James T Hughes Sheet Metal, Inc.

JAMES T HUGHES SHEET METAL 835 James T Hughes Sheet Metal, Inc and Dwight D Silvia Case 1-CA-10629 June 15, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 2, 1976, Administrative Law Judge Maurice S Bush issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and a supporting brief and counsel for the General Counsel resubmitted the brief which she had previ- ously filed with the Administrative Law Judge 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 briefs and has decided to affirm the rulings, findings,[ and conclusions 2 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 the Respondent, James T Hughes Sheet Metal, Inc, Fall River, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order was employed by the above-named Respondent for a peri- od of about 6 months until March 21, 1975, when he was terminated Dwight Silvia is the son of Business Agent Manuel Silvia of Local 501 of the Sheet Metal Workers' International Association Local 501 has a master labor contract with a number of contractors of which Respon- dent Employer is one The principal issue in the case is whether Dwight D Silvia was terminated in violation of Section 8(a)(1) and (3) for, in the words of the complaint, voicing complaints concerning the Respondent's failure to adhere to certain provisions of its collective-bargaining agreement with the Union "I Respondent's principal defense is that Silvia was hired along with about five other sheet metal workers as temporary employees to reduce the Company's backlog of new work orders accumulated during a 6-week industry- wide strike and that, with the completion of the work on the backlog, Silvia was discharged because of lack of work Respondents secondary defense is that the Respondent's president, Harold Hughes, had no knowledge of Silvia's complaints that the Company was not complying with cer- tain provisions of the collective-bargaining agreement and that accordingly, due to lack of any personal knowledge of these complaints, they played no part in his discharge of Silvia The complaint herein was issued on June 26, 1975, pur- suant to a charge filed and served on the Respondent on April 25, 1975 The answer denies all unfair labor practices The case was heard on September 8 and 9, 1975, at Bos- ton, Massachusetts The briefs received from counsel in mid-October 1975 have been carefully reviewed and con- sidered For reasons hereinafter indicated, I find Respondent in violation of the Act as alleged in the complaint Upon the entire record in the case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to over rule 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 (CA 3 1951) We have carefully examined the record and find no basis for reversing his findings 2 We find it unnecessary to rely on the small plant doctrine embodied in Wiese Plow Welding Co Inc 123 NLRB 616 (1959) since we agree with the Administrative Law Judge s findings that knowledge of Dwight Silvia s pro tected and concerted activities may properly be imputed to the Respondent by reason of the fact that Supervisor B Parent and Assistant Manager Nadick were fully cognizant of Silvia s activities in seeking to enforce rele vant provisions of the labor agreement e g see Woody Pontiac Sales Inc 175 NLRB 218 221 (1969) DECISION STATEMENT OF THE CASE MAURICE S BUSH, Administrative Law Judge Charging Party Dwight D Silvia, a young sheet metal journeyman, I JURISDICTIONAL FINDINGS Respondent James T Hughes Sheet Metal, Inc, a Mas- sachusetts corporation with its principal office, place of business, and plant, at Fall River, Massachusetts, is en- gaged in the fabrication and installation of sheet metal components and related products for heating and air-con- ditioning systems In the course and conduct of its busi- ness, Respondent causes large quantities of materials used by it in the manufacture of sheet metal to be purchased and transported in interstate commerce from and through various States of the United States other than the Com i Although evidence was also adduced tending to show that Silvia s dis charge was in part motivated by his complaints about the working condi tions at the shop as they related to the virtually undisputed unsanitary con dition of the toilets at the shop no findings thereon will be made herein because the complaint does not allege that Silvia s discharge was in any part motivated by his complaints about the toilet facilities at the shop and be cause counsel for Respondent made timely and valid objections on that ground to the receipt of any evidence relating to Silvia s complaints about the shop s toilet facilities 224 NLRB No 111 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD monwealth of Massachusetts, and also causes substantial quantities of sheet metal to be transported and installed from its plant at Fall River in interstate commerce to States of the United States other than the Commonwealth of Massachusetts In the course and conduct of its busi- ness, the Company receives materials in excess of $50,000 directly from points outside the Commonwealth of Massa- chusetts The Respondent, as it admits, is engaged in com- merce within the meaning of the Act II THE LABOR ORGANIZATION INVOLVED The Union, Local 501, Sheet Metal Workers' Interna- tional Association, is a labor organization within the mean- ing of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES Charging Party's Background and Sequence of Events Charging Party Dwight D Silvia, age 24, is a journey- man sheet metal worker and a member in good standing of Local 501 , Sheet Metal Workers' International Associa- tion Reared in a family where the common table talk was union labor talk because his father Manuel Silvia is and has been the union representative of Local 501 for many years, young Silvia is more union labor rights conscious than the average union employee Silvia was hired by the Respondent on September 23, 1974, as a sheet metal worker, on the recommendation of Respondent's foreman, Russell Malone Respondent main- tains a permanent crew of about 10 to 13 sheet metal jour- neymen and apprentices under a master collective -bargain- ing agreement with Local 501 to which Respondent is a signatory among other sheet metal employer contractors Respondent's business was inoperative for a period of about 6 weeks during the summer of 1974 due to an indus- trywide strike by members of Local 501 against Respon- dent and other local sheet metal contractors in the area of New Bedford and Fall River, Massachusetts Shortly after the strike was over Respondent hired about five or six sheet metal workers, including Silvia, to work on both new orders that had accumulated during the strike and on old work on hand when the strike started Depending upon the work flow, Respondent keeps two to five workers in its shop fabricating sheet metal, and the remaining crew out- side of the shop installing fabricated sheet metal on con- struction sites After working for the Company for about 6 months, Sil- via was laid off or discharged on March 21, 1975, by a foreman on the order of Harold Hughes, president of Re- spondent At the hearing, Respondent's defense was that Silvia was laid off because of lack of work Although Silvia's work record was admittedly considered good, the record shows Silvia was given to ferreting out and com- plaining about any deviations by Respondent from the terms and conditions of the collective-bargaining agree- ment and accepted trade practices Silvia noted the first such nonadherence to the terms and conditions of the collective-bargaining agreement in about mid-February 1975 At that time Respondent had a con- tract to repair and reinstall a small sheet metal dome which had fallen from the top of an exhaust fan of a 200-foot tower Respondent President Hughes decided that the best way to do the job would be to repair the dome, cut it in half, and then assemble the two halves of the dome on top of the tower Hughes assigned the job to Rene Parent, Jr , one of the Company's apprentices because he had related experience in an automobile body repair shop Hughes tes- timony shows that Rene had volunteered, with Hughes' consent, to use his own personal hydraulic power tool on the company dome job Shortly thereafter, Silvia observed that Rene had brought his personal power tool with him to the company shop He thereupon spoke to Rene and told him that it was a violation of the Union's labor contract to supply such a power tool for use on a company job Article IX, section 1, of the collective-bargaining agreement (Joint Exh 1) reads, "Journeyman and apprentice sheet metal workers covered by this Agreement shall provide for themselves all neces- sary hand tools " The joint testimony of Silvia and his fa- ther, Manuel Silvia, the business representative of the sheet metal union, Local 501, shows that the Union interprets this provision of the contract to mean that a sheet metal worker can bring to a company job only handtools, such as hammers and shears, and that the article prohibits employ- ers from allowing their employees from using their own power tools on a companyjob The rationale for the prohi- bition is perhaps best stated in the words of Silvia, the Charging Party, as follows, `Because power tools are some- thing that the employer should supply If I supply my own power tools, I'm going to take the job from the guy next to me who doesn t have power tools So, when it comes time to get laid off, if I have a drill or a porta-power, I say, because the guy next to me doesn't have these power tools, and he doesn't stay He gets laid off So it gets to be a battle of who has the most power tools That's why the union doesn't want you using your own " I find and infer from President Hughes' long experience in the sheet metal fabrication business which was originat- ed by his grandfather that he was well aware of the Union's position and the tradition in the trade which prohibits sheet metal workers from supplying their own personal power tools for use on company jobs and that the purpose of the tradition was to counter the natural inclination of employers to hire sheet metal workers who could supply power tools as against workers who had no such tools and to favor, in the order of the layoffs, workers, who had pow- er tools against those who had no power tools Silvia saw Rene again at the end of the same workday in which he had earlier warned him that it would be a viola- tion of the labor contract for him to use his own personal power tool on a company job He asked him what he had decided to do about the use of his power tool on the dome job and received assurance from Rene that there "wasn t going to be any trouble about it,' as he had decided not to use the tool on the job That night when Rene left the shop he took his power tool home with him Silvia did not file a grievance against the Company for allowing Rene to use his own power tool on a company job in alleged violation of the labor contract Likewise, Silvia did not mention the JAMES T HUGHES SHEET METAL 837 incident to President Hughes or to any of the Company's managers or foremer 2 But the evidence shows that Rene himself reported Silvia's warning about using his own personal power tool on a company job to his uncle, Bertram Parent, Respondent's inside shop foreman, as is reflected in his uncle's testimony herein (Rene Parent, Jr, and his father, Rene Parent, Sr, also an employee of the Respondent in the capacity of an outside foreman, did not testify in this proceeding) The uncle, however, denied that he reported the incident to President Hughes or to either of Hughes' two top aides, Fred Dixon, manager, or Fred Nadick, assis- tant manager I discredit this denial because Shop Fore- man Parent's demeanor was not convincing, and also be- cause his alleged failure to report an incident to management which affects the work progress of the em- ployer is contrary to the normal and expected duty of a shop foreman Moreover, there was nothing in the incident which would have drawn the wrath of management on Foreman Parent's nephew Rene as he was merely the vic tim of Silvia's threat to cause trouble if he persisted in using his personal power tool on company work Accord- ingly, I infer and find that Foreman Parent was not de- terred from reporting the incident because of any fear that it might cause his nephew any harm It is undisputed that after Silvia's warning Rene did not use his power tool on his assigned dome job When Hughes, according to his testimony, asked Rene why he had not started on the job, Rene told him it was because his tool was broken I find that Hughes knew that this was not the real reason why Rene did not use his power tool on the job I infer and find from the entire record, and more particularly from the fact that Shop Foreman Bertram Par- ent knew that his nephew Rene had been stopped from using his power tool by Silvia's threat of trouble, that Hughes gained knowledge of the incident from Bertram Parent and other of his supervisory personnel It is also inferred and found that young Rene also told his father, Respondent's outside foreman, Rene Parent, Sr, about the incident, and that his father in turn reported the incident to either Hughes or his two top aides, Manager Dixon or Nadick, in order to deflect management displeasure over the work stoppage on the dome from his son to Silvia Under all of these circumstances, I find that President Hughes had knowledge of Silvia's interference with Rene's use of his own personal power tool on the company dome job almost immediately after the incident occurred and that the incident was one of the reasons for Silvia s subse- quent discharge or layoff on the order of Hughes I accord- ingly discredit Hughes' denial that he had knowledge of Silvia's interference with the arrangement he had with Rene to use his own personal power tool on the dome job But even if it is assumed that President Hughes had no actual knowledge, at the time he directed Silvia's discharge or layoff, of Silvia's previous interference with the compa- ny arrangement to have apprentice Rene use his personal power tool on the company dome job, the admitted knowl- edge of the apprentice's uncle, Respondent Shop Foreman 2 The findings in the above paragraph are based on the undisputed and fully credited testimony of Silvia Bertram Parent, about the incident is imputable to Hughes, as it is well established that it is unnecessary for the record to reflect a direct connection between an alleged discriminatee's union activity and the knowledge thereof by the discharging management representative, especially in a small plant such as is here involved Wiese Plow Weld ing Co Inc 123 NLRB 616 (1959) Under that imputable knowledge, I likewise find that the incident of Silvia's inter- ference with Rene's plan to use his power tool on the com- pany dome job played a part in the Hughes' order that Silvia be discharged or laid off The final incident indicative of Silvia's proclivity to look for and ferret out deviations by Respondent from the terms and conditions of the collective-bargaining agreement as supplemented by other agreements occurred only days be- fore his discharge Silvia was laid off on Friday, March 21, 1975 On Monday of that same week he found out that the Company was about to start a duct work job installation on the Chamber of Commerce building in Newport, Rhode Island Silvia sought to become foreman of that job but was told by the aforementioned shop foreman, Bertram Parent, that Outside Foreman Joe Redman had already been named foreman of that job Silvia then asked Parent who was to work with Redman on the Chamber of Com- merce job, but Parent said he did not know He also asked another shop employee who was working with Redman on the construction site but he also replied that he did not know The next day, Tuesday, Silvia asked the truckdriver who had made deliveries of the fabricated ducts to the Newport Chamber of Commerce jobsite who was working on the job with Foreman Redman The driver informed him he had seen George Amaral, an apprentice, on the job with Redman Silvia immediately recognized that the use of Amaral as an apprentice on the Newport Chamber of Commerce job was a violation of the collective-bargaining agreement and associated agreements, because the job was a commercial job outside the territorial jurisdiction of Lo- cal 501 and on such commercial jobs Respondent, under pertinent agreements, could use only journeyman mechan- ics, and not apprentices The record shows that Respon- dent recognizes that, under the involved labor agreements, it had no right to use an apprentice on the Newport Cham- ber of Commerce commercial job although the record also shows that it did have the right to use apprentices on resi- dential jobs in the same complex of buildings of which the Chamber of Commerce building was a part The record further shows that the Company's president, Hughes, fa- vors the use of apprentices whenever possible because of a saving of 25 percent in wages over that paid journeymen When Silvia learned from the company truckdriver that he had seen apprentice Amaral on the Newport Chamber of Commerce job, he told the driver, "there's going to be trouble The apprentices don't belong there " The driver begged not to be involved in any such trouble Later on that same Tuesday, Nadick, Respondent's as- sistant manager, made an unusual request by telephone to Foreman Redman at the Chamber of Commerce jobsite to stop in at the shop the next morning to see him instead of going directly to the Chamber of Commerce jobsite as was his custom Redman s testimony shows that when he ar rived at the shop the next morning Nadick told him that 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Silvia was complaining about Amaral working on the New- port Chamber of Commerce job because of his apprentice status, and instructed him to tell Amaral to work in the shop that day and to take another journeyman, Richard Dumas, with him to finish up the Chamber of Commerce Job Redman, as he was walking out of the shop, encountered Amaral and instructed him to work in the shop that day and also notified him that he was getting journeyman Du- mas to assist him in finishing up the Newport Chamber of Commerce Job Silvia was also scheduled to work in the shop that Wednesday morning Silvia's testimony shows that when he got to the shop and saw Amaral there he asked him if he had been working on the Newport Chamber of Commerce Job After some hesitation, Amaral admitted that he had been working on that job Silvia then told Amaral that there would be "trouble" over that and that he would "made a stink" at the forthcoming union meeting over Respondent's use of an unauthorized apprentice on the commercial Chamber of Commerce Job In his own testimony, Amaral admitted that he had worked on the Chamber of Commerce job as an apprentice mechanic without clearance therefor between the Respon- dent and Local 501 and that he had been taken off that job on the complaint of Silvia that the Company had no right to use an apprentice on that job On the following Thursday morning, President Hughes called Local 50l's business agent, Manuel Silvia, the afore- mentioned father of Charging Party Dwight Silvia, to noti fy him that he was laying off his son Dwight and journey- man LeFrance as of the next day, Friday, March 21, 1975 Business Agent Silvia's credited testimony shows that Hughes in his telephone call also told him, "I hate to lose Dwight but you know I always lay the men off in the order in which I hire them " Under direct examination by his own counsel, Hughes admitted that "looking back, it's very possible I might have told him [Dwight's father] that we're laying him [Dwight Silvia] off as he's the last guy to be hired Or something like this " I find that Hughes actually made some such statement to Manuel Silva Although Respondent is not required by the collective- bargaining agreement to lay off employees on the basis of their seniority with the Company, the record shows that Respondent in actual practice does lay off employees in accordance with their seniority standing with exceptions not here applicable to members of Local 501, such as Dwight Silvia 3 3 The above finding is based on the credited testimony of Business Agent Silvia Based on his experience as a business agent for Local 501 in dealing with Respondent over the past 7 years Manuel Silvia s credited testimony shows that Respondent always makes its layoffs in accordance with senior ity with exceptions not here applicable and that Respondent generally no tifies the Local s business agent in advance of the layoffs The record further shows that the Local s business agent announces such layoffs at the regular monthly union meetings of its membership See also above described con versation between Hughes and Manuel Silvia in which Hughes at the time he notified Manuel Silvia of his son s impending layoff told Manuel that he always lay the men off in the order in which I hire them See also Hughes above described admission that he in all probability made such a statement to Manuel Silvia Hughes later contradictory testimony that he does not follow seniority in his layoffs did not stand up to cross examination and I The undisputed record in fact shows that Dwight Silvia was not laid off on the basis of seniority as Hughes had told his father because Silvia, who was hired on September 23, 1974, was laid off on March 21, 1975, whereas journey man Richard Dumas, who was hired December 16, 1974, was retained in Respondent's employment beyond the date of Silvia's layoff Thus, if Respondent had followed its usu- al policy of laying off employees in accordance with se- mority, Dumas should have been laid off before Dwight Silvia was Hughes in his testimony sought to justify retaining Du- mas over Silvia despite Silvia's seniority, on the ground that he needed Dumas to finish up a duct Job the Company had at the Veterans Hospital at Brocton, Massachusetts, because of the special experience and familiarity with the work he had gained on that job I do not credit that alibi because Dumas' credited testimony shows that the hospital job had been finished in mid-March 1975 prior to the gen- eral layoffs, including Silvia's layoff of March 21, 1975 Dumas further testified that at the time of Silvia's layoff he (Dumas) was no longer working on the hospital job but had been working on a job at the Portsmouth police station along with Silvia His testimony also shows that the reno- vation job at the Veterans Hospital was one that every journeyman sheet metal worker was competent to handle After both the Veterans Hospital and police station jobs were finished, Dumas worked on a number of other jobs Based on the general unreliability of Hughes' testimony, I discredit all his other alibis for selecting Silvia for layoff on March 21, 1975, over the less senior Dumas To return to the detail of Silvia's layoff, the record shows the following Silvia first heard of his impending layoff at the Local's regular monthly union meeting held on the Thursday night before his layoff of the next day The an- nouncement of his layoff, together with that of employee LeFrance, by Respondent, was announced by his father as business agent of the Local pursuant to advice received earlier that day from President Hughes Such union an- nouncements of forthcoming layoffs through prior advice by employers are routine at all union meetings Actually the elder Silvia had heard from other employees of Re- spondent about his son's complaining about the Company's use of an unauthorized apprentice on the com- mercial Newport Chamber of Commerce job even prior to the time Hughes called to let him know that he was going to lay off his son, and he had expected that his son might be getting in trouble with Hughes over the matter The next day, Friday, March 21, 1975, young Silvia along with Dumas, was working on a duct installation job at the Portsmouth Police Station under Foreman Russel Malone, the man who had recommended his hiring by the Company Just prior to the noon hour that day, Malone dropped into the Company's office at Fall River, Massa- chusetts, on some business While there, Assistant Manager Nadick handed him young Silvia's last paycheck and in- structed him to tell Silvia that he was being laid off as of the end of that day As Malone had not been at the union meeting the night before and had no advance notice that accordingly discredit such testimony I also discredit Hughes testimony because it is obvious from any inspection of his testimony that he was a wholly unreliable witness JAMES T HUGHES SHEET METAL 839 Silvia was to be laid off, he asked Nadick in astonishment, "Why9 How come Dwight [Silvia]9" Nadick's only answer was "That's the way the office wants it " When Malone returned to the jobsite of the Portsmouth police station, he handed Silvia his paycheck and told him that he was laid off as of the end of that day This did not surprise Silvia, as he had heard about his layoff at the union meeting the previous night Although Hughes admits that the use of an apprentice on the aforementioned Newport Chamber of Commerce duct installation job was improper under the collective- bargaining and associated agreements, he denies that he had any knowledge of Foreman Joseph Redman's use of apprentice Amaral on that job at the time he ordered Silvia's layoff and for that reason he denies that the inci- dent played any part in Silvia s layoff The record, however, compels the conclusion that Hughes did have actual knowledge of the incident prior to the time he ordered Silvia's layoff and, accordingly, I dis- credit his denial of such prior knowledge Next to Hughes and General Manager Dixon, the evidence shows that the two most important men in Respondent's shop and office are Nadick, the Company's assistant manager, and Ber- tram Parent, the shop foreman As shown above, on the Tuesday before his layoff, Silvia closely questioned Shop Foreman Parent as to who was assisting Outside Foreman Redman on the commercial Newport Chamber of Com- merce Job Under cross-examination, Parent admitted that he knew that Silvia's questioning "had the appearance of some sort of violation of the rules " The next day, Tuesday, Silvia learned from one of the Company's truck- drivers that he had seen apprentice Amaral on the Cham- ber of Commerce job with Foreman Redman Later that same Tuesday, Assistant Manager Nadick by telephone asked Redman to see him the next morning at the shop before he drove to the Chamber of Commerce jobsite Wednesday morning, when Redman reported to the shop pursuant to order, Nadick instructed him to take appren- tice Amaral off the Chamber of Commerce Job because he "shouldn't be working' on that job Under this undisputed evidence, I infer and find that Nadick, as the Company's assistant manager, informed President Hughes that Silvia had complained about the use of apprentice Amaral on the Chamber of Commerce job and that Hughes accordingly had this information prior to the time he ordered Silvia's discharge I accordingly discredit Hughes' testimony that he had no actual knowledge of the incident when he or- dered Silvia s layoff or discharge I also discredit his testi- mony because his examination showed him to be an eva- sive and untrustworthy witness However, even if it is assumed that Hughes had no actu- al knowledge of Silvia s complaint that the Company was using an unauthorized apprentice on the Chamber of Com- merce job at the time he ordered Silvia's layoff, I impute, under all the circumstances of this case, the knowledge of the Respondent's assistant manager, Nadick, of the inci- dent to President Hughes As heretofore shown, under Wiese Plow Welding Co, Inc, supra it is unnecessary for the record to reflect a direct connection between an alleged discrimmatee's union activity and the knowledge thereof by the discharging management representative, especially in a small plant such as is here involved Under all the circumstances of this case, I find and con- clude that President Hughes not only had knowledge of Silvia's complaint about the use of an apprentice on the Chamber of Commerce job but also find and conclude that Hughes ordered Silvia's layoff because he interfered with Respondent's use of an apprentice on the Chamber of Commerce Job On the basis of the entire record, I further find and con- clude that Respondent, contrary to its claim, did not dis- charge or layoff Silvia because of lack of work, but, on the contrary, discharged him for his concerted activity in ef- forts to enforce the terms of the involved collective bar gaining agreement Finally, as the evidence shows that Respondent's Presi dent Hughes, Assistant Manager Nadick, and Foremen Bertram Parent, Joseph Redman, and Russell Malone have the authority to assign work to other employees of Respon- dent, I find and conclude that each of these named individ uals were at all times here material agents of the Respon dent and supervisors within the meaning of Section 2(11) of the Act 4 Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1 James T Hughes Sheet Metal, Inc, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local Union 501, Sheet Metal Workers' International Association, is a labor organization within the meaning of Section 2(5) of the Act 3 By discharging Dwight D Silvia, Respondent en- gaged in an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act 4 The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act Discussion and Conclusions Summarized, the above findings show that Respondent discharged Silvia because of his proclivity to cause the Company trouble for its slightest deviations from the terms and conditions of the collective-bargaining agreement This proclivity first came to Respondent's attention about a month before Silvia's layoff in connection with Silvia's warning to employee Rene Parent, Jr, that the use of his personal power tool on an assigned company job would be a violation of the collective-bargaining agreement The warning effectively stopped young Rene from using his own power tool on the company job and interfered with President Hughes' prior arrangement with Rene to use his power tool on the job As found above, President Hughes quickly learned that Silvia had interfered with his plan to have Rene use his power tool on the job The next and final incident of Silvia's proclivity to cause the Company trouble for not complying with the collec- 4 Respondent s amended answer denies that the above named persons are agents and supervisors within the meaning of the Act 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rive-bargaining agreement occurred just days before Silvia's layoff on March 21, 1975, when Silvia complained of Respondent's use of Amaral, an apprentice, on the Company's Newport Chamber of Commerce job on the ground that the collective-bargaining agreement required the exclusive use of journeymen on that job The day after Silvia's complaint, Respondent removed Amaral from the Chamber of Commerce job and 2 days later "laid" Silvia off As found above, Respondent's president, Hughes, knew of Silvia's complaint about the use of an apprentice on the Chamber of Commerce job at the time he ordered his "layoff " Under the above findings, the ultimate issue for decision herein is whether Respondent's "layoff" of Silvia for mak- ing complaints about its noncompliance with the terms and conditions of the collective-bargaining agreement was un- lawful Although no other employee joined Silvia in his com- plaints against the Respondent for allowing an employee to use his own power tool on company work and for using an apprentice on a job that required journeymen, it is now well established that such solo complaints constitute "pro- tected activity since they were made in an attempt to en- force provisions of the existing collective-bargaining agree- ment" and "that complaints made for such purposes are grievances within the framework of the contract that affect the rights of all employees in the unit, and thus constitute concerted activity which is protected by Section 7 of the Act " Interboro Contractors, Inc, 157 NLRB 1295, 1298 (1966), and citations in footnote 7 thereto Accordingly, I find that Respondent's discharge of Silvia because of his protected activity in attempts to enforce the provisions of the existing collective-bargaining agreement was and is in violation of Section 8(a)(1) and (3) of the Act THE REMEDY It having been found that the Respondent committed certain unfair labor practices, it must be ordered to cease and desist from further such conduct and to take remedial action designed to effectuate the policies of the Act It having been found that the Respondent unlawfully discriminated against an employee by discharging and re- fusing to reinstate him, it must be ordered to make him whole for any loss of earnings he has suffered in conse- quence of the unlawful discrimination in the manner pre- scribed by the Board in F W Woolworth Company 90 NLRB 289 (1950), and Isis Plumbing & Heating Co, 138 NLRB 716 (1962), and to offer him reinstatement Upon the foregoing findings of fact and the entire record in this proceeding, I make the following recommended ORDER5 The Respondent, James T Hughes Sheet Metal, Inc, Fall River, Massachusetts, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against em- ployees because of their union activities or because of their protected concerted activities (b) In any other manner, interfering with, restraining, or coercing its employees in the exercise of their rights guar- anteed under Section 7 of the Act 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act (a) Offer Dwight D Silvia immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without preju- dice to seniority or other rights and privileges (b) Make Dwight D Silvia whole for any loss of earn- ings suffered by reason of the discrimination against him, in the manner set forth in the section herein entitled "The Remedy " (c) 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 reports, and all other records neces- sary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order (d) Post at its place of business at Fall River, Massachu- setts, copies of the attached notice marked "Appendix " 6 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, 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 ensure that said notices are not altered, de- faced, or covered by any other material (e) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 5 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 6 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 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 sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, James T Hughes Sheet Metal, Inc, have violated the law and has ordered us to post this no- tice The National Labor Relations Act gives all employees these rights To engage in self-organization JAMES T HUGHES SHEET METAL To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things except to the extent that membership in a union may be required pursuant to a lawful union-security clause WE WILL NOT do anything that restrains or coerces employees with respect to these rights WE WILL NOT discharge or otherwise discriminate against you because you complain to either the Com pany or Local 501, Sheet Metal Workers' Internation- al Association, about what you believe is a violation of 841 the terms of the collective-bargaining contract which we have with Local 501, Sheet Metal Workers' Inter- national Association WE WILL NOT in any other way punish you for exer- cising the rights guaranteed you by Section 7 of the National Labor Relations Act Since the National Labor Relations Board has found that we violated the law by discharging employ ee Dwight D Silvia, WE WILL offer him his job back and WE WILL reimburse him for any loss of pay he may have suffered because we discharged him, together with interest as provided by the Board's Order JAMES T HUGHES SHEET METAL, INC