Fleming Building Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fleming Building Co., Inc. and Ronald Gene Merrell, Harvey Lee Tate, Tommy Leon Still, and Louis M. Leeds. Cases 16-CA-6623-1, 16-CA-6623-2, 16- CA-6623-3, and 16-CA-6623-4 November 7, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 1, 1977, Administrative Law Judge James T. Youngblood issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting 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 brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 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, Fleming Building Co., Inc., Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the said Order, except that the attached notice is substituted for that of Administrative Law Judge. I The 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 credibility 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 his findings. In the first paragraph of sec. Ill, A, of his Decision, the Administrative Law Judge found that all four employees observed the picket line on May 24, 1976. Examination of the record, however, reveals that only two employees, Tate and Leed, noticed the line on May 24 but that all four employees discussed it. In the same paragraph of his Decision, the Administrative Law Judge inadvertently noted that the picket line was on the project on "March 25, 26 and 27" and that employee Merrell returned to the site from a hospital appointment on "March 27." In both instances, the dates should refer to the month of May. 2 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed them by Section 7 of the Act. WE WILL NOT discourage membership in the International Brotherhood of Electrical Workers, Local 584, or any other labor organization, by discriminatorily discharging, or otherwise dis- criminating against our employees in regard to hire or tenure of employment or any term or condition of employment. WE WILL offer immediate and full reinstate- ment to Ronald Gene Merrell, Harvey Lee Tate, Tommy Leon Still, and Louis M. Leeds to their former jobs or, if these jobs are no longer available, then to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay or other compensations they may have suffered by reason of the discrimination against them with interest. FLEMING BUILDING Co., INC. DECISION STATEMENT OF THE CASE JAMES T. YOUNGBLOOD, Administrative Law Judge: The consolidated complaint which issued on October 27, 1976,' alleges that Fleming Building Co., Inc. (herein called the Respondent or Employer), discriminatorily discharged Ronald Gene Merrell, Harvey Lee Tate, Tommy Leon Still, and Louis M. Leeds (herein collectively referred to as the Charging Parties), in violation of Section 8(aX3) and (1) of the Act. 2 The Respondent filed an answer to the complaint in which, among other things, it admitted the jurisdictional allegations, and that Charles Thomas Deer- doff, George Kenneth Allen, and Dennis Lee Wasserman were supervisors within the meaning of Section 2(11) of the I Unless otherwise specified all dates refer to 1976. 2 The complaint does not allege any independent violations of Sec. 8(a)(1). 233 NLRB No. 56 308 FLEMING BUILDING CO., INC. Act, but denied the commission of any unfair labor practices. All parties were represented by counsel at the hearing and the General Counsel and Respondent filed posthearing briefs which have been duly considered. Upon the entire record, and my observation of the witnesses and their demeanor, and the briefs filed herein I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent is, and has been at all times material herein, a corporation duly organized under the laws of the State of Oklahoma, with its office and principal place of business located in Tulsa, Oklahoma, where it is engaged in the construction business. During the past 12 months, which period is representative of all times material herein, Respondent, in the course and conduct of its business operations, purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of Oklahoma. Upon these admitted facts, I find that the Respondent has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that the Internation- al Brotherhood of Electrical Workers, Local 584 (herein the Union), is and has been, at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The Facts At the time of the events involved in this proceeding the Respondent was engaged in the construction of a metal building for Burgess-Norton Company at Claremore, Oklahoma. On May 24, a Monday, the Union placed a picket line on the project protesting a nonunion contractor or nonunion employees being on the jobsite. The four ironworkers who were then working on the construction site for Respondent observed this picket line and discussed it among themselves. However, as the picket line was placed on the project after the ironworkers came to work that morning they decided to work the rest of the day. The picket line was on the project on March 25, 26, and 27. Again, as the picket line was not up when the ironworkers came to work, they worked on the 25th and the 26th. On March 27 Ronald Gene Merrell, the Iron Worker's steward, was returning from the hospital, where he had received a treatment for his back, and saw the picket line at approximately 11:55. He stopped and talked to the pickets and informed them that he was going into the site to call his business agent for instructions. He called the business agent and was informed that it was a legal picket line. He then informed the other ironworkers that it was a legal picket line and that he' was not going to work behind it. Merrell then informed George Allen, the job superinten- dent, that there was a legal picket on the job and that he was not going to work behind it. There was some discussion about the establishment of a separate gate but Allen refused to establish a separate gate and according to Still and Merrell, Allen informed the group that he did not feel they were worth it and if they gave him any more trouble he would get some other men to complete the job. Whereupon the steward, along with Harvey Lee Tate, Tommy Leon Still, and Louis M. Leeds, left the jobsite and went to the picket line. After about 10 to 15 minutes they were informed by the pickets that they were leaving because the nonunion electrical contractor or electrician had left the site and they were taking down the line. The four ironworkers then returned to work and worked the rest of the day. After the men returned to work, steward Merrell went to the project trailer to advise Allen that they had done so. When he arrived at the trailer Allen was on the telephone with Wasserman, Respondent's erection superintendent, and Wasserman requested to speak to Merrell. According to Merrell, Wasserman told him "that he was getting tired of me walking off the job and taking the men with me, that he just wasn't going to stand for it." Merrell also testified that he told Wasserman that this would not have happened if he had put up a separate gate for their use. According to Wasserman, Allen had called him to advise him that the ironworkers had honored the picket line and that Allen did not think they needed to replace them. While the conversation was going on, Allen informed Wasserman that the ironworkers were coming back on the job and the steward was headed for the trailer. Wasserman asked Allen to put the steward on the phone. When the steward got on the phone Wasserman said, "what's happening?" and the steward informed him that they had honored the picket line. Wasserman replied, well that is fine, if I need more people I will talk to the business agent because we have an agreement that he will try to supply us replacements. Wasserman denied that he said anything to Merrell about his taking the men off the job or that he was tired of this and he simply would not stand for it. The four ironworkers worked the remainder of the day on May 27, and reported for work the next day at around 7 o'clock in the morning. According to the testimony of steward Merrell, he and Still started rolling out their mesh wire getting ready for a concrete pour. At about 9 o'clock they were approached by General Foreman Tom Deerdoff, who had two checks in his hand. Deerdoff informed them that "this is for walking off the job yesterday and not crossing that picket line." Merrell responded "Yeah, it's about the picket deal for sure." Then Deerdoff said "Yeah," and threw his hands back and said "I didn't say that." Merrell testified that Still was the only person within hearing distance of this conversation. He testified, how- ever, that about 20 to 30 feet away, the laborers, carpenters, and Foreman Ronnie Johnson were making the pour from the concrete truck. In explaining why he and Still were away from the concrete pour, he stated they had gone to get a drink of water and were coming back when they were approached by Deerdoff and handed their checks. Because of the distance, the concrete truck making so much noise and the shoveling and talking of the laborers there was no 309 DECISIONS OF NATIONAL LABOR RELATIONS BOARD way anyone but he, Still, and Deerdoff could hear the conversation. Ronnie Still testified that when Deerdoff gave them their checks on the morning of May 28, he and Merrell had been pulling mesh wire for concrete pour, and that they were about 20 to 30 feet away from where the pour was actually taking place when they were approached by Deerdoff. When Deerdoff handed them their checks Merrell said, "Is this for honoring the picket line yesterday?" Deerdoff responded, "Yes" and jumped back and threw up his hands and said, "But I didn't say it." Like Merrell, Still testified that there was no one within 20 to 30 feet of this conversation and, because of the noise, the men that were engaging in the pouring of concrete could not have heard this conversation. Louis Leeds testified that, on the morning of May 28, he was working with Harry Tate on top a little office which is part of the building. They were working on the roof of this little office putting up sheeting girts3 for the siding of the main building when Deerdoff approached and handed them their checks. Deerdoff stated "Louis, I just hate it has to end this way." Leeds responded, "I guess that's just the way the ball bounces." Tate testified that Deerdoff said "I'm sorry" and to the best of his recollection he did not hear him say anything more. After the four employees received their paychecks they noticed that each check had some shortage of hours. They proceeded to the office of the construction site and discussed this matter with George Allen. The steward called the Iron Workers business agents on the phone who came to the construction site almost immediately. Accord- ing to Merrell, Allen called Wasserman and told him that the checks were short and Wasserman requested to speak to Merrell because he was the steward on the job. Wasserman informed Merrell that he was tired of him trying to make a big show out of everything and he was getting very tired of him. Wasserman said that he would fire everybody that was working for Fleming Construction if he had to pay the men for the time that they were shorted. He denied however that they were shorted. It was shortly after this that the Iron Workers business agents showed up on the job, and after a telephone conversation between the business agents and Wasserman the men were finally paid through 12 noon on Friday, May 28. The Respondent's witnesses testified that the four ironworkers were laid off for lack of work, and that there would have been no need to discharge them for observing the picket line because they had an arrangement with the Union whereby they could easily have obtained replace- ment ironworkers. In support of the position that the employees were discharged for lack of work the Respon- dent's witnesses testified that on the construction of this building it was what is called a design and build job. Meaning that the main building, the outside structure, is constructed and placed under roof, however, the inside of the building, that is the flooring, machinery locations, and the various things that go inside the building are done on a design-and-build basis. In this connection, as the building I As I understand, sheeting girts are the studs or partitions to which the actual siding is attached. progresses the Respondent would design additional por- tions and submit them to the owner for authorization. Until an authorization for a design is received the Respondent cannot schedule the work. The testimony indicated that each Thursday they received authorization from the owner Burgess-Norton and, if they did not receive any authorization for additional work and there was no prior authorization work scheduled, the men would have to be laid off. The testimony also indicated that even though work was authorized, if it had not been scheduled it could not be performed. Thus, once work is authorized, Respon- dent would have to schedule the work and get the necessary materials and men for the job. The testimony further indicated that the Respondent's decision to termi- nate these men was made on May 20 but, because they could not get their sheeting crew from another jobsite to work the following week, there was sufficient work for one more week for these four ironworkers. Thus this prevented their layoff on Friday, May 21. To explain the odd time of day for a layoff, that is 9 a.m., the Respondent's testimony indicated that they had a complicated check system which was done by computer. The story goes that the workweek ends on Tuesday, which appears to be a fact, and the timecards are pulled Wednesday morning and are put in the computer at noon on Wednesday. Once the timecard information is put in the computer it cannot be changed, and the checks do not come out until about 2 or 3 o'clock Thursday afternoon, which is too late to be distributed to the men on thejobsite by quitting time of that day. And as it is necessary to pay the men off when they are laid off, the Respondent felt that it had to have the men back on the job the next day, when their computerized checks would be available. Any additional money they had earned for Wednesday, Thurs- day, and Friday morning was paid by separate check, handwritten or typewritten. 4 Thus, when they were dis- charged on Friday, May 28, the men were given the computerized check for their week through Tuesday, and a separate check for the hours they had worked on Wednes- day, Thursday, and Friday morning. As indicated above there was a discrepancy in the handwritten checks which was ultimately resolved in favor of the employees and they were paid through Friday noon. At the time of their discharge all four employees were actively performing work and there was work left for them to complete. Their testimony indicates that there was still more concrete pours to be made, that the building had to be sheeted, and that the girters which hold the sheeting had not been placed completely around the building. It was obvious that these employees could do the girting work because two of them were doing this at the time of their termination. The employees also testified that they could do the sheeting as well as the sheeting crews and that there was a flume to be finished. Respondent admits that certain of this work was still available but that it could easily be performed by General Foreman Deerdoff. Deerdoff testi- fied that he did complete the concrete pour and the flume by himself. There is no question but that there was work for these men to do at the time of their layoff, and that I It is permissible to write a separate check for material that has not been put in the computer. 310 FLEMING BUILDING CO., INC. there was additional work to be done on this building because the ironworkers' work was still being done on November 4, 1976, at the time of this hearing. Discussion and Conclusions It is clear in this record that at no time prior to the termination of the four employees on May 28 did Respondent inform them of any impending layoff. In fact, the record reflects that there was not even a hint of a possible layoff. While the Respondent's witnesses testified that there was consideration of a layoff on May 20 to take place on May 21, which did not happen, they admit that they did not inform the four employees of this layoff. Prior to honoring the picket line established by the IBEW the four employees, included steward Merrell, visited George Allen and requested him to establish a reserve gate for their use so that they would not have to cross the picket line. According to the credited testimony of Still and Merrell,5 Allen informed the group that he did not feel that they were worth it and that if they gave him any more trouble he would get some other men to complete the job. When the men returned to work, Merrell went to the office trailer where Allen was talking to Wasserman on the telephone. Wasserman requested to speak to Merrell. According to the credited testimony of Merrell, Wasser- man told him that he was getting tired of him walking off the job and taking the men with him, that he just was not going to stand for it. Merrell explained that if Respondent had put-up a separate gate they would not have walked off in the first place. Again Wasserman repeated that he did not think they were worth it. The following morning Still and steward Merrell were working on the job of rolling out and pulling wire mesh in preparation for a concrete pour. They had left the pour for the moment to get a drink and on their way back they were met by Deerdoff. According to the credited testimony of both Still and Merrell, Deerdoff handed them their checks and informed them that this was for walking off the job the day before and not crossing the picket line. After this statement, he threw up his hands, jumped back and said "I didn't say that." Merrell informed him that it was too late, that he had already said it. When Deerdoff approached the other two ironworkers he was more cautious, apparently realizing that he had let the cat out of the bag, he informed these two employees that he was sorry that it happened. He made no mention of the picket line or the reason why they were being terminated. In my view this is sufficient to make a finding that the Respondent discharged these four employees for their concerted protected activity the day before in honoring the picket line set up by the IBEW. However, the Respondent claims that these men were laid off for lack of work because this was a design-and- build project and as no work was authorized on Thursday there was a lack of work on Friday and the employees had to be laid off. Additionally the Respondent contends that they could not lay the men off on Thursday evening at quitting time, because they must pay the men in full when I have credited the testimony of Still, Merrell. Tate, and Leeds because it had a ring of truth. The testimony of Respondent's officials on matenal points did not have such a nng of truth. Moreover, the testimony of the four ironworkers is logically consistent and I cannot say that about the facts as related by Respondent's officials. they lay them off, and because of their intricate computer- ized check system it was impossible to get the checks to them until the following morning. The testimony of the majority of Respondent's witnesses was to the effect that they did not need these employees the following day but merely had them come in so that they could be paid off. However, the testimony of George Allen, the supervisor directly responsible for the construction job, is that he did have work for them for 2 hours on Friday. Moreover it is a fact that all four ironworkers actually worked 2 hours on May 28, and there was more work on the job, such as building the flume, finishing the concrete pour, and putting up the girts that hold the wall sheeting, which Leeds and Tate were doing at the time of their discharge. Additional- ly, there was siding to be put up, but according to Respondent that was to be done by a sheeting crew who was then working on another job. According to the credited testimony of the four ironworkers they were capable of performing the work that was left on the job. Additionally, Merrell testified that he was also a welder and could have welded the flume which I understand was performed by foreman Deerdoff. Certain of Respondent's witnesses testified that they contemplated a layoff as early as May 20, because of lack of work. Wasserman testified that on May 20, he contacted Allen by phone and talked to him about laying off the ironworkers. Allen informed him that "he needed to keep them to get some of this work done around the flume and the surrounding areas." Allen informed Wasserman, however, that they could lay them off Friday night May 21, provided that they could get the sheeting crew moved to the jobsite the next week but if they could not get the sheeting crew, the ironworkers would have to be retained for at least one more week. Wasserman said he contacted Allen and Sellers because he was under the impression that there was only enough work for the general foreman and that they did not need the other men, as they did not have any other authorizations for further work. Because they could not get the sheeting crew there, they continued to need men for another week. Foreman Deerdoff testified that on Thursday, May 20, there was additional work authorized and that he was informed of this authorization by George Allen on Friday, May 21. This testimony is contrary to the testimony of Wasserman and the other company witnesses. This is also one more reason why I have not credited the Respondent's witnesses in the elaborate explanation for the layoff and the timing of the discharges. It is inconceivable to me that fate could set up a set of circumstances as alleged here by the Respondent, to coincide so precisely with the desires of four ironworkers who simply honored a picket line set up by another local union. Whether the Respondent's testimony that this construc- tion was a design and build contract and that they could not go ahead without further work authorizations is true or not 6 is not controlling here because foreman Deerdoff testified there was additional work authorized on May 20, 6 I note that Respondent never sought to put its contract with Burgess- Norton into evidence to establish this fact, nor did it call any witness from Burgess-Norton to support this fact. 311 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which certainly would be available for the men on May 28. Moreover, the record is replete with testimony that there was work still to be done on the jobsite, such as putting up sheeting girts, pulling mesh wire for the concrete pours, installing the flume, and the building of another small building which was inside the main building. Additionally, it is noted that ironworkers were still working on Novem- ber 4, 1976, the date of this hearing. I also cannot accept Respondent's explanation for the timing of the discharge, that is at 9 a.m. on Friday, merely because of a computerized check system. It seems to me that a check could have been written Thursday evening, if in fact there was a lack of work, and the computer could have been corrected at a later date. Such an explanation to me is completely implausible. Under all the circumstances of this case it is my conclusion that the Respondent discharged Ronald Gene Merrell, Harvey Lee Tate, Tommy Leon Still, and Louis M. Leeds, on May 28, for the simple and sole reason that they engaged in concerted protected activity the day before by honoring the picket line of the IBEW. It is clearly established that employees have a right to honor the picket lines of other unions and this right is protected. Although this right is protected this right must be weighed against the business needs of the employer. Therefore in such situa- tions the employer has a right to replace the employees for legitimate business reasons. This clearly is not the situation here for Respondent contends that these employees were laid off for lack of work and in fact it had no business need for the employees. Therefore, I find and conclude that the discharge of the four ironworkers is clearly violative of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II1, above, occurring in connection with operations described in section 1, above, have 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. CONCLUSIONS OF LAW 1. Fleming Building Co., Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Electrical Workers, Local 584, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminatorily discharging Ronald Gene Mer- rell, Harvey Lee Tate, Tommy Leon Still, and Louis M. Leeds, and failing and refusing to reinstate them because of their union and protected concerted activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7 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. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(aX3) and (I) of the Act by discriminatorily discharging Ronald Gene Merrell, Harvey Lee Tate, Tommy Leon Still, and Louis M. Leeds, and failing and refusing to reinstate these employees, I shall order Respondent to offer immediate and full reinstatement to their former jobs or, if those jobs are not available, to a substantially equivalent position, without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings 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 they normally would have earned as wages from May 28, 1976, to the date of Respondent's offer of reinstatement, less any net earnings during that period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950) and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to the provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 The Respondent, Fleming Building Co., Inc., Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed them by Section 7 of the Act. (b) Discouraging membership in the International Brotherhood of Electrical Workers, Local 584, or any other labor organization, by discriminatorily discharging, or otherwise discriminating against its employees in regard to hire or tenure of employment or any term or condition of employment. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Ronald Gene Merrell, Harvey Lee Tate, Tommy Leon Still, and Louis M. Leeds to their former jobs or, if those jobs are no longer available, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them in the manner set forth in the portion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, 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. 312 FLEMING BUILDING CO., INC. personnel records, and all other records necessary to analyze and determine the amount of backpay due them under the terms of this Order. (c) Post at its Tulsa, Oklahoma, facility and its various jobsites throughout the State of Oklahoma, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's authorized representatives, shall be posted by the Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous - 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 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. (d) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is dismissed insofar as it alleges unfair labor practices not specifically found herein. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 313