O'Dovero Construction, Inc.

O'DOVERO CONSTRUCTION, INC. O'Dovero Construction, Inc. and Bruce Liuska. Case 30-CA-6188 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On March 31, 1982, Administrative Law Judge Elbert D. Gadsden issued the attached Decision in this proceeding. Thereafter, both the General Counsel and Respondent filed exceptions and sup- porting briefs. 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, find- ings,1 and conclusions of the Administrative Law Judge, as modified herein. We agree with the Administrative Law Judge that Respondent laid off Bruce Liuska and Gregg I Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. We have further considered Respondent's contention that the Administra- tive Law Judge has evidenced a bias against Respondent's position. We have carefully considered the record and the attached Decision and reject these charges. The Administrative Law Judge found in the final paragraph of his "Analysis and Conclusions" section, that Respondent's failure to call cer- tain of its employees to testify on its behalf raises the adverse inferrence that those employees would have given testimony favorable to the Gen- eral Counsel. We find the adverse inference improper in the absence of evidence that the employees involved were not equally available to be called as witnesses by both parties. Local 259, United Automobile, Aero- space, and Agricultural Implement Workers of America (Atherton Cadillac. Inc), 225 NLRB 421 (1976). Member Jenkins agrees with the Administrative Law Judge's finding of an adverse inference regarding Respondent's failure to call Superintend- ent Russell LeBlanc and Foremen Bob Maki and Oscar Haglund. He finds that this is a typical case for an adverse inference and that his col- leagues' reliance on Atherton Cadillac, Inc., supra, for the opposite result is misplaced. There, the Board found improper an adverse inference against the General Counsel for failing to present the employer's president, who was available to all parties, to corroborate the discriminatee's hear- say testimony as to the reason for the discharge. Here, the Respondent called only one of several of its own officials who were involved in the conversations that gave rise to the issues to refute the General Counsel's evidence. We do not adopt the Administrative Law Judge's comment that Re- spondent's failure to show that "these particular carpenters would have been laid off on September 29, even if they were not complaining to the Union" renders Wright Line. a Division of Wright Line, Inc., 251 NLRB 1083 (1980), inapplicable We do find, however, in agreement with the Administrative Law Judge, that the claimed lack of work was not the reason, but the pretext for the discharge. Cf. Limestone Apparel Corp., 255 NLRB 722 (1981). 264 NLRB No. 101 Tuominen, and failed and refused to recall them in violation of Section 8(a)(3) and (1) of the Act, be- cause they engaged in protected concerted activity. The Administrative Law Judge found that union steward Liuska and Tuominen complained on sev- eral occasions to both management and union offi- cials about Respondent's failure to honor certain portions of its collective-bargaining agreement with the Union, and that Respondent retaliated by laying them off on the pretext that there was no more work to be done on the job. The Administra- tive Law Judge also found that the third nonsu- pervisory carpenter on the job, Charles Braun, was not laid off for participating in protected concerted activity and therefore his layoff was lawful. We disagree, and find that Braun's layoff was motivat- ed by Respondent's desire to give "an appearance of legitimacy" to its discharge of the true targets, Liuska and Tuominen.2 In reaching this result, we note that Respond- ent's agreement with the Union stated that the steward would be the last man laid off on the Crys- tal Falls job and that no work would be performed without a steward on the job. Thus, Liuska, the steward, could not be laid off while Braun, the only remaining carpenter, continued to work. In order to lend support to the pretext that Liuska and Tuominen were laid off for lack of work, and to achieve the layoff of Liuska in accordance with the labor agreement, Respondent was forced also to lay off Braun. We find, therefore, that Braun was the innocent victim of Respondent's discrimi- natory treatment of Liuska and Tuominen, and, as such, his layoff was also violative of Section 8(a)(3) and (1) of the Act. AMENDED CONCLUSIONS OF LAW i. Substitute the following for Conclusion of Law 3: "3. By laying off and failing and refusing to recall Bruce Liuska, Gregg Tuominen, and Charles Braun on September 29, 1980, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act." 2. Substitute the following for Conclusion of Law 4: "4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act." 2 In cases where an employer terminates an employee as part of an effort to camouflage the discriminatory discharge of a known union ac- tivist, the Board has held that all that is required is a finding that the discharge of the one was undertaken in an attempt to validate or support the discharge of the other. See Armcor Industries Inc., 217 NLRB 358 (1975), and the cases cited therein. 751 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMENDED REMEDY Having found that Respondent violated Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the poli- cies of the Act. Having found that Bruce Liuska, Gregg Tuo- minen, and Charles Braun were unlawfully termi- nated on September 29, 1980, we shall order Re- spondent to offer them full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings suffered as a result of Respondent's unlaw- ful actions. Loss of earnings shall be computed as prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), plus interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corpo- ration, 231 NLRB 651 (1977). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, O'Dovero Construction, Inc., Marquette, Michi- gan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off, failing to recall, or otherwise dis- criminating against its employees in the exercise of the rights guaranteed them in Section 7 of the Na- tional Labor Relations Act, as amended. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action designed necessary to effectuate the policies of the Act: (a) Offer Bruce Liuska, Gregg Tuominen, and Charles Braun immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed. (b) Make Bruce Liuska, Gregg Tuominen, and Charles Braun whole for any loss of earnings they may have suffered due to the discrimination prac- ticed against them by paying to each of them a sum of money equal to that which he would have earned in the manner prescribed in the section of this Decision entitled "Amended Remedy." (c) Expunge from its files any reference to the layoffs on September 29, 1980, of Bruce Liuska, Gregg Tuominen, and Charles Braun, and notify them in writing that this has been done and that evidence of these unlawful layoffs will not be used as a basis for future personnel actions against them. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, 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 Order. (e) Post at Respondent's plant and place of busi- ness located in Marquette, Michigan, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Di- rector for Region 30, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Repondent to ensure that said notices are not al- tered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 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 Pursu- ant 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 WE WILL NOT lay off, fail to recall, or oth- erwise discriminate against our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the National Labor Rela- tions Act, as amended. WE WILL offer Bruce Liuska, Gregg Tuo- minen, and Charles Braun immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their 752 O'DOVERO CONSTRUCTION, INC. seniority or any other rights and privileges previously enjoyed. WE WILL make Bruce Liuska, Gregg Tuo- minen, and Charles Braun whole for any loss of earnings or other benefits they suffered as a result of our discrimination against them, to- gether with interest. WE WILL expunge from our files any refer- ence to the layoffs on September 29, 1980, of Bruce Liuska, Gregg Tuominen, and Charles Braun and WE WILL notify them in writing that this has been done and that evidence of these unlawful layoffs will not be used as a basis for future personnel actions against them. O'DOVERO CONSTRUCTION, INC. DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge: Upon a charge and an amended charge filed on Decem- ber 1, 1980, and February 11, 1981, respectively, by Bruce Liuska, an individual, sometimes herein called the Charging Party, against O'Dovero Construction, Inc., herein called the Respondent, a complaint was issued by the Regional Director for Region 30 on behalf of the General Counsel on February 13, 1981. The complaint alleges that the Respondent and the Union maintained a collective-bargaining agreement cov- ering wages, hours, and other terms and conditions of employment; that employees claimed the right to coffee- breaks, overtime pay, and to carpenters work being per- formed by laborers, pursuant to the contract; and that, because the employees so complained, they were dis- charged by the Respondent in violation of Section 8(a)(l) and (3) of the Act. The Respondent timely filed an answer denying that it has engaged in any unfair labor practices as alleged in the complaint. The hearing in the above matter was held before me in Marquette, Michigan, on October 13, 14, and 15, 1981. Briefs have been received from counsel for the General Counsel and counsel for the Respondent, respectively, which have been carefully considered. Upon the entire record in this case and from my obser- vation of the witnesses, I hereby make the following: FINDINGS OF FACT I. JURISDICTION To all times material herein, the Respondent, O'Do- vero Construction, Inc., is and has been a Michigan cor- poration with an office and place of business in Mar- quette, Michigan, where it is engaged in construction, ex- cavation, and road building operations. In the course and conduct of his business operations during the calendar year ending December 31, 1980, the Respondent purchased and received at its Marquette, Michigan, facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Michigan. The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the parties stipulated, and I find that Cloverland District Council of the United Brother- hood of Carpenters and Joiners of America, AFL-CIO, or its affiliates herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts The Respondent is engaged in the construction, exca- vation, and road and bridge building industry. It carries on most of its business operations in the Marquette area for the construction of curves, gutters, and sidewalks, and has been in business since 1973. At all times material herein, the following named per- sons occupied the positions set opposite their respective names, and are now, and have been at all times material herein, supervisors of the Respondent within the mean- ing of Section 2(11) of the Act, and are agents of the Re- spondent within the meaning of Section 2(13) of the Act: Peter O'Dovero, president; and Russell (Russ) LeBlanc, project engineer and superintendent. The parties have had in effect a collective-bargaining agreement coverings wages, hours, and other terms and conditions of employment of certain employees of the Respondent at Marquette, Michigan. The Respondent has had collective-bargaining agreements with Local 598 since 1973 and the Respondent has accepted agreements negotiated by general contractors and Cloverland Dis- trict Council, including a contract 78-8, Exh. 2).' B. Contracts Between the Contractors and the Union, and Disputes Allegedly Arising Thereunder The Michigan Board of Builder's Association entered into an agreement with the Cloverland Carpenters Dis- trict Council effective September 1, 1979-82, which states: AGREEMENT made and entered into effective the Ist day of September, 1979, by and between the Labor Relations Division of the Michigan Road Builders Association, with central offices located at Lansing, Michigan, for and on behalf of the mem- bership, hereinafter called "Contractor," or "Con- tractors," as party of the first part, and Cloverland Carpenters District Council, Northern Michigan Area Carpenters, Saginaw Valley Carpenters Dis- trict Council, South Central Michigan Carpenters District Council and Southwestern Michigan Car- penters District Council, for and on behalf of those The above facts are established without dispute in the record. 753 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Unions of the United Brotherhood of Carpen- ters and Joiners of America having jurisdiction over the work covered by this Agreement, hereinafter called the "Union," as parties of the second part. [G.C. Exh. 3.] Correspondingly, the Michigan Chapter of Associated General Contractors of America, Inc., entered into an agreement with the Cloverand District Council of the United Brotherhood of Carpenters and Joiners of Amer- ica, effective May 1, 1980-82, which states: AGREEMENT Cloverland District Council of Carpenters THIS AGREEMENT, made and entered into as of May 1, 1980, by and between the Michigan Chap- ter, Associated General Contractors of America, Inc., Labor Relations Division, parties of the first part, and the Cloverland District Council of the United Brotherhood of Carpenters and Joiners of America and their affiliated local unions, parties of the second part. [G.C. Exh. 4.] Local 598 is such an affiliated local. An agreement entered into between the Michigan Chapter Associated General Contractors of America, Inc., and Cloverland District Council of the Brother- hood of Carpenters and Joiners of America provides: ARTICLE I Jurisdiction This agreement covers all employees performing carpentry work and all division of the craft engaged on general building and heavy construction coming under the jurisdiction of the United Brotherhood of Carpenters and Joiners of America by determination of the National Joint Board for the Settlement of Jurisdictional Disputes and by area practices in the area covered by this Agreement. [G.C. Exh. 4.] The Respondent (Peter O'Dovero) acknowledged it signed the last above-described agreement July 16, 1980. The latter agreement (G.C. Exh. 4) also provides for a "Consent Agreement" (G.C. Exh. 23), to be executed by an employer who is not a member of the signatory group covered by the agreement, which the employer signs, agreeing to be bound by all of the terms and conditions of the agreement and become a party thereto. Mr. O'Do- vero signed said "Consent Agreement" (G.C. Exh. 23) on behalf of the Respondent on September 20, 1979. Al- though the latter consent agreement expired January 1, 1980, it was nevertheless self-renewable from year-to- year, unless timely notice of termination thereof was given to the parties thereto. The Respondent did not give such notice of termination. The Respondent was subcontractor to perform con- crete work on an 8-mile section of highway between Crystal Falls, Michigan, and the Wisconsin state line. The work involved construction of underground sewage pipes, building extensions of box culverts, removing head walls, removing a bridge, and building an expanded bridge, and constructing gutters, curves, and sidewalk approaches in the city of Crystal Falls. All of such work was performed between July 25 and November 10, 1980. Gregg Tuominen was hired by the Respondent in Feb- ruary 1979, as a journeyman carpenter at the Turbine Powerhouse in Marquette. In August 1979, Tuominen was called by O'Dovero who assigned him to work 2 weeks, four 10-hour days at the Crystal Falls' jobsite, 60 miles away. Tuominen reported to the Crystal Falls job on August 25, 1980, and worked under the supervision of Russ LeBlanc. On August 27, 1980, Bruce Liuska received a tele- phone call from Oscar Haglund who told him he under- stood he (Liuska) was a carpenter with bridge construc- tion experience. After learning Liuska had considerable bridge construction experience, Liuska asked Oscar Hag- lund what was he looking for. Haglund said he was look- ing for a carpenter foreman because his current foreman had not reported for work for 2 or 3 days, and he wanted to replace him with someone with experience. Liuska continued to testify as follows: And he asked me if I could handle the job. And I reiterated about the experience and etc., and I asked Oscar if and what are the requirements for carpen- ter foreman as far as O'Dovero Construction is con- cerned, whether they require carpenters to work with the forms or whether he is a foreman that does layout work and organizational work etc. He said they require their foreman to work. I said how many carpenters do you have on the job. He said maybe three, maybe four. I said there would be no problem and I said I would be there in the morning which would be Thursday, August 28th at 8:00 a.m. E.S.T. When Bruce Liuska reported to work on August 28, he met Oscar Haglund and Russ LeBlanc. LeBlanc took him to the supply trailer, took out the blueprints, and told him to familiarize himself with them while the rest of the crew pumped water under the bridge. Later, LeBlanc asked him if he understood everything and he (Liuska) said "yes." Chuck Braun worked for the Respondent as a carpen- ter forming boxes in August and September 1980. He was off from work for medical reasons for 2 weeks after August 15. In mid-September, around September 19, Union Business Agent Kenny Montagna called him and told him the Respondent needed a carpenter on a bridge job and that he should report there in Crystal Falls. Montagna also told him that Bruce Liuska was already on the job and that they were having trouble with labor- ers doing carpenters work (stripping) and he (Braun) should keep his eyes open. Braun reported to the Crystal Falls bridge and was hired. Greg Tuominen stated that he took orders from Bruce Liuska and Robert Maki, without ever having known who was in charge. Braun considered Maki foreman because Greg Tuominen and Bruce Liuska referred to him as foreman. 754 O'DOVERO CONSTRUCTION, INC. Bruce Liuska also stated that there was confusion as to who was foreman or who was the boss on the jobsite. However, he testified that on or about September 9, Russ LeBlanc told Greg Tuominen in his presence, that from now on Tuominen was to take orders from him (Liuska), he is the boss. The latter testimony by Liuska, however, is not corroborated by Braun or Tuominen. Nevertheless, Liuska testified that finally Bob Maki re- turned to the job and started giving orders to Greg Tuo- minen and the confusion was intensified. After working at Crystal Falls for 2 weeks, Greg Tuo- minen called O'Dovero and requested to be transferred back to Marquette. Tuominen said O'Dovero said, "If you don't like it you can quit." O'Dovero said he told Tuominen that was the only work he had for him at the time, and if he did not want it he would have to quit.2 Tuominen also testified that, while he was working at Marquette, before he was assigned to Crystal Falls, O'Dovero told him, "If the Carpenter's Union ever gives you any trouble, that's it" "No Union is going to tell me what to do." O'Dovero denied he made such a state- ment. 3 O'Dovero could not recall receiving a call from Busi- ness Agent Montagna regarding Tuominen's request for a transfer back to Marquette. However, he said Tuo- minen was transferred to Crystal Falls because the job at the power plant in Marquette was nearing completion, and three carpenters were not needed there. Moreover, he said the foreman on the Marquette job informed him that Tuominen was surplus. Although there has been tes- timony that Tuominen complained about not being paid for overtime, O'Dovero testified that some of the work- ers would work more than 8 hours during early week- days so that they could leave early to travel home on Fridays. He said no workers are guaranteed a 40-hour week. Whatever the case, no finding will be made on a complaint that the Respondent failed to pay overtime be- cause the evidence herein did not unequivocally establish that overtime was either permitted, required, or in fact worked. Tuominen also testified that some time in September he observed O'Dovero coming out of the workshack after having a conversation with Business Agent Kenny Montagna, when he overheard O'Dovero say, "No union is going to tell me what to do." O'Dovero denied he made such a statement.4 2 After observing both witnesses (Tuominen and O'Doveroj testify, I was persuaded by their demeanor that O'Dovero's account was true and accurate, and Tuominen's was not. a I credit Tuominen's account in this regard not only because I was persuaded by his demeanor that he was testifying truthfully, but also be- cause the statement attributed to O'Dovero is consistent with the conduct of the Respondent herein in ignoring specific provisions of agreements with the Union referrable to coffeebreaks, wage increases to the carpen- ters, and allowing laborers to perform carpenters' work, as herein found, infra. Additionally, Business Agent Kemppainen testified that between 1974 and 1980, he has received numerous complaints from workers on O'Dovero jobsites about coffeebreaks and jurisdictional work. However, he said whenever he would call O'Dovero, the latter would correct the problem and eliminate the need for the Union to grieve the matter. I credit Kemppainen's testimony in this regard because it is consistent with the Respondent's conduct in this case in initially failing to comply with several specific provisions of agreements it had with the Union. 4 While this statement attributed to O'Dovero is consistent with a prior credited statement as well as with other conduct by O'Dovero in reluc- The Record (Transcript) Counsel for the General Counsel herein filed a motion to correct the transcript, citing numerous errors and omissions. Not only is her motion hereby granted, but I have made additional corrections. However, it is impossi- ble to correct all of the errors or reconstruct and com- plete all of the numerous omissions. In some places the transcript is incoherent, especially when I was talking. Although this proceeding was electronically recorded, I have never seen a transcript containing as many errors and omissions as this one. Fortunately, I find that the necessary and essential evidence for both parties was re- corded, as corrected, so as to permit a determination of the issues raised herein. Analysis and Conclusions It is clearly established by the documentary and testi- monial evidence of record that the Respondent, having signed the "Consent Agreement" (G.C. Exh. 23) on Sep- tember 20, 1979, agreeing to the bound by all agreements between Cloverland Carpenters District Council of the United Brotherhood of Carpenters and Joiners of Amer- ica, and its affiliated local unions, of which Local 958 is such an affiliate, I find that the Respondent is thereby bound by the terms of both agreements (G.C. Exhs. 3 and 4) to allow carpenters 10 minutes coffeebreak in the morning, and to pay carpenters the rate of pay pre- scribed therein. Additionally, since October 3, 1979, the United Broth- erhood of Carpenters and Joiners of America and the In- ternational Hod Carriers, Building and Common Labor- ers' Union have agreed upon a "Memorandum on Con- crete Forms" (G.C. Exh. 18), which provides as follows: 1. On stripping of panels forms to be re-used again, the releasing shall be done by members of the United Brotherhood of Carpenters and Joiners of America. 2. The moving, cleaning, oiling and carrying to the next point of erection, and the stripping of forms which are not to be re-used, and of forms on all flat arch work shall be done by members of the Interna- tional Hod Carriers, Building and Common Labor- ers' Union. 3. It is understood that there shall be no stoppage of work by reason of any dispute concerning the work herein covered. In the event a dispute arises the matter shall be referred to the offices of the two In- ternational Unions for possible adjustments. In the event that the matter is then not adjusted, the dis- pute shall be referred to the National Joint Board for the Settlement of Jurisdictional Disputes. tantly complying with agreements with the Union, this statement, if made, was not uttered to Tuominen. In fact it was not shown whether the statement was a continuation of a conversation with Montagna in which O'Dovero might have been within his rights in making such a statement. It is possible Montagna made a statement to O'Dovero about a matter for which he is not responsible as an employer. Under such cir- cumstances such a statement could have been appropriate. For these rea- sons, I attribute no weight to Tuominen's testimony in this regard. 755 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is therefore unequivocally clear that by signing the agreement (G.C. Exh. 4), and the "Consent Agreement" (G.C. Exh. 23) in which the Respondent agreed to be bound by the terms and conditions of all "Master Con- tracts" of the council with contractors (Michigan Road Builders Association, G.C. Exh. 4), the Respondent is also bound by the above-described agreement (G.C. Exh. 18) and is thereby contractually obligated to honor "car- penters work" as described therein. In fact O'Dovero testified he agreed to apply all agreements to his employ- ees. In examining and evaluating the testimony of the sev- eral witnesses herein, it is particularly observed that the only witness to testify on behalf of the Respondent was its owner and president, Peter O'Dovero. Although Su- perintendent Russell (Russ) LeBlanc, Foreman Bob Maki, and cement finisher and foreman of the laborers, Oscar Haglund, who acted like a general foreman, were all involved in conversations with the carpenter employ- ees and union agents which gave rise to the issues pre- sented for determination herein, neither of said members of management appeared and testified in this proceeding on behalf of the Respondent. Moreover, no explanation was offered by the Respondent for their nonappearance. Under these circumstances, it may be reasonably inferred from their nonappearance herein that had Superintendent LeBlanc, Foreman Maki, and Foreman Haglund ap- peared and testified their testimony would have been ad- verse to the Respondent's interest. Interstate Circuit Inc. v. United States, 306 U.S. 208, 226 (1939). Since the Re- spondent elected to present only the testimonial account of O'Dovero, without calling LeBlanc, Maki, and Hag- lund, I therefore conclude and find that their testimony would have been adverse to the Respondent's interest, for the most part. Zapex Corporation, 235 NLRB 1237, 1239 (1978), and Local 259, United Automobile, Aerospace and Agricultural Implement Workers of America (Atherton Cadillac, Inc.), 225 NLRB 421, 422, fn. 3 (1976). Complaints About Coffeebreaks It is well established by the uncontradicted evidence of record that when carpenter Charles Braun came to the job and inquired about a coffeebreak on August 14, 1980, laborer Charlie Johnson told him they (employees) did not take coffeebreaks. On August 27, carpenter Greg Tuominen was specifically prohibited from taking a cof- feebreak when Superintendent LeBlanc told him "not to bring his bad habits (coffeebreaks) from Marquette" on the Crystal Falls job. Several days later, Bruce Liuska urged Tuominen to take a coffeebreak with him and when they did, Superintendent LeBlanc asked them "what the hell is this coffeebreak?" Liuska took out his contract (G.C. Exh. 3) and showed LeBlanc where it provides for a 10-minute coffeebreak in the morning. LeBlanc looked at the provision and walked away with- out responding. Several days later when a flag worker joined Bruce Liuska and Tuominen for a coffeebreak, Superintendent LeBlanc said to the flag worker, "You son-of-a-bitch, what do you think you are doing?" He or- dered the flag worker back to his work station and told him if he did not straighten up, he would be fired. The record undisputedly shows that Tuominen called Union Business Agent Kenny Montagna and reported that employees were being denied a coffeebreak. Mon- tagna advised them to take a coffeebreak since the con- tract provided for one. On August 29, Bruce Liuska called Union Business Agent Kemppainen and reported employees were being denied a coffeebreak. Kemppainen told Liuska that Tuominen had complained to the Union that the Respondent's employees were not allowed a cof- feebreak, and that he advised they should take a coffee- break in accordance with the contract and he would call O'Dovero. After Kemppainen called O'Dovero, the latter said he would take care of it and he resolved the problem. O'Dovero acknowledged he was aware that Liuska and Tuominen had complained to the Union about coffeebreaks. O'Dovero said LeBlanc told him a coffeebreak was being observed but employees were abusing it. However, this contention was not substantiat- ed by O'Dovero, nor by LeBlanc, who did not testify herein. It is clear from the record that Braun did not complain to management nor to the Union about employees not being given a coffeebreak. Although Montagna did not appear and testify herein, I nevertheless credit Tuomin- en's testimony that he complained to Montagna, not only because I was persuaded by his demeanor that he was telling the truth, but also, because Liuska testified he was informed by the Union that Tuominen had complained to the Union about not having a coffeebreak, Liuska's complaints to the Union and to management is well es- tablished. Moreover, since Liuska showed Superintend- ent LeBlanc the contract provision for coffeebreaks (art. VI, sec. 3, G.C. Exh. 3) in the presence of Tuominen, I conclude and find that the Respondent had knowledge, as it admitted that Liuska and Tuominen had complained to the Union about being denied coffeebreaks. This is es- pecially true since O'Dovero received a call from Kemp- painen shortly after Liuska and Tuominen complained on the job. Bruce Liuska's Inquiry of Management As to Why He Was Not Appointed Foreman as Promised The undisputed record evidence further shows that Liuska received his first pay on September 5 for work on August 28 and 29. He noticed that the amount of his check was not based on a foreman's rate of pay, which he said was 90 cents above the base pay $11.94 for car- penters. On September 8, he complained to Oscar Hag- lund that he was hired as a foreman but did not receive foreman's pay, and he felt that was unfair. Haglund told him to talk to Russ LeBlanc. LeBlanc was not around but, on September 11, Liuska told LeBlanc it was his un- derstanding from Haglund that he was hired as a fore- man. LeBlanc said Haglund did not have that kind of au- thority to hire him as a foreman, but he would talk to Peter O'Dovero, and, if the latter said okay, he would receive foreman's pay. When Liuska did not receive foreman's pay rate on his next check, he asked LeBlanc about it again on September 18, and LeBlanc told him they had decided to appoint Bob Maki foreman. Liuska 756 O'DOVERO CONSTRUCTION, INC. said okay. O'Dovero admitted, however, that his fore- men were not paid the foreman's rate under the contract. Bruce Liuska Complained to the Union that Employees Were Not Receiving the Proper Wage Increases Liuska also called Kemppainen and advised him that their pay increase was not on their paychecks as pro- vided under the contract. Kemppainen acknowledged during the hearing that he did receive such a call from Liuska and that he in turn called O'Dovero and the matter was corrected. O'Dovero acknowledged receipt of Kemppainen's call and his (O'Dovero) resolution of the problem. Respondent's Knowledge and/or Suspicion That Bruce Liuska and Greg Tuominen Complained to the Union about Laborers Performing Carpenters' Work The record evidence is further uncontroverted that la- borers on the Crystal Falls job performed form-stripping and other work performed and declared "carpenters work" in the Memorandum on Concrete Forms (G.C. Exh. 18), which Respondent was bound to honor. Almost throughout his working tenure on the Crystal Falls job, Bruce Liuska complained to laborers, to Union Business Agent Kemppainen, to his brother, John Liuska, also a business agent for the Union, to Foreman Maki, and to Foreman and cement finisher Oscar Haglund (who in turn discussed the matter with LeBlanc), about laborers performing carpenters' work (form-stripping, etc.). In mid-September, union business agent Kemp- painen undeniably called O'Dovero and LeBlanc and told them his laborers were robbing the carpenters of work on the job. LeBlanc admitted to Kemppainen that laborers were stripping forms on the job. On two of the several occasions on which Liuska re- quested laborers to refrain from performing stripping or other carpenters' work, the laborers told him they were ordered to perform the work by Superintendent LeB- lanc. When Liuska made his final complaint to his broth- er on September 23 about laborers performing carpen- ters' work, Business Agent John designated Bruce stew- ard on the job, and he so advised Haglund. The Re- spondent admits laborers perform stripping and other work performed by carpenters, and carpenters perform laborers work interchangeably, when one or the other group has no work. It is clear from the testimony of O'Dovero that, although he signed appropriate docu- ments binding the Respondent to honor "carpenters' work," he testified he had never seen such document. While O'Dovero may not have actually read the docu- ment, he is nevertheless bound by its terms by virtue of the instruments he did sign and according to his own tes- timony, which he pledged to apply to his carpenters. On the same day (September 23) that Bruce Liuska was designated steward, most of the job had been com- pleted. On September 25, O'Dovero came on the job and, according to the testimony of Bruce Liuska, O'Do- vero carried on a conversation with Foreman Maki, during which he overheard O'Dovero tell Maki in a loud voice, "No Goddamn union is going to tell me what to do." After a lapse of time, O'Dovero approached Greg Tuominen and said, "You son-of-a-bitch, you called the Union on me. Now I'm going to have to lay you off." According to Tuominen's account, O'Dovero said "I don't believe you called the Union on me, and there is going to be a temporary layoff." After his recollection was presumably refreshed, Tuominen said O'Dovero also addressed him as a "son-of-a-bitch," as Liuska had previ- ously testified, even though Tuominen had not included the latter remark in his affidavit to the Board. O'Dovero denied he so addressed Tuominen or that he referred to calling the Union.5 O'Dovero came on the job the next day (September 26) but there was no conversation between himself and Tuominen or Liuska. When Tuominen reported to work on Monday, September 29, Oscar Haglund handed him his check and advised him he was temporarily laid off. Likewise, when Bruce Liuska reported to work on the same day (9-29-80), Oscar Haglund gave him his check and advised him that he was laid off; and "if he had any problems to call the hall." Liuska said, "fine." Greg Tuominen further undisputedly testified that he had observed Oscar Haglund perform all kinds of work, including carpentry, masonary, ironwork, and laborers work. When he first came to work he complained to Bruce Liuska and Oscar Haglund about two laborers (Charlie Johnson and another) performing carpenters' work. He also complained to the laborers about them performing carpenter work. Charles Braun credibly testi- fied that he saw and heard Bruce Liuska complain to Foreman Bob Maki about laborers performing carpenter work. Even if the evidence had not in fact established that Tuominen had complained to the Union about laborers performing carpenter work, the credited evidence of record makes it clear that the Respondent (O'Dovero) believed Tuominen was one of the carpenters who so complained to the Union. This fact is well established by O'Dovero's September 25 statement in anger to Tuo- minen, when he said, "I don't believe you called the Union on me, you son-of-a-bitch, now I have to lay you off." O'Dovero's belief was at least predicated upon a reasonable basis, since Tuominen had complained to Haglund about the laborers doing carpenter work. It is therefore reasonably inferred therefrom that Foreman Haglund, and probably the laborers too, informed LeBlanc and O'Dovero that Tuominen had been com- ' Counsel for the parties had considerable discussion and examination about the profane expression "you son-of-a-bitch" which was not includ- ed in Tuominen's affidavit given to the Board, but Tuominen testified, after his recollection was refreshed, that O'Dovero did utter the profane expression. Although such expression does not add much relevance to the issue in question, I, nevertheless, discredit O'Dovero's denial thereof, and credit Bruce Liuska's account, who overheard the remark, latently cor- roborated by Tuominen. Tuominen manisfested a slow capacity for recall throughout his testimony, and his testimony on the profane expression was no exception. However, I was not persuaded that his slow recall was motivated by untruthfulness, but, rather, by a slow capacity for recall. Nor do I consider the omission of the profane expression in his affidavit significant because it is possible he might not have recalled the expression at the time the document was prepared. It is also possible he might have told the investigator about it and the latter neglected to record it. 757 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaining about the work. In any event, Haglund (man- agement) had knowledge that Tuominen and Liuska complained to him about the laborers performing carpen- ters work, there were only four carpenters on the Crys- tal Falls job: Bob Maki, Charles Braun, Bruce Liuska, and Greg Tuominen. Certainly the Respondent did not assume Foreman Bob Maki complained to the Union. The only two who the Respondent had any reason to know complained to the Union were Liuska and Tuo- minen who made several complaints to management. O'Dovero testified that he knew John Liuska prior to Bruce Liuska's employment with the Company. He ac- knowledged he eventually realized Bruce and John Liuska were related after Bruce was hired. Thus, he said he assumed Bruce Liuska was the steward on the job be- cause of his relationship (brother) to John. While I credit O'Dovero's assumption that Bruce was steward, I also find that John Liuska had informed Haglund (who ap- peared to be a foreman at the time) that Bruce was ap- pointed steward of the job. This being so, it is reasonably inferred that Haglund imparted this information to Su- perintendent LeBlanc and/or O'Dovero. In any event, I further find that the Respondent had knowledge that Bruce Liuska was appointed steward by John Liuska. Since the uncontroverted evidence equivocally shows that Bruce Liuska was the principal complaining carpen- ter, who on several occasions tried to urge the laborers to refrain from performing carpenter work by requesting them to stop stripping; that Liuska was also the carpen- ter who had made the same complaint to management (Foreman Maki, Superintendent LeBlanc, and Oscar Haglund) on several occasions, and on at least two occa- sions had made such complaints to the Union, it may therefore be reasonably inferred that the Respondent (LeBlanc) had knowledge and ample reasons for know- ing that Bruce Liuska had also complained to the Union. This position is further supported when O'Dovero's ac- knowledgement of Business Agent Kemppainen's tele- phone call to him about the laborers performing carpen- ter work is considered. No one complained to manage- ment more than Liuska about such work. The evidence fails to establish that Charles Braun ever complained to the laborers, to members of management, or to the Union about laborers performing carpenter work. As previously herein found, nor had Braun ever complained to management or to the Union about the early problem involving coffeebreaks. Consequently, I find that Braun, unlike Liuska and Tuominen, did not complain to fellow workers and was not engaged in con- duct to enforce the union agreements by which the Re- spondent was bound. Nor did the Respondent have knowledge of such action by him. The essentially uncontroverted evidence of record makes it abundantly clear, and I so find, that Bruce Liuska and Greg Tuominen complained to management on several occasions, and to the Union on at least two occasions about the Respondent not allowing workers a coffeebreak pursuant to the labor agreement; that Bruce Liuska complained to management about not being paid foreman's pay, although it turned out he was not ap- pointed a foreman on the job; that Liuska also com- plained to the Union that carpenters were not being paid the increased rate provided under the labor agreement, and the Respondent was contacted by the Union and thereafter complied therewith; that Liuska and Tuominen complained on several occasions to laborers and manage- ment, and Liuska eventually complained to the Union about laborers performing carpenter work; that Charles Braun asked fellow workers about a coffeebreak and complained to Liuska about not having a coffeebreak; that the Respondent knew about Liuska and Tuominen's complaints to management and to the Union; that the Respondent's anger about complaints to the Union was finally manifested when its president, Peter O'Dovero, told Foreman Maki that "No Goddamn union was going to tell me what to do," as well as his statement to Tuo- minen to the effect, "you son-of-a-bitch, you called the Union on me, there is going to be a temporary layoff," are clear manifestations of the Respondent's union animus; that one working day later, the Respondent laid off Liuska, Tuominen, and Braun, and not only thereaf- ter failed and refused to recall them, but hired and re- called other carpenters in their stead. Consequently, based upon the foregoing findings, I further conclude and find that the Respondent's layoff and subsequent failure and refusal to recall Brucke Liuska and Greg Tuominen were motivated by their concerted complaints to management and the Union to enforce provisions of the contract (10-minute coffee- break, to be paid for overtime, to be paid the carpenters increased pay rate prescribed therein, and to preclude la- borers from performing carpenter work). As such, their layoff, and the Respondent's subsequent failure and refus- al to recall them, constituted discriminatory conduct in violation of Section 8 (aX3) and (1) of the Act. Maryland Shipbuilding & Dry Dock Co., 256 NLRB 410 (1981); Eastern & Elevator Seal Company, 247 NLRB 43 (1980); Interboro Contractors; Inc., 157 NLRB 1295 (1966); and Key City Mechanical Contractors, Inc., 227 NLRB 1884, 1887 (1977). Since the evidence does not establish that Charles Braun, like Liuska and Tuominen, was engaged in pro- tected activity (complained to the Union about coffee- breaks, the proper wage increase, foreman's pay, over- time, or laborers performing carpenter work), or that the Respondent had knowledge that he was so engaged, the Respondent's layoff and failure to recall Braun were not unlawfully motivated. As the court held in NL.R.B. v. Garner Tool and Manufacturing, Inc., 493 F.2d 263, 268 (8th Cir. 1974), an employer may discharge an employee for a good reason, a bad reason, or no reason at all, as long as it is not motivated by unlawful considerations. July through September 1980, the Respondent had about 30 employees on all of its jobsites. According to the Respondent's president, Peter O'Dovero, the Re- spondent started working the bridge at Crystal Falls on September 2, and completed such work on September 26, O'Dovero said he informed Tuominen on September 25 that he was reducing the work force because there was no work for carpenters. He laid off Bruce Liuska, Greg Tuominen, and Charles Braun on September 29 be- cause he had no work for them. However, at the time of his layoff, Liuska estimated there was about 2 to 3 weeks 758 O'DOVERO CONSTRUCTION. INC more work for carpenters. his estimation was based on his experience of i7 years as a carpenter. Liuska called the business representative Kemppainen and advised him that he had been laid off. T'he latter said he would call O'Dovero. Subsequently, Liuska said Business Agent Kemppainen told him O'Dovero agreed to pay him for showup but said he (Liuska) would never work for O'Dovero Construction again.6 Liuska further testified that, when he passed the bridge on September 30, he saw laborers and other workers forming the guardrails and performing other carpenter work. Chuck Braun stated that from September 29, 1980, until April 27, 1981, there was quite a bit of carpenter work to be completed on the bridge. On his way home on that date, he stated he saw Russ LeBlanc and a labor- er performing carpenter work, setting forms for guardrails, and tying down iron in the guardrails. A week later he said he saw them laying down lining on the bridge. After Bruce Liuska complained to Business Agent John Liuska about being laid off, the latter went to the jobsite with a picket sign and observed noncarpenters performing carpenter work. He stated that John Seppala should not be setting forms on the job. He thereupon closed down the job, -and, in doing so, he had an encoun- ter with Superintendent LeBlanc. who told him "it was a cold day in hell when a steward got on the job." The next day John Liuska went on the job where LeBlanc agreed to call John Liuska for a steward when work re- sumed on the second half of the bridge, on condition that John Liuska allowed him to finish the first half of the bridge. LeBlanc never called John Liuska as promised. Nor did the Respondent ever recall Bruce Liuska, Greg Tuominen, or Charles Braun when work resumed on the second half of the bridge. Instead, the Respondent called other carpenters, Seppala, as foreman, Milijour, Sep- panen, and laborers At the hearing herein. the Respondent. O'Dovero, tes- tified he laid off and failed to recall Liuska, Tuominen, and Braun because they were not as efficient as those workers he retained. hired, and recalled, and because they were not as productive as the others were, based on more hours it took them to complete the work than the former workers. However, the evidence shows that use of laborers to perform carpenter work, the absence of an accurate weather variation accounting, and some confu- sion as to who was foreman on the first phase of the bridge for a time, all accounted for discrepancies in the validity of such a comparison by the Respondent. More- over, this second half of the bridge construction com- parison with the first half is a somewhat "after-the-fact" (subsequent to the liayoff) analysis by the Respondent, which demonstrates that the Respondent was comparing two situations with different circumstances, the results of which would naturally differ. 6 I do not credit the latter statement by Liuska, to the effect that Kemppainen told him O'Dovero said he (! iuska) would never work for the Respondent again because Kemppainen who testified herein, did not testify to a postlayoff conversation with O'Dovero in which such state- ment was made, and I was not persuaded by Liuska, or other evidence in the record, that O'Dovero made such statement The Respondent also advanced as reasons for its layoff and/or failure to recall Luiska, Tuominen, and Braun, the quality of their workmanship. These reasons were advanced by the Respondent for the first time during this proceeding and it acknowledges that it had never complained or warned either of the three aforenamed carpenters about their work performance. In fact the Re- spondent indicated in its affidavit to the Board that he had no complaints about the work performance of either of said carpenters. At one time during the hearing O'Do- vero indicated that their poor workmanship was respon- sible for some defect in the bridge. However, after fur- ther examination he acknowledged that Foreman Maki was responsible for that defect. The Respondent also testified that it does not recall employees according to seniority but that employees who were working have preference over employees who are laid off. However, the record shows that the Re- spondent did not have a consistent policy with respect to layoff and recall; and that there were employees with breaks in employment who were recalled. The record shows that, although Liuska, Tuominen, and Braun were laid off on Septemeber 29, carpenter Arne Seppala was recalled from layoff on October I and sent to Crystal Falls where he worked with one laborer on curbs and railings on the first half of the bridge. Seppala also worked consistently during 2 weeks which O'Dovero previously stated was the cure period when the carpen- ters did not work. In evaluating O'Dovero's testimony w ith respect to the Respondent's reasons for laying off and not recalling Liuska and Tuominen, I was not persuaded either by his demeanor or by his testimony, which is inconsistent, in many respects, to the performance of the laid-off carpen- ters, the Respondent's policy of layoff and recall, the amount of work that was left on the first half of the bridge on September 29, as well as the fact that the Re- spondent recalled and/or hired other carpenters to com- plete the first and second halves of the bridge. Under these circumstances, it is readily obvious that the Re- spondent's contended reasons for its layoff and failure to recall the aforenamed carpenters were not its real rea- sons, but, rather, a pretext to conceal the real reason; namely, the complaints of its carpenters to management and the Union in an effort to enforce provisions of the contract. Since the General Counsel established a prima facie case that the Respondent laid off its employees because they complained to the Union, and the Respondent has not shown that these particular carpenters would have been laid off on September 29, even if they were not complaining to the Union, Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980), is not applica- ble to the facts as found herein. IV. I'HE EFFl:ECT OF THE UNFAIR L.ABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III. above, occurring in close connection with its oper- ations as described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and 759 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce among the several States, and tend to lead to labor disputes burdening and obstructing conmerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that the Respondent interfered with, restrained, and coerced its employees in the exer- cise of their Section 7 protected rights by discriminatori- ly laying them off and thereafter failing and refusing to recall them, the recommended Order will provide that the Respondent cease and desist from engaging in such conduct, and that it make the laid-off employees whole for any loss of earnings within the meaning and in accord with the Board's decision in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corpo- ration, 231 NLRB 651 (1977), 7 except as specifically modified by the wording of such recommended Order. Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from or in any other manner interfering with, restraining, or coercing employ- ees in the exercise of their rights guaranteed by Section 7 ' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). of the Act. N.L.R.B. v. Entwistle Manufacturing Co., 120 F.2d 532, 536 (4th Cir. 1941). Upon the basis of the above findings of fact and upon the entire record of this case, I make the following: CONCLUSIONS OF LAW 1. O'Dovero Construction, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Cloverland District Council of the United Brother- hood of Carpenters and Joiners of America, AFL-CIO, is, and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. 3. By laying off and failing and refusing to recall Bruce Liuska and Greg Tuominen because they com- plained to management and the Union about enforcing provisions of the contract, the Respondent restrained and coerced its employees in the exercise of their Section 7 protected rights, in violation of Section 8(a)(1) of the Act. 4. By laying off and failing and refusing to recall Bruce Liuska and Greg Tuominen because they com- plained to management and the Union about enforcing provisions of the contract, the Respondent discriminated against its employees, in violation of Section 8(a)(3) of the Act. [Recommended Order omitted from publication.] 760