Everhart Steel Construction Co., Inc.

EVERHART STEEL CONSTRUCTION CO. Everhart Steel Construction Company , Inc. and Billy K. Brock. Case 10-CA-10621 October 31, 1974 DECISION AND ORDER By MEMBERS JENKINS, KENNEDY, AND PENELLO On June 27, 1974, Administrative Law Judge Rich- ard L. Denison issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Everhart Steel Construction Company, Inc., Chattanooga, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER KENNEDY, dissenting. I do not believe that the Charging Party, Billy K. Brock, was discharged for engaging in concerted pro- tected activity. Accordingly, I would dismiss the complaint. Respondent has had a longtime satisfactory bar- gaining relationship with both the Operating Engi- neers and the Iron Workers. Brock, a crane operator, was a member of the Operating Engineers. In May 1972, William M. Allen became Respondent's equip- ment superintendent. Allen and Brock had been on bad terms for a considerable period of time prior to 1972, when Allen assumed his position with Respon- i Contrary to our dissenting colleague, we do not believe that it is appro- priate for us to attempt to evaluate Brock's subjective motivation for engag- ing in what we believe to be protected concerted activity Brock was dis- charged for what he did, insisting on compliance with his own and other on-the-job union contract rights, and not for what he thought However, in response to our dissenting colleague, we note that the friction between Brock and Allen, the equipment superintendent, was caused by the latter's failure, when assigning work, to honor the seniority and jurisdictional claus- es of the contract 509 dent. Before Allen became equipment superinten- dent, Brock had enjoyed an excellent relationship with Respondent. After Allen's employment, Brock commenced calling attention to whatever he consid- ered to be any irregularity contrary to his union con- tract or what he believed to be the work rules of his Union or other unions. Although the Operating En- gineers assistant business agent criticized Brock for his attempt to apply the union contract terms too strictly, Brock reacted angrily to the admonition. Throughout 1973, Brock made it a practice of calling the business agents whenever he saw any irregularity or practice that he thought was contrary to his Union's contract or the contract with the Iron Work- ers. On November 8 or 9, 1973, Brock was operating a crane at a jobsite where the foreman of ironworkers was Ernest Keith. When a load of pipe was delivered to the site, a representative of the pipe contractor asked Keith for permission to use a forklift to unload the pipe. On learning this, Brock shut down the crane while he went to the telephone to inquire of the Pipe Fitters business agent if the men were union pipefit- ters. Brock did not unload the pipe. A little later, Respondent's president came to the job and asked Brock about the incident. Brock replied that he had shut down the crane and that he was going to see that everything on the job was run according to union rules. Later that day, Brock refused to lift some steel and Respondent had to send another crane and an operator to the site in order to complete the work. On November 30, 1973, Brock was sent with a crane to another job. When instructed by the customer as to what he wanted done, Brock asked the customer if his men were ironworkers. When the customer re- plied that they were not, Brock said he wanted to telephone the business agents to clear himself of any possible criticism. The customer complained to Re- spondent who instructed Brock to return to the shop with the crane. Upon returning, Respondent's presi- dent asked Brock why he had been creating such trouble lately. Brock responded that everything had been fairly good until Allen came and that Allen's actions had caused him to be more interested in his union contract. Thereupon, Respondent discharged Brock. The Administrative Law Judge concluded that Respondent's discharge of Brock violated Section 8(a)(3) and (1) of the Act because he sought to con- sult with union officials prior to performing work which he feared might transgress either his contract or the work rules or contracts of other crafts with which he had a close working relationship. I do not agree. Section 7 of the Act protects employees who en- gage in "concerted activities for . . . mutual aid or 214 NLRB No. 66 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD protection." Brock was not engaged in such activities when he was discharged. His insistence on the literal performance of his own Union's contract and his un- dertaking to police the contracts of other unions was motivated by his personal antagonism toward Respondent's newly appointed equipment superin- tendent, Allen, and antagonism that predated Allen's appointment by Respondent. Brock admitted that he had become interested in the minutiae of his Union's contract only after Allen had been employed by Re- spondent. Thus, Brock's entire course of conduct af- ter the accession of Allen was in satisfaction of his personal vendetta toward Allen and not for "mutual aid or protection." Conduct aimed at satisfying a personal gripe is not activity which the Act was in- tended to protect.' Accordingly, I would not find that Respondent's discharge of Brock violated Sec- tion 8(a)(1). Nor would I find that the discharge was violative of Section 8(a)(3) since there is absolutely no evidence of discriminatory motivation on the part of Respondent. I would dismiss the complaint in its entirety.' 2 See N L R B v Buddies Supermarkets, Inc, 481 F 2d 714 (C A 5, 1973), Southwest Latex Corporation v N L.R B, 426 F 2d 50 (C A 5, 1970), Indi- ana Gear Works, a Division of the Buehler Corporation v N L R B, 371 F 2d 273 (C A 7, 1967), General Electric Company, 155 NLRB 208. 221 (1965) 3 The Administrative Law Judge also found that Respondent had inde- pendently violated Sec 8(a)(I) by Respondent's remark to Brock that it would not tolerate Brock's conduct, and by Respondent's interrogation of Brock as to why he had become so involved lately I would find that neither statement violated the Act The toleration remark was as lawful as the dis- charge, which it merely foreshadowed The interrogation was a natural question to ask in view of Brock's attitude I can perceive no coercive im- pact in the query DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge: This case was tried at Chattanooga, Tennessee, on May 17, 1974. The charge was filed by Billy K. Brock, an individu- al, on March 4, 1974. The complaint, issued on April 18, 1974, alleges that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, by discriminatorily discharging the Charging Party because of his membership in and activities on behalf of the Interna- tional Union of Operating Engineers, Local Union No. 917, and because he engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. Additionally, it is alleged that Respondent further violated Section 8(a)(1) of the Act by interrogating employees, and by threatening them with discharge or other reprisals if they supported or engaged in activities on behalf of the Union. Respondent's answer denies the allegations of unfair labor practices al- leged in the complaint. All parties were afforded a full opportunity to partici- pate in a trial. The briefs filed by both parties have been carefully considered. Upon the entire record and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Everhart Steel Construction Company, Inc.,' the Re- spondent, is a Tennessee corporation engaged in the build- ing and construction industry as a subcontractor with its principal office and place of business located at Chatta- nooga, Tennessee. During the past calendar year, a repre- sentative period, Respondent performed services valued in excess of $50,000 directly for customers located outside of the State of Tennessee. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that International Union of Operating Engineers, Local Union No. 917, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background Respondent is and has been engaged in the business of subcontracting steel construction for 14 years, utilizing ap- proximately 100 union ironworkers. Another portion of its business is the rental of crane equipment and qualified op- erators who are members of the International Union of Operating Engineers, Local Union No. 917.2 Although Re- spondent obtained its employees through union hiring halls and has a collective-bargaining agreement with Local 917, it furnishes its services to both union and nonunion jobs James W. Everhart, Respondent's president, supervises the entire operation. He is assisted by Ernest Keith, foreman over the ironworkers, and William M. Allen, equipment superintendent, whose duties include the direction of the crane rental operation. William M. Allen, the son of Clyde Allen, business manager of International Union of Operat- ing Engineers, Local Union No. 917, is a union member and member of the Union's executive board. The Charging Party, Billy K. Brock, a member of Local 917, was em- ployed by Respondent on or about February 8, 1969, as a crane oiler, and later became a crane operator continuing to work in this capacity until his termination on November 30, 1973.3 This case arises against a background of ill will which both Brock and William M. Allen agree existed be- The name of the Respondent appears as corrected at the hearing 2 Hereafter referred to as Local 917 3 Hereafter, all dates are in 1973 unless otherwise specified EVERHART STEEL CONSTRUCTION CO. tween them over the years, both prior to 1969 when Brock worked under Allen at another employer, and continuing when Allen became Brock's superior at Everhart in May 1972. Allen testified that his differences with Brock were largely a matter of a personality conflict . Brock testified his dislike for Allen was, for the most part, caused by Allen's assigning better jobs with longer hours to employees hav- ing less seniority than Brock, while Brock received jobs with a minimum number of hours, and by Allen's frequent disregard of union jurisdictional lines between ironworkers and operating engineers. Consequently, although he and James Everhart had had an excellent relationship, when Bill Allen became equipment superintendent Brock com- menced to calling attention to whatever he considered to be any irregularity contrary to his union contract or what he viewed to be the union work rules of other trades. In December 1972, Brock, Allen, and John R. McWil- liams, assistant business manager of Local 917, and Phillip Teague, Local 917's steward at Everhart, met at Brock's request in effort to resolve the problems causing friction between Brock and Allen. In the meeting Brock com- plained that Allen had failed to honor the seniority and jurisdictional clauses of the contract. According to Brock, McWilliams replied that the men at Everhart had better working conditions than they would have under the strict application of these clauses. Brock then reminded McWil- liams that he had asked him to come to the meeting to represent him, and insisted upon a strict application of the contract. McWilliams replied that he thought the work time should be split among the operators regardless of the seniority whereupon Brock became angry and accused Mc- Williams of agreeing with Bill Allen because McWilliams did not want to face his father at the union hall The meet- ing ended when Brock walked out. In their testimony, Al- len and McWilliams did not dispute Brock's detailed ac- count of this meeting. I credit Brock's account. McWil- liams testified, nevertheless , that he thought the problems between Brock and Allen had been solved at the meeting. James Everhart, who did not attend, testified that thereaf- ter for a short time, Brock and Allen seemed to get along better, after which their relationship deteriorated further. 2. Events in 1973 preceding Brock's discharge Brock testified without contradiction, that throughout 1973 he made a practice of calling the business agents when he saw an irregularity or practice he thought was contrary to his Union's contract. He received no warnings or other forms of discipline for this conduct, and no inci- dents of any particular significance occurred until on or about November 8, at which time Brock and his crane were working on a job at 153 Warehouse Mart, otherwise known as the Pryor-Bacon job. On this day, according to Brock, he noticed that Ernest Keith, Everhart's foreman over the ironworkers, was permitting men who were not Everhart ironworkers to hang the steel. When Brock inquired of Keith about the matter, Keith replied that he was not con- cerned because he had to take care of the job. Brock then reported the matter to the Ironworkers business agent. Later Brock was sent temporarily from the Pryor-Bacon job to another jobsite. When he returned he learned that 511 other operators which had been utilized to unload iron from a truck utilizing equipment normally operated by op- erating engineers . Brock then called assistant business agent, McWilliams, about the matter . McWilliams came out to the jobsite and put these men under a Local 917 working permit. Brock testified that within 2 or 3 days after these inci- dents, James Everhart came to the jobsite and approached him asking, "Bill, do you have everything straightened up now on this job? Do you have everything pretty well straight?" Brock then replied, "Yes, I believe so, and as long as I'm a dues paying member to the Local Union, I will continue to try to get things straightened up, as long as I think they are wrong." Everhart ended the conversation by saying, "Well, this is not going to get it. I'm not going to have this." Then Everhart and Keith walked away.4 Ernest Keith testified that on or about November 8 or 9, a load of pipe arrived on the job whereupon the representa- tive of the pipe contractor asked Keith to let him use a forklift there on the job, to unload the pipe. On learning of this Brock shut down the crane while he went to the phone and talked to the Pipefitters business agent to inquire if the men were union pipefitters. Brock did not unload the pipe. Instead, a union operator named Teague performed the unloading assisted by the pipefitters who eventually erect- ed the pipe, employees of North Georgia Heating Compa- ny About 11 a.m. James Everhart came on the job and asked Brock about the incident. Brock told Everhart that he had shut down the crane and that he was going to see that everything on the job was run according to union rules. After Everhart left the jobsite Brock shut the crane down once more and went to use the telephone Keith testi- fied that he was not aware of the purpose for this call. Keith further testified that after lunch one of the ironwork- ers hooked on to a piece of steel which Brock then refused to lift with the crane. Brock complained that he would have to turn his crane around because it was not positioned cor- rectly. Keith protested, "Well, we have set 20 bays exactly like this, and why is this one wrong?" Brock answered, "Well, I'm not going to do it." Keith then stated, "Well if you're not going to obey orders and work like we want to, then just take the crane and take it back to the shop." Brock then left the crane and made several telephone calls, stating after he left, "I'm going to call everyone concerned to get them out here and straighten this out." Shortly there- after, Brock came back, stated that he could not contact anyone, and left the site with the crane. It was not until the next day that Keith was able to obtain another crane from Everhart to complete the work. Later that afternoon, Keith reported the incident to James Everhart. Brock testified that he remembered the incident at the Pryor-Bacon job, testified to by Keith and which resulted in Brock's leaving the job with his crane and being re- placed by another crane and operator from Everhart. Ac- cording to Brock, the placement of the steel prior to erec- tion required him to position his crane in such a manner that the steel could not be lifted safely into position. Brock stated that when he complained to Keith about this matter ° During this conversation , Everhart also reprimanded Brock for not wearing his hard hat, a violation of company safety rules 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and requested that he be allowed to reposition the crane, Keith became insensed and ordered him to take his crane and leave the premises. Brock drove the crane off the site, and back to the shop. He did not return to the Pryor-Bacon job, although more steel erection remained to be per- formed. He was replaced by another crane and operator. Everhart testified that upon learning that there had been difficulties on the Pryor-Bacon job, he went to the site and asked Brock if he had got things straightened out on the job, to which Brock replied that he thought he did. Ever- hart responded, "Well that's good. You just got to keep the work going, Bill. You're going to have to put your hard hat on, too." Then Brock asked if that was the "policy." When Everhart said that it was, Brock jumped off the crane, snatched the hard hat out of the cab, threw it on his head, and said, "OK. That's what we'll do." Later that day, after Everhart had left the jobsite, Keith reported to him that Brock had refused to lift some steel and that Keith had instructed Brock to leave with his crane. Everhart then sent another crane to finish positioning the steel on the Pryor- Bacon job. 3. The November incident and Brock's discharge On November 30, pursuant to a telephonic order for crane service placed by Billy P. DeShazo, foreman for Southeastern Porcelain Construction, Brock was sent with a crane to the Krystal Restaurant Construction site in East Ridge, Tennessee, a suburb of Chattanooga. Brock's ver- sion of what occurred is as follows: After arriving at the construction site and being introduced to DeShazo, Brock was instructed to pick up certain heavy restaurant equip- ment and set it inside the frame structure of the building. After completing this assignment, DeShazo told Brock to set the crane up on the opposite side of the building where they would put the job in the crane and hang iron and bar joints, additional portions of the building's frame structure. Brock then asked if DeShazo and his men were ironwork- ers. DeShazo replied that they were not Brock then replied that he wanted to call the business agents and clear himself of any possible criticism, since the situation involved one craft doing another craft's work and he worked under union contract. DeShazo responded that first he would call Brock's boss. After going inside the office trailer for a mo- ment, DeShazo returned, stated that he had talked with Bill Allen and that rock was to bring his crane back to Everhart's office. When Brock arrived at the office and found no one there, he left to get something to eat. Upon returning, he was met in the yard by Allen Everhart. Ever- hart began by saying, "Bill, I'm surprised at that action you took out there a while ago. It could have cost me a custom- er." Then Allen stated, "Brock, it's not up to you to police every job." Brock answered, "Well, you know that we're under a Union contract and that one Union is always help- ing another in this respect." Then according to Brock, Ev- erhart stated that he wasn't the least bit interested in the union contract or Brock's Union and that he looked after the interest of the Company. Then Everhart asked why Brock had become so strongly involved lately. Brock re- sponded that everything was fairly good until Allen came there and that Allen's actions had caused him to be more interested in his union contract. Then Everhart said, "Well, how about you taking off a couple of weeks and think about this thing and see if you can't change your position." Brock replied that he didn't have to take off and think about the way he believed concerning his union contract. Then Everhart said, "Well, with your strong involvement, I'm not going to be able to tolerate much more." Brock answered that he liked his job, but that if Everhart wanted him to leave he would have to fire him. Everhart stated that he would get Brock's timesheets, his checks, and sepa- ration notice. While Everhart was in the office having a check and separation notice prepared, Allen told Brock that he hated to see him leave thinking that Allen had done something to him. Brock replied that Allen knew what he had done, contrary to their union contract, and that there was no use in them discussing the matter any further. Then Everhart returned with the separation notice and check, handed it to Brock, and said that he hated to see the matter come to this but that he had to look after the Company's interests. The separation notice stated "Did not want to do work assignment." Brock answered that Allen's actions had caused him to become more interested in their Union and its contract. After further remarks by Everhart that Brock had been a good man and had kept his equipment in better condition than any man that had ever worked for him, and that if Brock ever wanted his job back, the door was open to him, Brock left the premises. The only further contact Brock had with the Company was 3 days later. At that time Brock told Everhart that he was willing to return to work, but he would not change his position about the way the Local Union was run or about calling the business agents about irregularities. Everhart responded that he would call Brock that afternoon to in- form him of the final decision. About 5 p.m. Everhart called and said that he wanted to let the matter remain as it was. Billy Pete DeShazo, foreman for Southeastern Porcelain Construction, testified generally corroborating Brock's de- scription of the events which took place on November 30 at the Krystal site. DeShazo testified that when Brock learned that DeShazo's men were carpenters he said, "Well, I can't hang those bar joists for you. You are not an ironworker." DeShazo then asked why Brock could not perform this work and received the answer that the Iron- worker business agent was a personal friend of his and that he would not hang the joists unless he called him.' After asking Brock a second time if he was going to perform the work and receiving a negative answer, DeShazo replied that the best thing for Brock to do was to take his crane and go back to the shop. DeShazo then called Everhart and told Allen that Brock refused to hang the barjoists, repeat- ing the words Brock had used. According to DeShazo, this conversation took place at approximately 11 o'clock. It was the next day before Everhart was able to send out another crane, The result was that the Krystal job was delayed for the remainder of the day for which time DeShazo had to pay his man a full day's wages. 5 DeShazo's version of this remark on cross-examination was that Brock stated he would have to call the Ironworkers business agent before he could hang the bar joists EVERHART STEEL CONSTRUCTION CO. William M . Allen's testimony concerning the telephone conversation with De Shazo coincided with DeShazo's ver- sion. In addition Allen testified that when Brock arrived back at the shop he asked Brock what was the trouble and Brock replied that he was not going to work for those peo- ple out there. Then Everhart came and asked Brock could he work with these poeple and why he did not want to work with them . Allen conceded that he could have said to Brock, something to the effect that Brock was not sup- posed to look out after everybody's work. James Everhart's version of the discharge interview is somewhat more detailed than that of Allen. According to Everhart, he arrived at the office about 11 a in. and was informed by Allen that Brock had returned from the Krys- tal site saying that he could not work with those-people. In a little while Brock came in and Everhart asked what the trouble was . Brock replied that there were not any iron- workers out there and described the type of work that De- Shazo had wanted performed . Everhart responded that it was really getting bad, and that we just could not tolerate that any more . According to Everhart, Brock answered that he was going to straighten this town out, unionwise. Everhart testified that he responded that that was fine, but he could not afford it, he could not afford to organize all these people. Then Everhart had the separation notice pre- pared, giving as a reason for Brock 's termination that he did not want to perform his work assignment By way of explanation , Everhart testified that his decision to dis- charge Brock was not based solely on the Krystal incident on November 30, but was the result of Brock's having re- fused to work three times in 1 week 6 However, Everhart agreed that Brock had been a good crane operator, and he conceded that other members of the Building Trades fre- quently complained about jurisdictional transgressions to the extent that Everhart classified this type of complaint as a common thing. B. Discussion and Concluding Findings The General Counsel contends that Billy K Brock was discharged in violation of Section 8(a)(1) and (3) of the Act because he attempted to insure that union work rules were honored, particularly jurisdictional boundaries either spec- ified in his own Union 's contract or known to Brock to be those of trades with which he had a close working relation- ship. It is also urged that Respondent 's president, James Everhart, threatened Brock with discharge and interrogat- ed him concerning his union membership, activities, and desires on or about November 8 at the Pryor-Bacon jobsite in violation of Section 8(a)(1). Respondent denies that Everhart unlawfully threatened or interrogated Brock at the Pryor-Bacon fob, or at any time ; and further denies that Brock 's discharge on Novem- ber 30 was precipitated by an unlawful purpose . Instead Respondent contends that Brock was discharged primarily 6 Everhart testified without contradiction that once before the Pryor-Ba- con incident he had replaced Brock on ajob in Rome , Georgia, because in Brock's opinion Everhart's nonworkers on that job were performing the work in an unsafe manner No criticism or discipline of anN kind resulted from this incident at the time it occurred 513 for his failure to complete his work assignment on Novem- ber 30 at the Krystal site, and secondarily because of his poor work record. The testimony of Brock and that of Respondent's wit- nesses is in substantial agreement except with respect to threat of discharge by Everhart alleged to have occurred at the Pryor-Bacon job on or about November 8. 1 credit Brock's testimony over that of Everhart in this respect. Brock impressed me as a very meticulous but confident witness who knew that his testimony was true and wanted only to recite his account as accurately and completely as he was able. On the other hand, Everhart appeared to know more than he was willing to relate on the stand and seemed to be attempting to tailor his testimony in order to tell a winning version, which at the same time would mesh with that of Respondent's other witnesses . I therefore find that Everhart did tell Brock at the Pryor-Bacon jobsite on or about November 8 (in response to Brock's remark that he was a member of the Local Union and would continue to try to get things straightened up as long as he thought they were wrong), "Well, this is not going to get it. I'm not going to have this. " Furthermore , although I do not con- clude that this statement by Everhart was necessarily a threat of discharge as alleged in the complaint , I do find these remarks to constitute , in the context of the surround- ing circumstances, a threat of some type of reprisal in the event Brock's union activities continued . As such, Everhart's threat violated Section 8(a)(1) of the Act. I also find that Everhart unlawfully interrogated Brock in violation of Section 8(a)(1) on November 30 when, in the context of the interview about the Krystal incident, Everhart asked why Brock had become so involved lately.' I also find and conclude that Brock was discharged in violation of Section 8(a)(3) and ( 1) of the Act because he sought to consult with union officials prior to performing work on the Krystal site which he feared might transgress either his contract or the work rules or contracts of other crafts with which he had a close working relationship. Con- trary to Respondent's contention, the evidence plainly shows in accordance with his testimony that Brock did not refuse to perform the work to which he was assigned at the Pryor-Bacon or Krystal jobs, but instead insisted upon clearing himself of any possible criticism by his Union by consulting with union officials before he performed the work.' This conduct on Brock 's part was both concerted activity and union activity afforded protection by the Act. Graphic Arts Engraving Co, Inc., 197 NLRB 644 (1972). ' In accordance with the allegation in the complaint that Brock was inter- rogated on the Pryor-Bacon job by Everhart on November 8, General Counsel contends this unlawful questioning occurred when Everhart asked if Brock had everything straightened on the job Everhart admitted having asked this question during their November 8 conversation I find no coer- civeness in this question and conclude that it does not constitute a violation of Sec 8(a)(1) of the Act B At most , Brock's conduct constituted a temporary work stoppage similar to others which have been held by the Board to be protected by the Act where, unlike the instant case , the objective has been to protest a grievance or to apply economic pressure , even where such conduct appeared ill-con- sidered and caused inconvience to customers The Masonic and Eastern Star Home of the District of Columbia, 206 NLRB 789 (1973), c f Pepsi-Cola Bottling Co of Miami. Inc, 186 NLRB 477 (1970), enfd 449 F 2d 824 (C A 5. 1971), cert denied 407 U S 910 (1972), N L R B v Fansteel Metallurgical Corpotanon 306 U S 240 (1939) 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. C. Smith Construction Co., 174 NLRB 1173 (1969); In- terboro Contractors, Inc., 157 NLRB 1295 (1966); B & M Excavating, Inc, 155 NLRB 1152 (1966). Respondent's "secondary" reasons for the discharge, espoused in its an- swer, i.e., a poor work record, elaborated upon during the trial by the presentation of evidence about past accidents, failure to wear his hard hat, and ill feeling between Brock and Allen, I find to be pretexts behind which Respondent sought to mask the fact its true purpose was the removal of a troublesome union activist. Thus while conceding that Brock had been a good crane operator, Everhart testified that during their conversation on November 30 when Brock stated he was going to straighten this town out unionwise, Everhart responded that that was fine but he could not afford to organize all these people. Everhart then prepared and handed to Brock a separation notice which set forth as the "detailed explanation" for the discharge "did not want to do work assignment." At no time prior to the trial did Respondent claim that there were any other reasons for its conduct. I therefore am not, under the cir- cumstances presented, persuaded by them .9 CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging Billy K. Brock on November 30, the Company engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By threatening Billy K. Brock on or about November 8 with discharge if he engaged in activities protected by Section 7 of the Act and by interrogating him about his involvement in union activities, on November 30, the Com- pany violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. Respondent has not violated the Act in any respect other than those specifically found. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order that Respondent cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act The Respondent having discriminatorily discharged Bil- ly K. Brock, I find it necessary to order the Respondent to offer him full reinstatement with backpay computed on a 9 There is evidence in this case concerning the relationship between Wil- liam M Allen, Brock's immediate supervisor, and Clyde Allen, business manager of Local 917 Other uncontradicted evidence in the record indi- cates that the interests of the Charging Party and those of his Union might not be in substantial harmony, with respect to this matter, e g Brock's having been turned away when he went to the union hall in December to complain about his discharge Furthermore, the copy of the union contract introduced in evidence at the trial contains no mention of a grievance and arbitration procedure I therefore find the application of the Board's policy announced in Collyer Insulated Wire, 192 NLRB 837 (1971), to be inappro- priate in the circumstances of this case quarterly basis plus interest at 6 percent per annum as pre- scribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from date of discharge to date of proper offer of reinstatement. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 10 The Respondent, Everhart Steel Construction Company, Inc., its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Discharging employees or otherwise discriminating against them with regard to the tenure of their employment or any other term or condition of employment for engaging in union activity or concerted activity for their mutual aid or protection or in any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. (b) Threatening employees with discharge if they engage in union or concerted activities protected by Section 7 of the Act. (c) Coercively interrogating any employee about union membership or activities. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Billy K. Brock immediate and full reinstate- ment to his former position or, if such position no longer exists, to a substantially equivalent position without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings, in the manner set forth in "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records, and all other records necessary to ana- lyze the amount of backpay due under the terms of this Order. (c) Post at its place of business in Chattanooga, Tennes- see, copies of the attached notice marked "Appendix." 1 t Copies of such notice, on forms provided by the Regional Director for Region 10, after being signed by an authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material 10 In the event no exceptions are filed as provided by Sec 10246 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 he deemed waived for all purposes ii In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " EVERHART STEEL CONSTRUCTION CO. 515 (d) Notify the Regional Director for Region 10 in writ- ing within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. IT IS FURTHERED ORDERED that the complaint be dismissed in all other respects. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT discharge or otherwise punish em- ployees because they have engaged in union activities or concerted activities for their mutual aid or protec- tion. WE WILL offer Billy K. Brock immediate and full reinstatement with backpay. WE WILL NOT coercively question employees about their union or concerted activities. WE WILL NOT threaten employees with reprisals if they engage in union activities or concerted activities protected by the law. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce employees in the exercise of their rights. All employees are free to engage in union activities or concerted activities for the purpose of collective bargaining or other mutual aid or protection. Our em- ployees are also free to refrain from any or all such activities. EVERHART STEEL CONSTRUC- TION COMPANY, INC.