Dews Construction Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dews Construction Corp., a subsidiary of The Aspin Group, Inc. and Federation of Employees Union Local 1027 and Arnold Moody East Star Painting Corp. and Federation of Employees Union Local 1027. Cases 22-CA-6903, 22-CA- 7114, 22-CA-7175, and 22-CA-7042 August 8, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On May 12, 1977, Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, both Respondent and General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge only to the extent consistent herewith and to adopt his recommended Order as modified herein. Dews Construction Corp. is engaged in the business of rehabilitating inner city residences in Newark, New Jersey. Dews subcontracts on a continuing basis with East Star Painting Corp. for the painting of those houses. In January 1975, Ezekial Davis, a sole proprietor who later incorporat- ed his business into East Star and became its president, signed his first contract with Dews. At that time, Elliott Schneider, president of Dews, told Davis that the job was "nonunion." 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. The General Counsel excepted to the Administrative Law Judge's discrediting of employee Arnold Moody's testimony. The Administrative Law Judge discredited Moody's testimony partly because Moody had previously withdrawn an earlier charge against Respondent pertaining to the same events as alleged herein. The Administrative Law Judge inferred that "[p resumably, the Regional Director concluded that there was insufflicient evidence to prove MoodN's claim .... " We agree with the General Counsel that this inference should not have been used as a factor in discrediting the testimony of Moody. Discrediting a charging party's testimony for this reason impinges upon the statutory right of individuals to file (or refile) charges under Sec. 10(b) of the Act and discourages voluntary dispositions of such charges. Also, see generally rule 408 (Compromise and OfTers to Compromise) and rule 410 (Withdrawn Plea of Guilty) of the Federal Rules of Evidence; Rudy Patrick Companre, 204 NLRB 564, fn. 2 231 NLRB No. 37 In early May 1976,2 Local 1027 of the Federation of Employees Union began handbilling the Dews project on which East Star was working. On May 12, East Star employee Norris Holmes and fellow worker Eddie Harris (East Star's only two regular employ- ees) attended a union meeting held by Local 1027. Two days later, Dews' superintendent, Richard Webb, told Davis that Holmes and Harris had been at the union meeting, and stated to Davis: "You better remember how your contract was written." Davis then sought out Holmes and Harris and asked them whether they had attended the meeting. They replied in the affirmative. Davis told them that Schneider did not appreciate the fact they had gone to the meeting and said that one of them would have to be laid off. On May 17, Davis spoke with Schneider. Immedi- ately thereafter, Davis told Holmes and Harris that Schneider had decreed that one of those two must be laid off. Davis added that he selected Holmes to be laid off since Harris had more seniority, but that he would try to find other work for Holmes. Holmes did not work for Davis on any of Dews' projects thereafter. However, he did work for Davis on a few various jobs, including painting the home of Davis' sister, until July 2, when Holmes refused to work for Davis any longer. The Administrative Law Judge concluded that East Star violated Section 8(a)(3) and (I) of the Act by Davis' action in transferring Holmes because of his union activities.3 Moreover, the Administrative Law Judge found that Dews violated Section 8(a)(3) and (1) by causing East Star to transfer Holmes for engaging in union activities.4 The General Counsel, however, took exception to the conclusion that Holmes was merely transferred and contends that he was actually discharged from East Star's employ- ment. We agree with the General Counsel on this issue. (1973). We do, however, adopt his credibility resolution regarding Moody insofar as it was based on his observation of Moody's demeanor and was not contrary to the clear preponderance of all of the relevant evidence. Standard Dry Wall Products, Inc., supra. See also Pet Incorporated, Dairy Group, 229 NLRB 1241, fn. 2 (1977). 2 All dates hereafter are in 1976. 3 The Administrative Law Judge also found that East Star violated Sec. 8(aH 1) by interrogating its employees regarding their union activities and by threatening employees with layoff for engaging in union activities. 4 An employer violates the Act when it directs, instructs, or orders another employer with whom it has business dealings to discharge, layoff, transfer, or otherwise affects the working conditions of the latter's employees because of the union activities of said employees. See Georgia- Pacific Corporation, 221 NLRB 982, 986 (1975); Fabnc Services, Inc., 190 NLRB 540, 541-543 (1971). See also Ref-Chem Company, 158 NLRB 488, 492-493 (1968). Cf. Edward R. Carey, et al., Trustees of the United Mine Workers of America Welfare and Retirement Fund, 201 NLRB 368, 369 370 (1973); Local No. 447, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL- CIO (Malbaff Landscape ConstructionJ, 172 NLRB 128 (1968). 182 DEWS CONSTRUCTION CORP. Prior to May 17, the day on which Davis told Holmes that he was being laid off, Holmes was listed on East Star's payroll sheet and was paid an hourly wage by the Company, which also deducted his social security and Federal withholding taxes. After May 17, Holmes was no longer listed on East Star's payroll ledger, was paid on a per-job basis, and had no taxes deducted by East Star. Moreover, Davis himself admitted that, after May 17, Holmes made "bid[s] for work." Credited testimony also indicates that Davis and Holmes agreed on specific prices for each job. On July 2, Holmes finally told Davis that he was not paying him enough money for his work and stated that he would try to get his own jobs from then on. In these circumstances, we find that Holmes' status with respect to East Star clearly changed on May 17 from an employee to an independent contractor. See, e.g., Marble Polishers Local Union No. 16, AFL-CIO (Kendall Construction Company), 191 NLRB 120, 121 (1970). Consequently, East Star effectively discharged Holmes from its employment on May 17 and thereafter engaged his services merely as a self-employed painter until July 2. The Administrative Law Judge found that when Holmes told Davis that he would thereafter seek his own work, Holmes voluntarily terminated his em- ployment with East Star. Consequently, the remedy imposed by the Administrative Law Judge did not require East Star to reinstate Holmes and also limited Holmes' backpay award to his loss of earnings between May 17 and July 2. However, in accordance with our conclusion that Holmes was discharged rather than transferred on May 17, we find that on July 2 Holmes merely withdrew his services from East Star as an independent contract- ing painter. Therefore, Holmes is entitled to full reinstatement and backpay after July 2 as well, as set forth below in the amended remedy. AMENDED REMEDY Having found that Respondent East Star Painting Corp. discharged Norris Holmes on May 17, 1976, in violation of Section 8(a)(3) and (1) of the Act, we shall order that East Star offer immediate and full reinstatement to Norris Holmes, if he has not been previously reinstated, or, if such job no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges. Having also found that Respondent Dews Construc- tion Corp., a subsidiary of The Aspin Group, Inc., caused Respondent East Star Painting Corp. to discharge Norris Holmes on May 17, 1976, we shall order both Dews and East Star, jointly and severally, to make him whole for any loss of earnings he has suffered as a result of such discharge by payment to him of a sum equal to the amount he normally would have earned as wages from the date of his discharge to the date of Respondent East Star's offer of reinstatement, less net earnings, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified herein, and hereby orders that the Respon- dents, Dews Construction Corp., a subsidiary of The Aspin Group, Inc., and East Star Painting Corp., Newark, New Jersey, their officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, as modified below: I. In paragraph A, l(b), substitute the word "discharge" for the word "transfer." 2. Substitute the following for paragraph A, 2(a): "(a) Jointly and severally with East Star Painting Corp., make Norris Holmes whole for any loss of earnings he has suffered as a result of his unlawful discharge by East Star on May 17, 1976, in the manner set forth in the section of the Board's Decision entitled'Amended Remedy.' " 3. In paragraph B, I(c), substitute the word "Discharging" for the word "Transferring." 4. Substitute the following for paragraph B, 2(a): "(a) Offer to Norris Holmes immediate and full reinstatement, if he has not been previously reinstat- ed, or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and, jointly and severally with Dews Construction Corp., a subsidiary of The Aspin Group, Inc., make Norris Holmes whole for any loss of earnings he has suffered as a result of his unlawful discharge by East Star on May 17, 1976, in the manner set forth in the section of the Board's Decision entitled 'Amended Remedy.' " 5. Substitute the attached notices for those of the Administrative Law Judge. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we committed 183 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certain unfair labor practices, and has ordered us to post this notice. We intend to abide by the following: Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all these things. WE WILL NOT condition offers to hire you on repudiation of your rights under the Act. WE WILL NOT cause other employers to dis- charge employees from our projects for engaging in union activities. WE WILL NOT refuse to hire employees because unfair labor practice charges have been filed on their behalf under the Act. WE WILL NOT in any other manner interfere with you or attempt to restrain or coerce you in the exercise of the rights guaranteed by Section 7 of the Act. WE WIL.L, jointly and severally with East Star Painting Corp., make Norris Holmes whole for any earnings he lost, plus interest, as a result of his discharge by East Star, which we caused, from one of our projects on May 17, 1976. WE WILL inform East Star Painting Corp., in writing, with a copy to Norris Holmes, that we have no objection to East Star hiring Norris Holmes to work on our projects. WE WILL offer H. C. Brown, Jr., immediate and full reinstatement to the job for which we would have hired him on April 19, 1976, but for our discrimination against him, or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any earnings he lost, plus interest, as a result of our refusal to hire him on that date. All our employees are free to join Federation of Employees Union Local 1027, or any other labor organization, if they choose. DEWS CONSTRUCTION CORP., A SUBSIDIARY OF THE ASPIN GROUP, INC. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we committed certain unfair labor practices and has ordered us to post this notice. We intend to abide by the following: Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT interrogate you about your union activities. WE WILL NOT threaten you with layoff for engaging in union activities. WE WILL NOT discharge you for engaging in union activities. WE WILL NOT in any other manner interfere with you or attempt to restrain or coerce you in the exercise of the above rights. WE WILL offer Norris Holmes immediate and full reinstatement to the job from which we discharged him, or, if such job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges; and WE WILL, jointly and severally with Dews Con- struction Corp., a subsidiary of The Aspin Group, Inc., make Norris Holmes whole for any earnings he lost, plus interest, as a result of his discharge from a Dews project on May 17, 1976. All our employees are free to join Federation of Employees Union Local 1027, or any other labor organization, if they choose. EAST STAR PAINTING CORP. 184 DEWS CONSTRUCTION CORP. II. THE UNFAIR LABOR PRACTICES STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge in Case 22-CA-6903 was filed on April 6, 1976,1 amended on April 15, and amended again on June 16. A complaint was issued on August 13. The complaint in Case 22-CA-7042 was filed on June 28; in Case 22-CA- 7114, on August 6; and in Case 22-CA-7175, on Septem- ber 10. All four cases were consolidated for hearing and an amended complaint was issued on September 27. The hearing was held in Newark, New Jersey, on October 26 and 27, November 30, and December 2. The issues litigated grew out of the termination of the employment of Arnold Moody, H.C. Brown, Jr., and Norris Holmes. For the reasons set forth below, I find that, while Respondent Dews did not violate Section 8(a)(1) of the National Labor Relations Act, as amended, when it discharged Moody on March 22 and laid off Brown on March 23, it did violate Section 8(a)(4) and (1) when it subsequently failed to hire Brown. I also find that both Dews and Respondent East Star violated Section 8(a)(3) and (1) when, on May 17, East Star transferred Holmes from a Dews project at Dews' behest. Upon the entire record, including especially my observa- tion of the demeanor of the witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT I. JURISDICTION Dews, a New Jersey corporation, is engaged in the business of rehabilitating inner city houses under programs sponsored and funded by local governments in conjunction with the Federal Government. During calendar 1975 it purchased from suppliers outside the State of New Jersey building and construction materials valued in excess of $50,000 which were shipped directly to its jobsites in New Jersey. Prior to 1976 Ezekiel Davis engaged in the painting business in Newark as a sole proprietor under the name of E. Davis & Sons. In January 1976 he incorporated in New Jersey under the name of East Star Painting Corp., assigning nominal portions of the stock to his wife and children. In the year just prior to issuance of the amended complaint herein, that is, between September 27, 1975, and September 26, 1976, Davis provided painting services to Dews valued in excess of $50,000, part while operating as E. Davis & Sons and part while operating as East Star. Local 1027 admits employees to membership, represents employees in collective bargaining with their employers, and has entered into labor agreements with employers in New Jersey, New York, and Maryland. A. The Case Against Dews 1. Background Some 95 percent of the work which Dews does is under statutes administered by the Department of Housing and Urban Development and, as such, is subject to the provisions of the Davis-Bacon Act. In the summer of 1975 Arnold Moody "dropped a dime on [his] boss," Dews, by placing an anonymous telephone call to the Newark office of the Wage and Hour Division of the Department of Labor's Employment Standards Administration. He re- ported that Dews was not living up to its obligations under Davis-Bacon. An investigation ensued in the course of which a number of Dews' employees received and filled out questionnaires and/or were interviewed by and gave statements to the Wage and Hour investigator. The questionnaires were circulated in late February 1976. Moody, for example, gave statements on February 9 and March 15 and filled out a questionnaire on February 23. H. C. Brown, Jr., filled out a questionnaire on February 23 and gave statements on March 4 and 31 and April 14. Dews was in violation of Davis-Bacon in one respect. Instead of paying its employees time and a half for Saturday work, it was paying them a flat sum which it recorded as reimbursed travel rather than wages. Dews did not dispute the information brought to its attention by the Wage and Hour investigator. Before the investigation was complete, it computed the amount of money owed to each employee and gave it to him. Approximately $25,000 (before taxes) was disbursed to approximately 65 employ- ees on March 10. The General Counsel ascribes Dews' motive to its resentment of the protected concerted activities of its employees in the Wage and Hour investiga- tion in contending Moody's discharge and Brown's layoff violated Section 8(a)(1) of the Act. 2. Arnold Moody a. Credibility Questions of credibility loom large in every phase of this proceeding, none more so than in that involving Arnold Moody. My finding that he instigated the Wage and Hour investigation with an anonymous telephone call, a fact which, if known to Dews on March 22, would make Moody's case a strong one, is based on his uncorroborated testimony concerning that particular issue. It does not follow from this that I found him to be a credible witness. Quite the contrary. On the other hand, it does not follow from the fact I credit Dews' witnesses over Moody that I found the latter to be highly credible either. In the phases involving H. C. Brown, Jr., and Norris Holmes I have relied on demeanor at those points below where I have indicated important credibility conflicts are found in the record. In Moody's case, there is evidence in the record which goes beyond demeanor. Dates are 1976 unless otherwise indicated. DECISION 185 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the final analysis, the legality of Moody's discharge turns on whether the reason advanced by Dews-Moody's absence without permission from March 11 to 22-was its real reason for discharging him or a pretext masking a motive growing out of his role in the Wage and Hour investigation. Moody first filed a charge in Case 22-CA- 6984 on May 20, then withdrew it. The affidavit which he gave to a Board agent at the time he filed that charge recounts his position and duties with Dews; his role in the Wage and Hour investigation; an alleged threat by Elliott Schneider, Dews' president, to discharge him because of what he had done; and the fact that he had been discharged. There is no mention of his admitted absence from March 11 to 22; the injury he claims to have sustained on the job on March I I, which is his excuse for being absent; and the events which he claims prove that Schneider condoned his absence. The record does not indicate why Moody withdrew his first charge. Presumably the Regional Director concluded there was insufficient evidence to prove Moody's claim that he had been discharged for engaging in a protected concerted activity. Only when Moody refiled in Case 22-CA-7175 on September 10 did he supply the elements required to make out a case. I find the discrepancy between the story he told the Regional Office in May and the story he told in September impossible to swallow. For that reason, I have discredited him with respect to all other issues where his testimony is not corroborated, especially in those crucial areas on which his case turns. The first of these areas, as already indicated, relates to the facts surrounding Moody's absence. Two others relate to the question of company knowledge of his role in the Wage and Hour investigation. The phrase "dropped a dime on my employer" is from Moody's testimony. He said those were the words he used about 2 weeks after calling the Wage and Hour Division when he told Joseph Young, Dews' foreman, what he had done. Young denied the conversation. Moody also testified to a conversation with Schneider at the time in late February when Dews became aware its employees had received Government question- naires. In Moody's version, Schneider said he knew Moody was the one who had turned him in to the Department of Labor and threatened to "bury" him. Schneider denied every saying any such thing. He claimed he only learned of Moody's role in the investigation when he heard the phrase "dropped a dime on my boss" at the hearing and had to have it explained to him. Since I discredit Moody and credit Young and Schneider to find that these conversa- tions never took place, there is no mention of them in the section which follows. Since Moody's testimony of his alleged conversation with Schneider underlies two allega- tions of independent 8(a)(1) violations in the amended complaint, I find Dews, in the person of Schneider, did not warn "its employees that they would be discharged because they filed a complaint with Wage and Hour" and did not inform "its employees that it had kept under surveillance concerted activities its employees had engaged in." b. Facts Arnold Moody first went to work for Dews in July 1974 as a laborer. He was shot in the knee in August 1974 under circumstances not set forth in the record. He returned to work sometime thereafter. His knee caused him to miss work from time to time, the frequency apparently dropping as time went by. (There is nothing in the record on which to base any precise findings as to when Moody's bad leg caused him to miss work prior to March 1976.) In October 1975 Richard Webb, Dews' superintendent, discharged Moody for failing to show up for work on a day when he had to go to court. However, Moody immediately protest- ed to Elliott Schneider, Dews' president, who reinstated him. After he was wounded, Moody did not perform the full duties of a laborer on Dews' projects. His job evolved into that of a "gopher" for the other workmen. He kept the keys to the storeroom, carried tools and materials to the men as they were needed, and performed such other light duties as were commensurate with his physical condition. At the time of his discharge, Moody was living several blocks from the project on which he was working. Because there was an infant in the house (his child by the woman with whom he was living), he kept his two large vicious dogs at the project rather than at home. This arrangement was mutually advantageous to Dews because the dogs were permitted to roam free at night in the house under reconstruction as a security measure. One of Moody's duties was to open up the project in the morning, at which time he penned up the dogs, and close it up at night, at which time he released them. When Moody left work at the end of the day on Thursday, March 11, he did not tell Webb he claimed to have wrenched his bad knee during the day. Neither did he tell Webb he would not be working for a while because of his leg. He did not report for work again until the morning of Monday, March 22. In the interim, he walked to and from the project each morning to pen up his dogs and to and from the project each evening to release them. Schneider went to Moody's home on one occasion to pick up the keys to the storeroom on the project. On that occasion Moody did not tell Schneider he was not working because of his leg. Moody did not seek medical attention between March I and 22. Schneider ordered that Moody not be given his Friday, March 19, paycheck until Moody had spoken to him. Webb failed to carry out Schneider's order. When Moody sent the woman with whom he was living to the jobsite to pick up his check on March 19, Webb told her to tell Moody he could not have it until he came to pick it up himself. Moody went to thejobsite himself. Webb gave him his check. Moody did not say he was off because he had hurt himself or that he planned to return to work on Monday. Thereafter, Schneider concurred in Webb's decision to discharge Moody for being off without permission. Moody went to work on the morning of Monday, March 22. Webb discharged him. Webb told Moody he had no work for him because he had replaced him. c. Analysis and conclusions Assuming, without finding, that Moody did, in fact, strain his bad knee on March 11, it is obvious he did not injure himself so badly that he was incapacitated. He managed to finish out the day. He walked to and from the 186 DEWS CONSTRUCTION CORP. project numerous times between March I 11 and 22. He did not need medical help. Given the light nature of his duties in any event, there can be no doubt that he could have worked on Friday, March 12, and all the following week if he had wanted to. The question posed in this phase of this proceeding is whether Schneider and Webb had only Moody's prolonged absence in mind when they decided to discharge him or whether, but for the Wage and Hour investigation which had recently cost Dews $25,000, they would have over- looked it. If the record contained credible evidence on which I could base a finding Schneider knew Moody had instigated the investigation, I would not hesitate to find in the General Counsel's favor. This would be especially true if the record also contained credible evidence on which I could base a finding Schneider had threatened to discharge Moody for his role. Moody had not been discharged on prior occasions when his bad leg caused him to miss work. On an occasion when Webb had discharged Moody for an unauthorized absence, Schneider had excused Moody's transgression. However, Schneider was not aware, as of March 22, Moody was the author of his Wage and Hour trouble. Schneider did not threaten to discharge Moody. Therefore, the scale tips in Dews' favor, causing me to fimd that the General Counsel has not proved by a preponder- ance of the evidence on the record considered as a whole that Dews discharged Arnold Moody on March 22, 1976, for engaging in protected concerted activities. 3. H. C. Brown, Jr. a. Facts Sometime between February 23, the day he filled out a Wage and Hour questionnaire, and March 4, the day he gave his first statement to the investigator, H. C. Brown, Jr., another laborer, talked to Elliott Schneider, Dews' president, and Howard Perlman, Dews' vice president and controller, about the investigation. Schneider asked Brown what Wage and Hour wanted to know. Brown said it wanted to know how much he was paid and whether he received overtime. He said he had reported Dews did not pay overtime. Schneider said he should not have told Wage and Hour that. Brown replied, "Why not? You never paid me overtime." 2 Brown worked for Dews as a laborer from March 10, 1975, until March 23, 1976. His principal task was operating a jackhammer. On the latter date he was one of I I employees laid off for economic reasons. Brown asked Joseph Young, the foreman, why he was being laid off. Young said he did not know. Brown sought out Richard Webb, the superintendent. Webb said it was because the work was slow. Brown protested that a new man had been hired just a few days before. Webb said Brown would have to see Schneider about that. Brown sought out Schneider. 2 My findings as to this conversation, like those as to the various conversations which took place when Brown sought reemployment, are based on Brown's credited testimony. Here, Schneider's version differs only in that he denies saying Brown should not have told Wage and Hour he did not pay overtime. :1 Schneider's version of the sequence of events that begins at this point is that he did talk to Brown on April 14 and offered him a job on an upcoming project but that Brown never showed up for work. He denied the Apnl 19 conversation ever took place. Schneider told him he had been selected for layoff because he was operating the jackhammer too slowly. The original charge in Case 22-CA-6903 was filed on April 6 by Anthony Bryant, a business agent for Local 1027. It named Brown as a discriminatee. Shortly after, Brown's cousin told him Schneider wanted to see him. Brown went to a Dews' jobsite on April 14 and talked to Schneider. 3 Schneider asked Brown if Brown had filed charges against him at the Labor Board. Brown told him no. Schneider said that was beside the point, he had been intending to call Brown back to work in any event. First, however, Schneider said, he wanted Brown to give him a statement saying he would drop all charges against Dews. Brown said he had not filed any charges, therefore, he was not going to sign a paper saying he would drop them. Schneider said that was up to Brown. He told Brown to report the next morning if he wanted a job. When Brown returned the next morning, he found only Webb at the jobsite. Webb told him they were not going to start work at that site right away. Brown asked where he could find Schneider. Webb sent Brown to another site. There, when Brown protested that Schneider had told him to report for work that day, Schneider also told him the project was not yet ready to start. He told Brown to come back the following week. Brown went back to the first jobsite the following Monday morning, April 19. The project was still not ready to start. Brown again sought out Schneider at the second site. Brown asked Schneider what he was going to do. He pointed out that Schneider had made him come back three times and asked when Schneider was going to put him back to work. Schneider said, "You already cost me about $2,000 for lawyers. 4 Now, would it make any sense for me to hire you back?" Brown said, "Well, you told me to come back to work, but, like I told you, I'm not signing no papers or nothing." Schneider did not rehire Brown. b. Analysis and conclusions The allegation of the complaint that Brown was laid off on March 23 in violation of Section 8(aXl) of the Act is predicated on a theory that Brown was selected because he had given Wage and Hour derogatory information about Dews. To that end, the General Counsel sought to establish that Schneider's explanation to Brown for letting him go was a pretext. The evidence on which he relies consists mainly of Brown's assertions he was a good jackhammer operator and his work had been generally acceptable. When weighed against other undisputed facts in the record, it is not persuasive. Lack of work led to the layoff of 10 others on March 23. Some of them had also cooperated with the Wage and Hour investigator. While there is no evidence of what they told the investigator, there is no reason to suspect they did not tell the truth, the same as 4 In resolving credibility between Brown and Schneider. I attach no significance to the fact Dews' attorney notified the Regional Office he was representing Dews in Case 22-CA-6903 on April 23. 1 also attach no significance to the fact James Kyle, another laborer who was added as a discriminatee to the charge in Case 22-CA-6903 when it was first amended on April 15, was rehired by Dews and subsequently informed the Regional Office he no longer desired to participate in the case. 187 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown. There is nothing to indicate Schneider blamed Brown because the investigation had revealed the truth about his operations and cost Dews $25,000. Once again, the scale tips in Dews' favor, causing me to find the General Counsel has not proved by a preponderance of the evidence on the record considered as a whole that Dews laid off H. C. Brown, Jr., on March 23, 1976, for engaging in protected concerted activities. Since Schneider's remark to Brown that he should not have told Wage and Hour he did not get overtime was not coercive, given the nature of the conversation in which it was made, I also find Respondent did not commit an independent 8(a)(1) violation by interrogating its employees concerning their "concerted and protected activity; namely," their partici- pation in the Wage and Hour investigation. The allegations of the complaint which grow out of the April events are another matter. There, Brown's credited testimony as to his dealings with Schneider in April clearly proves Schneider tried to entice Brown into repudiating the Labor Board case in which he had become involved, promising to rehire Browns if he did so. When Brown failed to do what Schneider wanted him to do, Schneider reneged on his promise. I find, therefore, Dews violated Section 8(a)(4) and (1) of the Act by refusing to hire H. C. Brown, Jr., on April 19, 1976, because an unfair labor practice charge had been filed on his behalf under the Act. I also find Respondent committed an independent 8(aXl) violation of the Act when Schneider coerced Brown on April 14 by conditioning an offer to hire him on a repudiation of his rights under the Act. B. The Case Against Dews and East Star i. Facts In January 1975, when Ezekiel Davis signed his first contract with Dews, Elliott Schneider, Dews' president, told him the job was nonunion. Davis agreed to take the contract on that basis even though he is himself a member in good standing of the Brotherhood of Painters, Decora- tors and Paper Hangers of America, AFL-CIO, after getting the approval of his business agent. (Davis incorpo- rated his business under the East Star name in January 1976 so that he could work for the corporation as an employee and thus retain his membership in the Painters Union.) In May 1976, Local 1027 began handbilling the Dews project on which Davis was working. Davis told Schneider that Local 1027 was trying to organize his employees. Schneider told Davis to run his own business. Davis was working with two employees at that time, Eddie Harris and Norris Holmes. Harris was also a * The complaint characterizes what happened to Brown on April 19 as a discharge. It is undisputed that Dews hires at the gate only and has a high turnover of employees. There is no basis for a finding that the March 23 layoff was anything other than permanent or that any of the I I men let go had any expectation of recall. Therefore, Brown was not an employee of Dews on April 19 and not susceptible to discharge. However, Schneider could, and did, discriminate against him at that time by refusing to hire him. 6 This finding, crucial to the question of Dews' liability for Holmes' transfer, is based on Davis' testimony. I do not credit his assertion that Webb was only joking. Webb initially denied the conversation, then said he might have made such a remark in jest, and finally fell back to a "don't remember" position. member of the Painters Union. Holmes was not. He joined Local 1027 sometime prior to Wednesday, May 12. That evening Harris and Holmes attended a meeting held by Local 1027. On Friday, Richard Webb, Dews' superinten- dent, told Davis that Harris and Holmes had been at the meeting. Webb said, "You better remember how your contract was written."6 Davis went to Harris and Holmes. He asked them if they had attended the meeting. They said yes. Davis said his boss, Schneider, did not like the fact that they had gone to the meeting. He said one of them would have to be laid off. On Monday morning, May 17, Davis called Harris and Holmes down from the scaffold on which they were working to talk to Schneider. Schneider refused to talk to the men. Instead, he took Davis out of earshot and talked to him.7 When that conversation ended, Davis told Harris and Holmes that Schneider had decreed one of them must be laid off.8 Davis added that he had selected Holmes (Harris had worked for Davis longer than Holmes) but that he would try to find other work for Holmes. Holmes did not work for Davis on any Dews projects thereafter. Davis put Holmes to work painting Davis' sister's house the following week. Holmes worked intermittently for Davis on various jobs until July 2, when he quit. Davis reimbursed Holmes for each of these periods of employ- ment on a flat fee basis rather than the hourly basis utilized when Holmes worked on Dews projects. 2. Analysis and conclusions The complaint alleges Dews caused East Star to lay off Norris Holmes. Davis takes the position he did not lay off Holmes but merely transferred him to another job. In a more highly structured company than East Star the distinction might be a valid one. Here it is not. Davis does not formally lay off employees and then formally recall them any more than Dews does. It is clear Davis did not intend permanently to end Holmes' employment relation- ship with East Star on May 17; thus, what happened to Holmes at that time cannot be characterized as a discharge. Whether each of the periods between the various jobs Holmes worked on after May 17 and before July 2 is characterized as layoff and recall or as hiatuses between jobs to which Davis transferred Holmes in sequence, the result is the same. Davis interrupted Holmes' employment on May 17 and thereby reduced his earnings between that date and the day when Holmes decided to end his employment relationship with East Star because of Holmes' union activities. I find, therefore, that East Star violated Section 8(a)(3) and (1) of the Act on May 17, 1976, by transferring Norris Holmes. I also find it committed independent 8(a)(1) violations on May 14, 1976, when 7 Both Davis and Schneider denied Schneider ordered Davis to get Holmes off the Dews project. While the record is unclear, Davis' version of this conversation is apparently that Schneider took the position he could not talk to Davis about the threat posed to East Star by Local 1027's activities. 8 The finding that Davis said Schneider ordered one of the men laid off is based on Holmes' credited testimony. Davis admitted he took Holmes off Dews projects because of his union activity but claimed all the blame for himself. In light of his economic dependence on Dews and Schneider, it was an understandable position for Davis to take. 188 DEWS CONSTRUCTION CORP. Davis interrogated employees about their union activities and threatened them with layoff. The only real issue in this phase of this proceeding is whether Dews caused Davis to transfer Holmes. It obviously did. The fact Davis only was permitted to work for Dews on a nonunion basis coupled with Webb's reminder to Davis of that fact when Local 1027 began organizing activities at a Dews project add up to an irrefutable case. Only an admission by either Davis or Schneider that Schneider expressly ordered Davis to get rid of Holmes could make it any stronger. I find, therefore, that Dews violated Section 8(aX 3) and (1) of the Act by causing East Star to transfer Norris Holmes on May 17, 1976, for engaging in union activities. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Dews Construction Corp., a subsidiary of The Aspin Group, Inc., and East Star Painting Corp. are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Federation of Employees Union Local 1027 is a labor organization within the meaning of Section 2(5) of the Act. 3. By conditioning an offer to hire an employee on a repudiation of his rights under the Act, Respondent Dews has violated Section 8 (aXl) of the Act. 4. By causing Respondent East Star to transfer Norris Holmes from a Dews project on May 17, 1976, for engaging in union activities, Respondent Dews has violated Section 8(a)(3) and (1) of the Act. 5. By refusing to hire H. C. Brown, Jr., on April 19, 1976, because an unfair labor practice charge had been filed on his behalf under the Act, Respondent Dews has violated Section 8(a)(4) and (1) of the Act. 6. By interrogating employees about their union activi- ties and by threatening them with layoff for engaging in union activities, Respondent East Star has violated Section 8(a)(1) of the Act. 7. By transferring Norris Holmes on May 17, 1976, for engaging in union activities, Respondent East Star has violated Section 8(a)(3) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. The allegations of the complaint that Respondent Dews violated Section 8(a)() of the Act by warning its employees they would be discharged for filing a Wage and Hour complaint, by informing its employees it had kept their protected concerted activities under surveillance, by interrogating its employees about their protected concerted activities, by discharging Arnold Moody on March 22, 1976, for engaging in protected concerted activities, and by laying off H. C. Brown, Jr., on March 23, 1976, for engaging in protected concerted activities have not been sustained. 9 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 In addition to the usual cease-and-desist order and notice running to each Respondent, an order requiring Respondent Dews to appoint H. C. Brown, Jr., to the position he would occupy if it had hired him on April 19, 1976, and make him whole is necessary to effectuate the policies of the Act. In the case of Norris Holmes, an order requiring Respondent East Star to reinstate him is not required since he voluntarily terminated his employment with East Star on July 2, 1976. However, it is necessary that he be made whole for the earnings he lost between May 17 and July 2, 1976. That sum, for which East Star and Dews are jointly and severally liable, is the amount Holmes would have earned in hourly wages and fringe benefits as an employee of East Star on Dews projects, less the $800 East Star paid to Holmes for work on otherjobs during this period. In both Brown's and Holmes' cases, backpay will be computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Finally, to effectuate the policies of the Act it is necessary that Dews be required to notify East Star, in writing, with a copy to Holmes, that it has no objection to East Star hiring Holmes to work on Dews projects. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceed- ing, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 9 A. Dews Construction Corp., a subsidiary of The Aspin Group, Inc., Newark, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Conditioning offers to hire employees on repudiation of their rights under the Act. (b) Causing other employers to transfer employees from their projects for engaging in union activities. (c) Refusing to hire employees because unfair labor practice charges have been filed on their behalf under the Act. (d) In any other manner interfering with or attempting to restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following action necessary to effectuate the policies of the Act: (a) Jointly and severally with East Star Painting Corp., make Norris Holmes whole for any earnings he lost, plus interest, as a result of his transfer by East Star from a Dews project on May 17, 1976. (b) Inform East Star Painting Corp., in writing, with a copy to Norris Holmes, that it has no objection to East Star hiring Holmes to work on its projects. (c) Offer H. C. Brown, Jr., immediate and full appoint- ment to the job for which it would have hired him on April 19, 1976, but for its discrimination against him or, if that 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. 189 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for any earnings he lost, plus interest, as a result of its refusal to hire him on that date. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at all its jobsites copies of the attached notice marked "Appendix A." ' 0 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent Dews' authorized representative, shall be posted by Respondent Dews 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 Respondent Dews to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent Dews has taken to comply herewith. B. East Star Painting Corp., Newark, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union activities. (b) Threatening employees with layoff for engaging in union activities. (c) Transferring employees for engaging in union activities. (d) In any other manner interfering with or attempting to restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. "I 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 2. Take the following action necessary to effectuate the policies of the Act: (a) Jointly and severally with Dews Construction Corp., a subsidiary of The Aspin Group, Inc., make Norris Holmes whole for any earnings he lost, plus interest, as a result of his transfer from a Dews project on May 17, 1976. (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, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at all its jobsites copies of the attached notice marked "Appendix B." I Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent East Star's authorized representative, shall be posted by Respondent East Star 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 Respondent East Star to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps Respondent East Star has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges Respondent Dews violated Section 8(a)(1) of the Act by warning its employees they would be discharged for filing a Wage and Hour complaint, by informing its employees it had kept their protected concerted activities under surveillance, by interrogating its employees about their protected concerted activities, by discharging Arnold Moody on March 22, 1976, for engaging in protected concerted activities, and by laying off H. C. Brown, Jr., on March 23, 1976, for engaging in protected concerted activities. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." II See fn. IO, supra. 190