Volair Contractors

VOLAIR CONTRACTORS, INC. 673 Volair Contractors, Inc. and Plumbers & Pipefitters Local Union 74, United Association of Journey- men & Apprentices of the Plumbing & Pipefit- ting Industry of the U.S.A. and Canada. Cases 4–CA–27432 and 4–CA–27028 April 30, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On July 29, 1999, Administrative Law Judge Arthur J. Amchan issued the attached decision. The Respondent and the General Counsel filed exceptions and supporting briefs, and the Respondent filed a reply brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified below and to adopt the recommended Order as modified.3 The complaint alleges that the Respondent violated Section 8(a)(1) and (3) of the Act by discharging Melvin Baldwin and laying off Louis Oliver because of their union activities, and that it violated Section 8(a)(1) by interrogating and making certain coercive statements to these and other employees concerning those activities. The judge found that the Respondent unlawfully dis- charged Baldwin, but recommended that the other allega- tions be dismissed. He also refused to find that the Re- spondent’s failure to recall Oliver was unlawful, because it was not alleged in the complaint to violate the Act. We adopt the judge’s conclusions on these issues. Although we are in essential agreement with the judge’s findings and conclusions, we find it necessary to more fully explain our rationale on several issues. Thus, we find, for the reasons stated by the judge, but also for reasons explained below, that Baldwin was a statutory employee and not a supervisor at the time of his dis- 1 The General Counsel’s reply brief was rejected as untimely. 2 The Respondent and the General Counsel have excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all of the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam- ined the record and find no basis for reversing the findings. 3 We shall modify the judge’s recommended Order to be consistent with our decision in Ferguson Electric Co., 335 NLRB 142, 143 (2001), and to substitute standard language for other portions of the judge’s Order. Further, we shall substitute a new notice in accordance with our recent decision in Ishikawa Gasket American, Inc., 337 NLRB 175, 177 (2001). charge; that the Respondent did not unlawfully interro- gate Baldwin;4 and that Baldwin’s discharge was unlaw- ful but Oliver’s layoff was not. We also agree with the judge, for the reasons stated in his decision, that the Re- spondent did not unlawfully interrogate employee John Cabral pursuant to an unfair labor practice charge arising from Oliver’s layoff.5 Finally, we find that the judge did not abuse his discretion by declining to find that the Re- spondent unlawfully refused to recall Oliver.6 I. BALDWIN ALLEGATIONS A. Factual Background The Respondent hired Melvin Baldwin, a pipefit- ter/welder, in November 1997 to be the foreman of a crew assembling and installing new boilers in the Wanamaker building in Wilmington, Delaware. Baldwin reported directly to the Respondent’s outside superinten- dent, Joseph Tigue, who was overseeing several projects for the Respondent. Baldwin was issued a cell phone so that he could contact Tigue, who was frequently absent from the jobsite. Baldwin also ordered supplies for the job and had authority to recommend that his crew work overtime, although he could not require them to do so without authorization from higher management. In the course of his work on the Wanamaker project, Baldwin asked Tigue for additional manpower and, at Tigue’s request, recommended several workers who had the necessary skills for the job. Tigue subsequently in- terviewed the recommended individuals by telephone and hired them. Baldwin also complained to Tigue about 4 We disagree, however, with the judge’s finding that the General Counsel abandoned this allegation and address the issue on its merits. 5 In this regard, we agree with the judge that the questioning was not coercive merely because the Respondent did not furnish all the safe- guards prescribed in Johnnie’s Poultry Co., 146 NLRB 770, 774–775 (1964), enf. denied on other grounds 344 F.2d 617, 619 (8th Cir. 1965). In adopting this conclusion, we observe that, under certain circum- stances, even questions having no express connection with employees’ protected activity or Board charges may be coercive, triggering the need for Johnnie’s Poultry safeguards. For example, employees who participate in open protected activity with a coworker (or know of such activity) may infer that the employer’s subsequent discharge of and questions about the coworker relate to the protected activity, even if such activity or the filing of a Board charge is never mentioned. See, e.g., Parkwood Chevrolet, 262 NLRB 256, 265 (1982). Here, however, as the judge found, there is no evidence that the questioned employee, John Cabral, had any knowledge of Oliver’s union affiliation or the Union’s charge. Moreover, Cabral had previously complained to man- agement after having a fight with Oliver and, thus, would reasonably have believed that Tigue’s request for a statement that Oliver was a “troublemaker” referred to that incident rather than relating to Sec. 7 rights. 6 The General Counsel raised this issue for the first time in his brief in support of exceptions. The Board has rejected as untimely motions to amend the complaint made for the first time in exceptions. See United States Service Industries, 324 NLRB 834, 835 fn. 10 (1997). 341 NLRB No. 98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674 the quality of some of his workers and was told, “If you don’t like them, get rid of them.” Baldwin completed the Wanamaker project in late De- cember or early January 1998, several weeks after the scheduled project deadline. The Respondent then as- signed him to work in its fabrication shop, preparing pip- ing to be installed at the Laird campus of the University of Delaware. On this job, Baldwin reported to the pro- ject superintendent, Charles Wertz, who was a level be- low Tigue in the Respondent’s management hierarchy. Baldwin worked with two other welders, assigning them tasks based on a blueprint given to him by Wertz, and administered a welding certification test to welder John Cabral at Wertz’ request. In February 1998, Baldwin began to install the piping in cooling towers at the Laird site as part of a four-man crew. He spent much of his time doing hands-on work and was responsible for correcting the work of other crewmembers. He continued to report to Wertz, who was on site 80 percent of the time. The installation of pipe in the cooling towers was completed on March 20, 3 weeks behind schedule. Thereafter, the Respondent be- gan installing pipe in other areas, with several additional crews, and Baldwin was at times consulted about the allocation of the work force. Also in mid-March, Baldwin contacted the Union and signed an authorization card. A couple of other employ- ees working on the Laird site were also known union members. Shortly after Baldwin signed his authorization card, he and union supporter Steve Tennet wore their union T-shirts to work. Wertz asked them why they were wearing union T-shirts. When Baldwin responded by asking whether he had anything against unions, Wertz stated that Baldwin didn’t want to know his views on unions but that he could tell Baldwin stories about his experience with unions on other jobs. On a later occa- sion, Wertz commented to Baldwin, “What, no Union [T]-shirt today?” On April 6, Baldwin took a welding test at the Union’s headquarters and became a member of the Union. On April 7, Tigue came to the Laird jobsite and told Baldwin he was fired because he was not pushing his crew hard enough. Although Tigue was hiring pipefitters for the Laird project at the time, he did not consider retaining Baldwin as a rank-and-file pipefitter. B. Analysis and Conclusions 1. Supervisory status Before addressing Baldwin’s termination, the judge considered whether Baldwin was a statutory supervisor at the time of termination and thus unprotected by the Act. He found that Baldwin was a supervisor on the Wanamaker project, by virtue of the authority Tigue granted him to discharge unsatisfactory workers,7 but that Baldwin ceased to be a supervisor when he began work on the Laird project under the supervision of Wertz. The Respondent excepts to the judge’s conclu- sion on the grounds that Baldwin was never told that he had lost the authority Tigue granted him on the Wana- maker project, and that his subordination to Wertz on the Laird project did not establish that his status had changed. In addition, the Respondent argues that, in any event, Baldwin was a supervisor because he exercised independent judgment in assigning, directing, and disci- plining his crew on the Laird project. We find no merit in the Respondent’s exceptions.8 The burden of proving supervisory status is on the party alleging it exists, and “th[at] burden does not shift.” Chemical Solvents, Inc., 331 NLRB 706 fn. 3 (2000); NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001). We adopt the judge’s determination that Baldwin’s subordination to Wertz when he moved to the Laird project was a significant change in his position that cast doubt on the continuation of his authority to fire workers and effectively recommend others for hire. Nei- ther Wertz nor Tigue ever told Baldwin that he had such authority at the Laird project, as Tigue had told Baldwin when he worked on the Wanamaker project. In fact, the record indicates that, while Baldwin had discussed man- power issues, including hiring and firing, directly with Tigue on the Wanamaker job, Tigue discussed these mat- ters with Wertz on the Laird project. There is no evi- dence that Baldwin recommended anyone for hire while working on the Laird project or was ever asked to do so, in spite of Respondent’s need for pipefitters prior to Baldwin’s discharge.9 Thus, we agree with the judge 7 In addition to granting Baldwin firing authority, Tigue also asked Baldwin to recommend additional workers for the Wanamaker job and generally hired the workers he recommended after a brief telephone interview. Authority to effectively recommend both hiring and dis- charge may establish supervisory status. Delta Carbonate, 307 NLRB 118, 120 (1992), enfd. 898 F.2d 486 (3d Cir. 1993) (shift leaders were statutory supervisors because they had authority to, inter alia, effec- tively recommend hiring, promotion, and discharge). 8 The Respondent also argues that: Baldwin was hired as a foreman and was never told he had lost that title; his salary remained unchanged; he retained the cell phone that had been issued to him on the Wana- maker project; and he attended at least one supervisory meeting while on the Laird project. However, such secondary indicia of supervisory status cannot establish supervisory status in the absence of primary indicia. J. C. Brock Corp., 314 NLRB 157, 159 (1994). 9 Although the Respondent hired employee Steve Tennet, a worker previously recommended by Baldwin, after Baldwin was reassigned to the Laird project, the record evidence is equivocal as to whether Bald- win recommended Tennet before or after he was reassigned. Thus, the record does not establish that Baldwin continued to effectively recom- mend workers for hire after his reassignment. VOLAIR CONTRACTORS, INC. 675 that Respondent has presented insufficient evidence that Baldwin had hiring and firing authority on the Laird pro- ject. The Respondent has not demonstrated that Baldwin was a supervisor by virtue of either his assignment of work to and direction of his crewmembers or his alleged disciplinary authority, because it failed to show that Baldwin exercised this authority using independent judgment, as required by Section 2(11), rather than in a routine manner. Chrome Deposit Corp., 323 NLRB 961, 963 (1997). Although Wertz affirmed, in response to a leading question by the Respondent’s counsel, that Baldwin’s direction of other crewmembers required him to use independent judgment, such “conclusionary state- ments made by witnesses in their testimony, without supporting evidence, do not establish supervisory author- ity.” Sears, Roebuck & Co., 304 NLRB 193 (1991) (cit- ing American Radiator Corp., 119 NLRB 1715, 1718 (1958)). There is no record evidence that Baldwin’s assignment or direction of his crew required independent judgment. Wertz testified that Baldwin’s responsibilities on the Laird project were to set the job up, tell Wertz what he needed for manpower, assign different tasks to the crew, and lay out the job. But, Baldwin testified that he fol- lowed Wertz’s instructions in laying out the job and as- signed tasks to his crewmembers with reference to a blueprint provided by Wertz. Such circumscribed au- thority does not indicate the use of independent judg- ment. See Artcraft Displays, Inc., 262 NLRB 1233, 1234–1235 (1982) (leadmen who direct crews in accor- dance with instructions and floor plans furnished by em- ployer do not exercise independent judgment necessary for supervisory status); see also Electrical Specialties, Inc., 323 NLRB 705, 707 (1997) (leadmen who lay out work pursuant to general contractor’s specifications not supervisors).10 The Respondent’s reliance on Baldwin’s alleged dis- ciplinary authority while working on the Laird site is equally unavailing. The Board has declined to find indi- viduals to be supervisors based on alleged authority that they were never notified that they possessed and where its exercise was sporadic and infrequent. See Greenspan, D.D.S., P.C., 318 NLRB 70, 76 (1995), enfd. 101 F.3d 107 (2d Cir. 1996); see also Tree-Free Fiber Co., 328 NLRB 389, 392–393 (1999) (citing Greenspan D.D.S., 10 Baldwin’s crew consisted of a welder, a crane operator with weld- ing skills, and a helper, whose functions on the job were undoubtedly determined in large part by their craft skills. Assigning work to em- ployees on the basis of their known job skills does not require the use of independent judgment. See Brown & Root, Inc., 314 NLRB 19, 21- 22 (1994). P.C., for the proposition that, “[w]hen an individual has not been notified, orally or in writing, that he is vested with a supervisory power, the frequency of exercise of the authority is relevant to a determination of whether in fact the authority has been delegated to him by manage- ment”). Here, Wertz summarily testified that Baldwin had the authority to discipline on the Laird project and Tigue testified that Baldwin had such authority on the Wanamaker project and retained it on the Laird project. However, neither Wertz nor Tigue testified that they in- formed Baldwin of his alleged disciplinary authority.11 And Baldwin testified without contradiction that he had never disciplined anyone or written anyone up on either the Laird or Wanamaker projects and explained that “I never discussed [the Respondent’s] policy [for writing people up]” and “I don’t know what the policy was.” Because there is no evidence that Baldwin was ever made aware of any disciplinary authority or ever exer- cised it, it cannot be a basis for concluding that Baldwin was a supervisor. Thus, we agree with the judge that the Respondent has failed to establish that Baldwin was a statutory supervisor on the Laird project. 2. Interrogation The complaint in Case 4–CA–27028 alleges that “[i]n or about mid-March 1998 . . . Respondent, by Charles Wertz, at the Laird Project, interrogated an employee concerning the employee’s union membership, activities and sympathies.” This allegation refers to incidents de- scribed above: Wertz asking Baldwin and Tennet in mid-March why they were wearing union T-shirts and Wertz’ subsequent negative remarks about his experience with unions. The judge dismissed the allegation on the grounds that it was “not addressed in the General Coun- sel or Charging Party’s brief” to the judge and was there- fore abandoned. The judge also found nothing in the record to indicate that Wertz’ comments “restrained, co- erced or interfered with Baldwin’s Section 7 rights.” While we disagree that the allegation was aban- doned,12 we agree with the judge that it lacks merit. 11 Rather, when asked whether Baldwin knew of his authority to dis- cipline, Tigue testified, “I would say yes.” That testimony does not establish that Baldwin was ever told of his alleged authority; if any- thing, it suggests the opposite. 12 On the contrary, the General Counsel argued this allegation, albeit tersely, in a footnote in his posthearing brief to the judge (attached to the Respondent’s reply brief): “Even under Wertz’s account of the one exchange he admits to have occurred [with Baldwin], there was no legitimate purpose for any questioning regarding the shirt . . . Because the two instances of questioning in Baldwin’s account were not amica- ble or casual and were not . . . made in a context free from other unfair labor practices, they rise to the level of violations of Section 8(a)(1) of the Act.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676 In evaluating allegations of coercive interrogation, the Board considers the totality of the circumstances pre- sented in each case, including the background of the em- ployer-employee relationship, the nature of the informa- tion sought, the identity of the questioner, and the place and method of interrogation. Rossmore House, 269 NLRB 1176, 1177–1178 (1984) (known union adherent), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985); Sunnyvale Medical Clinic, 277 NLRB 1217, 1218 (1985) (not known union adherent). Here, the question about Bald- win’s union T-shirt was posed by his immediate supervi- sor, Wertz, in direct response to Baldwin’s demonstra- tion of open union support by wearing the shirt. See Cardinal Home Products, 338 NLRB 1004, 1009, 1010 (2003). The conversation occurred informally at the work site, in a context free from other unfair labor prac- tices.13 Wertz’ statement that Baldwin did not want to hear his views, but that he could tell stories about his experience with unions on other jobs, while suggestive of a possible personal dislike of unions, was respectful of Baldwin’s Section 7 right to support unionization. In addition, it was made only in response to Baldwin’s ask- ing whether Wertz had anything against unions. Wertz did not suggest, even indirectly, that any negative reper- cussion for Baldwin might result from union member- ship. Nor, in the circumstances, did Wertz’s later com- ment—“What, no union [T]-shirt today?”—carry any negative connotation. There is therefore no basis for finding Wertz’ comments coercive. Cf. Assn. of Com- munity Organizations For Reform Now (ACORN), 338 NLRB 866, 869 fn. 1, 4 (2003) (supervisor’s questioning of employees about their support for union, in context of statements that unionization had negative aspects and would “bring [the business] down,” constituted coercive interrogation). 13 It is true that, 3 weeks after Wertz’ comments, Baldwin was unlawfully discharged. However, contrary to Member Liebman, Chairman Battista finds that this subsequent discharge did not retroac- tively transform Wertz’ facially noncoercive comments into an 8(a)(1) violation. Rather, he finds that the single subsequent violation, di- vorced by time and context, did not convert Wertz’ entirely unthreaten- ing comments into statements that would reasonably tend to interfere with the exercise of Sec. 7 rights. Member Schaumber agrees that he would find no Sec. 8(a)(1) viola- tion in Wertz’ comments even if he agreed that the discharge of Bald- win was unlawful. Contrary to her colleagues, Member Liebman would find that the subsequent unlawful discharge of Baldwin only 3 weeks after Wertz’ questioning regarding his union affiliation lends a coercive character to these remarks. See Medcare Associates, Inc., 330 NLRB 935, 940 (2000) (“[A] question that might seem innocuous in its immediate context may, in the light of later events, acquire a more ominous tone.”) In this context, Member Liebman would find that Wertz’ questioning violated Sec. 8(a)(1). 3. Termination The judge concluded that Baldwin’s termination was unlawful. Although he found no direct evidence that the Respondent harbored antiunion animus,14 he inferred unlawful motivation, in part because he found that the reason proffered by the Respondent—dissatisfaction with Baldwin’s work as a foreman, and, in particular, his fail- ure to push his crew to complete work on schedule—was a pretext. The judge also relied on the timing of the dis- charge, 3 months after Baldwin failed to meet the dead- line on the Wanamaker project, and evidence that two other unsuccessful foremen had been treated more leni- ently than Baldwin.15 We agree with the judge, for the reasons discussed in his decision. Several other facts support a finding of pretext. First, the delay between the first appearance of the alleged problem in Baldwin’s work and his discharge is significant in light of the fact that Baldwin was discharged only 3 weeks after the Re- spondent learned of his union activity. Second, while the Respondent provided other job opportunities to foremen who failed to meet project deadlines, it discharged Bald- win at a time that it needed pipefitters.16 Third, Tigue admitted that Baldwin is “very good at what he does” and “knows his trade inside and out.” In exceptions, the Respondent argues that Tigue did not discharge Baldwin immediately after the alleged problem with his work arose because he wanted to give Baldwin another chance. Although the judge did not specifically discredit Tigue’s testimony to this effect, we find it unpersuasive in view of the judge’s discrediting of Tigue’s testimony that he brought the alleged problem with Baldwin’s work to his attention. We agree with the judge that the absence of credited evidence that the Re- spondent ever spoke to Baldwin about his allegedly un- satisfactory performance and the delay in discharging him undermine the Respondent’s assertion that the al- leged problem was the motivation for his discharge.17 14 Although Wertz made statements to Baldwin about his T-shirt, re- flecting his dislike of unions, the judge indicated that these comments did not amount to unlawful interrogation or antiunion animus. 15 The Respondent excepted to the judge’s apparent reliance on the fact that Baldwin was discharged a day after taking a Local 74 welding test to become a member of the Union, because there is no evidence that the Respondent knew about the test. It is not clear that the judge actually relied on this evidence, but we agree with the Respondent that it does not support a finding of unlawful motive. 16 According to Tigue, one of these unsuccessful foremen, Sam Spangler, was offered work as a regular mechanic while the other, Bryan Roe, was offered work as a basic plumbing mechanic. 17 We agree with the judge that the Respondent’s failure to retaliate against other open union supporters does not preclude a finding that Baldwin’s discharge was unlawfully motivated. It is well established that an employer’s failure to take adverse action against all union sup- porters does not disprove a discriminatory motive, otherwise estab- VOLAIR CONTRACTORS, INC. 677 II. OLIVER’S LAYOFF A. Factual Background In June 1998, the Respondent hired Louis Oliver as a pipefitter on the Laird project. On July 23, Oliver re- quested a pay increase, and Project Superintendent Wertz granted the request after consulting with Outside Super- intendent Tigue. Nonetheless, it appears that there was some conflict between Wertz and Oliver over work- related issues. In addition, Oliver had a fight with an- other employee, John Cabral, who reported the dispute to management. On August 13, Oliver contacted the Union and signed an application for membership. There is no evidence that the Respondent knew of Oliver’s union activity. On Au- gust 28, Wertz terminated Oliver, who was the least sen- ior pipefitter on the Laird job and was still in his proba- tionary period, without explanation. Oliver was not re- placed. On September 3, the Union served the Respon- lished, for its adverse action against a particular union supporter. Mas- ter Security Services, 270 NLRB 543, 552 (1984). In any event, it is not surprising that the Respondent might have responded less favorably to a demonstration of union support by someone it considers a supervi- sor—like Baldwin—than by a rank-and-file employee like Tennet, who wore his union shirt at the same time and suffered no adverse action. Member Schaumber finds that the General Counsel has not shown by a preponderance of the evidence that Baldwin’s discharge was dis- criminatory in violation of Sec. 8 (a)(3). He does not believe the evi- dence supports a finding of antiunion animus. Thus, in the time period that Baldwin and Oliver were discharged, the Respondent also hired two union members for the Laird project (who worked from the spring of 1998 until they voluntarily left near the project’s completion in Sep- tember 1998), and there is no evidence that the Respondent treated them adversely in any way. Further, even assuming antiunion animus, which he does not, Member Schaumber notes there was substantial delay on both the Wanamaker project and the Laird project and Bald- win was the foreman on the Wanamaker project and in charge of a crew on the Laird project. It is true that 3 months elapsed from the end of the Wanamaker project to the discharge, but in Member Schaumber’s view that cannot serve as a predicate upon which to rest a finding of pretext in light of the Respondent’s reasonable explanation from two witnesses—that was not discredited by the judge—that it wanted to see if Baldwin’s next project was more successful than the Wanamaker project. It was not. He disagrees with his colleagues that discharging Baldwin “only three weeks” after Baldwin exhibited prounion senti- ment is evidence of animus. Had it been one day, and in the absence of the above-referenced counter-balancing evidence, would be another matter. Finally, Member Schaumber does not agree that on this record the Respondent’s failure to offer Baldwin a job as a pipefitter estab- lishes disparate treatment. While Sam Spangler was rehired as a regu- lar mechanic, he was discharged first. He came back to be rehired and was put to work under “harder foremen.” There is no evidence that Baldwin came back, or sought to stay on with the Respondent as a pipefitter, or that he would not have been retained had he done so. Bryan Roe was hired as a mechanic, not as the foreman of a crew like Baldwin, and later given a crew. When he proved unsuccessful at that task, he was returned to being a mechanic. dent with an unfair labor practice charge arising from Oliver’s discharge. On September 19, the first phase of the Laird project was completed, and several other workers left the Re- spondent’s employ or were transferred to other jobs. In November, the Respondent hired pipefitters for a new phase of another project. Oliver did not reapply for work and was not recalled. B. Analysis and Conclusions The judge dismissed the allegation that Oliver’s layoff violated Section 8(a)(3). He found that the Respondent gave “shifting reasons” for its action, indicative of pre- text, but he declined to infer that the Respondent knew of Oliver’s union affiliation and was unlawfully motivated in laying him off. In exceptions, the General Counsel argues that the judge should have inferred knowledge and unlawful motive from the pretextual nature of the Respondent’s explanation, the fact that Oliver was the only employee laid off, the Respondent’s failure to recall Oliver when it resumed hiring in November, the Respon- dent’s unlawful discharge of Baldwin, and Oliver’s fre- quent conversations at the jobsite with open union sup- porters. We find no merit in the exceptions. Initially, we disagree that the Respondent gave “shift- ing” reasons for Oliver’s layoff. Although the Respon- dent listed several reasons for its action, it did not change its story by giving different reasons on different occa- sions. Nor is the Respondent’s credited explanation— that Oliver was laid off because the Laird project was winding down and he was the least senior pipefitter on the job—inconsistent with the Respondent’s other stated reason, that Oliver had difficulty getting along with oth- ers. Although the judge rejected the latter contention as undocumented, he, nevertheless, apparently credited tes- timony supporting it.18 And, contrary to the judge’s finding, the Respondent did not claim that it laid Oliver off because he had “safety problems,” another contention that the judge rejected; rather, the Respondent gave that reason in explaining why it did not recall Oliver. We therefore conclude, as did the judge, that the Respon- dent’s explanation for Oliver’s layoff is not so obviously pretextual as to warrant an inference that the Respondent must have known of Oliver’s union affiliation and laid him off for that reason. The General Counsel argues that the Respondent’s knowledge of Oliver’s union affiliation must be inferred from the fact that he frequently spoke with open union supporters Lenny Barber and Tennet. But the record 18 Thus, the judge credited testimony by a coworker that Oliver had frequent conflicts with Wertz and testimony by Cabral, who had re- ported a fight with Oliver to management. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678 shows that all three men worked at the same site, and, according to Oliver, Wertz often sent him to assist Bar- ber and Tennet when they had pipefitting problems. Barber testified that they often discussed work as well as the Union. Even assuming that Wertz observed such conversations, there is no evidence that he overheard them. Under these circumstances, we decline to infer that the Respondent knew that Oliver supported the un- ion, merely because he often spoke with employees who did. The General Counsel also argues that the Respondent’s knowledge of Oliver’s union affiliation at the time of his layoff should be inferred from the Respondent’s assert- edly unlawful failure to recall him. However, the Re- spondent learned of Oliver’s union affiliation about a week after his layoff through a charge filed on his behalf by the Union. Thus, even assuming that the Respon- dent’s failure to recall him when it hired pipefitters sev- eral months later was motivated by the discovery of his union affiliation, such a conclusion has no bearing on whether the Respondent knew of Oliver’s union affilia- tion when it laid him off. In sum, there is no credited evidence that Oliver par- ticipated in any open union activity or otherwise openly expressed support for the union; the Respondent’s expla- nation for Oliver’s layoff is not clearly pretextual; and the only evidence of animus is the unlawful discharge of Baldwin 5 months before Oliver’s layoff. Therefore, we agree with the judge that the circumstantial evidence does not warrant an inference that the Respondent knew of Oliver’s union affiliation and that it was unlawfully motivated in laying him off. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Volair Contractors, Inc., Wilmington, Delaware, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(c). “(c) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful dis- charge of Melvin Baldwin, and within 3 days thereafter notify him in writing that this has been done and that the discharge will not be used against him in any way.” 2. Substitute the following for paragraph 2(d). “(d) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.” 3. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist any union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge or otherwise discriminate against any of you for supporting Plumbers and Pipefit- ters Local Union 74 or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer Melvin Baldwin full reinstatement to his former job or, if that job no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or any other rights or privileges enjoyed. WE WILL make Melvin Baldwin whole for any loss of earnings and other benefits suffered as a result of his discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Melvin Baldwin, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. VOLAIR CONTRACTORS, INC. Michael C. Duff, Esq., for the General Counsel. Francis A. Mastro, Esq. (Apruzzese, McDermott, Mastro & Murphy), of Liberty Corner, New Jersey, for the Respon- dent. Stephen J. Holroyd, Esq. (Sagot, Jennings & Sigmond), of Philadelphia, Pennsylvania, for the Charging Party. VOLAIR CONTRACTORS, INC. 679 DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Philadelphia, Pennsylvania, on May 24 and 25, 1999. The charge in Case 4–CA–27028 was filed April 9, 1998. The General Counsel issued a complaint in this matter on Au- gust 31, 1998. On September 3, 1998, the charge was filed in Case 4–CA–27432. The complaint was issued December 18, 1998. The two cases were consolidated on December 28, 1998. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Respondent and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, Volair Contractors, Inc., is a mechanical con- tractor, with its principal office and place of business in Wil- mington, Delaware, where it annually purchases and receives goods valued in excess of $50,000 directly from points outside of the State of Delaware. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act and that the Union, Plumbers and Pipefitters Local Union 74, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES These cases concern the General Counsel’s allegation that Volair terminated Melvin Baldwin on April 9, 1998, and laid- off of Louis Oliver on August 28, 1998, in retaliation for their union activities, thus violating Section 8(a)(1) and (3) of the Act. There are also a number of independent 8(a)(1) allega- tions related to this termination and layoff. A. Melvin Baldwin’s Employment with Volair Volair hired Melvin Baldwin, a pipefitter/welder, in Novem- ber 1997. He was initially hired to be the foreman of a crew that was installing new boilers as the part of the renovation of the Wanamaker building in Wilmington, Delaware. Baldwin’s salary was $20 per hour. At the Wanamaker project, Baldwin reported to Joseph Tigue, Volair’s outside superintendent.1 Tigue was responsible for projects other than the Wanamaker project and divided his time amongst these projects. When Tigue was not present at the Wanamaker site, Baldwin was in charge of the Volair em- ployees. Although Baldwin could recommend that his crew at Wanamaker work overtime, he was required to seek authoriza- tion for overtime hours from higher levels of management. Volair gave Baldwin a cellphone so that he could contact Tigue and others from the Wanamaker jobsite. Baldwin also ordered supplies for the job. When the Wanamaker project started there were only three other employees working with Baldwin. When Baldwin asked 1 Larry Shub, another Volair management official, also worked at Wanamaker. With regard to personnel issues, Baldwin reported to Tigue. Tigue for additional help, Tigue asked him if he knew anybody who could do Volair’s work on the jobsite. Baldwin recom- mended Bryan Roe, Steve Tennet, and Adam Gurin, all of whom were interviewed by telephone, and then hired by Tigue. At one point in the project Baldwin complained to Tigue about the work of other employees. Tigue responded by telling Baldwin, “If you don’t like them, get rid of them.” Baldwin did not fire or discipline any employees. Respondent claims that it was very unhappy with Baldwin’s performance in running his crew at Wanamaker. Joseph Tigue alleges that three boiler rooms were scheduled to be completed in 3 weeks, but took 6–9 weeks instead. Tigue alleges that he spoke with Baldwin twice about the pace at which Baldwin’s crew was progressing at Wanamaker. The first occasion was during the first week or week and a half that Baldwin was at the site. Baldwin asked for more help and Tigue obtained it. A week or so later, the same thing occurred. There is no docu- mentation for Volair’s contention that it was dissatisfied with Baldwin’s job performance. Upon completion of the boilers at Wanamaker, which oc- curred sometime in late December or early January 1998, Baldwin was assigned to work in Volair’s fabrication shop, preparing piping for an upcoming job at the Laird campus of the University of Delaware. During the several weeks that Baldwin worked in the fabrication shop he reported to Charles Wertz, one of Volair’s project superintendents. He worked with two Volair welders and on January 21, 1998, signed a form, on behalf of Volair, certifying that welder John Cabral had per- formed certain welds satisfactorily. Although Tigue’s testimony intimates there were problems with Baldwin’s job performance while working at the shop, I decline to credit this testimony because it is contradictory, un- supported by any documentation or the testimony of Wertz. Tigue testified that at some point he told Wertz that Baldwin “seemed to be a good guy in what he was doing, but he really brought the Wanamaker job in way over on me.”2 It is not clear whether this conversation occurred at the time of Bald- win’s transfer to the shop or when he went onto the Laird job- site. Wertz, on the other hand, testified that he first became con- cerned with Baldwin’s performance towards the end of Febru- ary, weeks after Baldwin had left the fabrication shop and started work on the Laird jobsite.3 Wertz testified further that prior to that time Baldwin’s performance “seemed like it was all right.” Finally, Wertz testified that he recommended that Tigue fire Baldwin because the crew was not completing its work fast enough. Wertz did not cite any shortcomings in Baldwin’s work as a pipefitter. 2 Tigue also testified that “Mel Baldwin, as a man, he’s very good at what he does. He knows his trade inside and out. But, on the Laird job, we kept falling further behind and further behind. . . .” Tigue later said he was talking about the Wanamaker job, rather than Laird. 3 Wertz testified that he discussed his concern that not enough work was being completed, with Baldwin on one occasion. Even this is not documented. I credit Baldwin’s testimony that prior to the day of his discharge, April 7, 1998, he had not received any criticism of his job performance. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 680 At the beginning of February, Volair started working at the Laird campus. The first phase of its contract involved the in- stallation of piping in two cooling towers. At Laird, Baldwin no longer reported directly to Tigue, but worked for Wertz, who was on site at least 80 percent of the time. At this point Respondent had only one crew on the site consisting of Bald- win, a welder, a helper and a crane operator, who also per- formed some of the welding. In mid-March 1998, Baldwin called Theodore Pankowski, an organizer for Plumbers and Pipefitters Local 74. He signed a union authorization card on March 17. At about this time Baldwin and Volair employee Steve Tennet wore union T- shirts to work. Wertz asked them why they were wearing the shirts and Baldwin asked Wertz if he had anything against un- ions. Wertz responded that Baldwin didn’t want to know his feelings but that he could tell him stories about his association with the union on a job in Maryland.4 Baldwin and Tennet wore union T-shirts to the Laird site on one other occasion.5 On a third occasion, Wertz commented to Baldwin and Tennet, “[W]hat no Union T-shirt today?” By March 20, the installation of the piping in the cooling towers at Laird had been completed, albeit 3 weeks behind schedule. Volair then moved into other areas to install piping. By this time Respondent had several work crews on the site. There was no foreman designated for any of the crews. Bald- win was at times consulted as to how the work force was bro- ken up for a day’s tasks and attended one or more supervisor’s meetings. However, Baldwin spent most of his time at the Laird project working with tools and performing the other tasks of a rank-and-file pipefitter. On April 6, Baldwin took a Local 74 welding test and be- came a member of the Union. The next day Tigue appeared at the Laird jobsite and fired him. Tigue told Baldwin he was being fired for not pushing his crew hard enough. At the time of Baldwin’s discharge, Volair was in the process of hiring a number of employees, including pipefitters to work on the Laird project. Tigue gave no consideration to retaining Bald- win as a rank and file pipefitter. On at least two other occa- sions he had done so with other foremen or leadmen, whose ability to “run a crew” he had deemed to be deficient.6 4 I credit Baldwin’s account of this conversation over that of Wertz, although I deem the differences in their accounts to be fairly insignifi- cant in determining any issues in this matter. Wertz testified that all he said was, “nice shirt” and then asked Baldwin and Tennet if they co- ordinated their clothing. 5 Tennet, a Union member, worked on the Laird project until its completion in September 1998. There is no evidence of any retaliation by Volair against him or Len Barber, a union member who was hired in April and also left voluntarily in September. The day he was hired, Barber informed Charles Wertz that he would not cross the picket line that the Union had established to protest Baldwin’s discharge. Barber told Wertz that he was a union member. 6 One of these employees, Brian Roe, received a raise when en- trusted with “running a crew,” which was not taken away when this responsibility was taken away from him. From this I conclude that the fact that Baldwin’s salary remained the same throughout his employ- ment at Volair does not necessarily indicate that he was a supervisor throughout his employment. Volair did not designate any employee as a foreman for any of the crews at Laird after Baldwin’s discharge. All the crews on the site were supervised directly by Charles Wertz. B. Analysis with Regard to Baldwin’s Case. Was Baldwin a “Supervisor” When he was Fired? As an affirmative defense to the allegation that it violated Section 8(a)(1) and (3) in terminating Melvin Baldwin, Re- spondent contends that he was a supervisor within the meaning of Section 2(11) of the Act. I agree with Volair that Baldwin was a supervisor on the Wanamaker project. However, the issue herein is whether Baldwin was a supervisor at the time of his discharge, We Can, Inc., 315 NLRB 170, 173 (1994). I conclude that Respondent has not met its burden of proving that he was a supervisor after he left the Wanamaker site. Pursuant to Section 2(3) of the Act, “supervisors” are not employees. Section 2(11) of the Act, defines “supervisor” as “any individual having authority, in the interest of the em- ployer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or re- sponsibly to direct them, or to adjust their grievances, or effec- tively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely rou- tine or clerical nature, but requires the use of independent judg- ment.” A party seeking to exclude an individual from the category of an “employee” has the burden of establishing supervisory authority. The exercise of independent judgment with respect to any one of the factors set forth in Section 2(11) establishes that an individual is a supervisor. However, not all decision- making constitutes the independent judgment necessary to es- tablish that an individual is a statutory supervisor. Similarly, the fact that an individual gives direction to other employees without first checking with a higher authority, does not neces- sarily make one a supervisor. For example, an individual does not necessarily become a supervisor in situations in which his authority to direct employees emanates solely from his skill or experience, Southern Bleachery & Print Works, Inc., 115 NLRB 787, 791 (1956), enfd. 257 F.2d 235, 239 (4th Cir. 1958). If an employee has not been specifically notified that he or she has supervisory authority, the exercise of supervisory au- thority on an irregular and sporadic basis is not sufficient to establish supervisory status, Browne of Houston, 280 NLRB 1222, 1225 (1986), and Greenspan, D.D.S., P.C, 318 NLRB 70, 76 (1995). However, when a person has been so notified, it is irrelevant whether or not this supervisory authority has been exercised, NLRB v. Southern Seating Co., 468 F.2d 1345 (4th Cir. 1974); Greenspan, DDS P.C., supra. In the instant case Joseph Tigue told Baldwin that he had au- thority to fire employees on the Wanamaker jobsite. This es- tablishes Baldwin’s supervisory status on that project. Had their been no change in Baldwin’s status after the completion of the Wanamaker project, I would conclude that he remained a supervisor. However, his status changed dramatically, by vir- tue of his subordination to Charles Wertz. In light of this change, I find that it is incumbent on Volair to prove that he continued to be a supervisor. It has not done so. VOLAIR CONTRACTORS, INC. 681 After the Wanamaker project was completed, Baldwin was informed that he no longer reported directly to Joseph Tigue, but instead reported to Charles Wertz, who was a level below Tigue in Volair’s management hierarchy. In the absence of evidence to the contrary, it is reasonable to assume that his authority was not the same as it was on the Wanamaker site. I conclude there was no specific delegation of any supervisory authority to Baldwin after he left Wanamaker. There is no evidence that he exercised “independent judgment” necessary to make him a supervisor after he left Wanamaker. Even if he did so, there is insufficient evidence that he exercised such judgment on other than an irregular or sporadic basis.7 The fact that none of the other Volair crews on the Laird pro- ject had a supervisor other than Wertz is an indication that Baldwin was not a supervisor. The fact that Wertz ran the crew without another supervisor after Baldwin’s discharge also is an indication that Baldwin was not a supervisor at Laird. C. Respondent violated Section 8(a)(1) and (3) in Terminating the Employment of Melvin Baldwin on April 7, 1998 In order to prove a violation of Section 8(a)(3) and (1), the General Counsel must show that union activity has been a sub- stantial factor in the employer’s adverse personnel decision. To establish discriminatory motivation, the General Counsel must show protected activity, employer knowledge of that activity, animus or hostility towards that activity and an adverse person- nel action caused by such animus or hostility. Inferences of knowledge, animus and discriminatory motivation may be drawn from circumstantial evidence rather than direct evi- dence.8 Once the General Counsel had met his burden, the burden of persuasion shifts to the employer to prove its affirma- tive defense that it would have taken the same action even if the employee had not engaged in protected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (lst Cir. 1981). In the instant case, there is direct evidence of Baldwin’s un- ion activity and Respondent’s knowledge of that activity.9 I infer that Baldwin’s discharge was motivated by antiunion animus due to the pretextual nature of the reasons it offers for his termination, the 3-month delay between his alleged poor performance on the Wanamaker job and his discharge and, assuming he had any supervisory responsibility, Volair’s dispa- rate treatment of Baldwin in not offering him the opportunity to continue his employment as a pipefitter, without such duties, Montgomery Ward & Co., 316 NLRB 1248, 1253 (1995), enfd. 97 F.3d 1448 (4th Cir. 1996), Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966). 7 Baldwin’s administration of a welding test to Cabral does not es- tablish or even indicate supervisory status, Hogan Mfg. Co., 305 NLRB 806, 807 (1991); F. A. Bartlett Tree Expert Co., 325 NLRB 243, fn. 1 (1997). Similarly, neither Baldwin’s attendance at one or more super- visor’s meetings, nor the fact that he was consulted by Wertz regarding the staffing of Volair’s crews makes him a supervisor, SDI Operating Partners, L.P., 321 NLRB 111 (1996). 8 Flowers Baking Co., Inc., 240 NLRB 870, 871 (1979); Washington Nursing Home, Inc., 321 NLRB 366, 375 (1966); W. F. Bolin Co. v. NLRB, 70 F.3d 863 (6th Cir. 1995). 9 I do not believe Joseph Tigue’s testimony that he was unaware of Baldwin’s union activity or sympathy when he fired him. In drawing this inference I am mindful of the fact that two union members, Steve Tennet and Len Barber worked on the Laird project from the spring of 1998 until they left voluntarily at or near its completion in September 1998. There is no evi- dence of any unfair labor practices against either employee or any persuasive evidence of expressions of antiunion animus towards them. However, I think this factor, which cuts against a finding of discrimination, is outweighed by the factors dis- cussed in the preceding paragraph.10 D. Louis Oliver’s Case Louis Oliver was hired as a pipefitter by Volair in June 1998. He was assigned to the Laird project where he worked with a welder and a helper. He alleges that at the outset of his em- ployment, Charles Wertz told him to stay away from Steve Tennet and Lenny Barber because they “were trouble” and did more talking than work.11 Wertz denies making this remark and I credit Wertz’s testimony over that of Oliver on this issue. There is no evidence that Tennet or Barber (who testified at the hearing) were ever threatened with discipline by Volair. Both men, who made their union sympathies known to Wertz, left the job voluntarily when it was near or at completion.12 On or about July 23, Oliver asked Wertz for a $2 per hour raise, from $16 per hour to $18. Wertz discussed this request with Tigue, who granted Oliver a $1 per hour raise, even though he was not due for any salary increase. A week later Volair raised Oliver’s salary to $18 per hour. Oliver alleges that Wertz initiated the discussion about a raise by asking him what it would take to keep him from going Union. I credit Wertz’ testimony denying this assertion. There is no evidence indicating that Wertz had any reason to believe that Oliver was considering joining the Union. Moreover, as it does not neces- sarily follow that Oliver would leave the job if he joined the Union, I credit Tigue’s testimony that the raises were granted to simply to keep Oliver as an employee. Oliver also testified that when discussing a raise with him, Wertz said that he wanted Oliver to run the Laird job because he was going to get rid of the union guys. One reason I credit Wertz’ denial that this conversation occurred is that there is no 10 Par. 5 of the complaint in Case 4–CA–27028 alleges that in or about mid-March 1998, Charles Wertz interrogated an employee con- cerning the employee’s union membership, activities and sympathies at the Laird project. From the formal papers, I infer that the allegation pertains to Baldwin. This allegation is not addressed in the General Counsel or Charging Party’s brief and I assume it has been abandoned. In any event I see nothing in the record regarding an interrogation of Baldwin by Wertz that would lead me to conclude that he restrained, coerced or interfered with Baldwin’s Sec. 7 rights. I will therefore dismiss this paragraph of the complaint. 11 On cross-examination, Oliver said that Wertz mentioned to him that Tennet and Barber were union members. He did not say that on direct examination. 12 In crediting Wertz’ testimony over Oliver’s, I have taken into con- sideration the fact that Len Barber, a union member, observed Wertz and Oliver argue a number of times and never heard them discuss or mention the Union. Barber’s testimony at transcript p. 87, LL. 23–24 should read, “He [Oliver] did have a lot of conflict with a foreman named Charles Wertz,” rather than “He did not have a lot of conflict . . . .” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 682 indication that Volair made any attempt to get rid of Tennet and Barber. Louis Oliver contacted the Union in August and signed an application for membership on August 13. He testified that on August 10, Wertz said to him that I’ve heard you’re going Un- ion. Wertz denied any knowledge of Oliver’s union sympathies prior to laying him off on August 28. I credit his denial as there is no evidence indicating how Wertz would have been aware of Oliver’s interest in the Union. The General Counsel also alleges that Wertz, on one occa- sion, said to Oliver that he should have run over a union picket who lay down in front of his car (apparently during the 2-day picketing in April that followed Baldwin’s discharge). Further, the General Counsel alleges that near the end of his employ- ment, Wertz told Oliver that he was going to be a loser, like other union members, on the unemployment line. Once more, I credit Wertz’s denial of these allegations because there is insuf- ficient direct or inferential evidence to conclude that Wertz knew that Oliver was a union supporter. On August 23, Volair ran a newspaper advertisement for plumbers and pipefitters. Five days later, Charles Wertz laid Oliver off. He gave Oliver no explanation for the layoff. Oliver was the least senior pipefitter on the Laird project and he was not replaced.13 With the service of the instant unfair labor practice charge on September 3, Volair was notified of Oliver’s union sympathies. Shortly thereafter, Joseph Tigue ap- proached John Cabral, a welder with whom Oliver had on one occasion argued. Tigue asked Cabral to sign a statement that Oliver was a troublemaker. Cabral replied that he was busy and never signed the document. The first phase of the Laird job was completed on September 19. At this time several other employees at Laird either left Volair’s employment or were transferred to other jobs. In No- vember, Volair hired pipefitters to work on the second phase of the project.14 Oliver was not recalled by Volair and did not reapply for employment. E. Analysis of Oliver’s Case Paragraphs 5 and 7 of the complaint in Case 4–CA–27432 allege six independent 8(a)(1) violations. I dismiss these por- tions of the complaint pursuant to my crediting Charles Wertz’ denials over the testimony of Louis Oliver, which underlies these allegations. Paragraph 6 of the complaint alleges that the August 28 lay- off violated Section 8(a)(1) and (3). I dismiss this allegation since I conclude that the General Counsel has not established that Respondent knew of Louis Oliver’s union activities. Moreover, there is nothing in the record that persuades me that Volair did not decide to lay off Oliver, its most junior pipefitter, because the first phase of the Laird project was winding down. Volair’s failure to recall Oliver in November, strongly suggests discrimination, particularly since Respondent in the past has taken the initiative in recalling former employees. However, the complaint does not allege that Volair violated the Act in 13 Volair does not have a formal seniority system. 14 This appears to be the first hiring done by Volair after laying off Oliver. failing to recall Oliver. It only alleges a violation with regard to his layoff. 15 F. The Allegations Regarding Joseph Tigue’s Request that John Cabral Sign a Document Stating that Louis Oliver was a Troublemaker The complaint, at paragraph 6, alleges that in mid-September 1998, Joseph Tigue, requested an employee to sign a document stating that another employee who supported the Union was a troublemaker. The Board in Johnnie’s Poultry, 146 NLRB 770 (1964), es- tablished safeguards designed to minimize the coercive impact of an investigatory interview by an employer, while allowing the employer to investigate facts concerning issues raised in a complaint or unfair labor practice charge. It stated that the employer: Must communicate to the employee the purpose of the ques- tioning, assure him that no reprisals will take place, and ob- tain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to un- ion organization and must not be itself coercive in nature, and the questions must not exceed the necessities of the le- gitimate purpose by prying into other union matters, elicit- ing information concerning an employee’s subjective state of mind, or otherwise interfering with the statutory rights of employees . . . . Volair clearly did not satisfy the requirements of Johnnie’s Poultry when asking John Cabral to sign a statement about Louis Oliver, whose layoff was the subject of an unfair labor practice charge filed against it a few days earlier. However, the record does not indicate that Tigue mentioned the Union or Oliver’s union sympathies to Cabral, or that Cabral was aware of Oliver’s union activities or the unfair labor practice charge filed on Oliver’s behalf. Given the lack of evidence in this regard, I conclude that the General Counsel has not established that Volair was interfering with, restraining, or coercing Cabral with regard to rights afforded him in Section 7 of the Act. I therefore dismiss paragraph 6 of the complaint. CONCLUSIONS OF LAW 1. Respondent violated Section 8(a)(1) and (3) in discharg- ing Melvin Baldwin on April 7, 1998. 2. Respondent did not violate the Act as otherwise alleged in the complaints. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and 15 Respondent offered some shifting explanations for the Oliver lay- off. In addition to relying of his lack of seniority, it contended that other reasons for the layoff were his safety record and his inability to get along with others. There is no documentation to support these contentions and I reject them. While these contentions make Respon- dent’s claim of nondiscrimination less convincing, Blue Note, 288 NLRB 16, 18 (1988), I do not find the pretextual nature of these expla- nations sufficiently strong to infer knowledge, animus and discrimina- tory discharge, as I did with respect to Baldwin. VOLAIR CONTRACTORS, INC. 683 desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily discharged Melvin Baldwin it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quar- terly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended16 ORDER The Respondent, Volair Contractors, Inc., Wilmington, Delaware, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any em- ployee for supporting Plumbers and Pipefitters Local Union 74, or any other union. (b) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Melvin Baldwin full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed. (b) Make Melvin Baldwin whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the deci- sion. 16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge and notify Melvin Baldwin in writing that this has been done and that the discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Or- der. (e) Within 14 days after service by the Region, post at its fa- cility in Wilmington, Delaware, copies of the attached notice marked “Appendix.”17 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since April 7, 1998. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. (g) IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 17 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading “Posted By Order of the National Labor Relations Board” shall read “Posted Pursuant To a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.”