Redding Industrial Electric

REDDING INDUSTRIAL ELECTRIC C. D. Draucker d/b/a Redding Industrial Electric and Jack Marsh. Case 20-CA-17650 31 May 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 27 September 1984 Administrative` Law Judge Harold A. Kennedy issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The -General Counsel filed an an- swering brief. 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,' and conclusions only to. the extent consistent herewith and to adopt the recommended Order2 as modified: About 11 January 1983 the Respondent, 'an elec- trical contractor, rejected a hiring hall referral for the reemployment-of Charging Party Jack Marsh which had been made pursuant to the Respondent's collective-bargaining agreement. with International Brotherhood of Electrical Workers, Local No. 442. The complaint alleges, and the judge found, that this refusal, to reemploy . Marsh' was in violation of Section 8(a)(1), (3), and (4) of the Act. The Re- spondent has excepted to -these findings.' For the reasons stated below,, we ;adopt the judge's decision that this refusal to hire was a violation of Section 8(a)(1) and (3). As the judge found, prior to his 11 January 1983 rejection, Jack Marsh had been employed only, once by the Respondent, from '16 April 1975, until his layoff on 23 May 1975, and that employment was at the Mt. Shasta Mall project on which the Respondent was a subcontractor. As a result of a number of problems on that job, the Union had ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all 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 examined the record and find no basis for reversing the findings We note that there are two errors in dates -in the judge's decision, and we correct them In stipulation number 2 the effective date for Jack Marsh's appointment as steward was 16 May 1975, not I I May In stipu- lation number 7 the Respondent advised the IBEW that it was rescinding its 3 February 1976 letter on 15 June 1976, not 15 June 1983 The Respondent excepts to the judge's finding that the General Coun- sel was not required to show union animus on the part of the Respond- ent We conclude that there was no showing needed of independent animus because the facts reveal that the Respondent 's discrimination itself was based on Charging Party Marsh's activities as union steward on the Mt Shasta project 2 We note the judge did not provide for a broad cease-and-desist order although he did provide for such language in the notice In light of the Respondent's repetitive unfair labor practices, we conclude that a broad cease-and-desist order is warranted under the standard of Hickman Foods, 242 NLRB 1357 (1979) 615 agreed to ' appoint Marsh as job steward. As union steward, Marsh complained to his foreman and the project superintendent about drinking water prob- lems, extreme dust caused by procedures utilized by a concrete subcontractor, and other sanitary and health concerns. When he 'received no relief he re- ported - the problems to California OSHA. After once calling in OSHA' he threatened to do so again in a conversation with the general contractor's su- perintendent over continued drinking water prob- lems. Marsh' testified • _without 'contradiction that, when he was told he was being laid off from the project, Ed Bertram, the Respondent's superintend- ent at the time, told him that the reason for his layoff was because he was causing the general con- tractor a lot of problems by calling OSHA, and the general contractor was putting pressure on Red- ding to get rid of him. Marsh filed a grievance that alleged violations of 'the layoff notice provisions as they relate to shop stewards under the contract. An _ arbitrator'' ultimately denied the grievance. There is no support in the record for the Respond- ent's claim that any elements of an 8(a)(3) violation were. ever raised or decided` in that proceeding. Against the background of Marsh's steward ac- tivities at the Mt. Shasta Mall arid' the arbitration over his layoff, the Respondent, by letter dated 3 February 1976, notified the Union that Marsh, among others, was not eligible - for- reemployment. As a result Marsh filed an 8(a)(1) and (3) charge. A complaint wa`s issued, ' and at the hearing • "on 15 June ' 1976 the Respondent amended its answer to admit all allegations.' The resulting Order was en- forced by'the Ninth' Circuit , on 2'8 - February 1977. As part'' of the Order the Respondent posted' a notice and made Jack Marsh whole. In addition, by letter dated 15 June 1976, the Respondent advised the Union that the Respondent was rescinding its 3 February 1976 letter as it pertained to Marsh and further stated, "We will no longer exercise our contractual rights to reject Jack Marsh as an appli- cant for employment if and when he is referred to any of our jobs." The first and only occasion on which Marsh was referred to the Respondent for 'employment subse- quent to the 15 June 1976 letter was on 11-January 1983 when the Union' referred Marsh to the Re- spondent's' Simpson Paper Company project. Al- though the Respondent's manager Robert Bray had not rejected any referral' in his 4 to 5 years of em- ployment with the Respondent and Marsh's me- chanical abilities were not in question, and despite the 15 June 1976 letter, Bray rejected Marsh, citing the Respondent's right to do so under the contract. 'At the instant hearing, Bray testified that he had no knowledge of Marsh's prior employment at 275 NLRB No. 87 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Redding or his prior charge because Bray was not employed by the Respondent at that time. Howev- er, he did remember Marsh's name from 18 years before when he was an estimator and Marsh was an apprentice - at Trowbridge Electric. Based on very brief and minor contact with Marsh at Trow- bridge, he testified, that Marsh "was abusive and abrasive toward fellow workers, towards some other people, and rather abusive to the ladies in the office." He also claimed Marsh had caused delay in the work. However, as noted by the judge, not only was Bray unable to supply any examples, de- tails, or specifics to substantiate any of his state- ments, but his opinion was also incidental to Marsh's rejection. As Bray testified, when he heard that Marsh was one of the two referrals, he made a 30-minute- drive out to the Simpson site to ask the opinion, in person, of Roger Lewis, the general foreman at the project. According to Bray, he made this trip not knowing. if Lewis even? knew Marsh but assuming that Lewis "had probably worked with him [Marsh] or been around him or knew him closer than what I did." Bray admitted that he would have hired Marsh if Lewis had given his approval regardless of any negative opin- ion that Bray might have had. Thus, as found by the judge, it was on-Lewis'3 effective recommenda- tion that Marsh was rejected. Lewis had been a foreman at the Mt. Shasta Mall project at the time Marsh was employed there, although Marsh was on his crew for only about 3 to 4 days. Lewis was aware that Marsh had been. appointed union steward and admitted that -the superintendent on the Mt. Shasta Mall project had approached -him and ' had told him that he wanted Marsh off the crew for causing prob- lems. While Lewis, could not remember what the problems were, the only problems that appear in the record are ,those that Marsh testified had oc- curred pursuant to, his steward duties. The Mt. Shasta Mall project was also the last time Lewis had worked with Marsh. - - Lewis testified he told Bray that, based on his past experience with Marsh, he did not want Marsh on the job, but he did not explain what 'constituted a In fn 2 of his decision the judge states that the record is persuasive that Robert Lewis is a supervisor and agent. We note that Lewis' first name is Roger, not Robert We note also that the record evidence shows that Lewis as general foreman at the Simpson project had two foremen under him He was paid'20 percent more than journeymen He had the authority to determine when additional employees were needed and to call the union hiring hall'directly to request them He assigned and super- vised all electrical work on the project and had the authority to fire em- ployees or recommend their termination Lewis was the highest level of supervision at the project site He determined the need for overtime sub- ject to the client's approval and was responsible,-for the progress of the work on a day-to-day. basis We therefore conclude that Roger Lewis at all times material was a supervisor and agent of the Respondent within the meaning of Sec 2(11) of the Act - his negative past experience and did not mention that his last encounter with Marsh was at the Mt. Shasta Mall, one of the Respondent's own projects. According to his testimony, Bray never asked for any details. In a pretrial affidavit Lewis testified concerning Marsh: "[T]he last time I worked with Jack Marsh at Redding Industrial was about four or five years ago on -the Mt." Shasta Mall." "I thought he had good mechanical ability but was a rabble-rouser." "I remember that he created prob- lems with the other- contractors and the builder which required a lot of time to iron out." "I per- sonally don't have anything against Marsh, and would rather not have him on this job because of the tight time schedule." However, at the hearing, despite the above statement that he personally had nothing against Marsh, he testified that the main reason he did -not want Marsh on the job was be- cause of the way Marsh had spoken to him on one occasion at the Mt. Shasta Mall.4. Lewis said, "I did not trust him after that, and I don't -trust him now." In addition, while he claimed this • was the main reason for rejecting Marsh the reason did not appear in his.pretrial affidavit, -and he testified he did not tell Bray the reason. Thus, Lewis' effective recommendation as found by the judge was based on Marsh's protected union activity at the Mt. Shasta Mall project. The Respondent admitted that it had discriminated against Marsh by refusing to hire him in 1976 because of his activities at the Mt. Shasta Mall. Neither Bray nor Lewis nor anyone else at the Respondent had any work experience or could point to any incident subsequent to the. Mt: , Shasta Mall project which could have formed -a basis for negating its promise not to reject a refer- ral of Marsh again.5 We therefore agree that the record supports the judge's finding that - the Re- spondent refused to rehire Marsh on 11 January 1983 in violation of Section 8(a)(1) and (3).6 ORDER The National' Labor Relations Board adopts the recommended Order of - the administrative -law -- Lewis testified that, while he could not recall what precipitated the incident, Marsh had -puffed up-his chest, stuck .his.nose in Lewis' face, and said, "I will do this the way I want to do it or , we can step out in' the parking lot and settle it some other way "-Lewis walked away; and that was the end of the incident -He never reported -Marsh or did anything about the incident -The judge credited Marsh's . testimony- that the inci- dent never occurred - While Lewis testified that a number of the men had told ' him`that" they ,did. not want to work with Marsh based on their past experience with him, there is nothing in the record to support this hearsay and the judge discredited this as a reason foi' Marsh's rejection Moreover,-Lewis could supply no specifics on what would have constituted their past ex- perience or how it would have impacted on Marsh's performance. Accordingly , we find it unnecessary to pass on the judge's finding that-the 'Respondent's refusal to rehire Marsh violated Sec 8 (a)(4) of the Act. - - REDDING INDUSTRIAL ELECTRIC judge as modified below and orders that the Re- spondent, C. D. Draucker d/b/a Redding Industri- al Electric, Redding, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 1(a) and (b). "(a) Discouraging membership in International Brotherhood of Electrical Workers, Local No. ,442, or in any other labor organization, by refusing to rehire employees, or in any other manner discrimi- nating in regard to hire or tenure of employment or any term or condition of employment. "(b) In any other manner interfering with, re- straining, or coercing employees in the exercise of their rights to self-organization, to form, join, or assist a labor organization, including the above- named organization, to bargain collectively through representatives of their own choosing, to, engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec-• tion, or to refrain from any or all such activities." 2. Substitute the attached notice for that of the administrative 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 violated ^ the National Labor' Relations Act and has ordered us to post and • abide by this notice. Section 7 of the Act gives employees these rights. ,,To organize - To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose. not 'to engage in any of these, protected concerted activities. WE. WILL NOT discourage membership: in- Inter- national Brotherhood of Electrical Workers, Local - No.. 442, of in any other labor, organization, by re-. fusing to rehire employees, or in any -other manner discriminating ' in regard to • hire ' or tenure Hof em- ployment or, any, term or condition of employment. WE WILL NOT in any other manner interfere; with, res'train,'or coerce employees in "the" exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives, of their ; own choosing,, to engage in concerted activities for the purpose of 617 collective bargaining or other mutual aid or protec- tion or to refrain from any or all such activities. - WE WILL offer Jack Marsh immediate and 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 and privileges, and make him whole for. any loss of pay suffered as a result of the discrimination against him, with interest. C. D. DRAUCKER D/B/A- REDDING' INDUSTRIAL ELECTRIC - DECISION STATEMENT OF THE CASE HAROLD A. KENNEDY, Administrative Law Judge. Respondent C. D. Draucker d/b/a Redding Industrial Electric is charged in this proceeding with unlawfully re- fusing to rehire Charging Party Jack L. Marsh about January 12,1983. Such refusal is alleged to have violated Section 8(a)(1) and (3) of-the National Labor Relations Act (Act) because: Marsh joined, supported, or assisted the Union, and - • engaged in concerted activities,for the purpose of collective bargaining or other mutual aid or protec- tion, and in order to discourage employees from en- gaging in such activities or other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection. The refusal to rehire is also alleged to have violated Sec- tion 8(a)(1) and (4) of the Act "because [Marsh] filed unfair labor -practices charges with the Board and gave testimony in Case No. 20-CA-11170." Charging Party Marsh filed a charge against Respond- ent on January 18, 1983, and an amended charge on No- vember 10, 1983.- Thereafter, a complaint issued on No- vember 16. 1983, and the case was heard by me on March 27, 1984, in Redding, California. Many of the allegations were admitted by Respondent either in its answer or by its counsel at the trial, includ- ing the following: 1. Service was made on Respondent of the initial and amended charges on January 18, 1983, and November 10, 1983, respectively, as alleged. 2. Respondent ,was incorporated in the State of Cali- fornia and operates an electrical contracting and motor rewinding business from an office and place of business in Redding, California.' 3. At times material, Respondent was an employer en- gaged in commerce within the meaning of Section 2(2), (6); and (7) of the Act. During the calendar year preced- ing issuance of the complaint Respondent performed services valued in excess of $50,000 directly for custom- ers within the State of California, each of whom met the i It was stipulated at the hearing that Respondent "is engaged pnman- ly in the business of providing electrical contracting services, rather than in the retail business of motor rewinding " 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's applicable standards for the assertion of jurisdic- - against by the Employer for making a complaint or tion on a direct basis . - giving evidence with respect to an alleged -violation 4. - At times material, International Brotherhood of of any provision of this agreement. . Electrical Workers, Local No. 442 (IBEW or the Union) was a labor organization within the meaning of Section 2(5) of the Act. 5. At all times material, Robert A. Bray was a supervi- sor as defined in the Act.2 The parties stipulated to the following matters. - 1. Respondent employed Jack L: Marsh at the Red- ding Mt. Shasta construction project from April 16 through May 23, 1975. 2. Admitted into evidence as Joint Exhibit 1 was a letter dated May 14, 1975, from IBEW Business Agent Walter Hurlburt to Respondent advising appointment of Jack Marsh as shop- steward at the Mt. Shasta Mall job- site'effective May 11, 1975. - 3. Charging Party Marsh filed a grievance protesting his May 23, 1975 layoff, but the layoff was upheld by a decision of the Council of Industrial Relations for the Electrical Contracting Industry dated August 11, 1975, as indicated in Joint Exhibit 2. % 4. Respondent -is a party to a collective-bargaining agreement which contains the following provisions: Article 2, Section 9: The Union may-appoint a steward at any shop or on any job where workmen are employed, under the terms and conditions of this agreement. The em- ployer shall be notified in writing of the appoint- ment, and the identity of the steward appointed by the-Union. - - Artic1e'2, Section 10: - - , • The steward is not- authorized to cause' or con- sent; in any manner, to any work stoppage or work slowdown on any-job or in`any shop: The-steward shall be a ' working -Journeyman Wireman, appointed by the:Union, who shall; in addition to his work as a Journeyman Wireman, be permitted to perform during working hours such of -his Union duties as cannot be performed during other times. The Union agrees that such duties shall be performed as expe- ditiously as possible, and the employers agree that the steward shall be allowed a•reasonable amount of time for, the performance-of such duties. All dis- putes shall be handled in accordance with the. griev- ance procedures outlined in this Agreement: Article 2; Section-11: Two (2) days notice shall.be •gl_ven to the Union ,before, a; steward, is,discharged, except for the fol- lowing reasons: No. l,,because the job-is completed and No,,2, °because the-job is ;shut down; 3 for. cause ;,,,(in -writing). No steward shall bet discriminated 2 Respondent ' had denied that Robert Lewis, Respondent's job fore- man, was a supervisor or, agent during times material herein , but the record is persuasive that he and Bray were both supervisors and agents of Respondent as those terms are used in the Act.. Respondent's brief does not dispute Lewis' supervisory and agency status Article 2, Section 12: - The Union may institute a grievance procedure under the terms of this agreement if it feels an em- ployee has been unjustly discharged.3 - 5. Respondent advised the Union under date of Febru- ary 3, 1976, that Charging Paity Marsh, along with four other persons, was "not eligible for rehire " due to "past experience" as indicated in the letter- received as Joint Exhibit 3. - - 6. Copies of papers in Case 20-CA-11170, consisting of the Charging Party's charge filed on March 10, 1976; the administrative law-judge's decision of June 22, 1976; Board's final Order dated July 27, 1976; and the judg- ment of Circuit Court of Appeals for the Ninth Circuit dated February 28, 1977, enforcing the Board's Order (Jt. Exhs. 4-5, 6, and 7, respectively). 7. Respondent advised IBEW under date of June 15, 1983, that its February 3, 1976 letter (Jt., Exh. 8) as it pertained to Charging Party Marsh was being rescinded and that the Company would "no longer exercise our contractual rights to reject Jack Marsh as an applicant for employment if and when he is referred to any of our jobs." - • 8. Respondent posted the. official notice prescribed by the Board in Case' 20-CA-11170 at the location of gener- al employees' notices for 60 days commencing on Sep- tember 10, 1976. 9. Respondent made whole Charging Party Marsh about April 28, 1977, as required by the Order issued in Case 20-CA-11170. 10. Charging _ Party Marsh has not been employed by Respondent since May 23, 1975.. - = Four witnesses testified-Robert "Rob" Bray,, , Re- spondent's manager; Roger Lewis, former general fore- man for Respondent at its Simpson Paper Company job- site; Walter Hurlburt, business manager of the Union's Local 442; and Charging Party Jack Marsh . Bray and Lewis were initially called by the General Counsel and later appeared as witnesses for Respondent. A summary of the testimony-of each witness follows. Jack Marsh, the Charging Party, testified that he has been an electrician since September, 25, 1961, and a jour- neyman since.September 25, 1965. He-became a member of,the Union in 1962.'-,Marsh last worked for Respond- ent on, May 23, 1975. At that time he-was,working on a job known as the Mt. Shasta Mall project., E. W. Hahn Company was the general contractor on the job , and Re- spondent was.one of the firm's, subcontractors. Marsh had worked, ,predominantly on the Pay'n,Save"- section The 1980-1983 Inside Agreement between Local 442 and Northeast- ern California Chapter, National Electrical Contractors Association, Inc. is in evidence as G C Exh 2 Respondent's counsel acknowledged that Respondent is a member of NECA and has been a "signatory to that con- tract from its inception " * The General Counsel called Marsh to testify after examining Re- spondent's officials and the Union's business'agent - REDDING INDUSTRIAL ELECTRIC of the project under a foreman named Charles Russell, his brother-in-law, who in turn reported to Superintend-, ent Ed Bertram. Marsh was also assigned to work under Foreman Roger Lewis for 2 or so days on outside light-, ing of the Mt. Shasta job. Marsh said there were no complaints about his work on .the Mt. Shasta job. He denied ever threatening Lewis or inviting him outside to settle any differences (as Lewis had testified earlier). Marsh said he was the unanimous choice as a steward of his crew at the Mt. Shasta job. There were, he said, a lot of problems there, primarily of a health and safety nature. Union Official Hurlburt gave him a steward's button, a copy of the collective-bargaining contract, and a pamphlet which explained a steward's duties. . - Marsh said he talked to his foreman, Russell, and then to a Mr. Hahn, the superintendent on the job, on two oc- casions about drinking water, dust on the job, and a sani- tary problem. According to Marsh, - there were few water .jugs on the job, they were inconveniently located, and the water' was not changed in the jugs,' making it ,.not fit to drink." With temperatures reaching 11.5 to 120 degrees, the toilets were "unbearable" because they were not being regularly pumped out. There was "an extreme amount of dust in ' the air" because of the grinding of high spots on the floor preparatory to the laying of the tile. Nothing happened in spite of his complaints, so Marsh called Cal-OSHA. • Cal-OSHA referred him to the county health department with respect to the toilets but agreed to investigate the dust and drinking water. The dust stopped, Marsh said, but he was laid off. Ac- cording to -Marsh, Ed Bertram told him he was being laid off "because [he was] causing Hahn a lot of prob- lems by calling OSHA "5 Marsh said Bertram added more: [A]nd he says, "We are having a tough time collect- ing money from them that they owe us," and he says, "They are putting the pressure on us to get rid of you," and he says, "I don't have any choice." He says, "You know,' you have done me a real good 'job 'out here, especially on this air conditioning job," and he says, "I hope you realize the position we are in." Russell, Marsh's foreman, suggested that-Marsh give up his steward's assignment, and Bertram indicated that he would be agreeable to the suggestion. Marsh was not agreeable, however; Said Marsh: "I told them that I had been -appointed steward and that I would remain a stew- ard='until I was taken' off the job by' the business agent."- 'Following his layoff, ' Marsh filed a grievance that weiit' to' arbitration. After Respondent informed the Union, ori" February' 3,' 1976, 'that it would not 'hire Marsli', lie' filed charges' with the National Labor Rela- tions Board' (which- were upheld by the Board and the Circuit Court of Appeals for the Ninth Circuit based on . Respondent's admission answer). - Marsh recalled that a Hahn superintendent got "huffy" with him about his complaint about the water at one location The superintendent claimed,Marsh had no jurisdiction in the area and "went into a'rage" when Marsh threatened to call Cal-OSHA 619 Marsh was not referred again to work for Respondent until January 11, 1983, when he was dispatched to the Simpson Paper job, the dispatch that is in issue in this proceeding. From May 1975 until August 1978 Marsh was referred out to various contractors as an electrician. In August 1978 he moved to Wisconsin, and in January 1979 he moved to the State of Washington where he worked as an electrician. He returned to California and "signed up" (by telephone) on the "out-of-work" list in late 'May or June 1982. His family joined him in Califor- nia around August of that year. With respect to his dispatch to work for Respondent at the Simpson job, Marsh said he got a call on January 11, 1983, and was told he could start on the following day. He drove to the union hall in Redding, and learned that he had been turned down by Respondent. Marsh said he remembered Robert Bray, Respondent's manager, "vaguely" at Trowbridge Electric, a firm for which he worked some years earlier. Marsh said he worked for Lee Bray, an elder brother, but he only saw Robert Bray occasionally as the latter was an estimator and not' on the job with Marsh. Marsh explained on cross-examination that he drove (104 miles from his home) to Redding to pick up the re- ferral slip for the Simpson job and then learned from Union. Busiriess Manager Walter Hurlburt that he had been rejected by Respondent.: According to Marsh, Hurl- burt' indicated more sympathy for the Company's posi- tion than his. Said Marsh: I walked in, Walt looked, you know, nervous, dis- turbed, however you want to call it, and he says, "Jack," he -says, "they turned you down." Or he says "They rejected you." One of the two. Same thing. And I .just, you know-I was pretty frustrat- ed.,I says, "What?" He repeated it. He says-and he says, "They have the right to do it according to Ar- ticle 4" or Section something-or-other of the Agree- ment. And he handed me the referral slip that said rejected on it, and handed me the ,Agreement, and turned to the page that said it, and I says, "Why did they turn me down?" And he said, "Rob Bray said the computer kicked your name out, but Rob Bray said he didn't-didn't even remember you, you know, or know of you, or whatever." And I says, "Are you aware that-that there is a Federal Court Order saying that they-they can't discriminate against me?",, And I think he says either that he wasn't aware or' forgot about it, and I says, "Okay, if that's the way they want to play the game, I will stick them again." And-trying to think if there was any more conversation. There-there was a little more conversation. I don't know, small talk, or what. I walked out, and I can't-I was in such a -hurry to call the Labor Relations Board I can't even remember if I called from Redding or if I waited until I got back home again . I was pretty upset. I was being forced into a corner, and I had already-I went through too much unemployment already, and so, anyhow, I-I called the Labor Re- lations Board and told them what the problem was, .and. I-I felt that Redding Industrial at that time 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was in contempt of court because a Federal judge had told them to do certain things and they failed to do it.6 - Marsh also stated on cross-examination that he knew three Bray brothers-Lee, Chuck, and Rob-but was never supervised by any one of them. Lee had bought Trowbridge Electric and later changed its name to Bray Electric. Marsh agreed that he had talked with women in the office while employed at Trowbridge but he denied discussing sexual matters with them or hearing any complaints about his dealings with them. Marsh also denied ever -challenging Lewis about any work assign- ment. Marsh testified on cross-examination that in 4 days he would cease being a .member of the Union, to which Roger Lewis also belonged. He explained that after fail- ing !o-,get a job on the Simpson project through the Union he went to work for a nonunion contractor on a job that employed a union electrical concern. Marsh was seen on the job by one Doug Kenyon who told him that he would file charges against him. He was thereafter fined by the Union.-Said Marsh: _ I was fined $4,000. Immediately `thereafterward, I was taken -off of Book 1 and put on Book 2. And there was no way that' l could pay $4,000. I could barely put food on the table.- I appealed it to the International, I lost the appeal, and my dues were paid till-I tried to stretch it out as long as I could, I paid up my dues to the end of the year. And 90 days after your dues - are unpaid, they drop your card. That will- be March 31st or April 1st, -1984. Marsh said he filed a grievance against the Union after he was taken off book 1 and placed on book 2. He filed charges against Local 442 when taken off book 2. He said he had'also been involved in a proceeding in the -State of Washington involving the Union and a contrac- tor. According to Marsh, the trial judge had found against the Union and the contractor. Said Marsh: They -found the ' union. and the contractor guilty of removing 40 electricians off the job, 40 travellers and replacing them immediately with 40 local mem- bers, and the judge found in favor of the 'travellers and the contractor and the,union there appealed it to whoever they appeal it to.7 - Robert Bray testified he is the manager of Redding In- dustrial Electric and-reports to a vice president in south- ern California. Bray ' said his day-to-day work consists of 6 Marsh agreed that he may have used "foul language" in speaking to Hurlburt and that he could also have done so when he complained to the superintendent about the water'at the Mt Shasta project years earlier Marsh indicated on redirect that Hurlburt was referring to the comput- er of C D., Draucker , Respondent's parent company Bray later testified he was not aware that the Company had a computer Bray said he had called the "corporate office" after being advised that Marsh had filed a charge against Respondent for'rejecting Marsh on January I I -According to Bray, a corporate official then indicated that Marsh had filed an action against the Company "some time back,". an event he said that caught him "completely by surprise " - Marsh stated on redirect that none of the charges he had filed had been dismissed He said the charge against Local 442 is still pending • doing "the necessary- estimating, procuring jobs, seeing that the jobs are'filled." - Bray indicated initially: that he knew little about Charging Party Marsh. Bray said his only contact with Marsh had been 18 years earlier in 1965, when both were employed by a company named Trowbridge Electric. Bray worked for that firm as an estimator at the time, and Marsh was employed as an apprentice - Bray testified that on January 11, 1983, he contacted Local 442's hiring hall (as provided for in art. IV of the collective-bargaining agreement, G.C. Exh. 2) and re- quested referral of two journeymen electricians for work on the Simpson Paper Company project located in An- derson, California. Jack Marsh was one of the two elec- tricians referred by Walter Hurlburt, business representa- tive of the Union, but Bray rejected him. Bray said it was the first time he had ever rejected a referral from Local 442. Before doing so, however, Bray drove to the jobsite and conferred with Respondent's general foreman on the jobsite,' Roger Lewis. Lewis stated that he would rather not have Marsh on the job,- and Bray thereafter told Hurlburt that Marsh was not acceptable. Bray said that the subject of Marsh's mechanical skills was not brought up during the discussion -between Bray and Lewis. ' Bray stated that Lewis, as general foreman, reported directly ' to' him 'and that _ Lewis. supervised all of Re- spondent's work at the Simpson Paper Company jobsite. Lewis could authorize overtime and effectively recom- mend hiring and dismissal of personnel. Testifying later as a defense witness (after Charging Party Marsh, Foreman Roger Lewis, and Union Business Manager Walter Hurlburt had testified for the General Counsel), Bray said he worked for Trowbridge Electric at two different times-for about 2-1/2 months in 1961 and again later in 1965 or 1966. Bray stated that Marsh had worked for Trowbridge during Bray's second period of employment'- at Trowbridge -but said he only had "minor-contact" with Marsh. He said he had discussed Marsh with his brother, Lee Bray, who had managed Trowbridge at the time. Bray said he had formed an opinion of Marsh which he gave as follows: The opinion I had of Mr Marsh at that time was not the -best in the world To my knowledge, he was abusive and abrasive towards his fellow work- ers, towards some other people, and rather abusive to the ladies in the office. According to Bray, Marsh would go beyond 'normal kid- ding and would - harass, "the ladies . . . bringing them almost to tears.". . After' 'leaving Trowbridge the second time, Bray' worked ,in the, bay,area and later in Alaska. He returned to Redding. in late 1978 or early 1979 and started work for • Respondent as • an estimator Shortly, thereafter he • became, Respondent's manager. ,, According to Bray,, the ,Simpson Paper job that Marsh was dispatched to in January 1983 was "very complex" with electricians working "in extremely close quarters." "We had an extremely tight frame on this job," he said. Bray explained - that he called the' union hall and told REDDING INDUSTRIAL ELECTRIC 621 "Walt" he wanted two men. He later received a message that Marsh and Loren Mahar were being' dispatched. Bray said he was inclined to say no to Marsh but decid- ed to go to the Simpson jobsite and talk with his fore- man, Roger Lewis, who was an IBEW member Lewis told Bray that he "didn't really want to baby- sit" Marsh which meant, according to Bray, that "some- one had to watch him pretty closely." Bray denied that he and Lewis discussed-any grievance or unfair labor practice charge at that time. Bray also denied that he and Lewis discussed 'Marsh's service as a steward at the Mt. Shasta job..-Bray drove from'the Simpson jobsite to the union hall and told Hurlburt"he did not want Marsh. Quoting from Bray's defense testimony: I told Walt that- as far as Jack Marsh was con- cerned, I did not want to hire-accept him for- hire. I had the right under the terms of the agreement, that I did not have to accept the than for hire. And I said -I, am going to invoke it in' this particular case. Walt asked me why-Let me back up. I, told, him I was going to invoke the thing in this particular, case because I-I didn't really think that Jack would. fit in on our particular work force that we had going. I mentioned-I believe that, .1,. mentioned that .1 knew of Jack way back when from Trowbridge Electric days. I-a casual .comment, ,but I told him I did not want him, on the job,- find me, another man. Q. What did 'Walt say, if anything? A. Wait says, "You have -the right under the. con- tract., I'll -get you another 'man." Bray indicated that he had been subjected to some rib- Bing from Hurlburt • after - Marsh - was rejected by Btay. Bray said that the Company had' "no problem at all" with the Union - On,cross-examination, Bray, maintained" that Marsh had caused some delay at': Trowbridge'but Bray was-unable to give any details. "I can't tell you exactly; what, where and why," he said., He said. he had no idea.whether Marsh was ever discharged or, disciplined, iri any way at Trowbridge. "I was busy procuring- other jobs," he as- serted. e Roger Lewis testified that he had been an electrician since 1954' He served a '4-year 'apprenticeship and became journeyman in 1958.9 Lewis stated that he had a On redirect, Bray indicated he,had no doubt ^,that Marsh would have caused delay on-the Simpson Paper fob ,Said-Bray To' my way of thinking, delay would' have been'cau"sed, by Mr Marsh being with other electricians, ' being ' with, otlier,, trades, that were working extremely close,by,'and.by the.general nature , of talk- in gyo these people, which'is`not the normal hello, hosd'a're you, casual type `affair He ' has ' a' way of discussing thingstvitli 'people that, I guess=for lack of-abetter word, are abiasive,:antagonistic, it .1 immediately, gets' you righrup on edge,. And pretty, quick then you • have got dissension among the . ranks, 'and ithat ,is;.not a.good „situa- tion I could not afford that- on that particularfob ,There was an- other rob 'in' the offing after' that That' particular Job,' we aie trying to keep the owner happy, the general contractor happy, and make the job run as smooth as possible and meet the deadline of a job that had never been tried in this country _ , _ - , s Lewis said the apprenticeship program ,was supervised "by a predeces- sor union of Local 442 ' ` ' - - • "'`t worked "basically" for Respondent since ' 1966, probably about 50 percent of the time as a journeyman and -the other 50' percent of the time as a foreman. -He is a member 'of the IBEW, which he joined in 1964, and Local 442 He is referred out -of the Union's hiring" hall, including work as, a foreman.' ° At the time of the hear- ing' Lewis "was not employed.' He-'had worked for Re- spondent only a month, earlier, however, and said he hoped to work for the Company again in the future. Lewis acknowledged that-he had been contacted' by Respondent's manager Robert Bray on January 11, 1983, about Jack Marsh's referral to the Simpson job where Lewis was the general foreman for Respondent. Lewis said he told Bray that based on his-past experience with Marsh and what he had heard about him he "would just as soon he would not"be on the job." Lewis said he also told Bray that if Marsh were hired it would be Bray's responsibility. Lewis gave his recollection of his conver- sation with Bray on direct as follows: . Well, let me think a minute) here just exactly what was said. It was said -that Jack Marsh was going to be one of the next two men that reported out to Simpson. The day before' that, the day before,'the rumor had already hit the job that Jack was on top of the, referral list. ,I already knew Jack was coming out. So did the rest of the men on the job. This is where the conflict started. I had two foremen out there at the, time, and I told them we was getting Jack and someone else, I .wasn't sure 'who it was, I thought it was Loren Mahar. I told Rob, that-which is what I was trying to get around I to-I told Rob the general feeling of my foreman, one of my foremen didn't want him work- ing .for him, for,, reasons I don't- know,,past experi- ence, - I presume, he told me that his men didn't want to work with him. That was brought up. Rob had told me that in whatever year it was that' he worked at -Trowbridge that Jack had been a loud- mouth down there, he had kept the office girls in a turmoil and kept-'didn't get along well with the men. ` Lewis said he hardly knew Marsh but had heard, he was_a good ,mechanic'. Said Lewis: , I hadn't even worked ,around Jack, other than out at the Mt. Shasta Mall -where_he was transferred over into my crew for three or four days to help out on`'something that we was 'in'trouble with." 7 -d it Lewis said he had worked as'a regular foreman (who lays ,out the work for journeymen and sees to it that they have the necessary tools and materials) as well as a general foreman (who supervises workers only indirectly through foremen) ,and was "not a salaried person" Lewis stated"that'the' positions of foremen and general-foremen were both cov- ered by the collective _-bargamirig agreement 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lewis stated at one point that he did work with Marsh for a couple of days at one time on a project at Shasta College and then later at the Mt. Shasta Mallsite. i i On cross-examination , Lewis explained that Respond- ent was involved in construction of the Mt. Shasta Mall under four separate contracts-the main complex or mall section and . "three anchor stores, Pay'n Save, Sears and Penney's." Manager Bray was not ' employed 'by Re- spondent at the time, but Lewis was employed as a fore- man to oversee construction of the mall section. Marsh was assigned to work tinder - Another foreman in the Pay'n Save portion of the project . There was a time when Marsh needed extra help, however , and Marsh was assigned to work under Lewis on the outside part of the mall section for 3 or 4 days. According to Lewis, there was an "incident" during this short period which caused Lewis to feel that he "wouldn't trust [himself] turning [his] back on , [Marsh]." Lewis described the incident as follows: I can't remember just exactly the circumstances of it, whether . it was , work -assigned or the the way he wanted to do it-It's been too long ago to remem- ber exactly,,_other than Jack-which was the first time it had ever happened to me , but he ,puffed his • chest up and stuck his nose up in my face and said, "I will do this the way I want to do it or we can step out in , the. parking lot" and settle it, some other way" Lewis indicated, under leading questions, that 'the inci- dent caused him to consider Marsh to be uncooperative, insubordinate, and difficult to deal with. Lewis said he had learned Marsh had filed a complaint of some type against Respondent "in the 70 's some time, well after it was all over." He said he had heard that "Jack got a settlement of some kind," but he denied that Marsh's ac_ tion, against the Company had affected his opinion 'as to whether Marsh should be rehired, Lewis recalled that Marsh served as a shop , steward at the Mt. Shasta Mall for 2 or 3 weeks , but .he said - he- did not object to such assignment : He ' said he had heard it said that Marsh had told a foreman named Dan Briggs that he "was working too' damn hard and that he should' do only half a day's work for a full day's pay." 112 Testifying later as a defense witness, Lewis said his op- position to Marsh being on the Simpson job was mainly ".the. way he talked to' me at the Mt. Shasta Mall." "I took it as a threat," Lewis said and added that he had not trusted Marsh after , that:" Lewis said he also •liad com' 11 According to the portion of Lewis' affidavit which was read into the record ` Respondent ,was involved m- -the construction of the Mt. Shasta Mall project 5 years later 12 Marsh disputed the hearsay comment' Lewis had attributed to Bnggs Asked on direct whether he; had any problem on the job with Briggs, Marsh replied ' , -1 . - ^ ' 'I wouldn't consider it any kind of a problem I think what-what Roger Lewis 'was referring to this morning , he said that- 'that I told Dan Bnggs, to not work so fast Dan Bnggs was wearing tennis shoes on the job , which is against the safety rules, it's-you know- and he used to sprint from one place to another on a ' job This is definitely .against safety rules You are not supposed to run on the job. There is too many hazards, and I reminded him-of it. plaints about Marsh from other electricians, including two foremen. Lewis stated that he filled two water cans when he worked as a foreman on the Mt . Shasta job but said he did not know what other foremen did in that respect. Lewis agreed that he had indicated in an affidavit that Marsh created problems with other contractors and builders on the Mt. Shasta job that , required time to re- solve. He stated that the superintendent at the Mt. Shasta job had asked him to take Marsh off his crew. Wilbur Hurlburt identified himself as business manager of Local 442 , a position he has held since June 1970. He said the'Union and Respondent had a collective-bargain- ing arrangement for many years and that he or his assist- ant, Dwight Evans, made " the referrals pursuant to, the collective-bargaining agreement . Hurlburt stated that he had made referrals to Respondent pursuant to requests of different foremen in Respondent's employ. Hurlburt recalled -Bray's request for two 'electricians to work at the Simpson job on January 11, 1983, and Bray's later rejection of one of the two men referred, Jack Marsh. Hurlburt could not recall that Bray had ever ob- jected to any other referral. According ' to Hurlburt, Bray" called in around 10 a.m. or so that day, and Hurlburt determined that Loren Hahn and Marsh were up for referral . The names of the two men were communicated to Respondent, and some- time thereafter Bray reported that "he was very sorry but he would have to reject Jack Marsh for this job at this time." Bray. mentioned that he had the right under the collective-bargaining agreement, citing section 3 of article IV, to reject 'a referral and that he was doing so. Hurlburt said he could not recall any other reason being given for rejecting Marsh at the time. Hurlburt testified that over the next 6 months or so he needled Bray'about rejecting Marsh. _Hurlburt recalled that Bray had ", stated in response that the particular job was "too tenuous" to take chances on it;, Bray did' not want the'Company to'lose the job-over "any'upheaval or difficulty." According to Hurlburt, he had known"Marsh since late 1961 . He stated ' the union records indicated that Marsh had been 'initiated into "the Union on April ' 26, 1962, and that he had been referred out of the hiring hall 26 times-8 of these being repeat referrals to the same employer. Hurlburt stated that he did not like to ' appoint stew- ards, but he did appoint Marsh as steward at Mt . Shasta because "there 'were ' quite' a.bit of hassle on this particu- lar job, and a group of'the electricians out "there asked me to appoint Jack Marsh Steward. Hurlburtrecalled that there were "quite a few reports to OSHA" by Marsh 'and action being taken by him with respect to tools that should be in each'employee 's tool- box as provided in, the collective7bargaining agreement. Finally, Hurlburt testified that January . 11,1,1983,.was the first time h&'-had occasion to 'referto Respondent after April 1975. I am persuaded that Respondent refused reemployment of Charging Party Jack Marsh on January 11, 1983, as a worker " on the Simpson Paper project because of his ear- REDDING INDUSTRIAL ELECTRIC her activities as a steward on the Mt. Shasta Mall project and the National Labor Relations Board charges he thereafter filed against the Company following his layoff. Marsh was a dedicated steward at Mt. Shasta, and his complaints concerning working conditions there, some of which resulted in Cal-OSHA action, irked officials of both Respondent and the general contractor on the job. Foreman Roger Lewis, who had worked with Marsh at the Mt. Shasta Mall, was aware that Marsh was a steward on that job and the fact that -he had made the complaints on behalf of other employees. Lewis had re- ported, in the form of an affidavit which he agreed he had signed, that Marsh had created problems for "con- tractors and builders" on the Mt. Shasta job. Lewis also testified that a superintendent had asked for Marsh's re- moval from the Mt. Shasta Mall.. (Marsh testified credi- bly that a Hahn superintendent "went into a rage" when Marsh threatened "to call OSHA again" if fresh water was not supplied.) While Lewis denied knowing that Marsh had filed either an unfair labor practice charge or a grievance against the Company, he did acknowledge knowing that "in the 70's sometime" that "Jack had got a settlement of some kind." I am confident that Lewis was aware that the "settlement" Marsh obtained was the result of the charge' he had filed against the Company and that Lewis had such action in mind when he recom- mended to Respondent' s manager Robert Bray in Janu- ary 1983 that Marsh not be rehired by the Company. As a practical matter, it was Lewis who-made the decision not to hire Marsh, and that -decision,, I am convinced, made because of Marsh's activities as a steward and be- cause of the charge he filed against the Company, clearly protected conduct under the Act (see, for example, Union Fork & Hoe- Co.,, 241 NLRB 907 (1979),. and NLRB v. AA Electric Co.,•405 U.S. 117 (1972)), is,attrib- utable to Respondent. , Bray was not employed.by Respondent'at the time the Company was engaged,in work at the Mt. Shasta.Mall job, but Marsh's name triggered- a negative . reaction, in January 1983 and he sought out Foreman Lewis. for an opinion concerning Marsh and guidance as to how,tore- spond to Marsh's dispatch. 13 Bray's testimony impressed me as ' being '.inconsistent. On the one hand he acknowledged that he had only slight contact with Marsh at Trowbridge Electric which had occurred 18-years or so earlier. (This part of his tes- timony agrees with that given by Marsh.) While testify- ing on defense, however, Bray claimed recollection ' of Marsh being abusive of women ,and abrasive to other fellow. workers. He was, willing , to' say that Marsh'caused delay while employed at Trowbridge-Electric-18 years earlier-while at the same time 'admitting that he could 13, Respondent acknowledges in its brief that its, officialsr knew , of Marsh's service as'a shop steward 'and that the Company's vice president recognized Marsh's 'name when it was meiitioned to herby 'Bray. (She checked company records and "informed Bray of the earlier unfair 'labor practice charge and Board decision ") As Respondent points, out in its brief, Bray claimed no knowledge of the 1975-1976. events„until after Marsh had filed his January 1983 charge ''i Bray did not impress me as a forthright witness while Charging Party Marsh did But Brays credibility is not as important in this matter. as'that of Lewis as it was the latter who effectively, made , the decision .for Re- spondent not to hire Marsh for the Simpson job - - 623 not give any details ("what, where and when") as Bray was busy procuring other jobs." ' Bray's assertions that he and Lewis did not discuss the grievance Marsh had filed in connection with the Mt. Shasta Mall job, Marsh's related unfair practice charge, -and Marsh's actions as -a steward were not convincing. Lewis also impressed me unfavorably as a witness. His testimony indicated a bias against Marsh and in favor of Respondent for whom he has worked over the years and to whom lie looks for employment-in the future. He, like Marsh, has been a ,member of Local 442 and undoubted- ly aware of Marsh's status with the Union. I reject Lewis' assertion that his opposition to hiring Marsh in January 1983 was based "mainly" on an "inci- dent" which he claimed caused him to consider Marsh to be insubordinate and a person he could not trust.' Marsh testified that he did not invite Lewis outside to settle a difference and did not threaten Lewis. I consider Marsh a more credible witness than Lewis , and I, therefore, credit Marsh's statement over Lewis' contrary testimony. Lewis -was vague about the incident-stating that he could not recall "just exactly the circumstances." Signifi- cantly,' he said he "didn't'do anything" to discipline Marsh then and did not even mention the' "incident" to Bray on January 11, 1983. 1• am persuaded ' the incident did not occur. I also reject Lewis' assertion that his opposition to the hiring of'Marsli in January 1983 was predicated on state- ments made by foremen or other electricians working on the Simpson job. Such evidence was not probative and not credible. His' claim that Foreman Dan Briggs had once reported to him ' that ' Marsh' had stated - that - Briggss was_ working too ` hard" was likewise not probative and not. credible. Again I' credit Marsh's testimony"o' n' the poit=that Marsh'only told Briggs to not run oh the job in his tennis shoes because of the hazards involved.' In sum, I find, Respondent ' s', refusal' to hire' Marsh"6n January . 11, 1983, was. motivated by the complaints Marsh had made ' as'ste 'ard concerning working' condi= Lions at the Mt. ''Shasta' Mall project'an d `th"" harge he subsequently filed-'with the National Labor Relations Board after being dismissed or laid off from work ori`the project. 14 Certain statements contained in Respondent's brief de- serve comment.' Respondent maintains that Marsh was iiot blackballed. Ii suggests that Marsh"was rejected only because of `the "tenuous' and unique nature of the Simp son job,- requinng an' exacting, almost superhuman effort" on' the part of all` concerned." 'Respondent indi- cates' it'-would Be'ready'tb 'hire -Marsh on "another RIE '.* The, Boards 'recent Wright Line decision (251 NLRB ` 1083 (1980), modified 662 F 2d 899 ( 1st Cir 1981), cited by Respond'ent,'and'NLRB v. Transportation Management Corp., 462 US 393'(1983)); 'allows" a 'cited employer to defend 'a discharge Eby demonstrating that it would have taken the same action 'against an employee in t}ie absence of his protected conduct Here, the General Counsel established that protected conduct of Marsh motivated Respondent's decision not to hire him, and Respondent did' not show, by credible 'evidence,'that it' would have rejected him in the absence of such -protected conduct. Garrett Flexible Products, 270 NLRB 1147 ( 1984), also cited by Re- spondent, does not compel dismissal of the instant matter An "evaluation of all'of 'the relevant evidence" presented in this case, unlike in Garrett, is persuasive that the employer 's action was unlawfully motivated 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job" having a less "tight frame for completion" The record persuades me that such contentions have no cred- ible basis. In its brief Respondent portrays Marsh as a "personali- ty type" who would have been likely to be involved in petty "squabbles" and "personal disputes" on the Simp-, son job. Respondent refers,to Marsh as a rabble-rouser and as an individual having a "generally poor reputation among co-workers." Again, I reject these contentions on the basis that the credible evidence does not support them. Finally, it should be noted that the General Counsel was not required to show union amimus on the part of Respondent, and the fact that the collective-bargaining agreement allowed Respondent to refuse any referral is of no-moment. Not all protected conduct involves union activity; the Act specifically prohibits the discrimination for engaging in the protected activities shown here. On the foregoing findings of fact, and on the entire record in the proceeding, I enter the following CONCLUSIONS OF LAW 1. At all times material Respondent has been an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. At all times material the Union has been a labor or- ganization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1), (3), and (4) of the.Act by refusing to rehire Jack L. Marsh on January 11,-1983, because he had engaged in protected concerted activities as found herein. As for the; remedy, I shall recommend Respondent cease and desist from engaging in the unfair labor prac- tices found: Affirmative action designed to effectuate the policies of the Act,will be recommended, including an order directing Respondent to offer Jack L.' Marsh im- mediate, full; and unconditional- reinstatement to, his former position or, if such.position no longer exists, to a substantially equivalent one, -without prejudice to his se- niority and other rights and privileges, as well as pay- ment of backpay for earnings lost as a result of the dis- crimination. Backpay shall be computed with interest as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950); Isis Plumbing Co., 138 NLRB 716 (1962); and Florida Steel-Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" 15 If no exceptions are filed as provided by Sec .102 46 of the Board's Rules and Regulations, the findings, conclusions,- and recommended ORDER The Respondent, C. D Draucker d/b/a Redding In- dustrial Electric, Redding, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing or refusing to hire any person because- he or she engaged in protected concerted activity. (b) In any like or related manner interfering. with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action deemed neces- sary to effectuate the policies of the Act. (a) Offer Jack L. Marsh immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without prej- udice to his seniority and other rights and privileges, and make him whole in the manner prescribed in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary. to analyze the amount of backpay due under the terms of this Order.' (c) Post at its Redding, California place, of business copies of the attached notice marked "Appendix."' n Copies of the notice, on forms provided by-the Regional Director for Region, 20, after being signed by `the Re- spondent'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 Respond- ent to ensure that the notices are n ot'altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what, steps the Re- spondent -has taken to comply. ' 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 pur- poses ; 18 If this , Order is enforced by a Judgment of a United States Court of Appeals, the.words_in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a'Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " . -