Considering the totality of the evidence and logical consistency thereof I find the facts as indicated and discredit the testimony of witnesses to a Events of April 20 and 21, 1971 561 The General Counsel alleged in effect that Respondent discriminated against William Muncy, Jr, on April 15 or 16 in regard to hire or tenure of employment by refusing to permit said employee to start work upon his arrival A consideration of the testimony and employment records reveals that the event in question occurred on April 21, 1971 Muncy was 12 minutes late when he reported to work on April 20, 1971 Foreman Howard Sizemore required Muncy to wait until the end of the half hour period before going to work As previously indicated, considering all of the facts, such requirement does not rt veal an act of discrimination by Respondent The facts reveal that employee Ferris Couch was sick and absent from work on April 20 As the facts have previously shown, Foreman Howard Sizemore, Fel ns Couch, and William Muncy , Jr, are all related by blood or marriage Later that morning, Foreman Howard Sizemore and William Muncy, Jr, had a conversation about Fel ns Couch as is revealed by the following credited excerpts from Muncy's testimony A So I waited and he told me on that date, about 10 00 o'clock he told me to tell Ferns Couch, that's the one that was in bed sick , that he wouldn't have any work for him the next day and I asked him at that time, I said, "you mean we are not working tomorrow," and he said, "no, we're working, but we don't have any work for Ferns because when a man takes off from work for one day we are going to make him take off another day" and I told him then, I said its not my job to tell Ferns that he's laid off The next morning Muncy and Couch reported to work late The facts are revealed by the following credited excerpts from Muncy's testimony A Well, Ferns had car trouble and I had to go get him and we got there approximately seven minutes late and when we got there, Don Horth met us as we got out of the car and he came up to us and he said, "okay, what's it going to be, are we going to work here or not?" He held out a pocket watch and he said, "what time is its Just tell me what time it is, look at that and tell me what time it is9 Do you boys want to work here" and I looked at him and told him what time his wal ch said The watch said about 22 minutes to 8 00 Then he was talking kind of loud and I told him , "now before we get started don't you go cussing and talking loud at me," and he said, "well I am not cursing I'm just showing you the time" and I said, "you're talking, a little loud Now lower your voice and talk to me like I'm a man" and he did, and we went on over to the job site where they were getting ready to lay pipe and Ferns asked Howard if he wanted him to go ahead and go to work and he said "yes," and I asked him if he wanted me to go ahead and go to work and he said, "no, you wait for the half hour " contrary effect 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A Yes, he permitted Ferns Couch to go to work and told me to wait until the half hour was over and I was standing by the truck and Don Horth said, "are you going to go to work or not," and I told him at the time "well Howard told me to wait for the half hour " So, Howard took me on up to where there was a manhole and had me beat out a manhole and left at that time Then he came back and then Ferns came out of the ditch and started talking to him and I was up there beating out a manhole and Don Horth was standing by the truck and we were talking and Don Horth came up and talked to me What occurred then is revealed by the following credited excerpts of Ferris Couch's testimony A Yes Then Don left and after awhile he came back and at that time I got out of the ditch and I went up and asked Don Horth, "do you think that was the right way to talk to me," for being late six or seven minutes after working for him for 14 or 15 years, and he apologized for saying it and he said he was just mad and I said "don't talk to me that way anymore" and he ,said he was mad, and I said "all right, forget it," and I walked back over and went to work Donald Horth then walked over to where Muncy was What occurred is revealed by the following credited excerpts from Muncy's testimony A I wasn't talking in the conversation when they were standing by the truck Ferris Couch, Sizemore and Don Horth as far as I know, were in the conversation and Don Horth came up to me and he apologized to me for getting on to me that morning and he said everybody gets mad and loses their head sometimes, at one time or another, and at that time I brought it up to him that that was the second time that Howard Sizemore discriminated against me and I asked him whether that was discrimination or not- I guess everybody gets a little mad once or twice, and I brought it to his attention about Howard Sizemore, the way he discriminated against me, about making me wait to go to work and letting Ferris Couch go ahead and go to work and he said, "don't worry about it, you are not going to be docked any time on it" and I said, "that's not the issue, the point is, how he treated me " I said its not fair for him to do like that and to my recollection he never did anything about it because as far as I know nothing was done about it During this conversation Muncy related to Horth the early April threat incident as is revealed by the following credited excerpts of Muncy's testimony 6 THE WITNESS Well, he came up to me, like I said, and apologized for blowing his stack that morning and he said I guess everybody gets a little mad once or twice, and I brought it to his attention about Howard Sizemore, the way he discriminated against me, about making me wait to go to work Considering the foregoing facts and all of the facts in the case, I am persuaded that the General Counsel has not 6 Muncy s testimony on this point appeared confused as to the time sequence of when he so related the incident Considering the logical consistency of the facts I place the timing as indicated established that Respondent engaged in unlawful discrimi- natory acts against Muncy on April 21, 1971 Thus the facts reveal that, irrespective of his protected concerted activities, Muncy was a difficult employee to handle He refused to cooperate with his uncle, Foreman Howard Sizemore, in telling Ferns Couch not to report to work on April 21 He challenged Partner Donald Horth as to his tone of voice and conduct when the lateness issue arose on April 21, 1971 The disparate treatment accorded Muncy as compared to Couch in allowing Couch to immediately go to work appears logically to be a realistic reprisal for his lack of cooperation in refusing to tell Couch to remain away from work for that day Further, Partner Donald Horth took every step that a reasonable Respondent could be expected to take in solving an on-the-job problem Muncy was not docked for the time he was late on April 21, 1971 Horth clearly revealed that it was Respondent's position that past problems had been solved In sum, I find that the General Counsel has not established that Respon- dent engaged in discriminatory acts against Muncy as alleged on April 15 or 16, 1971 There was testimony presented by witnesses Muncy, Sizemore, Horth, and Gilbert relating to complaint and grievances engendered by Muncy pertaining to the wage rates for storm and sanitary sewers and to truckdrivers doing laborers' work The testimony of the witnesses may be said to have expressed the timing of such events in a general and imprecise manner excepting for the details concerning the meetings of union representatives and company representatives on or about April 26, 1971 Considering all of the testimony and the logical consistency of all the facts, it appears that the following summation of complaints and grievances is proper Muncy consistently throughout his employment complained to Foreman Howard Sizemore and union officials at various times about the wage rates on jobs, that when paid storm sewer wage rates, he should be paid sanitary sewer wage rates It also appears that prior to circa April 9, Muncy complained to Foreman Howard Sizemore that truckdnver Couch was doing laborers' work It appears that, around April 19, 1971, Muncy complained about truckdriver Couch's doing laborers' work to Foreman Howard Size- more It appears that Muncy complained to the Union around this time about the wage rates and also about truckdriver Couch's engaging in laborers' work It appears that 2 or 3 days later, apparently around April 22,7 Umon Represent- ative Turner appeared on the job and discussed the questions of wage rates and of a truckdriver doing laborers' work with Foreman Howard Sizemore and Muncy Umon Representative Turner indicated to Foreman Sizemore that he was not up on the contract but would have Union Representative Gilbert check into this matter Union Representative Turner on this occasion also spoke about truckdnver Couch's performing laborers' work as is revealed by the following credited excerpt of Muncy's testimony A Well, like I said, I had him out there because of 7 If the union representative had appeared on the job on April 20 or 21 I am persuaded that specific testimony would have tied it in to the events of those days CENTRAL ENGINEERING & CONSTRUCTION CO the truck driver doing laborer's work and he told Howard Sizemore the truck driver wasn't supposed to be doing laborer's work and I went over and talked to him and Howard came over and he looked at me and told me to look at Couch and then he asked me, "what have you got against that boy?" He said "if he can't do laborer's work around here I can't afford to pay him for coming here and not doing anything, just doing truck driver's work If he can't do laborer's work I'll have to lay him off " Foreman Howard Sizemore reported to Partner Don Horth that Muncy was complaining about truckdriver Couch's performing laborers' work Partner Don Horth decided to transfer Couch to another crew, and Couch was transferred to Foreman Swafford's crew on April 26, 1971 On April 26, 1971, Union Representative Gilbert went to the Respondent's place of business and discussed the contract and wage rates The Respondent explained its position as to the different types of work, and the matter seems to have been resolved without any conclusion that Muncy was entitled to higher rates of pay for work performed The Union also appears to have decided to appoint a steward on the job at this time The Union appointed Ferris Couch to be its steward It is clear that the Union appointed a steward at this time so as to ease its plight in handling the contentions of grievances by Muncy The facts reveal that Muncy worked from March 26 to August 20, 1971, without any events of significance excepting those previously set forth I find it proper, however, to make notation about the evidence and testimony relating to (1) complaints and grievances and (2) the type of work performed by Muncy As indicated previously, the evidence relating to the number of Muncy's complaints and grievances was presented in a somewhat general and imprecise manner Muncy testified to the effect that he complained some seven or nine times about the wage rate problem It is clear that some of these complaints occurred in 1970 and some prior to April 26, 1971 It is not clear whether Muncy made any complaints about wage rates after April 26, 1971 The facts also reveal that other complaints were made by other employees to the Union about contract problems At the hearing the General Counsel adduced testimony through Muncy which appeared to be directed toward establishing that Foreman Sizemore assigned more harsh work assignments to Muncy after the circa April 9, 1971, argument between Sizemore and Muncy Muncy ultimate- ly appeared to be testifying that such type assignments occurred in 1970 after he had started calling the Union As indicated, much of the testimony and evidence in this case was presented in a general and imprecise manner Muncy's testimony revealed that he started working for Respondent in either June or July 1970, that at some point of time in 1970 he made complaints about wage rates, that when he first started work, two men were normally assigned to "busting out" manholes, that during the period of time he worked he busted out some 40 to 50 manholes, that after the circa April 9 argument he busted out approximately 10 manholes, and that there was a safety rule requiring two men working when one was finishing cement in the bottom of the manholes after placement in the ground Donald 563 Horth's credited testimony reveals that the manholes are precast and "busted" out above ground, that two men normally work in the manholes when one is finishing cement in the bottom of the manholes, that 40 or 45 manholes were busted out between May 1971 and August 20, 1971 , and that there were four men who did this type of work In sum, the evidence does not establish that Muricy received more harsh assignments of work The critical question would appear to be a comparison of Munc y's work assignments during the time involved The facts indicate that Muncy "busted out" approximaTely 10 manholes during an approximately 4-month period and that most of these he worked on by himself This would not appear to be greatly significant It is also noted that the General Counsel's evidence as to what Muncy observed about work that normally was done when he first began work does not reveal the working circumstances at the time or whether the period of time itself was a normal period Thus, the General Counsel 's evidence does not reveal what assignments were made to other employees during the period of time involved or whether other employees were also required to "bust out" manholes by themselves In sum, the evidence is not sufficient to establish that Respondent made more harsh work assignments to Muncy Muncy did not work during the period of time from August 20 to September 7, 1971 It appears that on or around August 20 Muncy had a fight with David Sizemore, that David Sizemore is Foreman Howard Sizemore's brother, that Muncy received cuts in the fight, and that Muncy was away from work during the period of time from August 20 to September 7, 1971, because of such injuries It also appears that Muncy had a second fight during the same period of time Muncy appeared on September 7, 19711, before work- time, at the Respondent's jobsite where the crew he normally worked with was working Foreman Howard Sizemore noticed his presence What occurred is revealed by the following excerpts of Howard Sizemore's testimony A Well, he was sitting there on the job and Don Horth drove up dust before work time and I told him, I said, "Muncy is back to work " I said "Ire is here What do you want to do with him" and he said, "well, we haven't got anything In fact, I am going to have to lay all of them off later this week We have run out of work" and he said, "do you want me to tell him" and I said, "yes, I would rather you tell him" because I felt maybe he might be mad at me A Don walked up to the truck where he was and just told him he didn't have anything for him He was going to have to lay the whole gang off later that week He didn't have any work * A Well, Muncy wanted to know if the rest of the men were going to work and he said, ` yes, they were going to work the rest of the week We haven't got anything to speak of but" he said, "they are going to 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work " So, as far as I was concerned, that was all that was said Since a part of General Counsel's case concerns contentions about seniority, I note that the facts reveal that employees James Turner, Jr and Ricky Sizemore were hired as employees after Muncy was hired, that they worked during the week after September 7, that Ricky Sizemore was employed on occasion thereafter on other jobs, that there were employees on the same crew who had been hired by Respondent before the hiring of Muncy, that such employees were not employed for work on the subsequent occasions that Ricky Sizemore was used, and that Ricky Sizemore is the son of Howard Sizemore Further with respect to the question of seniority, I find it proper to note the following The collective-bargaining agreements between Respondent and labor organizations in the record reveal that these are seniority provisions in the Teamsters contract but not in the Laborers contract There is some testimony in the record as to whether certain individuals were hired before or after other individuals There are also exhibits in the record revealing the dates of employment of named employees during April through December 1971 There is also some testimony in the record as to when several individuals were hired in 1970 The General Counsel introduced an exhibit relating to payroll records from April through December 1971, and a listing of jobs engaged in by Respondent The General Counsel adduced testimony to the effect that certain data on the payroll exhibits, when considered with the job listing exhibit, would reveal the jobs on which employees worked at various times Further, the General Counsel adduced testimony that certain numerical data would reveal individual foreman and gangs It suffices to say that these exhibits, in and of themselves when considered with such testimony, reveal that the first name on the list can be ascertained as a foreman The facts reveal that the same number is assigned to one or more foremen Thus, without other specific evidence, the data, in and of itself would not reveal precisely the names of employees working under a named foreman or who the other foremen are The General Counsel also adduced testimony to the effect that the hourly rate data in such payroll exhibit would reveal whether or not the individual employee was a Teamster or a Laborer Thus this would follow because knowledge of the collective-bargaining agreement pay rates would result in such deduction I am persuaded that witness Douglas Horth testified to what he truthfully believed I also am persuaded that he or others with his knowledge could make reasonably accurate determination as indicated However, I note that the collective-bargaining agreements contain some wage scales that are similar for Teamsters and Laborers The data, in and of itself, will not reveal whether or not many of the employees are Teamsters or Laborers Further, I note that with proper testimony or other facts, data might indicate a pattern of seniority or lack thereof during April through December 1971 There is no testimony as to specific layoffs in 1971 excepting for one in June and the other in December 1971 The General Counsel was adverted to this problem as he presented his evidence and indicated that he knew precisely what the records showed Further, the parties were adverted to point out specifically in their briefs what was the persuasive evidence in the large number of exhibits, and that if they did not do so, they would not be considered The briefs submitted do not touch the above point Further with respect to the question of semonty, it may be noted that there was evidence as to several Teamsters employees and their hiring dates or membership in the Teamsters as compared to Couch The General Counsel also adduced testimony through several employee witness- es as to what occurred at times of layoff The testimony was of such a nature that it may not be said to have been directed to any specific layoff in time I am persuaded that such testimony at most reflects such employees' conclusion that on the occasions they remembered that younger employees (in terms of hiring dates) were laid off and that older employees were retained or moved to other crews The Respondent's witnesses testified to the effect that, as to Laborers, seniority was not a controlling factor in layoffs or retentions, that if they kept employees at times of layoff, they kept the best employees or transferred them to other crews, and that if ability of employees were equal, seniority was considered The General Counsel by cross- examination of Respondent's witness attempted to show that in 1970 Respondent utilized seniority as a basis in the December 1970 layoff of Muncy Thus, Respondent's witnesses, Foreman Howard Sizemore and Partner Donald Horth had given affidavits in early 1971 to the effect that Horth had told Sizemore to lay off Muncy because he was the youngest one Witness Donald Horth testified to the effect that he knew who the best man was at the time Considering the totality of the evidence, I am persuaded that testimony of Respondent's witnesses to the effect that seniority was not the controlling factor in layoffs or retentions is more credible than testimony of General Counsel's witnesses as to the manner of layoffs I credit testimony of Respondent's witnesses relating to the practice and factors concerning layoffs and retention I note that in September 1971, Ricky Sizemore was retained and employed further despite less seniority than Ferns Couch In sum, I would further note that General Counsel's evidence relating to documentary data is not sufficiently correlated with other evidence as to reveal the seniority of most of Respondent's employees Thus, it has little value in attempting to find any pattern of seniority practice Conclusion The General Counsel contends in effect that Respondent discharged or laid off Muncy on September 7, 1971, for discriminatory reasons because he filed grievances and because he had filed charges with the Board Considering all of the foregoing and all of the facts in the case, I am persuaded that the facts are insufficient to make such finding The facts reveal that (1) Muncy had instituted many contract grievances and had filed charges with the Board, (2) Respondent considered Muncy to be a trouble- maker, and (3) Respondent had not discriminated against Muncy prior to the event in question, and the facts indicate that Respondent discriminatorily considered Capps and CENTRAL ENGINEERING & CONSTRUCTION CO Gray for reemployment after they filed charges with the Board In total context, however, Respondent appears to have attempted to solve many problems of friction without discrimination although circumstances seem to support a possible reason to cause discriminatory consideration The facts reveal that Respondent did not consider seniority as a controlling factor and that as to the September layoff did not follow seniority as to the layoff of other employees Since Respondent contemplated an almost immediate layoff of Muncy's crew during the week of September 7, I find it very reasonable that Muncy, who had been away from work since August 20, was not put back to work on September 7, 1971 Accordingly, I conclude and find that Respondent did not discharge or lay off Muncy on September 7, 1971, in violation of Section 8(a)(1), (3), and (4) of the Act 8 D Events Concerning Edward P Couch Edward P Couch was hired as a truckdriver by Respondent in September 1970 After being employed, Couch became a member of the Teamsters Union during September 1970 During 1970 and until around April 26, 1971, employee Muncy complained about Respondent's use of Couch, a teamster truckdriver, in laboring work As a solution to this problem, Respondent transferred Couch from Foreman Howard Sizemore's crew to Foreman Bobby Swafford's crew on or about April 26, 1971 Nothing unusual concerning Respondent and Couch seems to have occurred until the occasion of his going home ill one day and a following day layoff The testimony and evidence relating to these events and a subsequent grievance filed by Couch is contradictory In my opinion some of the witnesses are confused as to the facts and, as a result thereof, counsel appear to have been confused by the facts Edward Couch testified to the effect that the day of illness, the layoff of the next day, and the filing of his grievance occurred on May 27 and 28, 1971 Partner Donald Horth testified to the effect that the day of illness and the next-day layoff occurred on May 20 and 21, 1971 The grievance that was filed was not dated Teamsters Representative Dempsey testified to the effect that he dated the grievance June 1, 1971 Records relating to employee pay reveals that Couch was paid for 1 hour's work on May 20, for 0 hours on May 21, for 8 hours on May 27, and for 8 hours on May 28, 1971 Foreman Swafford's testimony was to the effect that he received the grievance on a Friday, the day after the 1-day layoff Couch's testimony reveals that the second layoff involved occurred in June when most of the crew was laid off and that this was the first layoff of the kind he had been involved in The undated grievance, among other things, referred to a claim for all days worked by any teamster with less seniority than he had Considering all of the foregoing and logical consistency of the evidence, I am persuaded that the day of illness was on May 20, the day of layoff was on May 21, and the grievance was filed on June 4, 1971 I am persuaded that the union representative 8 Since Respondents motivation was not affected by Muncy s threats stated to other persons as regards contemplated action against Foreman Howard Sizemore I find it unnecessary to consider such regarding the 565 belatedly dated the grievance incorrectly, and inadvertent- ly incorrectly thought that the day of layoff occurred on May 28, 1971 Considering all of the foregoing, the testimony of Donald Horth which appeared more logical and consistent than the testimony of other witnesses in points involved, the credited aspects of the testimony of all the witnesses, and the logical consistency of all of the facts, I find the facts as follows On the evening of May 19, 1971, Partner Donald Horth telephoned Foreman Swafford and instructed him to have Edward Couch take his truck and transport equipment and a number of men to a street-tarringJob On the morning of May 20, 1971, Couch did not report to work on time Foreman Swafford telephoned Couch and told him in effect that he needed him and his truck for the above job Foreman Swafford also reported to someone in the shop that Couch was not at work and that the y would have to make other arrangements Partner Donald Horth, around this time, spoke to someone in the shop over the radio and was advised that Couch had sent word in that he had some business to take care of and wouldn't be in Horth told the shop foreman to send someone else out with a truck to get the equipment and men to the street-tarring Job Couch reported to work about 1 hour late 9 Couch told Foreman Swafford that he was ill and inquired if he could be spared from work Foreman Swafford told Couch that he could spare him, and Couch went home Later that morning, Partner Donald Hoi th told Foreman Swafford to tell Couch in effect that ]Respondent had business to take care of and for him to take another day off to take care of his business so that Respondent would not have him missing another day when he was needed Around 1 30 p in, Foreman Swafford telephoned Couch and told him that he could come pick up his check 10 Couch told Swafford that he would Swab ford told Couch that Partner Donald Horth had said to give him the next day off for going home that day Couch went in and picked up his check It appears that during the week ending May 28, 1971, Couch complained to Foreman Swafford that he should have received "show-up time" for May 20, 1971 Swafford reported this complaint to Partner Donald Horth as is revealed by the following credited excerpts of Horth's testimony A That was the total of that conversation with Bobby and then he was off on the next Monday and Tuesday and Bobby approached me and said that Paul had said something about 2, 4 and 8 So I called Paul over and we talked and he told me there was a 2, 4 and 8 deal in the contract and I said, "well, I thought there was an inclement weather clause also" but I would check and I said , "it really doesn't make too much difference how much hours a day you are driving a truck, oh, one or two, I guess, you i eally should be working under a laborer's agreement with all the time you are spending laboring" and he didn't say any more Oh, yes, he did He said, "well, do you want me to quit" and I said, "no Let's Just do our Job and go on about it issues in this case 9 Reporting time was 7 a in 10 The day was the normal payday for Couch 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and I'll check this out" and I believe we got that straightened out During the next week, Couch and certain other employ- ees were laid off There is a dispute as to whether the layoff occurred on June 2 or 3 Couch's testimony is to the effect that he was laid off on Wednesday, June 2 Foreman Swafford testified to the effect that Couch and others were laid off on Wednesday, June 3 The records relating to pay for employees reveal in effect that Thursday, June 3, was the last day worked by Couch and a number of other employees on Foreman Swafford's gang during this period I am persuaded and find that the day of Couch's layoff during this week was June 3 I discredit Couch's testimony to the contrary effect As indicated, Couch was laid off on June 3 and was not returned to work until July 22, 1971 As indicated, there is a dispute as to when Couch filed a grievance concerning showup time and a 1-day layoff in May 1971 I am persuaded from all of the facts that the grievance filed by Couch concerning the showup time and a 1-day layoff in May and other grievances was filed on June 4, 1971 The undated grievance as to the foregoing reflects that Couch contended I was laid off my job because I asked for wages that are listed in Act VIII The foregoing refers to a question of showup time There is no testimony or evidence to reveal that Couch complained on May 20 (or as he contends on May 27) about showup time The facts reveal that he did complain during the week of May 28 about showup time for May 20 This occurred after the day layoff on May 21 It follows that his contention as to an improper layoff could not be about the 1-day layoff It follows from a logical consistency of the facts that his complaint was that the June 3 layoff was in retribution for his complaints during the week of May 28, 1971, about showup time on May 20 Further, it is noted that the undated grievance claims pay "for all days worked by any Teamster with less seniority than me " It is clear from the total facts in this case that this complaint had to have reference to days worked after June 3, 1971, by other Teamsters The aforesaid grievance was processed by the Union and Respondent On June 9, 1971, the parties resolved the grievance by agreement to pay Couch (1) showup time for the day he was sent home (May 20) and (2) wages for the day of layoff (May 21) 11 The parties discussed slightly the question of the June layoff It appears that the Union was satisfied that this was a normal and temporary layoff 12 Later on June 19, 1971, Couch filed another grievance In this grievance Couch complained and asked for (1) his job back, and (2) pay for all time lost due to the layoff of June 2, 1971 Couch also contended in his grievance that certain laborers were performing Teamsters work The Union investigated and processed this grievance On August 5, 1971, Teamsters Representative Dempsey conferred with Respondent and later reported to Couch in effect that there was no merit to the grievance Couch, thereupon, withdrew his grievance 11 The date 5/28/71 concerning the layoff date was written in the grievance at a later date As indicated the facts reveal this date to be incorrect 12 As to most of the issues in this case testimony from all witnesses was piecemeal general, and imprecise The facts are determined upon the Part of the General Counsel's case centers around an argument that Respondent laid off Couch on June 2 and at the same time retained other truckdrivers who had less seniority than did Couch The General Counsel contends that the collective-bargaining agreement between Respon- dent and the Teamsters Union provided in effect for companywide seniority principles to govern layoffs instead of a "gang" type seniority It suffices to say that the General Counsel's contentions as to the contract's provi- sions are correct Respondent's contention that another provision in the contract reveals that "seniority" as to utility drivers is to be negotiated separately is without merit This provision, relating to utility drivers, concerns wages and rates and does not concern seniority As indicated in the previous discussion concerning Muncy, much testimony and data was placed into the record concerning layoff practices, seniority, and employ- ment records It is sufficient to say that the evidence as a whole is not sufficient so as to reveal from such data in the record the interrelationship of seniority and layoffs on past occasions As an example, the General Counsel's only specific evidence as to seniority of Teamsters relates to Couch and several other employees who apparently had less seniority than he had Considering all of the facts, I credit Donald Horth's testimony to the effect that Respondent's practice was at tunes of layoffs to lay off the entire gang including the truckdnver, that if men were retained that the best men were retained, and that usually the older employees were retained because usually they were the best men The facts reveal in effect that the Swafford gang was laid off on June 3, that one or two laborers were retained, and that the gang remained laid off until around July 22, 1971, when Couch was returned to work Considering all of the foregoing and all of the facts, I am persuaded that the preponderance of the facts reveals that Respondent laid Couch off on June 3 for nondiscriminato- ry reasons Accordingly, it will be recommended that the complaint allegations of conduct concerning Couch alleg- edly violative of Section 8(a)(1) and (3) be dismissed 13 E Events Concerning Capps and Gray During the critical time involved in this proceeding, James Gray and Ronald Capps worked on Foreman George Jones' crew Foreman Jones' crew performed railroad construction work for various plants and compa- nies in and around the State of Indiana Gray had worked for Respondent off and on for the 5 years preceding July 30, 1971 His last period of employment for Respondent was from May 1971 to July 30, 1971 Ronald Capps worked for Respondent from November 1970 to July 30, 1971 July 7, 1971-at Work During the week ending July 3, 1971, Respondent had a overall consistency of facts and testimony Testimony of witnesses inconsistent with the facts found is discredited is I would make the same findings even were the facts to be as contended by the General Counsel as to timing of events of May concerning Couch and as contended as to the filing of grievance thereto CENTRAL ENGINEERING & CONSTRUCTION CO crew headed by Foreman Homer Sizemore working on a job at the Newport Ammunition Depot Beginning on July 6, 1971, the Respondent placed an additional crew headed by Foreman George Jones on the Newport Ammunition Depot job On July 7 both of the aforesaid crews were at work However, Ronald Capps, a member of Foreman Jones' crew, was not at work On July 7, Laborers Business Agent Michael Short made one of his regularly weekly trips to the Newport jobsite to check with Foreman Homer Sizemore's crew Foreman Jones was away from the jobsite when Short appeared on the scene Short noticed the appearance of additional employees on the job and questioned the employees on Jones' crew about their union cards and the question of clearance through this card Short told the employees to stop work until he checked on their clearance through his local Foreman Jones returned to the scene Union Representa- tive Short and Jones engaged in a heated discussion about the job stoppage, about the need to check in with the local union, about Short's other problems with Respondent, about Jones' being a Teamsters member and not a member of the Laborers Union, and about the requirement that Jones as a foreman be a member of the Laborers Union Foreman Jones and Short also spoke to several employees Jones requested the employees to go back to work Short indicated that they couldn't It appears that Gray stated that you can't work if the business agent won't let you 14 Foreman Jones and the Union Representative also discussed the Local's need to place more men on jobs Foreman Jones and Union Representative Short tele- phoned Partner Douglas Horth An agreement was reached that Foreman Jones would join the Union and Respondent would take care of the initiation fees and dues Agreement was also reached that Respondent would hire two men out of the local Short left the jobsite Foreman George Jones' crew returned to work Later, Union Representative Short checked with other locals about the current standings of the employees and ascertained that they were in good standing Short, who had discussed the question of pay rates with the employees, returned several days later and advised the employees that they were being paid at or above the contract rates As indicated, Foreman Jones' crew returned to work when Short left The evidence is piecemeal and fragmentar- y as to what then occurred It would appear reasonable to believe that Foreman Jones inquired as to the details of who told the men to stop work It is also reasonable to believe that he told them not to stop work unless told to do so by him The General Counsel alleges and contends that Foreman Jones questioned the employees about who called the Union out The General Counsel's only evidence on this point is the testimony of James Gray Foreman Jones denies that he questioned the employees about who called the Union out Employees Ray Jones (Foreman Jones' son), Hanson, and Dennis Hubbard in their testimony corroborate Foreman Jones' denial Further the testimony 14 Jones affidavit indicates that Capps made such remarks Capps was not at work on this date The record indicates that Capps and Gray were closely associated I am persuaded that Jones erroneously referred to Capps instead of Gray Even if this is an incorrect designating of the employee it 567 of union agents, and testimony of Gray and of Capps, as to the substance of conversation made thereafter to the Union, indicate that Gray and Capps did not complain of such questioning or threats to fire if employees went to the Union, at least until after their July 30 discharge I am persuaded by the overall facts that Gray's testimony as to the alleged interrogation should be discredited It follows that the complaint allegation to such effect, of conduct violative of Section 8(a)(1), should be dismissed July 7-at Capps' Home On the evening of July 7, 1971, Foreman George Jones went to Ronald Capps' home While there, Jones discussed certain union insurance matters with Capps Foreman Jones spoke about the work stoppage and asked for and received evidence of employee union membership from employees Gray, Hanson, and Capps 15 It is not clear whether the complaint allegations as to unlawful interrogation concerned only tht alleged inteiro- gation of Gray at the jobsite or whether it concerns this incident The General Counsel's brief does not seem to provide an answer to this question In any event, I am persuaded that the questioning of and receipt of evidence of union membership from employees in this case does not constitute conduct violative of the Act It is clear that in the context of Respondent's collective-bargaining arrange- ments, and the job stoppage related to "clearance" questions, that there existed a legitimate basis for such inquiry It further appears that employees would not reasonably construe that such was done to pry into the question of their union membership or desires for an ulterior reason Accordingly, it follows that such conduct is not violative of Section 8(a)(1) of the Act It is so concluded and found The General Counsel alleges and contends that Foreman Jones on this occasion warned the employees that someone was calling the Union out, and that if he I ound out who it was that he would get rid of them Witnesses Martha Capps, Ronald Capps, and James Gray testified to facts which if credited support the foregoing contention Foreman Jones denied the above facts His testimony is corroborated in effect by the testimony of Hanson Again considering the foregoing and other testimony relating to the failure of Gray and Capps to mention such threats to the union agents during ensuing conversations, I am persuaded that Foreman Jones' denial of such threats should be credited I so credit the facts Events July 8-22, 1971 Although the next significant issue set by the pleadings regarding Capps and Gray concerns the events of July 22, 1971, I find it proper to note that much of the testimony and evidence adduced was for the apparent purpose of setting forth the facts as to the events between July 8 and 22, 1971 would not affect the ultimate decision in this case 11 1 credit the testimony of Martha Capps Ronald Capps James Glay and Hanson over Jones denial that he asked for the union cards or recoi ds 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The facts and comments relating to such facts may be set forth as follows I The facts reveal that Mrs Ronald Capps telephoned union Representative Short at some date after July 7, 1971, and related that Foreman Jones had asked for and received union cards or evidence of union membership from some of the employees Despite the lack of specific evidence as to the timing of such telephone call to Short, I place the timing thereof as after July 7 and before July 12 There is no indication that there was a discussion with Short about the July 12 layoff of Gray and Capps If such telephone call were made after the July 12 layoff, I am persuaded that the facts would have indicated a discussion of said layoff also As indicated previously, I am persuaded that Foreman Jones' interest in obtaining the evidence of union member- ship was legitimately connected with the July 7 job stoppage problem I note that Gray and Capps appear to be close friends I note further that Gray cannot read or write and cannot "read" numbers on a calendar I am persuaded that Gray and Capps were concerned over the fact that they did not have their union cards in their own possession and not from fear of reprisal from the Respondent There is no evidence to reveal that Respondent obtained any knowledge of the referred-to telephone call made by Mrs Capps to Union Representative Short 2 As previously indicated, Capps was absent from work because of illness or a doctor's appointment on July 7 Capps was also absent from work on July 8 and 9 for medical examination and treatment Foreman Jones was aware of the fact that Capps' absences on such dates was purportedly because of illness 3 The facts are not clear whether Gray worked on Thursday (July 8) and Friday (July 9) or only worked on Friday (July 9) 16 4 On Thursday or Friday (July 8 or 9) Gray spoke to Foreman Jones about his need to be off from work for a court appearance during the next week 17 5 On Sunday, July 11, 1971, Partner Douglas Horth and Foreman Jones discussed the status of work for Jones' crew for the coming week Respondent had either finished or was finishing the Newport job, did not need Foreman Jones' crew on the Newport job for the next week, was moving Jones' crew to a 3-day job for the Fisher Company, and then was moving Foreman Jones' crew to what was called the Marion Job Partner Douglas Horth was of the opinion that he did not need Foreman Jones' crew at full strength Whether this was because he had employed two men from the local union for several days is not clear In any event Partner Horth was of the opinion that a full crew 16 Exhibits relating to time accredited for work indicate that Gray did not work on Thursday Gray s testimony was to the effect that he worked on July 8 1971 As to Gray s testimony it is sufficient to say that the questions directed to Gra) and his answers thereto revealed a witness of extremely questionable reliability upon this point i7 As indicated Gray was a confused and difficult witness It appears that counsel was also confused as to the sequence of events By leading questions counsel elicited answers to the effect that Gray attended court for one half day during the week of July 7 Gray however clearly later testified to the effect that he was not working on the Newport job when he went to court The evidence clearly reveals that Respondent worked on the Newport job for the entire week July 6 7 8 and 9 1971 Considering the logical was not needed During the discussion , Foreman Jones mentioned that Capps had been off ill for several days, and that Gray wanted to be off for a court appearance on July 14, 1971 18 Partner Douglas Horth told Foreman Jones that he had seen Capps riding a motorcycle that day Since Capps had been off for several days with doubt as to the validity of the "illness reason" and since Gray was to be off for a court appearance, Respondent decided to lay off Capps and Gray for the 3-day Fisherjob 19 That evening Capps telephoned Foreman Jones about the work assignment for Monday, July 12, 1971 Foreman Jones told Capps in effect that he was going to lay off Capps and Gray for 3 days Capps asked Jones to tell him why they were being laid off Jones told Capps in effect that they were being laid off because Doug Horth had seen him (Capps) on a motorcycle that day and because Gray had asked on Thursday or Friday to be off during the next week Capps thereupon went to Gray's home Gray was not at home Mrs Gray telephoned Partner Douglas Horth and inquired about the layoff Partner Douglas Horth told Mrs Gray in effect that the layoff was temporary, was economic in nature, and that Capps and Gray would be back at work in several days Mrs Gray told Partner Douglas Horth that Capps had been in the hospital Partner Douglas Horth indicated that he did not know this 6 Thereafter Capps and Gray were recalled to work and Capps and Gray worked from July 14 to 22, 1971, without any problems 7 Much of the testimony of witnesses Capps, Gray, Short, and Curry was directed to the question of com- plaints and contacts by Capps and Gray with the Union As indicated, Gray, as a witness, presented an appearance of confusion as to timing of events and further appeared to have confused what occurred in events The questioning of the aforesaid witnesses was of such a nature that it may be said that there is a lack of clarity and probativeness of such evidence so as to establish that any complaints or contacts were made to the Union or Company prior to the events of July 22, 1971 It is sufficient to say that the facts only establish that Respondent had knowledge of this one telephone call by Mrs Gray about layoffs or related matter prior to the events of July 22, 1971 Excepting for the purpose of establishing that Mrs Gray made the above-described telephone call, it is not clear why so much detail, imprecise and confused as it was, was presented Perhaps it was intended to reveal some discriminatory motivation in the layoff of Capps and Gray on July 12 and 13, 1971 Nevertheless, the General Counsel in his complaint, in his statements at the hearing, and in his consistency of all the facts I find the facts as indicated 18 The facts were presented in a loose and confused fashion It is clear that Gray s court appearance did not occur while on the Newportjob It is clear however that Gray s court appearance occurred while he was working The contemplated layoff was to cover the period of time when Gray was to be in court Gray and Capps returned to work 1 day earlier than originally scheduled Accordingly I find that the day of the scheduled court appearance was July 14 1971 19 The facts are based on logical inference from all the evidence in the record A finding however that Respondent merely laid off Capps and Gray as a continuation of Capps absence and Gray s contemplated absence would not affect the results in this case CENTRAL ENGINEERING & CONSTRUCTION CO brief, does not appear to be contending that the layoff was discriminatorily motivated The facts clearly do not reveal that Respondent, prior to the July 12 and 13 layoff, had knowledge of any complaints to it or the Union by Capps or Gray In sum, the preponderance of the facts reveal that the July 12 and 13 layoff of Capps and Gray was for economic and nondiscriminatory reasons 8 During the week of July 22, 1971, Foreman Jones' crew was working for Respondent on a job for Guide Lamp During the period of time prior to July 22, 1971, most of Respondent's employees working on said job clocked in a few minutes later than was the scheduled starting time Foreman Jones spoke to one of Guide Lamp's supervisors about this problem and inquired as to whether this could cause him any trouble The Guide Lamp supervisor indicated that Jones would have no trouble from him, but that the auditors checked the time records and that this might cause trouble for Respondent The facts are clear that on July 21 Foreman Jones warned his employees about reporting late for work Events of July 22 On the morning of July 22, 1971, Capps and Gray went by Foreman Jones' home prior to going to work Capps indicated to Foreman Jones that he was going to eat breakfast before going to work Jones indicated that this was all right The question is whether Jones indicated that this was all right for Capps and others to eat breakfast and to report late to work In my opinion, the facts do not reveal that Foreman Jones was telling Capps that it was all right to be late but was merely indicating that he had no objection to his eating breakfast It appears to have been a normal conversational answer to someone indicating agreement that they could do what they had a right to do Capps, Gray, and employee Hubbard rode to the job together The employees stopped for breakfast before getting to the jobsite Capps, Gray, and Hubbard arrived at the jobsite a few minutes late Foreman Jones met Capps, Gray, and Hubbard at the gate and complained about their being late Capps and Gray argued to Jones that he had given them permission to have breakfast Foreman Jones told Capps, Gray, and Hubbard in effect that he had work for them to do Foreman Jones indicated to Capps, Gray, and Hubbard where the job was and where the gate was What occurred is best revealed by the following credited excerpts of Hubbard's testimony 20 A George said, it is about the third or fourth time you have been late and I told you this was time and material job and it is very important that you get here on time There ain't no way possible that you-Capps said, one of the guys said, I've got to have my breakfast and the other one said, I just can get here on time and go by home and I still didn't say anything I didn't say a word Q What did George say them A George looked at them and he said, that is kind of a poor excuse, something like that, he said I don't 20 I credit Hubbard s testimony to these events I also credit Asher s testimony to the events he testified to I discredit Capps and Gray s testimony inconsistent with the facts found 21 Hubbard on direct examination testified to the effect that he told 569 know exactly what but he said something about it being a poor excuse Q Did he say anything else? A Yeah, Gray said, let's go home and George said, okay there's the job or there's the gate It is up to you He said again, there's the job or there's the gate He said it twice So Gray said, let's go home So, me and Ronnie looked at each other and Gray started walking off and we stood looking at each other for a second and we went with him to the shack and signed out and left Considering all of the foregoing, it is clear and I conclude and find that the Respondent did not discrimina- tonly lay off or discharge Gray and Capps on Jul), 22, 1971 Events-July 22-25, 1971 After leaving the jobsite on the morning of July 22, Gray, Capps, and Hubbard proceeded back to Indianapolis Either on the way to Indianapolis, or in Indianapolis, Capps telephoned Union Representative Short Union Representative Short told Capps in effect that he would have to contact Union Representative Curry, that the matter did not arise in his (Short's) jurisdiction Thereafter, Capps telephoned Union Representative Curry An ap- pointment was set up for Capps and Curry on July 23 Capps, Gray, and Hubbard proceeded on July 22 to where they thought Partner Robert Horth would be They ultimately located Partner Robert Horth and told him in effect that Foreman George Jones had laid them off It is clear that Capps, Gray, and Hubbard were indicating their desire to be placed back to work Partner Robert Horth told them in effect that he would have to talk to Pat tner Douglas Horth about the matter 21 Later that day, at "Bud's" garage, Capps and Gray stated in presence of an employee named May that they had walked off the job On July 23, 1971, Capps and Gray went to the Union hall and spoke to Union Representative Curry Capps and Gray told Curry that they had been laid off, that Respondent had men working who had been hired after they had been hired, that such men wei a nonunion men, and that they thought it was wrong for Respondent to lay them off and keep the nonunion men working Union Representative Curry told Capps and Gi ay that he would check into the matter On July 25, 1971, Partner Douglas Horth and Foreman Jones discussed the problem of pending work and the fact that Capps, Gray, and Hubbard had walked off the job on July 22, 1971 Dennis Hubbard went to Foreman Jones' home to see Foreman Jones about getting his job back What occurred is revealed by the following credited excerpts from Jones' testimony THE WITNESS He talked to me and he said, George, I am sorry that I even walked off the job I am sorry that I did I would appreciate it if you would let me go back to work and I said, Dennis, if you think you can work Partner Robert Horth that Foreman Jones had said in effect that there was the fob and there was the gate On cross examination Hubbard revealed that he did not tell Partner Robert Horth that Foreman Jones had indicated that there was the Job 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without walking off the job, I've got nothing against you I will talk to Douglas and see what he says and if says you can go back to work, fine, its fine with me Later, Capps and Gray went to Foreman Jones' home to see Foreman Jones about getting their jobs back What occurred is revealed by the following credited excerpts of Jones' testimony A A very short time after Hubbard had left Mr Capps and Mr Gray drove up in front of my house and blew their horn I came out on the porch and I said, come on in, boys, and they said, no, come on out here, we want to talk to you so I went on out into the street where they were at, and talked, and they asked me about could they get their jobs back and I said, well, Dennis was here and I'll tell you the same thing I told Dennis I'll have to talk to Mr Doug Horth and if its all right with him, its okay with me and dunng this conversation at the same time, Jimmy Gray said, let's go Ronnie, let's go We don't have to work for him anyhow I will go and call Doug Horth and I know I can go to work for Homer Sizemore So there wasn't anything else said They drove off Following the above, Capps telephoned Foreman Jones to inquire as to whether he could go back to work Jones told Capps that he had a few things to say to him, to come to his house Capps went to Foreman Jones' home What occurred there is revealed by the following credited excerpts from Jones' testimony A Well, Mr Capps came in my front room and I asked him apparently the same question I asked Mr Hubbard I don't know why you walked off, but do you think you can work, then I'll talk to Mr Douglas Horth and if he says its all right with him, its all right with me because I've got nothing against you whatsoever, and he said, well, I don't know why I walked off Following the above, Capps telephoned Partner Douglas Horth The discussion centered around whether the employees had walked off the job or had been sent away by Foreman Jones Capps expressed a strong desire to be returned to work Capps told Horth that he had not walked off the job, that Foreman Jones had sent him home Partner Douglas Horth told Capps that he would take the matter up with Foreman Jones, that Jones was the one who would have to rehire him if he were satisfied with him After the foregoing conversation, Partner Douglas Horth telephoned Foreman Jones Horth and Jones discussed the question as to whether Jones wanted to put Capps, Gray, and Hubbard to work Foreman Jones indicated that he wouldn't mind it if the men came back to work Partner Douglas Horth told Jones that they should give the three a try It appears that Foreman Jones thereafter notified Capps, Gray, and Hubbard to report to work the next day 22 22 The testimony as to the events July 22-25 was presented in piecemeal fashion It is sufficient to say that considering all of the testimony and logical consistency of the evidence I find the facts as set forth The overall facts reveal no evidence that the Union had contacted Respondent about the July 22 walkoff until during the week of July 26 I discredit Gray s and Capps testimony to the effect that Foreman Jones spoke about wanting to know who had contacted the Union I discredit testimony of all witnesses inconsistent with the facts found Events of July 26-30, 1971 Capps and Gray reported to work on Monday, July 26, 1971, at the Guide Lamp job in Anderson, Indiana Without awaiting specific instructions, Capps and Gray commenced work doing some shoveling Foreman Jones later asked the two to help some other employees move some rail Capps and Gray promptly followed his instruc- tions The events for the rest of the day may be said to be uneventful Capps and Gray testified to the effect that Foreman Jones spoke to them individually and in effect threatened them because they had gone over his head to the Horths and to the Union Foreman Jones denies such threats It is noted with respect to this question that all witnesses to this issue have factors weighing adversely to their credibility Thus Gray and Capps, as to prior events, have appeared to try to build their case as to alleged remarks by Respon- dent's agents concerning threats about going to the Union Jones' testimony and prior affidavit casts doubt as to his veracity as to the "overtime" refusal defense Further, it is noted that there is no evidence to establish that the Union (Curry) contacted Respondent prior to the alleged threats referred to Thus, Curry was contacted by Capps and Gray on July 23, a Friday Curry testified to the effect that a day or two later he contacted Respondent Foreman Jones' testimony revealed that at sometime during the week of July 26 Union Agent Curry contacted him about the July 22 walkoff by Gray, Capps, and Hubbard In sum, the evidence as to the timing of the contact by Union Representative Curry with Respondent is of insufficient clarity as to have probative value in connection with a consideration of logical consistency of facts as regards the credibility issue presented Considering Gray's, Capps', and Jones' testimony, I am persuaded that Jones' testimo- nial denial of the alleged threats should be credited I credit Jones' denial that he made the threatening state- ments Capps and Gray reported to work on July 27 Around 8 30 am, Foreman Jones noted that Capps appeared ill and sent him to his truck Later, around 10 a in Foreman Jones had employee Hubbard drive Capps home Hubbard indicated upon his return to work that Capps appeared to be feeling better when he got home Around 1 p in, Foreman Jones notified the crew that there was overtime work on "Delco" job if they wanted it Later Foreman Jones spoke to Gray about the overtime work as is revealed by the following credited excerpts from Gray's testimo- ny 23 A He asked me if I wanted to work overtime and I said, yes, if the other men did, and he said I really don't need you, I've got enough men to do the job, but I was willing to work anyway and he said you know what I've got over there, I've got a hole full of water and oil and 23 Gray s testimony had the ring of truth about this incident Foreman Jones denied any statement about acid Gray had to remain at the site while the work was finished before going home I find it hard to believe under such circumstances that Gray would not have worked the overtime absent compelling reason It is clear that Jones either jokingly or intentionally took advantage of Gray s innocent fear I credit Gray s testimony over Jones testimony as to this incident CENTRAL ENGINEERING & CONSTRUCTION CO acid and I asked him what kind of acid it was in the oil and he said he did not know, he said it may eat your feet off if you get in it and I said I would not work in it I sat in the car while they did two hours work Foreman Jones' crew worked on Wednesday, July 28, 1971 Jones' crew, including Gray and Capps worked 2 hours' overtime on this date 24 On Thursday, July 29, 1971, Foreman Jones spoke to Partner Douglas Horth Jones indicated to Horth that Gray and Capps had refused to work overtime as requested Partner Douglas Horth indicated in effect that Jones could lay off Capps and Gray when he wanted to On Friday, July 30, Foreman Jones' crew, including Capps and Gray, reported to work What occurred is revealed by the following credited excerpts from Capps' testimony 25 A He got out of the truck and he said, its raining today, George said, its raining today and I think he said the names of the man at Guide Lamp who told him they didn't want us to work that day and if we wanted to work out in the rain, to go over to Delco-Remy and work for a few hours, and at that point I don't remember whether it was me or whoever exactly it was said this, but said, George we don't have nothing to work out in the rain with over there, no boots or anything because its all in water and so at that point most of us-well there were four of us there, three of us didn't want to go The fourth man did want to go to work out in the rain so George said you go and work in the rain at that point and he said I want you to go sit in the truck with Bill, and he told me I had an opportunity to fire you, but I am not going to fire you, I am just going to let you withdraw, and at that point Mr Gray said, do you have any intention of putting us back to work at anytime and he said, as far as I know, no, I am not going to take you back He said that you have agitated yourselves right out of ajob The General Counsel contends that the overall facts including the facts relating to Gray's conversation with Douglas Horth concerning the dropping of charges in return for reemployment, reveal that the July 30 layoff was discriminatorily motivated The Respondent's contention is in effect that Foreman Jones was not satisfied with the cooperative nature of Gray and Capps as employees Foreman Jones testified that he did not like the fact that Gray and Capps commenced work on July 26 without awaiting instructions, and that they attempted to work by themselves Foreman Jones' pretrial affidavit reveals that he complained to Partner Douglas Horth about Capps' and Gray's refusal to work overtime Jones' testimony at the trial herein as to his reason for the layoff of Capps and Gray was very unimpressive In short, I do not believe or credit the reasons he testified to Rather, I am persuaded from the overall facts that Foreman Jones became irritated by Capps' and Gray's contacts with the Horths and with the Union, that after Union Agent Curry contacted Jones 24 Gray had ascertained from another employee that there was no acid in the holes 25 Gray s testimony was corroborative of Capps Jones testimony was corroborative of Capps excepting Jones version of the event contradicts that he told Capps and Gray that they were agitators As indicated previously Gray Capps and Jones as witnesses all present some problem 571 during the week of July 26, Foreman Jones decided to get rid of Capps and Gray, and that Foreman Jones utilized a pretextuous contention of refusal to work overtime to persuade Partner Douglas Horth to authorize his layoff of Capps and Gray I am persuaded that Partner Douglas Horth believed that Foreman Jones was honestly presenting the facts and so authorized the layoff of Capps and Gray The ultimate motivating reason for Foreman Jones' layoff of Capps and Gray on July 30, however, was Jones' irritation at Capps' and Gray's contacting the Horths and tht Union about the July 22 walkoff In sum, the evidence reveals that Respondent discnminatonly discharged Capps and Gray on July 30, 1971, in violation of Section 8(a)(1) and (3) of the Act 26 On August 5, 1971, Ronald Capps filed an unfair labor practice charge in Case 25-CA-4466 In effect that charge averred that Respondent had discriminatorily discharged Capps and Gray on July 30, 1971, in violation of Section 8(a)(3) and (1) of the Act The General Counsel also adduced evidence relating to meetings and conversation between Gray and Capps and Partner Douglas Horth that occurred after July 30, 1971 This evidence was adduced to reveal improper motivation by Respondent as to the July 30, 1971, layoff/discharge of Capps and Gray The complaint did not allege, nor has it been contended that Respondent, by Douglas Horth, violated the National Labor Relations Act by such conduct I note the following excerpts from the credited testimony of Douglas Horth Q Did Mr Capps then call you after approximate- ly a week9 A Yes he did Q And what did he say to you and what did you say to him A Well, in the meantime, Ron had filed the action with the Labor Relations Board against us and, of course, I dust got in on the weekend again and I think I learned of it that day and I was upset So, the conversation wasn't friendly He said, what about going back to work and I said, do I understand that you filed a complaint against us with the Labor Relations Board and he said, yes, and I said, for being involved in Union activity, for discrimination and I said, I don't think I gave him much of an opportunity to talk I simply told him that they were a pack of lies and he knew it, that Central Engineering had n< ver discriminated against him A I let him know my frustration and feeling of ill will by trying to explain to him what it would mean to all of us in time and money and taking business away, of belief it suffices to say that I found Grays and Capps testimonial demeanor on this incident to appear more truthful in appearance than I did Jones I so credit the facts 26 Although the term layoff was used it is clear that the layoff was in fact a discharge of such employees 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in effect, and told him that at this time, we had nothing further to discuss It would have to come out in court I note the following excerpts from the credited testimony of Douglas Horth as to a conversation with James Gray on November 30, 1971 A As nearly as I can remember, he said, hello, this is Jimmy Gray and I said, oh, hello, and he said, is there any chance to go back to work and I said, do you want to go back to work and he said, yes, I would like to drop this whole mess and go back to work and I said, how does Capps feel about this and he said, I don't know I haven't seen Capps in a long time and I said, had you been working and he said, no, I looked this town over and I haven't been able to find a job and I said, under what arrangements would you go back to work and he said, just go back to work and I said, then he said, do you have work and I said, yes, I've got a lot of work now but I really don't know what to tell you because we are in a problem of litigation We are now faced with a legal question This is a matter in the hands of the attorneys and I don't know whether it is proper for us to talk together about this, although I don't want to seem curt to you or close the door, I want you to understand that I am going to our attorney with this information and I suggest you go to your people They can choose to call me back and I'll be here and that terminated that conversation A In about 15 minutes the phone rang again Mr Capps was on the phone and he said rather, what about going back to work and I said, have you talked to Gray and he said, yes, he called me and I said, do you want to go back to work and under what basis9 He said, oh, we could make a settlement and go back to work and I said, I have only ajob here and he said what about my back pay and I said, I know nothing about any back pay I'll make no arrangements and then I went into this situation that we were in litigation and that, as I had told Gray, I would turn this over to our attorneys and felt that he should talk to his people as to what I said and that terminated that conversation except for some minor chit chat about business things It is sufficient to say that I am persuaded from the overall facts in this case that Partner Douglas Horth honestly believed that Respondent had not discrimmaton- ly laid off or discharged Gray and Capps on July 30, 1971 I am persuaded from the overall facts that the Horths, up to the filing of unfair labor practice charges, have tried to abide by Federal law I am persuaded, however, that the filing of the unfair labor practice charges on August 5, 1971, by Capps, pushed the patience of the Horths too far, resulting in the attitude as indicated by Douglas Horth's testimony Although this latter conduct is not alleged nor contended to be a separate violation of the Act, it has been litigated Such conduct is violative of Section 8(a)(1) of the Act I note, however, that the remedy for such conduct is essentially encompassed in the remedy provided for the unlawful discharge of Capps and Gray on July 30, 1971 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 Respondent's operations described in section I, 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 V THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act It having been found that Respondent discriminatonly discharged James Gray and Ronald Capps in violation of Section 8(a)(3) and (1) of the Act, the recommended Order will provide that Respondent make an offer of reinstate- ment to and make each whole for loss of earnings within the meaning and in accord with the Board's decisions in F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716, excepting as specifically modified by the wording of such recommended Order Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from the specific unfair labor practices found, and that it cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act Upon the basis of the above findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Robert J Horth, Donald A Horth, and Douglas R Horth, a partnership d/b/a Central Engineering and Construction Co, the Respondent, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local 716, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Local 274 and Local 204, Laborers' International Union of North America, AFL-CIO, each are, and have been at all times material herein, labor organizations within the meaning of Section 2(5) of the Act 3 By discharging James Gray and Ronald Capps the Respondent discouraged union membership by discnmi- natmg in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act 4 By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of CENTRAL ENGINEERING & CONSTRUCTION CO the Act, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended 27 ORDER Respondent, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging, laying off, or otherwise discriminating against employees in regard to hire or tenure of employ- ment, or any term or condition of employment, in order to discourage membership in any labor organization (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, except for the extent as may be permitted by a lawful agreement in accord with Section 8(a)(3) of the Act 2 Take the following affirmative action which it is found will effectuate the policies of the Act (a) Offer James Gray and Ronald Capps immediate and full reinstatement to their former positions or, if such positions are no longer available, to substantially equiva- lent positions, without prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of violative conduct directed toward them, in the manner described in the section of the Trial Examiner's Decision entitled "The Remedy " (b) Notify James Gray and Ronald Capps 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 at Indianapolis, Indiana, copies of the attached notice marked "Appendix "28 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's authorized representative, 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 posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material (e) 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 29 IT IS FURTHER ORDERED that the allegations of the complaint not specifically found herein to constitute violations of the Act be dismissed 573 27 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall as provided in Sec 102 48 of the Rules and Regulations be adopted by the Board and become its findings conclusions and Order and all objections thereto shall be deemed waived for all purposes 28 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 National 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 29 In the event that this recommended Order is adopted by the Board after exceptions have been filed this provision shall be modified to tead Notify the Regional Director for Region 25 in writing within 20 days from the date of this Order what steps the 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 WILL offer James Gray and Ronald Capps immediate and full reinstatement to their former positions or, if such positions are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of the conduct violative of the Act directed against them WE WILL NOT discharge, layoff, or otherwise discrim- inate against employees in regard to hire or tenure of employment, or any term or condition of employment, in order to encourage or discourage me mbership in any labor organization WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent as may be permitted under lawful agreements in accord with Section 8(a)(3) of the Act All our employees are free to become or remain, of to refrain from becoming or remaining, members of any other labor organization except to the extent as may be permitted under lawful agreements in accord with Section 8(a)(5) of the Act ROBERT J HORTH, DONALD A HORTH, AND DOUGLAS R HORTH, A PARTNERSHIP D/B/A CENTRAL ENGINEERING AND CONSTRUCTION CO (Employer) Dated By (Representative) (Title) We will notify James Gray and Ronald Capps 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, as amended, after discharge from the Armed Forces 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is an official notice and must not be defaced by directed to the Board's Office, 614 ISTA Center, 150 West anyone Market Street, Indianapolis, Indiana 46204, Telephone This notice must remain posted for 60 consecutive days 317-633-8921 from the date of posting and must not be altered, defaced, or covered by any other material Any questions concern- ing this notice or compliance with its provisions may be