Quality Drywall Co.

QUALITY DRYWALL COMPANY Quality Drywall Company, Inc. and Falls Cities Carpenter District Council, United Brotherhood of Carpenters and Joiners of America, AFL- CIO. Cases 9-CA-14526 and 9-CA-14672 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND ZIMMERMAN On October 10, 1980, Administrative Law Judge Phil W. Saunders issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Quality Drywall Company, Inc., Bowling Green, Kentucky, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as so modified: 1. Substitute the following for paragraph 2(a): "(a) Offer to Ralph Tarrence and to all the dis- criminatees named in Appendix A, attached hereto, immediate and full reinstatement to their formers jobs or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority or any other rights or privileges previous- ly enjoyed, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled 'The Remedy."' 2. Substitute the attached Appendix B for that of the Administrative law Judge. 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 DOy Wall Products, Inc., 91 NLRB 544 (1950), enfd 138 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings 254 NLRB No. 75 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees as to the identity of their spokesman, and/or spokesmen. for the purpose of discussing their terms and conditions of employment. WE WILL NOT interrogate employees about their union activities during job application interviews. WE WILL NOT discharge employees because of their concerted or union activities. WE WILL NOT lay off employees because of their union activities. WE WILL NOT discourage membership in Falls Cities Carpenter District Council, United Brother- hood of Carpenters and Joiners of America, AFL- CIO, or any other labor organizaton, by refusing to reinstate or otherwise discriminate against employ- ees with regard to their hire, tenure, or any other terms or conditions of employment. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, including the above-named Union, to bargain collectively through a bargaining agent chosen by our employ- ees, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any such activities. WF WILL offer to Ralph Tarrence and to all dis- criminatees named below immediate and full rein- statement to their former jobs or, if those job no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and WE WILL make them whole for any loss of pay they may have suffered by reason of the discrimination against them, plus interest: Carl Vernon Brooks Hoyt Clark Timothy Crowder Clyde DeWeese Joseph DeWeese Bobby Fox Steve Hardin Phillip Lacefiled Tim Wallen Charles Phelps David Phelps Donnie Phelps Everett Phelps Martin Phelps Wendell C. Phelps Rollie Reynolds Freddie Tarrence Mark Tarrence Ralph Tarrence Norman Meade QUALITY DRYWALL COMPANY, INC. 617 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE PHIL W. SAUNDERS, Administrative Law Judge: Based on charges filed on November 5, 1979, and on December 17, 1979, by Falls Cities Carpenter District Council, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO, herein called the Union or Charging Party, complaints were issued on December 28, 1979, and on January 15, 1980, against Quality Drywall Com- pany, Inc., herein called Respondent or Quality Drywall, alleging violations of Section 8(a)(l) and (3) of the Na- tional Labor Relations Act, as amended, herein called the Act. Respondent filed an answer to the complaints denying it had engaged in the alleged matter. The Gen- eral Counsel and Respondent filed briefs in this matter. Upon the entire record in the case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Tennessee corporation with an office and place of business in Nashville, Tennessee, has been engaged as a drywall subcontractor in the building and construction industry, including the construction of the Bowling Green/Warren County Hospital, the only loca- tion involved herein. During the past 12 months, a representative period, Respondent in the course and conduct of its business op- erations purchased and received goods and materials valued in excess of $50,000, which were shipped to its Bowling Green/Warren County Hospital location direct- ly from points outside the State of Kentucky. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The main issues in this matter are the following: 1. Whether on October 17, 1979, Respondent, by its foreman, James E. Bryant, and its agent, Tim Wallen, coercively interrogated its employees as to the identity of their spokesperson for purposes of discussing their terms and conditions of employment. 2. Whether on October 17, 1979, Respondent violated Section 8(a)(1) of the Act by discharging its employee Ralph Tarrence because of his protected concerted ac- tivities engaged in during his employment. 3. Whether from October 17, 1979, until October 23, 1979, certain employees of Respondent at its Bowling Green Hospital construction location ceased work con- certedly and engaged in an unfair labor practice strike. 4. Whether on October 25, 1979, Respondent, by its foreman, James E. Bryant, coercively interrogated appli- cants for employment with Respondent concerning their union membership, sympathies, and activities. 5. Whether on October 30, 1979, Respondent violated the Act by permanently laying off certain employees be- cause of their union activities and/or their protected con- certed activities engaged in during their employment. From October 1978, and continuing through March 1980, Respondent was engaged in the construction of a hospital project in Bowling Green, Kentucky. Respon- dent was the drywall subcontractor on this project work- ing under the general contractor Rogers Construction, herein called Rogers. It appears that the Bowling Green project was scheduled to be completed within 2 years, and to reach this goal the general contractor coordinated the progress of each of its subcontractors in an effort to make sure no subcontractor fell behind schedule and de- layed the progress of the other subcontractors. Rogers, the general contractor, had specific provisions in its con- tract with Respondent to enforce timely work comple- tions. Contained therein were provisions for certain ac- tions to be taken by Rogers if Respondent did not com- plete its work on the project, and, in fact, a 72-hour ter- mination clause to be exercised in the event scheduling of construction was not maintained by the subcontrac- tor.' However, there was no collective-bargaining agree- ment between Respondent and the Union covering Re- spondent's employees on the Bowling Green Hospital construction project. The Bowling Green project was not a union project nor were any of the subcontractors on the project, in- cluding Respondent, union subcontractors. On this pro- ject Respondent employed carpenters, laborers, and drywall finishers, and, at the end of October 1979, Re- spondent employed approximately 80 individuals-the majority of whom were carpenters. It appears that about this time Respondent's work had "peaked" and was somewhat concentrated on two of the hospital's floors- the first and second floors. However, at this same time some work was also being done by Respondent's em- ployees on several of the upper floors, as will be detailed later. Ralph Tarrence testified that on October 17, 1979, after their 2 o'clock breaktime, Respondent's employees gathered to discuss the condition of the portable toilets provided them for their use and for the use of all the em- ployees of the other subcontractors on the hospital pro- ject. All the portable toilets had been furnished by Rogers who also paid for their rental and, in addition, the general contractor was responsible for their mainte- nance. Tarrence testified that by the middle of October 1979 the toilets had become unfit to use, were over- loaded, and were without toilet paper. It appears that, shortly before the 2 p.m. breaktime, Respondent's Foreman James Bryant was advised of the above situation by Tim Wallen. Wallen informed Fore- man Bryant that there was a likelihood of a strike if clean toilets were not provided, but, before Bryant met with the employees, he checked with the general con- tractor to see what was being done to rectify the toilet situation, and was informed that new toilets were to arrive on the jobsite within 10 minutes. Foreman Bryant ' See Resp. Exh. 10 618 QUALITY DRYWALL COMPANY and Tim Wallen then went to the employee meeting, but by this time the 10-minute afternoon breaktime had elapsed. When Bryant reached the employees, he in- quired several times as to what the problem was, but tes- tified that no one answered. Bryant then asked "Who's the mouth?" and to which question Ralph Tarrence was the first to speak up and voice the employees complaints about the portable toilets. After Bryant informed the em- ployees that new toilets were on their way to the pro- ject, the employees went back to work when assured by Bryant that the problem with the toilets would be soon corrected. The meeting with Bryant lasted approximately 5 or 10 minutes beyond the employees' breaktime, but none of the employees were docked any pay for attend- ing this meeting-the hourly employee payroll at that time was in the neighborhood of $600.2 Not long after the men had returned to work, Tim Wallen, as instructed by Bryant, inquired of Respon- dent's employees as to who was responsible for instigat- ing the employee meeting that afternoon. In carrying out this assignment, Wallen approached Ralph Tarrence and inquired of him as to who had informed a certain em- ployee (Mike Ford) of the meeting, and Tarrence then stated he had done so and that he was willing to talk to Foreman Bryant about it, but Wallen replied that, if he did so, Bryant would "fire him." Nevertheless, Tarrence immediately went to see Bryant and stated, "I under- stand you are going to fire the man that started the sit- down." Bryant replied that this was correct, and Tar- rence stated, "Well, I'm the man who started it so fire me." Bryant then discharged Tarrence "for organizing a sitdown on the job." Shortly after Tarrence was discharged on October 17, the rest of the Quality Drywall employees, in protest of Tarrence's discharge, walked off the job and struck the jobsite until October 22, 1979, at which time Respondent agreed to reinstate the strikers and Tarrence on the fol- lowing day. On October 18, 1979, while on strike and at the picket site directly across from Respondent's office, a considerable number of Respondent's employees openly signed authorization cards for the Union. Employee Ev- erett Phelps testified that he had obtained the cards from the union organizer who brought them to the jobsite, and that he then passed out the cards and signed up about 40 employees at the picket site. As pointed out, the picket site was situated across a two-lane street along the side of the hospital project and was about 30 feet in front of and across from Respondent's office trailer. Although denying seeing any cards being signed, Foreman Bryant admitted that, during the time the cards were being signed, he was seated in the office trailer, and that, at one point during the morning of October 18, he, himself, counted 44 people at the picket site. After the strike ended on October 22, 1979, Respon- dent, as well as Rogers, received notice, by letter dated October 18, 1979, that the Union intended to picket the hospital project jobsite commencing on October 30, 2 Bryant testified that he believed that the employee meeting began 10 minutes before breakfime and lasted 5 minutes beyond breaktime for a total of 15 minutes on Respondent's time. Respondent's President Doyce Davis' testimony is that the employees stayed off the job for approxi- mately 30 minutes to air their complaints about the toilets. 1979, at 6 a.m.; that the picketing was directed against Respondent, and that the Union represented a "vast" ma- jority of Respondent's employees. 3 It appears that, within a few days subsequent to the receipt of the above, Rogers, the general contractor, established a reserve gate system for their subcontractor. On October 30, 1979, Respondent laid off 20 employ- ees (named in Appendix A attached hereto). It appears that all the employees in this layoff had participated in a previous strike over Ralph Tarrence's discharge, and most of them had signed authorization cards for the Union on October 18. It is alleged in the complaint that on or about October 17, 1979, Foreman Bryant and Tim Wallen, as agents of Respondent, coercively interrogated employees as to the identity of their spokesman and/or spokesmen, for the purposes of discussing their terms and conditions of em- ployment. Employees Ralph Tarrence and Everett Phelps were present at the employee grievance meeting on October 17 when Foreman Bryant spoke to the employees assem- bled, as aforestated. When Foreman Bryant first came upon the group or gathering, he asked the employees, "Who's the mouth?" The General Counsel points out that it is this comment of Bryant, never specifically denied, viewed in the context of an employee grievance meeting, and in the absence of any assurance of no repri- sals if an employee speaks up, which has been alleged as objectionable conduct violative of the Act. Foreman Bryant testified and admitted that immediate- ly after the October 17 employee grievance meeting was over Tim Wallen questioned employees, at his instruc- tions, to find out who the organizer of the employee meeting was. Ralph Tarrence's testimony with respect to the action Tim Wallen took in following Bryant's instructions is as follows: Tarrence: Tim came up there and said that Mr. Bryant wanted to know who told Mike Ford that, you know, about the meeting and he said he wanted to ask him-find out who told Mike Ford, find out who told that person to go down the line until he got to somebody he said he didn't know, that he wanted to see him so I told him I was the one that told Mike Ford that I would go talk to Mr. Bryant and he said, he'll fire you if you go down there, you know. The General Counsel submits that both Bryant's com- ments and Wallen's statements and actions at the direc- tion of Bryant are violative of Section 8(a)(1) of the Act since it shows Respondent's intention to discriminate among employees who choose to take a leadership role in protesting, on behalf of others, their working condi- tions. I conclude and find that the question asked-"Who's the mouth?" and the subsequent interrogation and con- duct by Wallen in ascertaining the employee who insti- gated the grievance meeting to complain about the porta- 3 See G C :xh 2 619 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD ble toilets-had a reasonable tendency to coerce Tar- rence and other employees of Respondent in the exercise of their protected concerted activity, and is violative of Section 8(a)(1) of the Act. Certainly, when Wallen spe- cifically asked Tarrence about the meeting and then questioned him as to the identity of the chief provoca- teur-it would be difficult to visualize that such probing would not reasonably have led Tarrence to infer an un- usual and serious management interest in the matter, and under these circumstances cannot be deemed an isolated incident. 4 Counsel for Respondent contended that during the period material herein the duties of Tim Wallen changed quite frequently and would not concede that Wallen was either a supervisor or an agent. 5 It is the General Coun- sel's position that whether or not Tim Wallen was a su- pervisor at all times relevant herein, Respondent made him their agent for the express purpose of investigating and retrieving for Bryant the leader of the employee meeting. As indicated, I am in agreement that this record amply reflects that Wallen on occasions served as a conduit be- tween Foreman Bryant and Respondent's employees in that from time to time Wallen conveyed information and distributed work assignments and materials to the em- ployees. In short, this record as a whole demonstrates that regardless of his supervisory status Tim Wallen could reasonably have been viewed by the employees as Respondent's representative as he was clothed with im- plied authority to act for management, and especially so in the situation when Bryant specifically sent Wallen to the project with instructions to find out the instigator of the meeting, and Wallen then openly so informed Tar- rence. By doing so, he removed any doubt as to his agency status. It is alleged that on October 17, 1979, Respondent dis- charged Ralph Tarrence (reinstated on October 23) be- cause he engaged in protected concerted activity, and that from October 17 to October 23 certain employees ceased work and engaged in a strike caused by the unfair labor practices of Respondent in the discriminatory dis- charge of Tarrence. Respondent argues that Foreman Bryant deemed the initial work stoppage and meeting on the afternoon of October 17, as an impermissible sitdown strike, that Tar- rence was fired for organizing this unprotected strike, and not for protesting the problem with the portable toi- lets, and that although the General Counsel wishes to characterize the subsequent employee walkout of Octo- ber 17 as a concerted sympathy strike on behalf of the discharged Ralph Tarrence, there is evidence that the sympathy was less than unanimous. Counsel for Respon- dent also points out that on October 17 there were at least two altercations occurring necessitating the pres- ence of police on the premises, and that Foreman Bryant 4 See lHendricks County Rural Electric, 236 NlRB I l16, lt21 (1978) * Foreman Bryant stated that Tim Wallen did not have authority to hire or fire, but, if he needed someone to find another employee, or wanted to get certain materials to places swhere such were needed, he would call n Wallen to perform these duties Moreover, that he would also have Wallen walk around the project to observe if any of the em- ployees were "sitting down" or "goofing off" Bryant classified Wallen as lead supervisor or group leader overheard police interrogation of various employees in which one employee admitting instigating a fight with Mike Ford and which prompted Ford to defend himself with his "hatchet." Respondent further points to testimo- ny by Bryant to the effect that employees continued to mill about the premises until ordered to leave by the police. In essence, argues Respondent, the midafternoon sitdown strike and the subsequent walkout accompanied by avowed violence are the only alleged concerted ac- tivities occurring on October 17. It is further argued that employee activity which is in derogation of employer property rights is presumptively unlawful and unprotect- ed unless conducted reasonably and as a result of over- riding employee interests which predominate over em- ployee property rights, and that a sitdown strike on com- pany premises and company time is equal to a seizure of employer property. Additionally, the reasonableness of an employee protest is determinative of its protected status, and thus the failure of employees to discuss with their employer the subject of a protest prior to a work stoppage is unreasonable and deprives the protest of Sec- tion 7 protection. In summary, maintains Respondent- the employees of Quality Drywall hostilely seized the premises and refused to work, shutting down production, burning four portable toilets, and creating employee con- frontations involving personal injury and violence. It appears clear to me, and I find, that the work stop- page and employee meeting on October 17 were of a concerted nature triggered by employees' displeasure and complaints with a part of their working conditions, and was activity protected under Section 7 of the Act. The work stoppage lasted at the most 10 to 15 minutes beyond the normal breaktime, and it was an attempt on the employees' part to draw Respondent's attention to the deplorable conditions of the portable toilets on the project-corroborated by Respondent's own witnesses, Bryant and John Cantwell, Rogers superintendent, both of whom recognized that the employee had a valid gripe concerning the toilets. As pointed out, these employees were not organized, were without any bargaining agent, and had no established grievance procedure to turn to, and therefore used this meeting with Bryant to state complaints and grievances to the people responsible for their working conditions-their employer, Respondent. It is well settled that employees have the right to leave work in support of a grievance pertaining to terms and conditions of employment. Blue Star Knitting Inc., 216 NLRB 312, 316 (1975); N.L.R.B. v. Washington Alumi- num Company, Inc., 370 U.S. 9 (1962). When this occurs, an employer may not lawfully discipline an employee for breaking a company rule concerning leaving work with- out permission, for to allow it would abrogate the statu- tory right to withhold services in support of a grievance. Moreover, a concerted stoppage of work by employees is protected under Section 7 of the Act, unless it is for an improper objective or is conducted in an improper manner. First National Bank of Omaha, 171 NLRB 1145 (1968). In the instant case, Ralph Tarrence had talked with his foreman on one or two occasions about the portable toilet problems approximately a week before their meet- 620 QUALITY DRYWALL COMPANY ing, but without getting any results and on the day in question, when the matter was being discussed among employees, Tim Wallen overheard some of the conversa- tion and then advised employees Ford and Tarrence that "the best thing to do is just get together and have a meeting with Mr. Bryant and get something done about the toilets."6 Therefore, Respondent had advance warn- ing of their grievance, and the employees even had advice from Wallen that a meeting with Bryant would be "the best thing to do." Under such circumstances it might even be successfully argued that the initial work stoppage and meeting here in question were actually au- thorized by an agent of management. When the short meeting and work stoppage were over with on October 17, all the employees immediately re- turned to their jobs and worked until Tarrence was dis- charged, and, while there was apparently some fighting and violence among certain employees when the strike started on the midafternoon of October 17 to protest the discharge of Tarrence, there was no damage to any of the project property or equipment, nor was there any kind of a sit-in or takeover, and, admittedly, the employ- ees left the project premises at 3:30 p.m. when they were supposed to. None of the employees involved herein were identified with the burning of any of the four toi- lets, nor was the work stoppage rendered unprotected because Respondent or Rogers was already trying to have the toilets cleaned or replaced. In addition, under well-established Board law, the complaint about the por- table toilets does not ultimately have to be meritorious before it can constitute protected activity. From the total aspects of this record, the work stop- page here in question was for a proper objective, and was not conducted in such a manner as to lose its pro- tected status. Foreman Bryant testified on direct examination that on October 17, 1979, he discharged employee Ralph Tar- rence for instigating a "sitdown" (herein work stoppage) that occurred earlier that day. As indicated, the work stoppage here in question involved concerted action on the part of a majority of Respondent's employees. The relevant inquiry now for consideration is whether Re- spondent treated employees differently because they complained about their working conditions, and from this record, as a whole, Respondent did just that in the case of Ralph Tarrence, who was the only protestor dis- charged because management believed he had instigated or organized the work stoppage. To single out the ring- leader of a work stoppage which constitutes protected concerted activity, as Respondent did in the case of Ralph Tarrence, is violative of the Act, and I so find. It is uncontroverted that almost all employees of Qual- ity Drywall participated in the strike from midafternoon on October 17 through October 22. The number was es- timated to be between 60 and 80 employees, and of that number approximately 40 employees congregated, from time to time, across the street from the construction site. The strike was clearly to protest the discharge of Tar- 6 As I have indicated, (on certain occasions vWallen must he deemed least an agent of Respondent Mloreover, Wallen did not estify so the above-quoted statement attributed to him stands undenied rence, and in accordance with my findings herein must be deemed an unfair labor practice strike. It is alleged that on or about October 25, 1979, Re- spondent, acting through Foreman Bryant, coercively in- terrogated employees about their union activities. Former employee Freddie Crawford testified as to what occurred during his employment interview with Foreman Bryant. Crawford credibly testified that on Oc- tober 25, 1979, he arrived at the project to report to work, and that he and another new, hiree were met by Foreman Bryant and brought to the office trailer where Bryant had them fill out W-2 tax forms. Crawford testi- fied that, while filling out these forms, Bryant asked them if they belonged to the Union, and to which ques- tion they both replied no. Bryant then asked them if they had ever belonged to the Union. They again both said no. Counsel for Respondent argues that even employee Crawford did not assert in his testimony that Bryant in any manner connected union membership with adverse employer treatment, and that although Bryant denies ever asking the question the facts reveal that, even if Crawford is to be credited, the question as to union membership was asked after he had been given a job as opposed to before, and in such a context no reasonable reading of the circumstances would infer that the ques- tion was asked in a coercive or unlawful manner. As pointed out, there is no evidence in the record that Bryant offered any assurance to Crawford that an affir- mative answer to either of Bryant's questions about their union affiliation would not be looked upon with disfavor by Respondent or that their chances of employment would remain unaffected by such affirmative response. In fact, Crawford openly and candidly testified that he did in fact belong to the Union, but had not admitted this be- cause he feared his chances of employment with Respon- dent would be lessened. It is well recognized Board law that questions con- cerning former union membership and union preference, in the context of job application interviews, are inherent- ly coercive, without accompanying threats, and are therefore violative of Section 8(a)(l) of the Act, even when the interviewee is subsequently hired. Bendix-Wes- tinghouse Automotive Air Brake Co., 161 NLRB 789, 791- 792 (1966). The General Counsel points out that. with the forego- ing precedents in mind, Crawford's version of the inter- view in question should be credited over Bryant's denial, and the fact that Respondent has just received the notice of union majority and anticipated picketing, as aforestat- ed, all lends support to this accredition that Bryant had "union" on his mind. Craw'ford testified in a candid and straightforward manner, and, in conjunction with the sequence of events, the specific circumstances, and overall demeanor, I have credited his version of this incident. On the same basis, I have also credited other witnesses for the General Coun- se. 7 i All f the f:lit, found herein lre hised otn the record ;i: a whole upon no,, hsr rx;lti ot he s Ih lln ses The credlhilltN rcolutiolls herell have ( ',ntnued 621 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Events leading up to the layoff on October 30, 1979, reveal that on October 22, 1979, an offer was made to management that the strikers would return if Ralph Tar- rence was allowed to go back to work. Respondent agreed, and all the strikers, including Tarrence, returned to their jobs on the morning of October 23, as indicated previously herein. During the hearing, and in subsequent argument, Re- spondent maintained that although management met the striking employees' demands on October 22 resumption of normal production did not subsequently occur, and the layoff on October 30 was necessary because some employees were trying to do all possible to slow down work on the project, including the damaging of equip- ment. Doyce Davis testified that following resumption of work on October 23 production was abnormally low and there was extensive damage to material, equipment, and finished installations. Foreman Bryant testified that after work resumed on October 23 the rate of production was about half what it had been prior to the strike as was ob- vious by visual inspection. John Cantwell of Rogers tes- tified that the delay in production was apparent because the rate of progress on the second floor remaining to be completed was two or three times slower than on prior identical floors in the same tower as well as on the other two towers of the project. Respondent also maintains that drywall sheets, which had been hung or installed in the project, were now (between October 23 and the layoff on October 30) being damaged to an inordinate degree, that the damage to completed production was so extensive that it was a considerable job in removing it from the construction site, and that at least 100 pieces of hung drywall had to be replaced. A normal rate of damage, according to Foreman Bryant, was one piece of board per two-man team per day. It is further contended that damage to equipment was also occurring at an alarming rate during this period of time. Respondent's security guard, Bobby Beckham, tes- tified that he witnessed large quantities (armloads and wheelbarrows full) of new extension cords with their plugs completely severed, and that other cords had been cut so that bare wire was exposed. The damage to elec- trical equipment was occurring more rapidly than the electrical contractor on the project could repair it, ac- cording to John Cantwell. Foreman Bryant identified the nature of the equipment damage as cut electrical exten- sion cords, screw guns with screws in the electrical ar- matures and broken handles, and damaged electrical re- ceptacle boxes. There was further testimony that this equipment was not used equipment damaged by normal wear and tear, but that which had been recently pur- chased and employees had been warned repeatedly con- cerning the degree of equipment damage and the lack of production. been derived from a review of the entire testimonial record and exhibits with due regard for the logic of probability, the demeanor of the wit- nesses, and the teaching of N.L.R.B. v. Walron Manufacturing Company, 369 U.S. 404 (1962). As to those witnesses testifying in contradiction of the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredible and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. The other reason assigned by management for the layoff on October 30 was that Respondent had basically completed its work on the second floor of the project, and was ready to move to the ground floor where the remaining work would not require so many employees. There was testimony by witnesses for Respondent to the effect that at some point in every construction pro- ject an employee work force peak is reached, and at which time a layoff is mandated as a result of substantial completions, and, although a particular project's job pro- gress schedule gives an idea of when work force "top- ping out" and "cutbacks" will occur, the actual decision to cut back is made according to job progress as re- vealed in weekly progress meetings during the course of construction, and that even prior to the events here it was apparent that employee cutbacks would soon be ne- cessitated as a result of the job progress. Evidence was also adduced to indicate that, in its drywall subcontracting, Respondent has experienced a relatively consistent staffing pattern on its hospital pro- jects, and for the purposes of comparison Respondent's Exhibits I thru 5 were reduced to graph form in order to illustrate the Company's staffing patterns at its several hospital projects.8 Counsel for Respondent points out that a review of these graphs reveals the gradual em- ployee buildup with intermittent peaks and valleys until such time as an overall project peak is reached, and which is then followed by a relatively rapid decline in employee numbers, and that consistent patterns emerge- that in each of Respondent's hospital projects employee buildup, although gradual, is not without declines prior to reaching an overall peak. Similarly, after an overall employee peak has been reached, a decline in employ- ment is not measured by an unwavering downward slope until the project's completion, but, instead, a reduction in employees is offset by slight increases as project equilib- rium is maintained. Moreover, for purposes of comparison with the other projects, if an employee reduction at the Bowling Green Hospital site had occurred with statistical similarity to the other projects, it would have occurred somewhere in the middle of September 1979, but progress at the Bowl- ing Green Hospital did not warrant a layoff in mid-Sep- tember 1979, as the Bowling Green construction site was a six-floor hospital with three separate towers upon which Respondent had substantially completed its drywall subcontracting responsibilities by mid-October 1979. Thus, at this time, almost all of towers I and 3 had been completed, and tower 2 was substantially finished with only the second floor and the first floor administra- tive areas remaining to be done, and management had al- ready determined that, upon the substantial completion of the second floor of tower 2, a layoff would be in order. Furthermore, according to projections, the second floor of tower 2 could be completed by eight men work- ing 40 hours. In final argument counsel for Respondent maintains that the layoff on October 30 was premised on business necessity; that no witness testified of any verbal state- ' See attachments 1 , 2, 3, 4, and 5 to Respondent's brief 622 QUALITY DRYWALL COMPANY ments at the time of the layoff which equated either union membership or protected activities with the layoff; that a layoff on a construction site carries no stigma of unworthiness-every employee knows that when a con- struction project is begun a layoff eventually will occur; that for the General Counsel to argue that the occur- rence of the layoff was somehow out of the ordinary so as to discourage employees in the exercise of Section 7 rights ignores construction project realities; that attach- ments I to 5, based on Respondent's Exhibits I thru 5, reveal that a layoff on the Bowling Green Hospital proj- ect was long overdue; that employment in the construc- tion industry is by its nature temporary, and inevitable layoffs should not be equated with the circumstances sur- rounding layoffs in the industrial context; that imminent layoffs cannot be said to have a reasonably foreseeable consequence of discouraging union activity or other pro- tected conduct; and that there is no factual basis con- tained in the record to support the General Counsel's contention that the layoff of October 30 was premised in anything other than legitimate business motivations. Counsel for Respondent further suggests in his argu- ment that ample evidence was adduced at the hearing to warrant a finding that a layoff was necessitated by the project progress as of October 30; that Respondent's Ex- hibit 9 is an architectural sketch revealing the small amount of work remaining to be done on the second floor of the center tower of the project as of the middle of October; that witnesses for Respondent testified that the drywall construction had reached the second floor of the center tower at this time; that Cantwell and Bryant testified that the drywall construction was 90 percent completed in mid-October, and out of 300,000 square feet of drywall construction only 30,000 square feet remained to be completed, and, as construction progressed to the point of completion, it was physically unreasonable to retain a work force of 88 employees to complete the small amount of work remaining to be done; that staffing patterns on similar projects reveal that "topping out" was accomplished prior to the point in time that it oc- curred on the Bowling Green Hospital project; and that the inevitable layoff was resisted by Respondent until it could no longer be delayed. Moreover, there is no evi- dence that the employees chosen for layoff on October 30 were known union adherents; that, although the man- agement was informed of the Union's intention to picket, as aforestated, this by no means negated Respondent's need to lay off employees; that the testimony in this record reveals that Charlie Giraud of Rogers Construc- tion suggested the number of 20 employees for layoff and Bryant chose the employees on the basis of his ob- servations of their productivity and his reasonably grounded suspicions of sabotage; that since productivity thereafter increased and sabotage thereafter ceased it must be noted that Bryant was a good judge of employ- ees; and that, in the final analysis, sabotage and slow- downs are not protected concerted activity. As pointed out, the timing of the layoffs on October 30 is a critical factor. They came without any prior notice to the employees that layoffs were contemplated at that particular time. The layoffs were effected in the middle of a pay period and not on a payday. They oc- curred I week after the 5-day strike over Tarrence's dis- charge had ended, and after the Union's organizing drive began, and, more than coincidentally, the layoffs were also accomplished on the very day the Union had earlier earmarked as the commencement of picketing at the job- site, and had so specifically notified Respondent, as pre- viously mentioned herein. As further indicated, the purpose of the layoff is re- vealing as to Respondent's motivations. On the day of the layoffs, Respondent's sole explanation for such action was lack of work. Everett Phelps testified that on Octo- ber 30 they were merely informed that all jobs had come to an end, and "that's what happened to this one." None of those laid off were ever told that the job performance or any damage to Respondent's property, which the General Counsel views as minor trangressions if credited as true, had been a factor in their selection for the lay- offs. According to testimony by witnesses for Respondent, the layoffs here in question were multipurposed-to adjust to the decline in available work, and to eliminate employees who were trying to slow down progress on the project and who were also engaging in the destruc- tion to materials and equipment. However, it appears to me that in consideration of all aspects of this case, and especially the timing involved, the real reason for the layoff was Respondent's attempt to subvert the Union's apparently successful organizing campaign and to impede picketing on the project jobsite that was to start on Oc- tober 30. Evidence of this is also revealed by the fact that, shortly after the layoff, Respondent hired or trans- ferred new employees to the jobsite here in question. Hoyt Clark testified that the day before layoff Respon- dent hired three or four drywall finishers from Nashville. Employee Doran Sheppard worked for several weeks after the layoff, and during this period he noticed two or three "new faces," and Sheppard also observed some em- ployee laborers and finishers of Respondent-Hudson and Owens-hanging drywall after the layoff. Respondent contends there is no evidence that the em- ployees chosen for layoff were known union adherents. As indicated previously herein, the organization efforts started on October 18 when Everett Phelps had about 40 employees sign authorization cards for the Union during the time they had gathered across the street from Re- spondent's office in plain view of Foreman Bryant. Moreover, Respondent's agent on different occasions, Tim Wallen, joined the strike in its second day and ac- cording to Phelps even signed a union card, so he had a firsthand opportunity to observe who was supporting the Union, and when the strike ended on October 22, 1979, Wallen then returned to his duties alongside Foreman Bryant following some controversy as to whether he would or would not, and then once again acted in the capacity of Respondent's agent on October 30, when Wallen admittedly informed Foreman Bryant, at the con- struction site, as to where the damaged equipment (cord and screw guns) were coming from, supposedly in order for Bryant to make evaluations as to who would be ter- minated. In essence, a frequent agent of management joined the strikers and also signed a union card in the or- 623 I)F.CISIO)NS OF NA IONAL LABOR RELATIONS BOARD ganizational surroundings where the strikers had gath- ered, and then in a few days returned to his messenger duties with Foreman Bryant. From these circumstances there can be no question but that Respondent had prior knowledge as to who were adherents for the Union- certainly agent Wallen had every opportunity to fully observe and report. As further indicated, the method in which the employ- ees were selected for the layoff is also noteworthy. Re- spondent's president, Doyce Davis, supposedly gave Bryant no criteria to use in making the selections. Bryant testified that he used quality and quantity of work as the criteria for the layoff, but apparently had made no par- ticular investigation as to how each employee measured up to these two requirements--he merely kept the de- pendable ones. Respondent presented evidence that union activities and protected concerted activities were neither factors in its selection. However, selected for the layoff were Ralph Tarrence, who had previously been fired for organizing a sitdown strike, as aforestated, and Everett Phelps, who passed out the union authorization cards-along with all his relatives assigned to the pro- ject--and also Tim Wallen who had crossed over to the strikers for a few days, as outlined above, and the re- mainder of the men selected for layoff represented a very sizeable portion of those who had signed authoriza- tion cards and who had joined the 5-day unfair labor practice strike in mid-October. Respondent contends that most of the damaged equip- ment was coming from the second floor, and so employ- ees working there were laid off. Hlowever, there are no real or positive identifications by anyone as to the names of employees actually causing the damage. Respondent's security guard, Beckham, testified that on October 30 he observed the ends of 20 or more new dropcords cut off, but then admitted that he did not see anyone cutting such cords, and could not identify anyone who might have been involved. Cantwell, Davis, and Bryant also testified as to excessive damage of cords, drywall sheets, and screw guns, as aforestated, but again no positive identifications of any kind as to the actual parties respon- sible. On the other hand, Ralph Tarrence testified that after some use the ordinary wear and tear would cut the cords, that from time to time screw guns will wear out and quit working, and that he never observed anyone break or damage any wallboards. Everett Phelps testified that he had seen naked wires on extension cords due to employees dragging them around, and that a lot of drywall was broken in bringing it up on the elevator. However, for purposes here, I am willing to accept that between October 23 and 30 there was a somewhat great- er damage to cords, guns, and drywall sheets than under normal periods, but only as to minor transgressions and certainly not to the vast extent as envisioned by manage- rial witnesses, and also again noting that no individual employees could be identified with these mishaps. Like- wise, there is no independent evidence in this record proving that employees engaged in a meaningful slow- down after their return to work, other than statements and testimony by witnesses for Respondent. It appears to me that if there had been a slowdown in hanging drywall to the extent envisioned by Bryant-from 40 to 50 boards a day to 20 or 25 boards a day-then, in all likelihood, the individuals involved would have been identified, and at least given a warning or notice. No one was identified, and no one was warned. Respondent argues that the layoff here in question was necessitated as a result of job progress, and employment in the construction industry requires such layoffs as the project nears its completion. It is, of course, readily understood and accepted that, as the hospital project here in question reached the com- pletion stages on drywall construction, employees of Re- spondent would be laid off at various times depending on all the different circumstances then existing, and eventu- ally, or at some time, the 20 employees involved here would be included in such a legitimate reduction in force unless they were successful in transferring to other jobs of Respondent, as admittedly sometimes happens.9 How- ever, in the instant case, for the reasons and circum- stances previously given, and even accepting that the subcontracting work of Respondent was in the realm or area of "topping off," and that there was some damage to equipment, as aforestated, I am still convinced that the real motivating factor which actually triggered and ac- celerated this layoff was based on the concerted and union activities of the employees, and, in accordance therewith, I find that the layoff on October 30, 1979, was in violation of Section 8(a)(3) and (1) of the Act.)0 THE RitMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Ralph Tarrence on October 17, 1979, I shall recommend that Respondent make him whole for any loss of earnings he may have suffered by payment to him of the amount he normally would have earned as wages from the date of his discharge to October 23, 1979. It having been also found that Respondent discriminatorily laid off those employees named in the attached Appendix A on October 30, 1979, I shall recommend that Respon- dent reinstate such discriminatees to their former or sub- stantially equivalent positions and make them whole for any losses they suffered as a result of the discrimination against them. All of the backpay provided herein shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294 (1950), and with interest thereon computed in the manner and amount prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). The determination of " I)urilg the period in question in late October, Respondent still had considerable work to do on the second floor, had bathroom ceilings to hang ont the third and fourth floors, had some laundry chute walls to trim and hanig, had some stairways to frame and hang, had the administrative area donil ini the ground floor to hang along with some hanging in the kitchen ad also had some framing to do in the main entrance lobby. t"' Certainly. the General Counsel made a prima facie showing suffi- cienl to support the inference that protected conduct was a motivating flctor aid causally related to the Respondent's decision. and Respondent did not adequately or successfully demonstrate that the same action swould hase takein place i the absence of the protected conduct 624 QUALITY DRYWALL COMPANY which laid-off employees, if any, would have continued in Respondent's employment, and for how long, and which employees would have enjoyed continued em- ployment, would have been rehired, or carried over to Respondent's other projects can best be made at the compliance stage of the proceedings, and to which I defer the matter. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By engaging in conduct described in section IIl, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER " The Respondent, Quality Drywall Company, Inc., Bowling Green, Kentucky, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to the identity of their spokesman and/or spokesmen for the purposes of dis- cussing their terms and conditions of employment. (b) Interrogating employees about their union activities in job application interviews. (c) Discharging and/or laying off employees because of their concerted or union activities. (d) Discouraging membership in the Union, or any other labor organization of its employees, by discriminat- ing against them in regard to their hire and tenure of em- ployment or any terms and conditions of employment. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. II In the event no exceptions are filed as provided by Sec. 102 4 of the Rules and Regulations of the National Labor Relations Itoard, the findings, conclusions, and recommended Order herein shall, a provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objectiolls thereto shall be deemed aived fr all purposes 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer to Ralph Tarrence and to all the discrimina- tees named in Appendix A, attached hereto, immediate and regular full-time employment, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suf- fered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Decision. (c) Post at its place of business and construction site copies of the attached notice marked "Appendix. " ' 2 Copies of said notice, on forms provided by the Regional Director for Region 9, after being duly signed by Re- spondent's representative, shall be posted by Respondent 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 to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order. what steps have been taken to comply herewith. in I ile elt Ilhis Order is enforced by a Judgment of a Inlllted Stales Couirt iof Appeals, the , ord i the notice reading "'o\led bh Order of he Natio I hbor Relations ito.ardl" shall read 'oslted I'uirn- ant to i JdgmeiTnt of the Unlit.ed S1atcs Court f Appeals t:rnl;rcili an ()rder of the Natiolli I iabor Relilton,s Hoard APPENDIX A Carl Vernon Brooks Hloyt Clark Timothy Crowder Clyde DeWeese Joseph DeWeese Bobby Fox Steve Hardin Phillip Lacefield Norman Meader Charles Phelps David Phelps Donnie Phelps Everett Phelps Martin Phelps Wendell C. Phelps Rollie Reynolds Freddie Tarrence Mark Tarrence Ralph Tarrence Tim Wallen 625