Flynn Steel Buildings Co.

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Flynn Steel Buildings Co. and David Lynn Moriarty and Jack Demby. Cases 28-CA-2498 and 28-CA-2523 November 24, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On August 14, 1972, Administrative Law Judge i Herman Marx issued the attached Decision in this consolidated proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to the Respondent's exceptions. 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, as modified herein. 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 as modified herein and hereby orders that Respondent, Flynn Steel Buildings Co., Phoenix, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as modified herein: Add the following as paragraph 2(d) and reletter the subsequent paragraphs accordingly: "(d) Notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act." I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE HERMAN MARX, Trial Examiner: The complaint alleges that an employer, Flynn Steel Buildings Co.' (herein the Company or Respondent), has violated Section 8(a)(1) and (3) of the National Labor Relations Act2 (herein the Act) by discriminatorily laying off 22 employees3 "on or about" October 18, 1971, and by failing and refusing to reinstate some of them, because they joined or assisted a labor organization, International Association of Bridge, Struc- tural & Ornamental Iron Workers, Local Union #75 (herein the Union) and engaged in other activities protected by Section 7 of the Act. The Respondent has filed an answer which admits that the 22 named employees were laid off, but, in substance, denies that the layoffs were unlawful.4 Pursuant to notice duly served by the General Counsel of the National Labor Relations Board (herein the Board) upon all other parties, a hearing on the issues was held before me, as duly designated Trial Examiner, on April 11, 1972, at Phoenix, Arizona. The General Counsel and Respondent appeared through respective counsel, and all parties were afforded a full opportunity to adduce evidence, examine, and cross-examine witnesses, and submit oral argument and bnefs.5 At the hearing, the evidence having established, and the General Counsel having conceded, that three of the alleged discriminatees, Bob Mason, Tommy Gaskill, and John Claxton, were at the time of the alleged layoffs, and for some time prior thereto, supervisors within the meaning of Section 2(11) of the Act (and thus not employees within the purview of the statute), upon the Respondent's motion, allegations in the complaint that Mason, Gaskill, and Claxton were unlawfully laid off were dismissed. Upon the entire record, and my observation of the demeanor of the witnesses, and having read and consid- ered the briefs filed with me, I make the following: FINDINGS OF FACT 1. NATURE OF THE COMPANY 'S BUSINESS; JURISDICTION OF THE BOARD Flynn Steel Buildings Co. is an Arizona corporation; maintains its principal office and place of business in i The Employer's name appears as amended at the heanng in this proceeding 2 29 U S C 158(a)(1) and (3) 3 The 22 alleged discriminatees named in the complaint are Donald Aubel Kenneth R Burrell Raymond L Crowell John Claxton Paul Eldridge Richard Hiser Bob Mason Andrew McGraw David Moriarty Gary Melvin Walter Padilla Jim Flynn Tommy Gaskill Verbal D Garner Daniel Hargreaves Jimmy L Hines Elijah H Porter, II Raymond L Smith John C Stiefer, Jr Roger A. Wakefield L W Wooten Jack Demby 4 The complaint was issued on February 8, 1972, and is based upon a charge filed in Case 28-CA-2498 on December 16, 1971, and one filed in Case 28-CA-2523 on January 26, 1972 Copies of the charges and the complaint have been duly served on the Respondent 5 The General Counsel has submitted with his brief a motion to amend the transcript of the hearing, together with proof of service of the motion on all other parties on April 21, 1972 No opposition to the motion has been received it is hereby granted and the transcript is amended in the particulars requested I note, in addition, that at 1 12 of p 159 of the transcript, the name "Claxton" should be "Gaskill", but as that is inferable from the general context of the relevant record, I see no need, in the absence of a motion by any of the parties, to amend the transcript at the point in question 200 NLRB No. 76 FLYNN STEEL BUILDINGS CO. 459 Phoenix, Arizona, where it is engaged in the business of selling and assembling prefabricated steel buildings; employs individuals in its operations; and is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. In the course and conduct of its business during the 12 months immediately preceding the issuance of the com- plaint, the Company has purchased and received goods or services valued in excess of $50,000 directly from sources located outside the State of Arizona. By reason of such transactions, the Company is, and has been at all material times, engaged in interstate commerce, and in operations affecting such commerce, within the meaning of Section 2(6) and (7) of the Act. Accordingly, the Board has jurisdiction of the subject matter of this proceeding. iI. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement The Company's labor force is used, in the main, to assemble and erect prefabricated buildings; expands or contracts, as the case may be, with the volume of work available; and is usually divided into crews, each headed by a foreman. As of October 18, 1971, the date of the layoffs alleged in the complaint, the Company's superviso- ry staff included three crew foremen, Bob Mason, Tommy Gaskill, and John Claxton, each of whom, as previously stated, was then a supervisor within the meaning of Section 2(11) of the Act. The crew foremen are subordinate to a superintendent, Billy Joe Edens, who exercises general supervision over the Company's operations, and is subject, in turn, to direction by its corporate president, Jack R. Flynn, Sr. (referred to herein at times as the elder or senior Flynn) who has overall responsibility for management of the Company's of f airs.6 B. The Layoffs In or about the early part of October 1971, about 2 weeks before a Board-conducted election on the question of representation by the Union of a unit of the Company's employees, the elder Flynn, in the course of a meeting of the Company's supervisory personnel, produced a "notice" that was to be posted in connection with the pending election, and told his supervisory subordinates that "if it comes to this, I'll shut the damn doors" (or, in other words, as I infer, that if the employees chose union representation, the Company would shut down operations). The election was held at the Company 's premises on the morning of October 18, 1971,7 in a bargaining unit defined 6 Edens and the senior Flynn are, and have been at all material times, supervisors within the meaning of Sec 2(11) of the Act I Unless otherwise indicated, all dates mentioned herein occurred in 1971 8 So far as appears, there were no challenged ballots, nor any objections to the conduct or results of the election On the basis of the results, the as "[a]ll employees [of the Company] engaged in steel fabrication and/or erection of structural, ornamental and re-enforcing steel work; excluding all other employees .. . guards, watchmen and supervisors as defined in the Act." The voting "eligibility list" used for the election contained 22 names of individuals on the Company's payroll "as of [the] week ending September 24, 1971," and notwithstand- ing the express exclusion of supervisors from the unit, included Superintendent Edens and the three crew fore- men, Gaskill, Claxton, and Mason. At least two of the supervisors [Gaskill and Claxton] voted, and some of the individuals listed did not vote, but, in any case, a majority of the ballots were cast for the Union.8 On the morning of the election, about 10 minutes after the ballot count was completed, the senior Flynn appeared in a room on the Company's premises, where Superintend- ent Edens, Foremen Gaskill and Mason, and a number of the employees were congregated; he asked Edens or the group in general how the election had gone, and was told that the Union had won by "a large majority." As Flynn testified, he "immediately" thereafter directed Edens to lay off "the entire crew," stating, too, that their paychecks would be ready in about 2 hours, and that they would be recalled for work as needed. One employee, Jack Demby, arriving on the premises shortly after the ballots were counted, and "as everybody was leaving," asked Edens how the vote had gone and where "everybody [was] running off to," and Edens told him that the Union had won and that Flynn "got mad" and "laid everybody off." There is no dispute that various of the employees were laid off that day in accordance with Flynn's announce- ment, but as will appear later in more detail, a number of the 22 alleged discriminatees listed in the complaint had, in fact, been laid off earlier. In any event, whatever the scope of the layoff action of October 18-a matter that will be resolved later-the elder Flynn testified, in substance, that lack of work was the reason for it. The evidence as to the work available for the Company's labor force on October 18 is somewhat general. According to Flynn, the project or projects available for work were "99 percent completed" and Edens testified that as of Friday, October 15, the last workday preceding the October 18 layoffs "[m]ost of our work . . . was winding up"; that "[w]e had finished about all of our buildings .. . and work on the ground . . . it was leading up to a small crew and a possible layoff '; and that "[w]e were just about caught up." The record identifies only one specific work project after the October 18 layoffs, and that was one in Flagstaff, Arizona, scheduled to start on October 20. The job was begun on that date, with Edens as project superintendent, and three men who had been included in the October 18 layoff-Gary Melvin, Jimmy L. Hines, and Foreman Mason .9 Melvin, at least, had voted in the election, and, it may be noted, prior thereto, during the Union's organiza- Board, through the Regional Director for its Region 28, certified the Union as the bargaining representative of the employees in the unit on October 27, 1971 9 There is some intimation in Mason's testimony that he worked at the Flagstaffjob in a nonsupervisory capacity 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tional campaign, had signed "a card" for the Union (presumably an authorization card designating the Union as bargaining representative) and had expressed support for it in discussions he had with other employees, but it does not appear whether his prounion attitude came to the attention of the management. Another employee, Walter Padilla, an ironworker, who had been laid off on October 18 was recalled for metal installation work at the Flagstaff project on November 8. He had voted in the election, and, during the organizational campaign, had signed "a card" for the Union, and had expressed support for the organization to various employees and Foreman Mason. The Flagstaff job, which was delayed by inclement weather, lasted several weeks, and during its course, Edens hired some local laborers who performed work which is regularly done by members of the Company's work force. According to Flynn, two of the laborers were hired through the local state employment office, and two upon recom- mendation of the project customer. While the record contains no specifics of work available on October 18 and 19, nor of any project thereafter, with the exception of the Flagstaff job, it is evident that some work was both available and performed on October 18 and 19 and thereafter, in addition to the Flagstaff project, for two employees, Daniel Hargreaves and Jim Flynn (the senior Flynn's nephew) were not in fact laid off on October 18, and worked on that date and subsequently. The record contains no explanation of the retention of Hargreaves and Jim Flynn contrary to the elder Flynn's direction that "the entire crew" be laid off. Of the remaining 17 nonsupervisory employees named in the complaint as discriminatees, 9 (including Melvin, Hines, and Padilla) have been recalled for work since the October 18 layoff action-3 on October 20, 1 on October 26, 4 on November 4, and 1 on November 8. These, as well as those not recalled, will be identified at later points in this decision. One of those recalled, Jack Demby, had previously worked in Foreman Claxton's crew, and he was informed by Claxton of his recall shortly before November 4, Claxton coming to Demby's home for that purpose. On that occasion, as Demby testified, he asked Claxton whether the senior Flynn's enterprise had been unionized, and Claxton replied that Demby would not "be working for Mr. Flynn," but for him, "and that a lot of guys wasn't working that used to work for him." Demby then asked for the reason, and Claxton responded that "Mr. Flynn has a blackball, an eightball list of guys he wanted to get rid of" because of their union activities.10 C. Discussion of the Issues, Concluding Findings The ultimate issue here is whether the Company laid off employees on October 18, and subsequently withheld work from some of them, because of antiunion considerations, 10 Demby's account of his conversation with Claxton is uncontradicted, although Claxton testified, having been called by the Respondent ii The fact that Hargreaves and Jim Flynn were not laid off, and the respective layoff dates for Porter, Wooten, and Stiefer, set out above, were stipulated at the hearing and are thus not in dispute As for Crowell, the senior Flynn testified, without contradiction, that Crowell was discharged by one of the foremen In the absence of contradiction, I see no reason to reject that testimony, albeit Flynn placed the date of discharge at about a or whether lack of work was the reason for the Company's course. As a preface to resolution of the issue, it is necessary to identify those laid off on October 18. Generalizations by the senior Flynn, whether in his testimony or in a pretrial affidavit, to the effect that he laid off the "whole" or "entire crew" on October 18 still leave the problem of identifying those affected. The evidentiary record contains no payroll or other work records of the Company either for October 15 (a Friday), the last workday preceding Monday, October 18, or for the latter date, nor, indeed, for any other period. (The only payroll evidence, drawn from the Company's records, consists substantially of the voting eligibility list, and of stipulated data dealing with the work status of two employees on October 15, that of Hargreaves and Jim Flynn on October 18 and thereafter, some prior layoffs, and dates of recall for work of various laid off employees.) And the voting eligibility list is both an inadequate and unreliable guide to the employment status of employees as of October 18. It is based on the payroll as of the week ending September 24, almost a month prior to the election, and thus does not reflect changes in the labor force (a discharge, for example) between that date and October 18; and includes the names of Superintendent Edens and foremen who were not in fact members of the bargaining unit and were thus ineligible to vote. The pleadings on the other hand offer some guidance to identification of those laid off. Paragraph 8 of the complaint names 19 nonsupervisory employees (22 individ- uals in all, including 3 foremen) as laid off "on or about" October 18, 1971, and the answer expressly admits the allegations of paragraph 8. However, the disjunctive allegation that the 19 were laid off "about" October 18 dilutes the admission of its force as evidence that they were laid off "on" that date. And more to the point, if the admission be taken as a concession that all 19 were laid off "on" October 18, both the General Counsel's theory and the admission run counter to evidence, on the basis of which I find, that two of the alleged discnminatees, Hargreaves and Jim Flynn, were not laid off, both working on October 18 and thereafter; that three others, Elijah H. Porter II, L. W. Wooten, and John C. Stiefer, Jr., were laid off prior to October 18 (Porter and Wooten on October 8, and Stiefer on September 28), and did not work for the Company after their respective layoff dates; and that another, Raymond L. Crowell, was discharged on October 4, 1971, and did not work for the Company thereafter.ii But the answer's admission of paragraph 8 of the complaint is evidence in the case, notwithstanding the imprecision it borrows from the complaint, and its conflict with other evidence, and it appears to me appropriate to measure its effect in the light of the whole record. The parties are in accord that a general layoff occurred on October 18, although in conflict as to the scope and reason month or 6 weeks before the election, whereas Crowell worked until October 4, some 2 weeks before the election The date of the discharge is inferable from his last day of work, October 4 The fact that Crowell's name appears on the voting eligibility list does not negate the testimony that Crowell was discharged, for the list, as previously stated, was prepared on the basis of the payroll for the week ending September 24 There is no indication, by the way, that Crowell either voted in the election or was on the Company's premises at any time on October 18 FLYNN STEEL BUILDINGS CO 461 for the action. With that in mind, the proper course to follow, in myjudgment, is to give effect to the admission as evidence that the employees named in paragraph 8 of the complaint were laid off on October 18, except to the extent that other evidence requires a different result Pursuing such a course, it is clear that Hargreaves and Jim Flynn were not included in the October 18 layoff, as the General Counsel in effect conceded at the hearing. Thus I shall recommend dismissal of the complaint as it pertains to them 12 I shall similarly recommend dismissal of the complaint with respect to Crowell, Porter, Wooten, and Stiefer. Taking into account the facts that Crowell was discharged on October 4 and did not work for the Company thereafter; that Porter, Wooten, and Stiefer were laid off well before October 18, and have not worked for the Company since their respective dates of layoff; and that there is no evidence that Crowell, Porter, Wooten, and Stiefer were on the Company's premises on October 18, whether to vote or for any other purpose, I find the record insufficient to support a finding that they were included in the October 18 layoff action, or that the omission to recall them was rooted in an unlawful purpose. With respect to the remaining 13 nonsupervisory employees named in paragraph 8 of the complaint, the admission in the answer is ample warrant for a finding that all 13 were laid off on October 18, but some added comment is appropriate in the case of two, Donald Aubel, who has never been recalled for work, and Jack Demby, who, as previously noted, was recalled. Notwithstanding the admission, Foreman Mason, who was Aubel's supervi- sor, and was called by the Respondent, testified that Aubel "was never laid off," and ceased working about 2 months before the election because of illness The elder Flynn testified that Aubel became ill in September and has not been recalled because of illness. The fact is, however, that the Company's own records show that Aubel worked on Friday, October 15, the workday immediately preceding October 18. Moreover, the record is barren of any evidence as to the nature of the alleged illness, nor is there any evidence that the Company has been in touch with Aubel since October 18. In view of the Respondent's business records, I find, contrary to Mason's testimony, that Aubel worked for the Company on the last workday preceding the October 18 layoffs. That being the case, whether or not Aubel was on the Company's premises on October 18, I see no reason to deny efficacy to the admission in the answer regarding Aubel's layoff. Indeed, the context of the senior Flynn's examination by the Respondent's counsel, and of Flynn's testimony at one point, conveys an intimation of acquies- 12 The General Counsel announced at the hearing after the close of the evidence that he was withdrawing the allegations of discrimination pertaining to Hargreaves and Jim Flynn , but made no motion in that regard 13 Flynn's testimony Q (By Mr D'Angelo) And what do you know of Mr Aubel's physical condition) A He's been very sickly for some time Q And was he at or near the time he was laid off? [ Emphasis supplied ] A In September he became ill 14 Evidence of the presence or absence of any alleged discnminatee on cence in the idea that Aubel was included in the October 18layoffs.13 I find that he was. As for Demby, although his last workday prior to October 18 was on October 4, the record does not establish that he was laid off on October 4 or the reason he did not work between that date and October 18. In the absence of such evidence, the admission of the allegations of para- graph 8 of the complaint warrants a finding that he was laid off on October 18. Moreover, his testimony intimates that he was laid off on that date. After describing the episode in which Edens told him that Flynn had "laid everybody off," Demby gave the following testimony: Q (By Mr. Slaff) Now did you get your check that day [October 181? A. Yes. I did Q. You were laid off? A. Yes, I was. In the light of what has been said, I find that the remaining 13 nonsupervisory employees listed in para- graph 8 of the complaint were laid off on October 18.14 The Company has recalled nine of these for work. The following lists the 13 laid off, identifies those not recalled, and specifies the date of resumption of work in the case of each one recalled: Gary Melvin Verbal Garner - Jimmy L. Hines Paul Eldridge Richard Hiser - Jack Demby - Raymond L. Smith Roger A. Wakefield Walter Padilla - Donald Aubel - Kenneth R. Burrell Resumed work on October 20, 1971 Resumed work on October 20, 1971 - Resumed work on October 20, 1971 Resumed work on October 26, 1971 Resumed work on Novem- ber 4, 1971 Resumed work on November 4, 1971 Resumed work on November 4, 1971 Resumed work on November 4, 1971 Resumed work on Novem- ber 8, 1971 Has not been recalled - Has not been recalled David Monarty Has not been recalled Andrew McGraw Has not been recalled Turning to the question of the reason for the layoff action, there is no hard evidence such as the Company's regular business records to support the senior Flynn's claim that its job projects available for performance on the morning of October 18 were 99 percent completed. But the Company's premises on October 18 is not a decisive factor in determining whether he was included in the layoff action , but may properly be taken into account Thus in reaching the conclusion that Porter, Wooten, and Stiefer were not included in the October 18 layoff, I gave consideration not only to their prior layoff but to the lack of any evidence that they reported to the premises on October 18 Comparably , testimony identifying Walter Padilla, Kenneth R Burrell , Andrew McGraw , David Monarty, Gary Melvin, Jimmy L Hines, and Paul Eldridge as on the premises at or about the time of the layoff announcement supports a conclusion that they were included in the laid off "crew " In any case, I am satisfied on the basis of the admission in the answer that these seven and six others, to be identified below, were laid off on October 18 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD even if one accepts that figure, it is by no means decisive of the issue presented, for the estimate leaves one in the dark as to the project or projects reflected in the remaining one percent, the amount of available work involved, which individuals performed it, and when. Moreover, Flynn made his layoff announcement early on a Monday morning, shortly after the inception of the workday, and of a new workweek, and it is fairly inferable from Edens' testimony that there was work available at that time for some employees, for although stating that as of the last preceding workday, Friday, October 15, "[w]e were just about caught up with our work," he also testified that as of that date, the Company's work project status "was leading up to a small crew and a possible layoff." (Emphasis supplied.) Significantly, too, the Respondent does not explain why it hired four laborers on the Flagstaff project to perform work of a type normally done by regular members of its labor force. Certainly, Flynn's testimony that two of the four were recommended by the project customer will hardly suffice as an explanation for the other two who were supplied by the state employment service. The nub of the matter is that even the Respondent's case indicates that there was work available on and after October 18 for at least some encompassed in the layoff action who did not receive it; that the Respondent's case falls short of explaining the reason for such a course; and that, in contrast, there is much in the record to persuade one that the election result on October 18 was at least a materially contributing factor in the layoff action of that date. That the senior Flynn was hostile to the idea of union representation, and disposed to punish employees for turning to it, is established by undisputed evidence. He expressed such a disposition about 2 weeks before the election when he told the supervisory staff, in substance, that if the Union won the then pending election, he would "shut the damn doors." And that he was angered by the election result is beyond cavil. His resentment is not only evidenced by the fact that the layoff announcement came at the inception of a workweek "immediately" after he learned the outcome of the election, but by Superintendent Edens' statement to Demby, shortly after the layoff announcement, that the Union had won the election and that Flynn "got mad" and "laid everybody off." This was as much as to say that the election result had angered Flynn and had led him to lay off "everybody" in reprisal for the employees' choice of the Union in the election. Flynn's anger may be perceived, too, in a remark he made to Foreman Mason on the afternoon of October 18, following the layoff action, that the employees had "voted, yes [for the Union]," and he "wouldn't have a union " 15 What is more, there is good reason to conclude that the elder Flynn has blacklisted various employees whom he holds responsible for unionization of the Company's labor force. Foreman Claxton, in the process of recalling Demby for work, told Demby as much, stating that "a lot of guys" 15 I base no findings or conclusions here on a signed written statement (G C Exh 3) given by Mason to a representative of the Union on November 6, 1971, to the effect that he had heard the senior Flynn say that he would not reemploy any men who had voted for the Union In his testimony, Mason denied hearing Flynn make the remark in question The writing was received not as affirmative evidence that Flynn did so, but for no longer worked for Flynn because he has "a blackball ... list of guys he wanted to get nd of" because of their union activities In the circumstances presented, Claxton's statement is imputable to the Company, but one may put it aside, and there is still compelling evidence of the existence of a blacklist. Indeed, in his testimony, the senior Flynn in effect admitted that he has blacklisted Kenneth R. Burrell, testifying, in substance, that he has not recalled, and would not reemploy, Burrell because the latter is a "union agitator" and "union spy." It may be noted, in that regard, that pnor to the election Burrell advocated support of the Union among employees and foremen, and that he served as the Union's observer at the election. It is fairly inferable, too, that two others who have not been recalled, Monarty and McGraw, have been similarly blacklisted. Both advocated support for the Union among the employees before the election ; both expressed proun- ion positions to their respective foremen and Superintend- ent Edens; both voted in the election, were present at the time of Flynn's layoff announcement, and were laid off that day; both sought work, without success, from the Company after the layoffs, Moriarty speaking to the senior Flynn about the matter once and to secretarial personnel at the Company's office several times, and McGraw asking Flynn's son for work by telephone; and both have never been recalled, although both are experienced ironworkers, McGraw, who entered the Company's employ about 5 months before the layoff, having been an ironworker for about 20 years; and Monarty having entered the Compa- ny's employ in 1965, before any other nonsupervisory employee, and having worked for it since then in several periods a combined total of some 2 to 3 years. The Company has had substantial labor needs in the period since the October 18 layoffs, as is evident from the fact that it has recalled most of those laid off; yet it offers no explanation for its failure to recall Moriarty and McGraw, and, in the absence of one, I am convinced that both, like Burrell, have not been recalled because of their union activities. The record as a whole leads me to conclude, and I find, that the October 18 layoffs were rooted in a purpose by Flynn to punish "the entire crew," supervisors (excepting Edens) and employees alike, then in the Company's employ, for the electoral choice of the Union as bargaining representative; i6 that by thus laying off the 13 employees affected, the Company violated Section 8(a)(3) of the Act, and interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the Act; and that by blacklisting and not recalling Moriarty, McGraw, and Burrell, the Company additionally violated Section 8(a)(3) of the Act, and abridged Section 7 rights of employees, thus violating Section 8(a)(1) of the Act. It may be that at some point after the October 18 election, the Respondent would have laid off some or all of the 13 employees in question for lack of work, and that the bearing it may have, as a prior self-contradictory statement, on Mason's credibility 16 The retention of Hargreaves and Jim Flynn does not alter the fact that the elder Flynn , as he admits, directed the layoff of "the entire crew," with the exception of Edens As previously indicated, the Respondent does not say why Hargreaves and Jim Flynn were excepted. FLYNN STEEL BUILDINGS CO. 463 Aubel would not have been available for work because of illness had work been offered him on or after October 18, but the timing of the layoffs is so interlocked with an unlawful discriminatory motive as to preclude a determina- tion on this record how much work any of the 13 would have had but for the discriminatory layoffs in the period since they took place. To paraphrase Judge Learned Hand, it rests with the Respondent "to disentangle the conse- quences for which it [is] chargeable from those from which it [is] immune," 17 and, in order to effectuate the policies of the Act, such disentanglement now requires an order that includes provisions, as set forth in the remedy recommend- ed below, that the Respondent offer Moriarty, McGraw, Burrell, and Aubel immediate reinstatement to their respective former or substantially equivalent jobs; make each of the four men whole for his wage losses, together with interest, between his layoff and a proper offer of reinstatement; and make each of the other nine discnmina- tees whole for his wage losses, with interest, between his layoff and the date he resumed work as found above.18 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening or obstructing commerce and the free flow of commerce. V CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following conclusions of law: 1. The Company is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. The Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily laying off 13 employees, and discriminatorily blacklisting and failing to recall 3 of them, as found above, the Company has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor 17 N L R B v Remington Rand, Inc, 94 F 2d 862, 872 18 The General Counsel makes no claim that there was any discrimina- tion against any of the nine employees recalled after the dates on which they respectively resumed work In any case, each of the nine, I find, was reinstated to his former, or a substantially equivalent,job as of the date he resumed work, and that date tolls the period of discrimination against him 19 " a discriminatory discharge of an employee because of his union affiliation goes to the very heart of the Act " N L R B v Entwistle Manufacturing Co, 120 F 2d 532, 536 (C A 4) See, also, May Department practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend below that it cease and desist from such practices, and take certain affirmative actions designed to effectuate the policies of the Act. In view of the nature and extent of the unfair labor practices committed, and in order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend an order below which will in effect require the Respondent to refrain in the future from abridging any of the rights guaranteed employees by the said Section 7.19 Having found that the 13 individuals named in Appen- dix A, attached hereto and made part hereof, were discriminatonly laid off on October 18, 1971, in violation of Section 8(a)(1) and (3) of the Act, and that all but Donald Aubel, Andrew McGraw, Kenneth R. Burrell, and David Moriarty were subsequently recalled for work, I shall recommend that the Company make each of the nine recalled, as found above, whole for any loss of pay he has suffered, or will suffer, by reason of the discrimination against him, between the time he was laid off on October 18, 1971, and the date on which he resumed work, as found above, together with interest as provided below; that the Company offer each of the four not recalled, Donald Aubel, Andrew McGraw, Kenneth R. Burrell, and David Moriarty, immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority and other rights and privileges, and make each of the four whole for any loss of pay he has suffered, or will suffer, by reason of the discrimination against him, between the time he was laid off on October 18, 1971, and the date of a proper offer of reinstatement to him, as aforesaid, together with interest as provided below; and that the loss of pay for each of the 13 employees discriminatorily laid off, as found above, be computed in accordance with the formula and method prescribed by the Board in F. W Woolworth Company, 90 NLRB 289, and include interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER20 Upon the basis of the foregoing findings of fact and conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended Order: Flynn Steel Buildings Co., its officers, agents, successors, and assigns, shall: Stores v N L R B, 326 U S 376, Bethlehem Steel Company v N L.R B, 120 F2d641(CADC) 20 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 , recommendations and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations be adopted by the said Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Discouraging membership of any of its employees in International Association of Bridge, Structural & Orna- mental Iron Workers, Local Union #75, or any other labor organization, by laying off, blacklisting, or discharg- ing any employee, or in any other manner discriminating against any employee with respect to such employee's hire, tenure of employment, or any term or condition of employment. (b) In any other manner, interfering with, restraining, or coercing any employee in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative actions, which, I find, will effectuate the policies of the Act- (a) Offer Donald Aubel, Kenneth R. Burrell, Andrew McGraw, and David Moriarty immediate and full reins- tatement to their respective former jobs or, if those no longer exist, to substantially equivalent jobs, without prejudice to their respective seniority or other rights and privileges, and make each of them, and each of the other nine individuals listed in Appendix A, attached hereto, whole as provided in Section VI, above, entitled "The Remedy." (b) Preserve until compliance with any order for reinstatement and backpay made by the National Labor Relations Board in this proceeding is effectuated, and, upon request, make available to the said Board and its agents, for examination and copying, all payroll records, social security records, timecards, and any other records that are relevant to a determination of any right of reinstatement, and of the amount of back pay due, under such order. (c) Post in conspicuous places at the Company's place of business in Phoenix, Arizona, including all places there where notices to employees are customarily posted, copies of the notice attached hereto and marked "Appendix B." Copies of the said notice to be furnished by the Regional Director for Region 28 of the National Labor Relations Board, shall, after being duly signed by an authorized representative of the Company, be posted by it immediate- ly upon receipt thereof and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by the said Company to insure that said notice is not covered, altered, or defaced by any other material.27 (d) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this Decision what steps the Respondent has taken to comply therewith.22 It is also recommended the complaint be dismissed to the extent that it alleges that the Company laid off and failed to recall L. W. Wooten, Raymond L. Crowell, John C. Stiefer, Jr., Elijah H. Porter, II, Daniel Hargreaves, and Jim Flynn in violation of Section 8(a)(1) and (3) of the Act 21 In the event that the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 22 In the event that this recommended Order is adopted by the Board after exceptions have been filed, Sec 2 (d) of such recommended Order shall be modified to read "Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX A Richard Hiser Donald Aubel Walter Padilla David Moriarty Gary Melvin Roger A. Wakefield Andrew Verbal D. Garner Paul Eldridge Jimmy L. Hines Raymond L. Smith Kenneth R. Burrell Jack Demby McGraw APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any such activities. WE WILL NOT lay off, discharge, blacklist, or otherwise discriminate against any employee because such employee exercises any of such rights. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of any of the said rights given them by the National Labor Relations Act. The National Labor Relations Board has found that we discriminated against Richard Hiser, Donald Aubel, Walter Padilla, David Moriarty, Gary Melvin, Roger A. Wakefield, Verbal D. Garner, Paul Eldridge, Jimmy L. Hines, Raymond L. Smith, Kenneth R. Burrell, Jack Demby, and Andrew McGraw by laying them off, and that we have reinstated all but Donald Aubel, Kenneth R. Burrell, Andrew McGraw, and David Moriarty; and has ordered us to offer immediate reinstatement to Donald Aubel, Kenneth R. Burrell, Andrew McGraw and David Moriarty, and to reimburse each of them and Richard Hiser, Walter Padilla, Jimmy L. Hines, Roger A. Wake- field, Gary Melvin, Jack Demby, Verbal D. Garner, Paul Eldridge, and Raymond L. Smith, for the losses of pay that they respectively may have suffered by reason of such discrimination, together with interest as provided in the Board's order. WE WILL comply with the Board's order. FLYNN STEEL BUILDINGS Co. (Employer) FLYNN STEEL BUILDINGS CO. 465 Dated By This is an official notice and must not be defaced by (Representative) (Title) We will notify immediately the said Donald Aubel, Kenneth R Burrell, Andrew McGraw, and David Moriar- ty, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application, after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 7011 Federal Building -U.S. Courthouse, 500 Gold Avenue, SW, Albuquerque, New Mexico 87101, Telephone 505-843--2555.