Brown & Root, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown & Root, Inc. and International Brotherhood of Electrical Workers, Local 769, AFL-CIO. Case 28-CA-4242 February 6, 1978 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On September 22, 1977, Administrative Law Judge Earldean V. S. Robbins issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. 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, find- ings,1 and conclusions of the Administrative Law Judge, to modify her remedy,2 and to adopt her 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 the Respondent, Brown & Root, Inc., Bagdad, Arizona, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). we have carefully examined the record and find no basis for reversing her findings. 2 The Administrative Law Judge, in citing Florida Steel Corp., 231 NLRB 651 (1977), inadvertently specified interest to be paid at 7 percent; however, there the Board stated that interest on backpay shall be computed at the "adjusted prime rate" used by the U.S. Internal Revenue Service. See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). DECISION STATEMENT OF THE CASE EARLDEAN V. S. ROBBINS, Administrative Law Judge: This case was heard before me in Prescott, Arizona, on July 12-14, 1977. The charge was filed by International Brotherhood of Electrical Workers, Local 769, AFL-CIO, herein called the Union, on March 3, 1977, and served on Respondent on March 4, 1977. The first amended charge was filed by the Union and served on Respondent on March 29, 1977. The complaint, which issued on April 14, 234 NLRB No. 103 1977, alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The basic issue herein is whether certain employees were transferred and/or laid off because of their union activities. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the parties, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Texas corporation with its principal office and place of business in Houston, Texas, is a construction contractor. At all times material herein, Respondent has maintained a place of business in Bagdad, Arizona, where it is engaged in the construction and renovation of copper mine facilities owned and operated by the Cypress-Bagdad Copper Company in and around Bagdad and Wikieup, Arizona. During the year preceding the issuance of the complaint herein, Respondent in the course and conduct of said business operations, has purchased and caused to be delivered to its place of business in Bagdad, Arizona, construction materials and other goods and materials valued in excess of $50,000 directly from States of the United States other than the State of Arizona. The complaint alleges, Respondent admits, and I find that Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Facts Respondent currently employs a total of about 70,000 employees in the construction crafts on various construc- tion projects throughout the world. It has no collective- bargaining agreement covering its various construction projects. The Cypress-Bagdad Copper Company project is a copper concentrating facility consisting of a primary crushing facility and an overland conveyor for conveying crushed ore from the crusher to the concentrating facility. The Brown and Root contract, valued at approximately $240 million, involves among other things a water supply system comprised of 10 or 12 wells which feed through the gathering system into a pumping station located near Wikieup, Arizona, where electric powered booster pumps push the water through a pipeline from the Wikieup pump station to the Bagdad mill site. This involves the construc- tion of a power distribution system. The peak number of employees on the project was about 1,000, of whom 200 were electricians. At the time of the hearing herein the project was over 98 percent complete, and there remained 718 BROWN & ROOT, INC. approximately 270 employees, including 70 or 75 electri- cians. William V. Davis is project manager, under him is General Superintendent Jim Marthers. There is a craft superintendent for each of the various crafts with a general foreman' and various foremen working under the craft superintendent. The craft involved here are electricians. Carl Coats was the electrical superintendent until late April or early May 1977,2 when he was replaced by John Blaskovitch who was promoted from general foreman. The portion of the project principally involved herein is the power distribution line servicing the wells and the pumping station, herein referred to as the Wikieup site. In mid-January a linecrew was assigned to the Wikieup site. By February 14, the crew was comprised of two linemen; Roy Williams and Dennis Frost, and several helpers; Willie Wilson, Jr., Doby Williams, Rex Babcock, Gilbert Duran, and Douglas Gillespie.3 At that time they were the only outside electricians, also called linemen, and helpers on the site. 4 John Vance was their foreman and I find him to be a supervisor within the meaning of Section 2(11) of the Act.5 Roy Williams is a member of the Union. Frost and Vance are members of International Brother- hood of Electrical Workers but not of Local 769. On February 14, Frost, Roy Williams, Doby Williams, Wilson, Gillespie, and Babcock met in Frost's motel room. Roy Williams explained the benefits of organized labor and they all signed authorization cards for the Union. 6 At some point after the cards were signed, Vance walked into the room. According to Roy Williams, Vance said, what are we holding, a union meeting. Roy Williams said they were. Vance picked up the authorization cards from the table and looked at them. Roy Williams gave Vance an authorization card and asked if he would like to sign it. Vance said he would think about it and left. Frost, Babcock, and Vance testified in essential agree- ment with Williams as to this incident except that Frost and Doby Williams testified that Roy Williams and Vance discussed the pros and cons of the Union. Frost testified that Vance took the negative side and that Williams said that they were seeking a linemen crew unit not all the electricians and that they were the only linecrew. Frost believes that Vance had mentioned that there were about 100 electricians working on the project. Vance admits that he remained 10 or 15 minutes and he does not specifically deny any of this testimony.7 Vance testified that immediately after he left the room, Frost came to Vance's room and said he may have made a I It is unclear as to whether there is one or more than one general foreman in the electrical department. 2 Unless otherwise indicated, all dates herein are in 1977. 3 Some of them had been transferred from the Bagdad site where they had worked for a month or more. Others, like Roy and Doby Williams, had been at Bagdad only 2 or 3 days. 4 An outside electrician or lineman is one who builds outdoors power lines, high voltage and low voltage substations, and does work pertaining to the transmission of electrical energy from a power source to the meter at the ultimate destination. A groundsman, also called a helper, assists the lineman with anything that is done on the ground. An inside electrician, often referred to simply as an electncian, is one who works within the final destination, starting at the meter. establishing electrical outlets and other internally installed apparatus. 5 Davis testified that as a foreman, Vance has the responsibility of directing the work of a crew of electricians. tie has no authority to hire mistake. Vance replied, "Jack, I don't know, I think you did. I'll guarantee you one thing, the office over there will not hear this from someone else." Frost was not questioned as to this conversation. Vance further testified that, on February 15, he went to Bagdad, showed Coats the authorization card that he was given and told him that everyone on his crew except Duran had signed an authorization card and that Duran could not have signed one because he did not work that day. Coats told Vance to wait there at the electric shop, they would take care of it. Coats left. When he returned about an hour later, he told Vance he was going to send him more help since he was far enough along with framing so that they could start setting poles. Coats handed Vance a paper with Gillespie's, Babcock's, and Doby Williams' names on it and said those three men were to be transferred to Bagdad the next morning. He gave no explanation. Coats further said he, Marthers, and Quinn were going to Wikieup to see how the work was progressing and that Foreman Bill Quinn and his crew would start work at Wikieup the next day.8 However, according to Vance, about a week before, Coats asked if he could finish by March 1. Vance said it was impossible. He then asked if Vance could finish by March 15. Vance said he thought he could if he was provided more men and equipment. Vance said he needed linemen, that they were getting ahead on framing poles and needed to start setting poles but to set poles, more linemen were needed. Later that day when Vance returned to the Wikieup site, Coats, Marthers, and Quinn were already there. Frost testified that, when Coats walked past him, he asked Coats if everything was all right. Coats said no and kept walking. Frost further testified that after Coats, Marthers, and Quinn left, he asked Vance if Coats were dissatisfied with the work. Vance said no. Frost informed Vance of the day's progress. Vance said he had reported their union activity. Frost said he was surprised and asked why. Vance said he was hurt because he had not been invited to the February 14 meeting and that, since he was a foreman, he felt he had an obligation to Respondent and he did not want them to find out through the grapevine. He then asked what Frost would have done. Frost replied that he would have continued working and let it go at that. Vance said maybe he had acted hastily. According to Vance, Frost said Coats was not acting right and asked what was wrong with him. Vance said Coats seemed all right to him. Frost asked if Respondent employees but has the authority to fire employees in certain circumstances. These include endangering oneself and others by failing to obey safety regulations and refusal to obey Vance's orders. Vance testified that he had authority to select persons to be reassigned from Bagdad to Wikicup and to effectively recommend disciplinary action. 6 Duran was not in Wikieup on February 14. He signed an authorization card on February 15. 7 Frost and Doby Williams testified that this was not the first time Vance had discussed his views on unionism. Several weeks earlier, in such a discussion, Vance said he had trouble with IBEW (the Union) in his 25 years as a member. He further said that Brown & Root could never be unionized as they were too big and that this was not the time to unionize them. 8 The portion of the charge alleging a violation of the Act by the transfer of additional men to the Wikieup jobsite was dismissed by the Regional Director. 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knew about the union activity. Vance said he had reported it. Frost said he did not think Vance should have done that. Vance said he felt that he should. Vance conceded he may have made a mistake but he reported it because he thought it was his duty. Vance also said that they were going to have all the help they needed, that Bill Quinn's crew would be there the next morning. At the end of the shift that day, Vance called his crew together. According to Roy Williams, Vance said "If I had it to do over again I'd do it the same way and all things have a cause and an effect. The effect of what you guys did last night is that these three men, Gillespie, Babcock and Doby are going back to Bagdad to work in the morning to report to Mr. Coats in Bagdad." Babcock and Doby Williams 9 testified in essential agreement. Frost testified that he did not hear the first part of the conversation. Duran testified that he does not recall all of the conversa- tion but that Vance said he had reported their union activity, that he felt this was his duty. He further testified that he has a vague recollection that Vance mentioned something about one reaction causing another reaction. Vance testified that he said, "For every action there is a reaction, and three guys are being transferred back to the mine." He then named Babcock, Gillespie, and Doby Williams. Babcock asked why they were being transferred in the middle of the week. Vance said he had been given the note and he was just following orders. He denies saying that they were being transferred because of their union activity or that he was ever told that was the reason for the transfer. I credit the employee witnesses that Vance specifically said that the transfers were caused by their union activity. Their testimony is mutually corroborative. Vance admits that he said for every action there is a reaction and three guys are being transferred back to Bagdad. Clearly he was saying that the transfers were a reaction to something. He does not deny that this was said in the context of stating that he had reported their union activity. Even assuming that he did not specifically say that the transfers were caused by the union activity, I would find that in the context Vance intended to, and did, convey the meaning that the transfers resulted from the union activity. On February 16, Quinn and 11 additional electricians and helpers began work at the Wikieup site. None of these persons were linemen. Some could climb poles but they could not do hot work. Also transferred to Wikieup on February 16 was a heavy equipment operator with a backhoe which was used for digging and filling the holes. Some of these employees worked with Quinn setting poles. This involved putting the poles into a hole and shoveling 9 Doby Williams testified that Vance said the transfers were the reaction from the action they took the preceding evening. However, in his pretrial affidavit, he stated that Vance did not say why they were going to Bagdad, nor did he say it was because of the Union, or the effect of the union activity of the preceding evening. Williams testified that he was nervous when he gave this affidavit and did not recall this statement of Vance's. He testified that his affidavit is incorrect in this regard. io Lemke was a second-class electrician helper hired November 9, 1976. " Frost creditably testified that Lundy, Ball, Mead, and two others whose names he does not recall worked in his crew. He recalls that one was called Les and the other Wes. Wesley Able was one of the persons assigned to Wikieup on February 16. Several of these employees have the initial "L" but there is no way to identify one as Les. Lundy was an electrician hired dirt in to hold the pole. At least four of them, Eric Lemke, 10 Jack Lundy, John Ball, and Leon Mead," worked with Vance's crew. According to Vance, the two crews were working together pole for pole, setting poles, tamping poles, stringing wire, and laying it on the pole. On February 16, the Union filed a representation petition with the Board in Case 28-RC-3274 seeking a unit of eight persons in the linecrew at Wikieup.' 2 On February 18, the Union notified Respondent by mailgram that Babcock, Frost, Gillespie, Doby Williams, Roy Williams, Wilson, and Duran were assisting in its organizing cam- paign. On February 22, five linemen were transferred to Wikieup from Respondent's projects in New Mexico and Texas. They worked on Vance's crew. On February 17 Wilson quit. On or around February 23 or 25, Roy Williams asked Vance if his son, Doby, could be reassigned to Wikieup as his helper. Vance said he did not think so but he would ask. The next day Vance told Williams that Coats had refused. Babcock testified without contradiction that when he returned to Bagdad, Larry Kelso was his foreman.' 3 Babcock's undenied testimony, which I credit, is that on February 18, he called Kelso aside and said he had a pretty good idea why he was transferred back to Bagdad, the union cards they signed in Wikieup. Kelso said he knew about the cards. Babcock said he liked what he was doing, he did not come to Bagdad to cause trouble or make waves, and he was there to work and do a good job. Babcock further said he did not really understand much about Unions and authorization cards because he had never been involved with any Union before. Kelso said there was 45 days in which to hold an election and that the job in Wikieup would be finished before they had a chance to hold an election. He further said that if Babcock kept his nose clean and stayed away from Doby Williams, every- thing would be all right.1 Around March 2, according to Vance, he told Coats that, in order to meet the schedule, he needed additional ground help, that he had linemen helping linemen. Coats said he would send over additional helpers. On March 3, Doby Williams, Gillespie, and Babcock were reassigned to Wikieup. Williams and Gillespie worked on Vance's crew and Babcock was assigned to the pumphouse.'5 According to Vance, they had reached the point of clipping in, which meant the crew was scattered out more than when they were setting poles and stringing wire so a helper was required for each lineman. On March 6, according to Vance, they ran out of material. They had completed the structure for a river October 28, 1976. Ball was an electrician hired August 24, 1976, and Able was an electrician hired January 18. 1977. Mead was a third-class helper hired December 2, 1976. 12 On April 12, the Regional Director approved the withdrawal of the petition without prejudice. 13 Davis testified that all foremen possess the same authority as Vance. Babcock testified without contradiction that Kelso wore a gold hat. Davis testified that general foremen wore gold hats and had authority to hire and fire. Accordingly, I find that Kelso was a supervisor within the meaning of the Act. t4 The allegations of the charge based on this conversation were dismissed. 15 The pumphouse was not part of the linework. 720 BROWN & ROOT, INC. crossing according to the original plans. Thereafter, the inspector suggested a change in the plans and special materials had to be ordered to effect this change. Also, three plates were missing for the last two spans going into the pump station. On March 4, Frost, Duran, Roy Williams, and Doby Williams were reassigned to Bagdad, with Robert Reavis as leadman. According to Vance, he had two poles on order for a line going down to the crusher at Bagdad. When these poles arrived, he sent these four men to Bagdad because they were familiar with the standards to frame the poles and get them ready to set. On March 6, when they had gone as far as they could, without the additional materials, at Wikieup, the remainder of the linecrew was reassigned to Wikieup, where they finished setting the poles and stringing the wire at the crusher site. On March 7, Frost, Duran, and Gillespie 16 were laid off. Doby Williams and Roy Williams were laid off on March 8.17 Four of the linemen from New Mexico and Texas were laid off on March 7. The fifth one had left earlier due to illness. Babcock testified that on March 7, Quinn told him to report to Bagdad on March 8. On March 8, when Babcock reported to work at Bagdad, Quinn told him he had been laid off. Later that morning, Babcock talked to Blaskovitch and General Foreman Mike Hugg. According to Babcock's undenied testimony, which I credit,Rs he told them he had been laid off and he really hated to leave. Blaskovitch said, "Well, we hate to see you leave. We stuck up for you, but there wasn't anything we could do. Word from above said you had to go, and that's all we could do." Vance testified that he neither participated in the decision to reduce the work force nor in the selection of those to be laid off. Coats instructed him to have his crew report to the office. He did not explain why but Vance testified that he knew the reason, the work was finished and a layoff was required. On May 6, Craig Crawford from Respondent's personnel department offered Frost reinstatement. Frost refused because he had just been hired on another job. Duran was reinstated on May 19 and was laid off again on July 1. By separate letters dated May 12, Babcock and Gillespie were offered reinstatement. Both letters state: Your last employment on this project was terminated in a reduction of force and for no other reason. If you consider that you were discriminatorily discharged for union activities you are mistaken but you may consider this an unconditional offer of reinstatement to your former position. Davis testified that neither Babcock nor Gillespie respond- ed to these letters. Babcock gave no testimony in this regard. Gillespie did not testify. There is no evidence in the "I Gillespie had been reassigned to Bagdad on March 5. i7 Neither Roy Williams nor Doby Williams worked on March 8. is This conversation was not mentioned in Babcock's preheanng affida- vit. However, the testimony is undenied. Furthermore, Vance corroborates a portion of Babcock's testimony as to the February 15 conversation which does not appear in Babcock's affidavit. Considerng his demeanor, the internal consistency and the corroboration of much of his testimony, I find Babcock to be an honest, reliable witness whom I credit. I9 Respondent argues that such a reassignment does not amount to record that Doby and Roy Williams were offered reinstate- ment. CONCLUSIONS I. The reassignments The complaint alleges that Doby Williams, Babcock, and Gillespie were reassigned from Wikieup to Bagdad on February 16 because of their union activity.'9 Respondent contends that this was a normal reassignment in accor- dance with Respondent's practice of moving helpers between worksites and assignments almost on a daily basis. Respondent further argues that it had no reason to be concerned regarding union activity since its attorney had advised that the linework at Wikieup would be completed before an election could be held. It is undisputed that Respondent did transfer or reassign personnel between the Bagdad and Wikieup sites. How- ever, there is no evidence that such occurred with the frequency that Respondent argues. Thus, there is evidence of only three instances of reassignment from Wikieup to Bagdad between the commencement of the linework in Wikieup in mid-January and March 6 when this work was halted. In mid-January Doby Williams was sent back to Bagdad for 2 days and then returned to Wikieup. On March 2, Frost, Roy Williams, and Doby Williams were the first of the Wikieup linecrew to be reassigned to Bagdad. The work at Wikieup was expected to cease within 2 or 3 days thereafter and these men were reassigned first because they were experienced at framing poles and were expected to do the framing so that when the remainder of the crew returned to Bagdad they could proceed to set the poles and string the wire. The only other instance of reassignment to Bagdad is the February 16 reassignment involved here. Thus, it does not appear that these reassignments were so frequent or so routine that a reasonable necessity for the transfer must be assumed. Here the facts argue against a proper motivation for the reassignment. Williams, Bab- cock, and Gillespie were reassigned out of Wikieup at the same time that the work force at Wikieup was being increased. Respondent offers no explanation of why help- ers with at least some experience with the linework at Wikieup were transferred out at the same time that helpers without experience at this work were transferred into Wikieup. This circumstance coupled with Vance's statement to the effect that the reassignments were a result of the union activity of the previous evening tends to establish an illegal motivation for the reassignments. Respondent argues that even if Vance made the above statement he was merely expressing his opinion, since he made neither the decision to reassign persons to Bagdad descrinmnation whatever the motivation. I disagree. Employee witnesses testified without contradiction that reassignment between Bagdad and Wikieup requires changes in transportation and housing arrangements resulting in an economic loss. Thus, Duran testified that when he was in Bagdad before being reassigned to Wikieup he commuted from Wickenburg in a car pool. When he was reassigned to Wilieup he could not continue in the car pool so he moved a camp trailer to the Wikieup vicinity and had paid a month's rent. The project is spread out about 40 or 50 miles. 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nor the selection of the persons to be reassigned. I find no merit in this argument. Vance told Coats about the Union activity. Coats' response was, "wait here, we will take care of it." Then Coats returned with the three names written on a piece of paper and instructed Vance that they were to be reassigned to Bagdad the next day. A logical, reasonable inference is this was the way they were taking care of the situation. Furthermore, Vance testified that, in reassignments, normally he was instructed to send a certain number of men to Bagdad and he selected the persons to be reas- signed. Thus, Respondent deviated from usual practice when Coats selected the specific persons to be reassigned. In all the circumstances I find that Doby Williams, Rex Babcock, and Douglas Gillespie were reassigned to Bagdad on February 15 because of their union activities in violation of Section 8(aX I) and (3) of the Act. 20 2. The layoffs The complaint alleges that Roy Williams, Doby Wil- liams, Dennis Frost, Rex Babcock, Douglas Gillespie, and Gilbert Duran were laid off because of their union activities. In support thereof the General Counsel argues: (I) That the evidence establishes that Respondent schemed to accelerate the completion of the linework at Wikieup so as to rid itself of the union supporters; (2) the incompe- tence of the employees assigned to the job on February 16 and 22; (3) the increase in overtime; (4) only those who signed cards were discharged; (5) the statement by Blaskc- vitch to Babcock; (6) Coats' statement to Frost that after all lines were built he could remain in Respondent's employ as an inside electrician; and (7) the shifting reasons given by Respondent to explain its selection of persons to be laid off. As to the argument that the work was accelerated because of the union activity, although counsel tbr the General Counsel makes this argument in his brief, this is not a part of General Counsel's theory of the case. The Regional Director specifically dismissed that portion of the charge alleging that Respondent violated the Act by transferring employees to the Wikieup site on February 16 and 22. Accordingly, no finding of a violation can be based thereon. As to the increase in overtime, the evidence is insufficient to establish that this was done for any reason other than to meet Respondent's schedule. General Counsel argues that there was no corroboration of Davis' testimony that March I was the target date for completion. I find no reason to discredit Davis in this regard and the testimony of Frost2l as to when certain phases of the work were to be completed tends to corroborate Davis' testimony. 22 As to the competency of the employees assigned to Wikieup on February 16 and 22, and the use of certain 20 In reaching this conclusion, I have considered all of Respondent's arguments and the cases cited in support thereof. 21 Frost testified that before any union activity he was teld that Respondent wanted all the poles set and the control cables strung by mid- February which would leave to be done only setting the transformer banks and stringing the wire. He was also told that the people who tested the cables thought the work was not progressing as fast as it should. The record is not clear as to who these people were but Frost testified that they were not Respondent's employees. equipment, much of the evidence offered in support of General Counsel's position is nothing more than an attempt on the part of employee witnesses to substitute their judgment for Respondent's. Respondent's decision to use a backhoe and to use inside electricians is not so clearly indefensible as to raise any inference of illegal motivation. The backhoe did in fact accomplish the job in a manner which passed inspection. Vance testified without contradic- tion that the work of setting and tamping poles did not require the specialized skills of a lineman. Furthermore, he testified that even though they could not do hot work some of them could climb poles and string wire. Certainly they completed the work almost on schedule.2 3 Accordingly, I find no merit in this argument. Similarly, General Counsel's reliance on the fact that the linework at Wikieup was not completed is misplaced. There is no dispute, the linework at Wikieup was not complete. However, the evidence is not sufficient to establish that this work ceased for any reason other than that asserted by Respondent, a change in plans suggested by an inspector required the ordering of additional materi- al which had not arrived.24 In these circumstances, the evidence will not support a finding that the layoff itself was illegally motivated. The critical issue is the selection of the persons laid off. Roy Williams and Dennis Frost creditably testified that Vance was less than enchanted with the skills of the persons assigned to the Wikieup site on February 16 and 22. However, the four linemen were also laid off on March 7. As to the electricians and helpers assigned on February 16, they did not purport to be linemen and there is no evidence to establish that they were retained after March 7 to do linework. Rather, Davis testified that they were retained to do inside work such as they had done prior to being assigned to Wikieup. Hence, their relative competence to perform linework has no real significance. During the prehearing investigation of this matter, Respondent's position set forth in a letter to the Regional office from counsel for Respondent was: It is the practice of the Company in making selection for layoff in reduction of force after determining need in each classification and special skill, to retain its best employees, and to select for termination its less promis- ing employees, and in this case the selection was made on that basis. This does not mean that those eliminated are incompetent. Davis testified that the type of people that were laid off were the linemen and helpers who were hired for the specific purpose of doing that work. The ones that were retained were those that had been utilized for the general electrical work in the millsite area and could be utilized there again after the completion of this work. The facts 22 Davis testified that the work was 98 percent complete as of the target date. 23 Roy Williams testified that when he was hired he was told by Pete Moore that there would probably be 4 to 5 months of linework. The record does not clearly establish the identity of Pete Moore. Williams testified that he evidently was the person who did the hinng on the project. 24 Roy Williams admits that they ran out of certain material needed to complete the job, but contends that it was possibly not needed to have work to do after March 7. He did not elaborate. 722 BROWN & ROOT, INC. belie this contention. Babcock first worked in the millsite area for 5 or 6 weeks before he was transferred to Wikieup to work on the linecrew, and at the time of his layoff, he was not on the linecrew. He was doing inside work at the pump station. Frost's undenied testimony, which I credit, is that in December Coats told his crew, which included Vance, Frost, and Wilson, that after all the lines were built they could stay on as inside electricians. Duran had been employed by Respondent as a helper since September 1975. He worked with the ironworkers until they finished and then he transferred to the electrical crew. He worked in Bagdad for 2 days and was then reassigned to the linecrew at Wikieup. Nor can the selection for layoff of only those persons who signed union authorization cards be explained by saying that Vance's entire crew was terminated. 25 Electricians assigned to Wikieup on February 16 worked on Vance's crew, yet they were retained. Davis testified that the selection of the persons to be laid off was made by Coats either alone or in consultation with his general foreman. Blaskovitch was general foreman at the time and became electrical superintendent in the latter part of March when Coats left Respondent's employ. Neither Coats nor Blaskovitch testified. Respondent made no representation that Coats was unavailable. In fact, Davis admitted that no attempt was made to locate him. From the above, it is apparent that at the very least Respondent considered Babcock and Frost capable of doing inside electrical work. Babcock was laid off even though he was not on the linecrew at the time of the layoff, according to Vance's testimony. Duran had been employed by Respondent for more than a year and prior to his union activity had been retained even though such retention required him to switch from ironworkers helper to electri- cians helper. Furthermore, there is no evidence that Respondent inquired as to the capabilities of the laid-off personnel to do inside electrical work. Also, when Respon- dent made offers of reinstatement, in an apparent effort to toll backpay, no offer of reinstatement was made to the union instigator, Roy Williams or his son, Doby Williams. There is no evidence that at that time Respondent had any knowledge of their availability or lack of such. In all the circumstances including those set forth above and in view of Blaskovitch's statement to Babcock on the day of his layoff, I find that Respondent selected employ- ees for layoff because they had signed union authorization cards. Accordingly, I find that Roy Williams, Doby Williams, Dennis Frost, Gilbert Duran, Douglas Gillespie, and Rex Babcock were laid off in violation of Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW I. Brown & Root, Inc., is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 25 The four linemen from New Mexico and Texas were laid off from the Cypress-Bagdad Copper Company project payroll. However, Davis admits that the agreement was that when he no longer needed them he would give them referrals back to the projects from which they came and that he complied with this, 2. International Brotherhood of Electrical Workers, Local 769, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By unlawfully reassigning Rex Babcock, Douglas Gillespie, and Doby Williams to the Bagdad jobsite, Respondent violated Section 8(aX3) and (1) of the Act. 4. By unlawfully laying off Roy Williams, Dennis Frost, Rex Babcock, Douglas Gillespie, Doby Williams, and Gilbert Duran, Respondent violated Section 8(aX3) and (I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(Xl1) and (3) of the Act, I shall recommend that Respondent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purpose of the Act. To the extent it has not already done so 26 it is recommended that Respondent offer Roy Williams, Doby Williams, Dennis Frost, Gilbert Duran, Rex Babcock, and Douglas Gillespie immediate and full reinstatement to their former positions, or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay they may have suffered as a result of the discrimination against them by payment to them of a sum of money equal to that which each would have earned as wages during the period from the date of their layoff to the date on which Respondent offers reinstatement less their net earnings, if any during the said period, to be computed in the manner set forth in F W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 7 percent per annum, Florida Steel Corporation, 231 NLRB 651 (1977). In the event, Respondent's operations at the Cypress- Bagdad Copper Company project in Bagdad and Wikieup, Arizona, has been completed 27 or has reached a point where their former or substantially equivalent jobs do not exist, the foregoing is modified to the following extent: Respondent shall notify the above-named discriminatees, in writing, that it has no objection to hiring them for any electrician or helper's position for which they may be qualified and shall place their names at the top of a preferential hiring list for any electrician or helper's position which may be filled in the State of Arizona after this Decision for any skill in which they are qualified. And, when such positions become available, offer it to them in the order of their prior seniority with Respondent, and make each of them whole for any loss of earnings suffered by reason of the discrimination against them in the manner set forth above. In addition, Respondent shall include in the letter to the aforesaid discriminatees a copy of the notice which would otherwise have been posted if the 26 Although the record indicates that Respondent offered to rehire some of the discriminatees and that some were in fact reemployed, the record is insufficient to establish whether the offers and the reemployment consti- tuted proper reinstatement or offers of reinstatement. 27 Davis testified that the project was almost complete. 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD operations had not been completed, as described above, and shall mail copies of the notice to all its employees, employed in the electrical department at the Cypress- Bagdad Copper Company project on March 7, 1977. J. S. Alberici Construction Co., Inc., 231 NLRB 1033 (1977); Interboro Contractors, Inc., 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (C.A. 2, 1967). Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER2 8 The Respondent, Brown & Root, Inc., Bagdad, Arizona, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off, reassigning, or otherwise discriminating against employees with regard to their hire or tenure of employment or any term or condition of employment for engaging in activities on behalf of a labor organization, or for engaging in activities protected by Section 7 of the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) To the extent it has not already done so, if Respondent's operations at the Cypress-Bagdad Copper Company Project in Bagdad and Wikieup, Arizona, is still in progress, offer to Roy Williams, Doby Williams, Rex Babcock, Dennis Frost, Douglas Gillespie, and Gilbert Duran immediate and full reinstatement to their former or substantially equivalent positions, and make each of them whole for any loss of earnings he may have suffered by reason of Respondent's discrimination against him in the manner and to the extent set forth in the section herein entitled "The Remedy." (b) In the event that such operations have been com- pleted, make the above-named discriminatees whole as aforesaid for any loss of pay by reason of the discrimina- tion against them. Assure them, in writing, of their future eligibility for employment and place them at the top of a preferential hiring list, in the manner and to the extent set forth in the section herein entitled "The Remedy." (c) In the event that such operations are still in progress, post at said project copies of the attached notice marked "Appendix." 29 Copies of said notice to be furnished by the Regional Director for Region 28 shall, after being signed by Respondent's representatives, be posted by Respondent immediately upon receipt thereof, and remain posted as long as Respondent's operations on the Cypress-Bagdad Copper Company project are in progress, but for a period no longer than 60 days from the date of posting, in conspicuous places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) In the event that such operations have been com- pleted, as described in the section herein entitled "The Remedy," mail copies of the aforesaid notice to the employees specified therein. (e) 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 and the right of reinstatement under the terms of this recommend- ed Order. (f) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Decision, what steps it has taken to comply herewith. 2s 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. 29 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and we intend to carry out the order of the Board. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain as a group through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any and all of these things. WE WILL NOT do anything that interferes with, restrains, or coerces you with respect to these rights. WE WILL NOT reassign, discharge, or otherwise discriminate against you for engaging in activities on behalf of International Brotherhood of Electrical Workers, Local 769, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with any of your rights set forth above which are guaranteed by the National Labor Relations Act, as amended. WE WILL, to the extent we have not already done so, offer to Roy Williams, Doby Williams, Dennis Frost, Rex Babcock, Gilbert Duran, and Douglas Gillespie immediate and full reinstatement to their old jobs or to substantially equivalent jobs, if we have not completed our operations at the Cypress-Bagdad Copper Compa- ny project in Bagdad and Wikieup, Arizona. WE WILL, if our operations on that project have been completed, assure each of the above-named employees 724 BROWN & ROOT, INC. that they are eligible for future employment with us, and place them on a preferential hiring list. WE WILL make each of the above-named employees whole for any loss of earnings which they may have suffered by reason of the discrimination against them. BROWN & ROOT, INC. 725