Central Excavating Co.

CENTRAL EXCAVATING CO. Pete Salemi d/b/a Central Excavating Co. and Robert E. Camilletti. Case 8-CA-9448 May 10, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On October 27, 1976, Administrative Law Judge Benjamin K. Blackburn issued the attached Supple- mental Decision in this proceeding. Thereafter, Respondent filed exceptions to the Administrative Law Judge's Decision' and Supplemental Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge but only to the extent consistent with the following. The Administrative Law Judge concluded that Respondent had not engaged in unlawful interroga- tion as alleged. No exception was filed with respect to this conclusion, and it is hereby affirmed. The Administrative Law Judge further held that the discharge of Robert Camilletti on July 30, 1975, violated Section 8(a)(3) and (1) of the Act. Respon- dent excepts to this conclusion, which, we agree, is erroneous. Camilletti, a member of Local 18 of the Interna- tional Union of Operating Engineers, was hired through the union hiring hall in May 1975. On Tuesday, July 22, he was transferred to a job at the Cuyahoga Community College near Cleveland-the Tri-C jobsite-where he worked under Foreman Dominic Ottobre. He was put to work on a bulldozer; the next day, he had a mishap which caused some damage to the dozer and also hurt his back. On Thursday, he worked for a couple of hours but there were still problems with the bulldozer and as his back still bothered him he went to the hospital. At some point he called into Respondent's office stating where he was and that he had left the job without telling Ottobre because he could not find him at the jobsite. Camilletti worked all of the following day. However, in the morning he got into an argument with Ottobre who accused Camilletti of getting him in trouble by telling the office the In his initial decision the Administrative Law Judge concluded that the issues in this case should be deferred to arbitration and recommended that the complaint be dismissed. The Board in its Decision and Order, 225 229 NLRB No. 86 previous day that he, Ottobre, was not at the jobsite. Camilletti's reply was rather nonresponsive in that he simply told Ottobre to get him his money if he did not like the way he was doing his job. On Ottobre's initiative the two reconciled their difficulties by the end of the day. Camilletti did not work on Saturday or Sunday. However, "his" bulldozer was used on Saturday and when he learned of this on Monday he complained to Ottobre that under certain union practices he was entitled to a day's pay for that Saturday. Ottobre disagreed. Camilletti told him he was going to call Local 18 about the claim, which he did. A union representative then telephoned Respondent, who agreed to pay Camilletti for Saturday. Camilletti operated a grader on Monday, Tuesday, and Wednesday. On Tuesday a complaint was made to Ottobre about the grading of an area. The following morning Ottobre relayed the complaint to Camilletti, who again told Ottobre to get him his money if Ottobre did not like his work. Somewhat later, Ottobre complimented Camilletti on certain grading he had done but still later criticized him for messing up the graded area by going back over it. Wednesday, July 30, was payday. Around noon Camilletti received two checks. One was for his regular pay; the other for the 8 hours he claimed for the past Saturday. At that time, according to Camilletti's testimony, he complained to Ottobre that he had not been properly paid for the preceding Thursday when he had to go to the hospital because of his back and that he had not received certain overtime pay earned prior to his being transferred to the Tri-C jobsite. He added, still according to his testimony, that he would again complain to the Union if his demands were not met. Ottobre's version of what occurred that Wednesday was considerably different. According to him, he and all the operators ate lunch together and Camilletti "was in conversation with all boys" and stated several times-and Ottobre is in effect credited on this point-that if anyone was dissatisfied with his work they should get him his money. But in Ottobre's description of the events there is no confrontation with Camilletti about paychecks, about claims for additional pay, or about any other matter and in consequence no threats by Camilletti about going to the Union if his pay claims were not satisfied. However, there is no dispute that sometime during the afternoon of July 30 Ottobre telephoned Respon- dent's office to have Camilletti's final paycheck NLRB 1106 (1976), reversed the Administrative Law Judge and remanded the case to him for a full decision on the merits, which he had, however, tentatively considered in his initial decision. 547 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prepared and shortly thereafter told Camilletti to go to the office to pick up his money. 2 However, it was not until the next morning that Camilletti reported to the office. At that time he handed over the two checks he had received the previous day and voiced his complaints concerning short pay for the past Thursday and the failure to include the assertedly promised overtime in his checks. These claims were not resolved, and the two checks Camilletti had received on Wednesday were returned to him. In addition, he received a third check for the time worked during the then current pay period. Later in the day Camilletti complained to the Union that he had been improperly discharged. The Administrative Law Judge found, as stated above, that Camilletti's discharge was unlawful. In reaching this result he credited Camilletti's testimony that on July 30 he told Ottobre he would take his claims for Thursday and overtime pay to the Union if they were not satisfied. That threat to go to the Union, the Administrative Law Judge reasoned, was the only incident on July 30 that plausibly explained Ottobre's decision on that date to discharge Camillet- ti. From this he concluded that the threat played a not inconsequential part in the decision. However, the Administrative Law Judge elsewhere had found Camilletti's testimony to be generally unreliable, but made an exception with respect to the matter here under consideration, on the ground that Camilletti's testimony was corroborated and supported by (1) certain testimony of Respondent's owner, Pete Salemi, and by (2) Respondent's including in the checks dated July 30, but received by Camilletti the following day, compensation for the claimed Thurs- day and overtime pay.3 But the Administrative Law Judge is in error here, for there is nothing in Salemi's testimony that corroborates Camilletti's version of the July 30 events, 4 and, as we stated above, 2 The Administrative Law Judge concluded that, though Ottobre never told Camilletti he was being discharged, Ottobre's directing him to go pick up his money was a discharge and was so understood by Camilletti. Respondent contends, however, that Camilletti was not discharged but quit. In support of this position it refers to Camilletti's statement that if Ottobre did not like his work Ottobre should get him his money. Several witnesses testified that in the trade such a statement is equivalent to "I quit." Nevertheless, we agree with the Administrative Law Judge that in the circumstances here Camilletti's use of the statement was not a quit but rather an invitation to discharge him. :' In his initial decision the Administrative Law Judge stated: "As to the numerous head-to-head conflicts between the testimony of Camilletti . . . on the one hand and Respondent's witnesses on the other, I credit the latter." Then in his Supplemental Decision he specifically states with respect to the matter here under consideration: "If I have found Camilletti to be an unreliable witness, why do I credit his version of what passed between him and Ottobre between noon and 12:30 p.m. on July 30? Because it is corroborated" by, he added, the two items we mention in the text. 4 The Administrative Law Judge cites Salemi's testimony to the effect that he learned why Camilletti was no longer working for the Company because Camilletti came in for his checks, and that Salemi learned from his "office girl" that Camilletti "raised the devil" about his paychecks being short. The relevance of this testimony to the conflict between Camilletti and Ottobre concerning the July 30 events escapes us. Respondent never did, insofar as the record shows, settle Camilletti's wage claims.5 Thus, the reasons advanced by the Administrative Law Judge for accepting Camilletti's testimony as to what occurred on July 30 are factually defective and we do not credit that testimony. Consequently, as there is no credible evidence that Camilletti made a threat on July 30 to take his wage claims to the Union, there is no basis for concluding that such a threat precipitat- ed his discharge and the Administrative Law Judge's rationale for finding that discharge unlawful collaps- es. However, even if Camilletti had indeed threatened on July 30 to go to the Union, we nonetheless would conclude that the evidence is insufficient to support the conclusion reached by the Administrative Law Judge that that threat and his taking his Saturday pay claim to the Union played any role in the decision to discharge him. Respondent has always been a union operation and there is no evidence whatsoever of any present or past antiunion feelings or activities by any of Respondent's top or other management personnel. As for Ottobre-and it is his reasons for discharging Camilletti which are of crucial importance s -there is not a suggestion in the record that he harbored any feelings against the Union or was in any way opposed to employees takingjob-related complaints to the Union. Actually, the record shows that Camilletti's pressing wage claims through the Union was really of no practical concern to Ottobre, for he had nothing to do with the claims or dealing with the Union concerning the claims. Such matters were handled by Respondent's office. Furthermore, various plausible and lawful reasons for Ottobre's discharging Camilletti appear in the record. Thus Ottobre had been annoyed at Camillet- ti's having reported to the office on July 24 that he, 5 The Administrative Law Judge's position is that (I) the July 30 checks Camilletti received on July 31 at the office included payment for overtime Camilletti had earned prior to coming to the Tri-C job under Ottobre's supervision; (2) Ottobre, in telling the office to prepare Camilletti's final checks, must have informed the office concerning the overtime pay claim; (3) only if Camilletti had told Ottobre of the overtime claim on July 30 would Ottobre be aware of it, as the overtime was worked on a job Ottobre did not supervise; and (4) therefore, Camilletti's testimony of what occurred on July 30 between him and Ottobre is corroborated; This line of reasoning involves several errors. First, the two checks dated July 30 which were handed to him on July 31 were, as explained in the text above, the same checks given to Camilletti around noon on July 30. Thus they were made out before Ottobre called the office in the middle of the afternoon of July 30 to prepare Camilletti's final check and so quite obviously what those checks covered could not, as the Administrative Law Judge's reasoning requires, have been based on anything Ottobre said in the telephone call to the office. Second, neither of those checks made provision for the overtime wage claim, as we point out above, and consequently the Administrative Law Judge's reasoning is based on an initial mistake of fact. i As the Administrative Law Judge properly held, the decision to discharge Camilletti was made by Ottobre alone. Other supervisors and management personnel were in no way involved. 548 CENTRAL EXCAVATING CO. Ottobre, was not to be found on the jobsite when he should have been there. Also, Ottobre had received complaints concerning, and he himself had expressed dissatisfaction with, some of Camilletti's work. And finally-and of no little significance-was Camillet- ti's several comments to Ottobre to discharge him if he did not like his work, comments made apparently to cut off any criticism directed towards him and the last made shortly before Ottobre in effect discharged Camilletti by directing him to pick up his pay. Thus from one vantage point, the initiative for the discharge would seem to have come from Camilletti himself, and Ottobre did little more than accept the invitation to discharge him. However, we need not pursue further the actual causes for the discharge. It is enough that legitimate reasons for the discharge did exist. That being so, we can perceive no good reasons, in view of the circumstances outlined above, for insinuating Camil- letti's alleged union-related threats and activities as a cause, even a partial one, of his discharge. Accord- ingly, we find that the General Counsel has failed to show that Camilletti's discharge was unlawful. Therefore, as the other alleged violation has been held to be without merit, we shall dismiss the complaint in its entirety. ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed. SUPPLEMENTAL DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The charge was filed on September 11, 1975.1 The complaint was issued on October 24. The hearing was held on February 5 and 18, 1976, in Cleveland, Ohio. I issued a Decision on April 8, 1976, in which I recommended the Board defer to arbitration under the Collyer doctrine (Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971)). The Board remanded on August 31, 1976, for issuance of a full decision on the merits. The principal issue litigated, other than Collyer, was Respon- dent's motive for discharging Robert Camilletti on July 30, 1975. For the reasons originally stated in my Decision of April 8, 1976, and repeated below, I find it was a discriminatory motive within the meaning of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. 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 1. JURISDICTION Respondent, a sole proprietorship headquartered in Cleveland, Ohio, is an excavating contractor. He annually grosses more than $1 million and performs services valued in excess of $50,000 for Ohio business enterprises, each of which annually receives directly from suppliers located outside the State of Ohio goods valued in excess of $50,000. II. THE UNFAIR LABOR PRACTICES A. Facts Respondent is a union contractor. He hired Camilletti, a member of Local 18 of the International Union of Operating Engineers, through Local 18's hiring hall in mid- May 1975. On Tuesday, July 22, he transferred Camilletti and the bulldozer to which he had been assigned to a project at Cuyahoga Community College near Cleveland. Camilletti worked for Respondent at this so-called Tri-C jobsite until Respondent's foreman, Dominic Ottobre, discharged him on the afternoon of Wednesday, July 30. Camilletti operated his bulldozer on Tuesday, Wednes- day, Thursday, and Friday. On Wednesday Camilletti suffered a mishap which damaged the bulldozer and injured his back. He spent most of the balance of the day repairing the bulldozer. That evening he went to a hospital emergency room for treatment of his back. On Thursday, he operated the bulldozer from 7 a.m. to approximately 9:45 a.m. The dozer was still leaking oil in a crucial spot. Camilletti's back was still hurting. Consequently, Camilletti parked the bulldozer, left the jobsite without telling Ottobre, and went back to the hospital. Sometime during the day he called Respondent's office and reported where he was. He said he had left without informing Ottobre because he had not been able to locate Ottobre at the jobsite. Camilletti worked a full day on Friday. Sometime that day he had an argument with Ottobre. Ottobre accused Camilletti of getting him in trouble with the office by saying he was not on the job. Camilletti told Ottobre he could get Camilletti his money if he did not like the way Camilletti was doing his job. Ottobre did not get Camillet- ti's money. Before the day was over, Camilletti and Ottobre made up. Camilletti was off on Saturday and Sunday. On Saturday morning, another employee operated Camilletti's bulldozer for approximately an hour while his own machine was being repaired. When Camilletti came to work on Monday morning, he was told that his bulldozer had been used on Saturday. He complained to Ottobre. He told Ottobre he was entitled to a day's pay for Saturday under a union practice which gives the operator who is assigned to a machine first crack at any overtime growing out of use of that machine. Ottobre told Camilletti the rule did not apply in emergency situations. Camilletti insisted he was going to make out a time ticket for Saturday. (Ottobre reported Camilletti's claim in a telephone call to Respondent's office later that day.) Camilletti also told Ottobre he was going to I Dates are 1975 unless otherwise indicated. 549 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complain to Local 18. Later that day he did so. A business agent called Respondent's office. Respondent agreed to give Camilletti 8 hours' pay for Saturday. Camilletti operated a grader on Monday, Tuesday, and Wednesday of his second week at the Tri-C jobsite. On Monday and Tuesday, he graded the ground inside a running track. Sometime on Tuesday, the contractor for whom Respondent was working complained to Ottobre about the grading of the area. Ottobre told Camilletti about the complaint on Wednesday morning. Again, Camilletti told Ottobre to get his money if Ottobre did not like his work. Ottobre did not get Camilletti's money. He did not take Camilletti off the grader. Camilletti graded an area near a baseball diamond that day. Ottobre complimented Camilletti for the quality of this work. Later, Ottobre told Camilletti that Camilletti had messed up the area by going back over it. Ottobre permitted Camilletti to continue to operate the grader. Wednesday was payday. Checks were distributed at noon. Camilletti received two dated July 27, one his regular check for the pay period for which that Wednesday was the payday and the other a check for 8 hours' pay in settlement of his claim for Saturday, July 26. Camilletti complained to Ottobre about his pay. They got into another argument. Camilletti claimed he should have been paid for a full day on Thursday, July 24, since the injury which had sent him to the hospital had occurred in the line of duty. As an alternate position, he argued that he was at least entitled to 3 hours' pay for the period he actually worked on July 24 instead of the 2 hours which were included in his regular check. He also expressed anger over the fact that old claims for an hour's pay on each of two separate occasions prior to his transfer to the Tri-C jobsite were not included in his regular check. Camilletti said he was going to stay at the jobsite even beyond the end of the workday until he received all the money which was due him, including overtime pay for any period he might have to wait if his claims were not made good by quitting time. He said he would complain to Local 18 again if his demands were not met. For the last time, Camilletti told Ottobre to get him his money (i.e., the money he had earned in the current pay period) if Ottobre did not like his work. Camilletti returned to his grader when the lunch break ended at 12:30 p.m. Sometime that afternoon Ottobre telephoned Respon- dent's office and ordered Camilletti's final checks pre- pared. He then went to Camilletti and told him to go to the office for his money. He did not tell Camilletti he was fired. Camilletti left the Tri-C jobsite around 3 p.m. on Wednes- day, July 30. He did not arrive at the office before it closed at 4:30 p.m. He first called and then went to the office on Thursday morning. He was given two checks which had been prepared on Wednesday afternoon. One was in settlement of his various claims. The other was for wages earned during the current pay period and marked the termination of his employment. Later that day Camilletti complained to Local 18 that he had been improperly discharged. B. Analysis and Conclusions Camilletti was the only witness called by the General Counsel to testify about the merits of this case. Respon- dent's principal witnesses were Peter Salemi and Dominic Ottobre. As already indicated in my original Decision, I am convinced none of them told the whole truth. However, Respondent also called Jorge Pla, a credible witness, to corroborate Salemi's version of what happened at Respon- dent's office on the morning of Thursday, July 31. Consequently, I have relied on Pla's testimony in refusing to find, as Camilletti testified, that Salemi responded, "My men don't go to the union hall" when Camilletti asked why he had been discharged. I find, therefore, the General Counsel has failed to prove Respondent, in the person of Salemi, "did unlawfully interrogate the Charging Party, while in Salemi's office, regarding why the Charging Party had, on July 28, 1975, gone to the Union hall to voice a complaint against Respondent." I also touched on Respondent's primary defense-that Camilletti quit-in my original Decision. In rejecting it, I wrote: Dominic Ottobre, Respondent's foreman, admitted Camilletti said at least twice and possibly thrice before the afternoon of July 30 that Ottobre could get him his money if Ottobre was not satisfied with his work. Ottobre ignored Camilletti each time. There was nothing different about the exchange on the afternoon of July 30 which sent Ottobre into action. Camilletti did not intend at that moment to terminate his employment relationship with Respondent any more than he had in the two or three preceding conversations. A quit occurs when an employee manifests by some overt act his intention to end his employment. Camilletti's intent was to invite Ottobre to discharge him. Ottobre accepted the invitation. As stated in my original Decision, Respondent's conten- tion is nonsense. Respondent's alternate contention-that Camilletti was discharged for poor work-deserves equally short shrift. Ottobre did not discharge Camilletti early Wednesday morning for poor work in the track area on Monday and Tuesday. Camilletti demonstrated to Ottobre that he could do competent work on the grader by the manner in which he first graded the ballfield area on Wednesday morning. When Ottobre decided Camilletti had undone his good work, he did not discharge Camilletti for incompetence at that point either. Rather, he testified, he left Camilletti on the grader while he went to the telephone to call Respondent's office, thus: Q. Did you have any occasion to talk with Mr. Camilletti in the afternoon? A. After lunch when we went back to work, I talked to him again. Q. What did you talk to him about at this time? A. Well, he had done a piece of grading earlier that wasn't too bad, it was in pretty good shape. Q. Did you compliment him? A. I complimented him. It was pretty good. I told him to leave it alone. Later when I went back it wasn't too good. I don't know whether he went back. Q. What did you say to him? 550 CENTRAL EXCAVATING CO. A. I told him we had to straighten it up, we couldn't have none of that. Q. What did he say? A. That is when he gave me the remark again, if I didn't like his work, to get his money. That is when I decided to get his money. I had heard the remark too many times. Q. What did you tell him then? A. I didn't tell him anything. I told him that I would get him his money. It was only after the events growing out of Camilletti's receipt of his paychecks at lunchtime that Ottobre decided to telephone the office to set Camilletti's termination in motion. Since all of Ottobre's testimony adds up to an assertion that he was thinking in terms of accommodating Camilletti's desire to quit, there is no explicit statement by him as to which of Camilletti's shortcomings sent him to the telephone. If the quality of Camilletti's work crosses Ottobre's mind at all at that point (I doubt that it did), it was, at most, an insignificant part of the thought process that motivated him. The most significant thing about Ottobre's testimony is that it contains not one word about an argument with Camilletti over Camilletti's paychecks. His version of what did happen at lunchtime comes just before that part of his testimony on direct examination set forth above, thus: Q. Did you talk with [Camilletti] at lunchtime at all? A. No, I didn't. Q. Did you see him at lunchtime at all? A. Yes, we were eating together, all the other operators. Q. Did you hear Mr. Camilletti say anything at lunchtime? A. Yes, he was in a conversation with all the boys, kept telling them the same way, they had a conversa- tion on work, made the same remark again to the rest. Q. What was the remark? A. That if anybody wasn't satisfied with his work, they should get his money any time. When the subject came up again on cross-examination, Ottobre testified thus: Q. Do you recall when you passed out the pay checks on July 30th what time of day it was? A. I don't recall even if I passed them out. Q. Was Wednesday a pay day? A. Wednesday is a pay day. Q. Do employees normally get their pay checks on pay day? A. They always get them on pay day. Q. Who passes them out? A. It all depends who brings them out. Sometimes they ask the Carry-all man to bring them out. Sometimes they ask the fuel man to bring them out. Sometimes they ask the mechanics, sometimes they give them to me and sometimes they pass them out to each operator. Q. But you don't recall what happened on that Wednesday? A. No, I don't. Q. Do you recall the men were sitting around in a conversation that day at luncheon time? A. Right. Q. Do you recall what the nature was of that conversation? A. Yes, it was always about work-about work and the Union. Q. What did Mr. Camilletti say about work and the Union? A. Well, he was always knocking the Union. Q. Every day? A. Every time he talked about it. If I found Camilletti to be an unreliable witness, why do I credit his version of what passed between him and Ottobre between noon and 12:30 p.m. on July 30? Because it is corroborated. It is corroborated by Salemi's admission that Camilletti was claiming pay for work that predated his transfer to the Tri-Cjobsite, thus: Q. Now, when you submitted your answer to the Board in this case and where you were attempting to answer each of the allegations in the complaint, where did you get your information as to why Mr. Camilletti was no longer working for you? A. Well, I knew about that because he came in for his checks. Q. And you knew- A. He raised a lot of devil about him not getting, he was short one hour from a couple weeks previous. This is what I heard. Q. When did he raise these problems? A. Well, he got on the phone one day and just raised the devil with my office girl. My office girl told me. coupled with the fact that one of the two checks prepared on the afternoon of July 30 as a result of Ottobre's telephone call to the office was in settlement of that claim. Ottobre had no independent knowledge of this part of Camilletti's claims for more pay since he had not been Camilletti's foreman when, according to Camilletti, the work was performed. There is no indication in the record Camilletti mentioned the subject to Ottobre before noon on July 30. Therefore, the person who made out Camillet- ti's last two checks and dated them July 30, the ones he picked up on the morning of July 31, could only have been alerted to Camilletti's old claim by what Ottobre said when he called in to order Camilletti paid off, information Ottobre could only have gained in the paycheck argument. Ottobre discharged Camilletti. Therefore, Ottobre's motive is Respondent's motive. On cross-examination Ottobre testified about his state of mind on July 30, thus: Q. Now, directing your attention to your log book and to the date of Wednesday, July 30, 1975, that entry states Camilletti was sent to the yard for his time, is that correct? A. Right. 551 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Okay, and are you the person that sent him to the yard for his time? A. Right. Q. And following that it says "Not satisfactory"? A. Right. Q. True, all right. Was this your evaluation of him, "Not satisfactory"? A. Right. Q. All right, and based upon what did you make that conclusion that he was not satisfactory? A. Well, to start off was I overlooked him being on a move off the dozer all the time- Q. When did the trouble start? JUDGE BLACKBURN: You interrupted. I'd like to hear the answer to the last question. Ms. DUNBAR: I'm sorry. JUDGE BLACKBURN: He was upset. Why was he not satisfactory, Mr. Ottobre? THE WITNESS: Well, I overlooked having to keep him on the dozer, when he was on the dozer, and then I overlooked some of the grading at the track area, but when we graded in front of the ball field and did a piece over there, that was pretty nice, and I told him it was pretty nice. Then he went back later and for some reason or other he went back and cut that up and the rest wasn't too good. That was the last straw. Q. (By Ms. Dunbar) Okay. A. Now let me tell you something now, all these questions coming up might clear up- Q. I am asking a question. JUDGE BLACKBURN: I want to hear the rest of the answer. THE WITNESS: I rather tolerated him, and you will see this, and kept him. At this time of the year, July, it's hard to get operators and that is why I didn't get a replacement. At that time of the year you have to tolerate these shenanigansfrom the operators. I have to keep them, otherwise you don't get nothing at the hall. [Emphasis supplied.] Because of the time of the year, Ottobre had to "tolerate these shenanigans" from Camilletti. Something happened on July 30 to drive Ottobre beyond the point of toleration. That something was an argument over Camilletti's claims for money in the course of which he threatened to go to Local 18 again for help. That argument came only 2 days after another argument over a claim by Camilletti for money which he had won by enlisting the aid of Local 18 despite the fact Ottobre disputed the claim. It follows that Ottobre was motivated, at least in legally significant part if not solely, by Camilletti's propensity to turn to his Union for help in dealings with Respondent over wages. That motive is discriminatory within the meaning of the Act. I find, therefore, Respondent violated Section 8(a)(3) and (I) of the Act by discharging Robert Camilletti on July 30, 1975. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW I. Pete Salemi d/b/a Central Excavating Co. is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 18 of the International Union of Operating Engineers is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Robert Camilletti on July 30, 1975, for engaging in union activities by enlisting the help of a labor organization in a dispute over wages, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The allegation of the complaint that Respondent violated Section 8(a)(l) of the Act by interrogating an employee has not been sustained. THE REMEDY In addition to the usual cease-and-desist order and notice, an order requiring Respondent to remedy the unfair labor practice found by reinstating Camilletti and making him whole is required to effectuate the policies of the Act. 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). [Recommended Order omitted from publication.] 552