Dean General Contractors

DEAN GENERAL CONTRACTORS Dean General Contractors and Gary F. Murphree. Case 10-CA-19983 31 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 20 November 1984 Administrative Law Judge Robert A. Gritta issued the attached deci- sion. The General Counsel filed limited exceptions and a supporting brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions, to modify the remedy,' and to adopt the recommended Order as modified. In July 1983 the Respondent, a construction con- tractor, hired Gary F. Murphree. Murphree worked on the Respondent's construction of an Air National Guard facility for the Department of De- fense until his discharge on 24 August 1983. The judge found that the Respondent violated Section 8(a)(1) by its discharge of Murphree.2 The Re- spondent's Air National Guard project had been completed by the time of the hearing in this case. In ordering a remedy for this violation, the judge found that a reinstatement order was inappropriate. The judge also found that the Respondent's back- pay liability terminated on the completion date of the Air National Guard project. The judge rea- soned that because the Air National Guard project already had been completed prior to the hearing in this case and the Respondent's agreement with the contracting party was only for that project, there is "little assurance" that Murphree's former position and wage rate still exist. Contrary to the judge, and in agreement with the General Counsel, we find that resolution of the Respondent's reinstatement and backpay obligations toward Murphree is best left to the compliance process. As a general proposition, the Board's traditional remedy is a make-whole order of reinstatement and backpay when an employee has been discharged in violation of the Act. This remedy is undertaken, of course, in order to return the unlawfully dis- charged employee to the status quo that would i Interest will be computed in accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amend- ment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 2 No exceptions were filed to the judge's findings that Murphree en- gaged in protected concerted activities and that the Respondent violated Sec 8(a)(1) by discharging Murphree and threatening employees with discharge 573 have existed absent the unfair labor practice. The particulars of that status quo determination, e.g., offsets from backpay, if any, or, where appropriate, identification of a "substantially equivalent" posi- tion, generally are not litigated in the original pro- ceeding on the merits. Although parties may liti- gate certain backpay and reinstatement issues in the original proceeding if they so desire,3 the absence of a fully litigated record concerning reinstatement and backpay issues is customary at this stage of the proceedings.4 Accordingly, it is not surprising that the judge found there was "little assurance" of the existence of Murphree's former position. That is the case largely because the matter simply was not fully litigated at the hearing.5 Because the likelihood of Murphree's continued employment with the Respondent at other projects, absent his unlawful discharge, was not fully litigat- ed at the hearing, the only basis to justify a denial of reinstatement at this stage of the proceeding is to presume that the Respondent necessarily would have severed all employment ties to Murphree on the completion of the Air National Guard project. This we decline to do. Although we recognize that employment patterns in the construction industry have unique characteristics and jobs are frequently of short duration,6 these general characteristics, standing alone, do not justify a departure from our traditional make-whole remedy prior to compli- ance. We simply do not now know, as a factual matter, whether the Respondent would have trans- ferred or reassigned Murphree elsewhere. Indeed, although jobs in the construction industry are fre- quently of short duration at a single project, that is not always the case. The industry is also composed, to some extent, of "permanent and stable" work forces. Further, in either case it is not unusual for employers to carry over or request selected em- ployees from jobsite to jobsite.7 Determination of whether an employee may have been transferred or reassigned elsewhere is a factual question and, as a See, eg, Burnup & Sims, 256 NLRB 965, 965-966, 977-979 (1981) 4 Litton Systems, 271 NLRB 915 fn 2 (1984), C B Display Service, 260 NLRB 1102 (1982), and cases cited therein at fn 4, Loft Painting Co, 267 NLRB 74 (1983), Q V L Construction, 260 NLRB 1096 (1982) 5 We are aware that at the outset of the hearing the General Counsel indicated that the make-whole remedy sought would "probably" be back- pay rather than reinstatement This equivocal remark does not foreclose a determination of the Respondent' s reinstatement obligation toward Murphree at compliance or limit the Board 's authority under Sec 10(c) of the Act to fashion an appropriate make-whole remedy In any event, because it will have full opportunity to present evidence on this issue at compliance, the Respondent will not be unfairly prejudiced e See generally John Deklewa & Sons, 282 NLRB 1375, 1380 (1987) Member Cracraft did not participate in De,llewa 7 Although the record is far from clear on this issue, there is some evi- dence that the Respondent may have transferred an employee to the Air National Guard project from another project 285 NLRB No. 72 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD such, is best resolved by a factual inquiry at com- pliance.8 Although reinstatement is the traditional remedy for the type of violation found in this case, we rec- ognize that the Board, on occasion, has applied what appears to be a precompliance presumption against reinstatement in the construction industry. Brown & Lambrecht Earth Movers,, 267 NLRB 186 fn. 3 (1983); and Temperature Systems Corp., 195 NLRB 1023 (1972). Most recently, in Brown & Lambrecht Earth Movers, supra, the Board found that reinstatement was an inappropriate remedy be- cause, as in the instant case , the construction project where the discriminatees had worked was of limited duration. In support of its finding, the Board, without further elaboration, cited Al Monzo Construction Co., 198 NLRB 1212, 1218-1219 (1972). In the latter case, however, the Board or- dered alternative reinstatement and backpay reme- dies depending on determinations that normally would be made at compliance. Indeed, the Board in Al Monzo Construction Co. expressly ordered that the respondent offer the discriminatees immediate and full reinstatement- in the event they would have been transferred on the project's completion. Thus, the only, case cited in Brown & Lambrecht Earth Movers in support of the denial of reinstatement, prior to compliance, directly contradicts the reme- dial holding of that case. See also cases cited supra at footnote 3. In view of this anomaly, as well as our disagreement with the application of a precom- pliance presumption against reinstatement adverse to the aggrieved employee on behalf of the adjudi- cated wrongdoer, we overrule Brown & Lambrecht Earth Movers and related cases to the extent they are inconsistent with this Decision and Order and reaffirm those cases, noted above, that, apply the more traditional make-whole remedy.9 8 Further, we decline to impose a presumption or a different set of rules at this stage of the proceedings based on any theoretical distinction between project-by-project and permanent and stable work forces, as the Board also declined to do in a different context in John Deklewa & Sons, at 1384 9 We are not persuaded by our dissenting colleague's attempt to recon- cile the remedies ordered in Brown & Lambrecht Earth Movers and Al Monza Construction Co. The dissent contends that these cases are compat- ible because the record in the former case established that the construc- tion project had been completed prior to the hearing, while in the latter case the record did not establish whether the project had been completed prior to the hearing Our colleague misses the point In Brown & Lam- brecht Earth Movers the Board denied reinstatement following the hearing without regard to record evidence establishing whether or not the ag- grieved employee would have been transferred or reassigned after com- pletion of the project No compliance determination was ordered. In Al Monzo Construction Co., reinstatement expressly was preserved in the event that the aggrieved employees would have been transferred after completion of the project, and that determination was to be made at com- pliance Thus, on the essential issue of reinstatement and compliance, Al Monzo Construction Co. does not support the remedial order in Brown & Lambrecht Earth Movers Our dissenting colleague takes the position that the Board should apply what is effectively a con- struction-industry exception to the Board's usual make-whole reinstatement and backpay remedy. Thus, for remedial purposes, the dissent generally would apply a presumption in the construction in- dustry that the respondent would have terminated the unlawfully discharged employee on completion of the project. The dissent would place the eviden- tiary burden on the General Counsel at the original hearing to establish the likelihood of the employ- ee's continued employment or expressly reserve a reinstatement remedy. Unlike the dissent, we fail to discern any logical reason or policy interest warranting the application of such a presumption or special exception in the construction industry. Although statutory policies are, of course, advanced in a variety of circum- stances by the application of appropriate presump- tions, the effect of the dissent's position is to apply a presumption in favor of an adjudicated wrongdo- er while seeking to remedy the underlying unfair labor practice committed against the aggrieved em- ployee. The dissent's stated justification for this approach is twofold: conservation of the Board's resources by obviating the need for a second hearing and preservation of evidence. We have considerable difficulty, however, embracing the notion that the Board's scarce resources will be conserved by adopting a policy that encourages parties to litigate often complex compliance issues at the original hearing on the merits in each and every construc- tion industry case that raises reinstatement and backpay issues. If combining complaint and compli- ance issues in the original hearing - as a matter of policy truly conserved the Board's resources, it would logically follow that such a policy should be pursued in all cases, not just cases arising in the construction industry. We do not do so for reasons that apply with equal force in the construction in- dustry. Second hearings on compliance issues occur far less frequently than do instances in which compliance issues are amicably settled short of a formal hearing. Further, compliance issues may not even arise depending on the outcome of the origi- nal case on the merits. Thus, the litigation of com- pliance issues prematurely or unnecessarily, as a general policy rule, simply encourages needless liti- gation and would achieve a result precisely oppo- site to that sought by our dissenting colleague. We' are also unpersuaded by the dissent's conten- tions regarding the preservation of evidence. Evi- dence pertinent to the likelihood of an employee's transfer or reassignment is the type of evidence that ordinarily would tend primarily to be in the DEAN GENERAL CONTRACTORS 575 possession of the respondent employer which con- trols the decision whether to transfer or reassign. We perceive no undue hardship in requiring a re- spondent to maintain such evidence if it seeks to cut off the reinstatement and backpay of an em- ployee whom it has unlawfully discharged. In sum, we hold today that, as in other indus- tries, reinstatement and backpay issues in the con- struction industry ordinarily will be resolved by a factual inquiry during the compliance process rather than by resorting to a presumption that may or may not accurately reflect the realities of the employment relationship or by resorting to a shift of evidentiary burdens from the adjudicated wrongdoer to the aggrieved employee. Accordingly, we shall order the Respondent to undertake our traditional make-whole remedy with the understanding that it may introduce evidence regarding the likelihood of Murphree's transfer or reassignment to other projects, subsequent to the completion of the Air National Guard project, at compliance. Litton Systems, supra. If the Respond- ent establishes at compliance that Murphree likely would not have been transferred or reassigned else- where, the Respondent's obligation toward Murph- ree will be to consider him eligible for employment at future projects, on application, on a nondiscrim- inatory basis. Evidence pertaining to transfer or re- assignment may be considered both concerning the Respondent's reinstatement obligation toward Murphree and the date when the Respondent's backpay liability to Murphree may have terminat- ed. Thus, as noted, consistent with his failure to order reinstatement, the judge also found that backpay necessarily terminated on the completion date of the Air National Guard project. This, how- ever, is also a matter for compliance. Al Monzo Construction Co., supra at 1219.10 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Dean General Contractors, Anniston, Alabama, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). 10 In view of our authority under Sec 10(c), and the absence of preju- dice to the Respondent, we find it appropriate to modify the judge's backpay order in this regard notwithstanding the General Counsel's fail- ure to file a specific exception to the fudge's backpay finding Nothing in this Order, however, should be construed to mean that , if backpay is owed for a period subsequent to the completion of the Air National Guard project, such backpay necessarily would be based on the wages and benefits in effect at the Air National Guard jobsite "(a) Offer Gary F. Murphree 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 or privileges previously enjoyed, and make him whole, with interest, for any loss of earnings, and other benefits suffered as a result of his dis- charge." 2. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting. Contrary to my colleagues, I find that a rein- statement order is inappropriate in the circum- stances of this case. Discriminatee Gary F. Murph- ree was hired as a laborer to work on a construc- tion project being built under a contract that the Respondent had with the Department of Defense to construct a facility for the Air National Guard. At the time of the hearing in this proceeding, the construction project where Murphree was em- ployed had been completed. The General Counsel at the hearing expressly indicated that only back- pay and not reinstatement was being sought. Thus, counsel for the General Counsel stated at the outset of the hearing, "If we prevail, we're seeking a make-whole remedy, which in this case would probably simply be backpay because I understand the job has since been terminated so reinstatement would not really be a point here." The appropriate make-whole remedy for an unlawful discharge from a project of limited duration in the construc- tion industry, once the project is completed, is, in my view, a requirement that the discharged em- ployee be considered for future employment on a nondiscriminatory basis. I cannot join my colleagues in overruling Brown & Lambrecht Earth Movers, 267 NLRB 186 fn. 3 (1983), and related cases, as I find the Board's re- medial provisions in those cases to be appropriate. Although the majority opines that the Board's cita- tion of Al Monzo Construction Co., 198 NLRB 1212, 1218-1219 (1972), does not support its denial of a reinstatement remedy in Brown & Lambrecht, the record in the Al Monzo case did not establish whether or not the construction project in that case had been completed, whereas the record in the Brown & Lambrecht case revealed that the work in that case had been completed prior to the hearing. Hence, the differing provisions in those two cases reflect differing record information avail- able to the Board, but the remedial approaches are in harmony. Of course, in accord with those cases, if the discharged employee would have been trans- ferred to another job on the completion of the con- struction project from which he was fired, then I 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would require reinstatement to the job to which he would have been transferred. The perceived inconsistency regarding the pre- cise remedy to be ordered for unlawful discharges from jobs of limited duration in the construction in- dustry noted by my colleagues is, in fact, the result of a failure to clarify possible reinstatement obliga- tions at the initial hearing. The General Counsel should bear the burden of establishing whether re- instatement is to be litigated in the original pro- ceeding or in compliance. Placing on the General Counsel the burden of affirmatively raising this matter at the original hearing effectively notifies all parties that reinstatement is at issue and places them on notice when this issue will be litigated so that the parties may adequately preserve relevant evidence.I Thus, I would require the General Counsel expressly to raise, any reinstatement issues at the original hearing. If the General Counsel expressly contends at the hearing that the alleged discriminatee would have been transferred to another project after comple- tion of the original project and therefore should be reinstated, I would require the General Counsel to either (a) present evidence at the hearing establish- ing, that likelihood, or (b) expressly indicate at the hearing that reinstatement may be appropriate and that such issues should be deferred to the compli- ance stage of the proceeding. If the General Coun- sel does not expressly raise reinstatement at the hearing or, as here, disavows a reinstatement remedy, I would find that the discriminatee pre- sumably has been hired on a project basis only and that a general reinstatement remedy would there- fore constitute an impermissible departure from the status quo ante. Application of this procedure would not only assure that evidence would be adequately pre- served, but also obviate the need for a costly second hearing in a compliance proceeding. If the General Counsel in the original hearing either fails to request a reinstatement remedy or, having en- deavored to establish that the discriminatee would have been transferred to another project, fails in the attempt, then there would be no need for a second Board proceeding unless the Respondent chose to litigate more limited backpay issues. In i My colleagues assert that the Respondent here will not be unfairly prejudiced because it will have a full opportunity to present evidence on the reinstatement issue at compliance They totally ignore the potential difficulties that the Respondent may face in collecting evidence regarding whether Murphree would have been transferred to another job some 4 to 5 years after his discharge This industry is one in which the work force is generally so transient that the Board requires its own notices to be mailed to other employees on the jobsite from which a person was un- lawfully discharged, with the Regional Director having to make an inde- pendent investigation about their whereabouts in an attempt to reach those former employees See Brown & Lambrecht, supra at 195 this way scarce Board resources would be con- served, and the parties would obtain a quicker res- olution of their respective rights and obligations. In this case, the construction project where dis- criminatee Murphree was employed had already been completed prior to the original hearing, and the General Counsel's representative expressly indi- cated at the hearing that he was seeking only back- pay and not reinstatement. Therefore, under the above approach, I would not order that Murphree be reinstated. It necessarily follows that I also would terminate backpay on the completion date of the Air National Guard project. In accord with the remedy ordered in Brown & Lambrecht Earth Movers, supra, however, I would require the Re- spondent to assure Murphree in writing that he will be considered eligible for future employment at any of the Respondent's projects if he should choose to apply. As in Brown' & Lambrecht, I would also order the Respondent to mail copies of the notice to all persons formerly employed by the Respondent at ' its Gadsden, Alabama Air National Guard project where Murphree was employed. 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 threaten employees for engaging in protected concerted activities. WE WILL NOT discharge employees for engaging in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. - WE WILL offer Gary F. Murphree 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 or privileges previously enjoyed and DEAN GENERAL CONTRACTORS 577 WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way. DEAN GENERAL CONTRACTORS Larry P. Rothman, Esq, for the General Counsel Johnny Dean, of Oxford, Alabama, for the Respondent DECISION STATEMENT OF THE CASE ROBERT A. GRITTA, Administrative Law Judge This case was tried before me on April 24, 1984, in Anniston, Alabama, based on a charge filed by Gary F Murphree, an Individual (Charging Party) on February 6, 1984, and a complaint issued by the Regional Director for Region 10 of the National Labor Relations Board on March 9, 1984.1 The complaint alleged that Dean General Con- tractors (Respondent) violated Section 8(a)(1) of the Act by threatening employees with discharge and discharging employees for concertedly exercising their rights protect- ed by Section 7 of the Act Respondent's timely answer denied the commission of any unfair labor practices. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evi- dence, and to argue orally. A brief was submitted by the General Counsel and was duly considered. On the entire record in this case and from my observa- tion of the witnesses and their demeanor on the witness stand, and on substantive, reliable evidence considered along with the consistency and inherent probability of testimony, I make the following FINDINGS OF FACT I. JURISDICTION AND STATUS OF LABOR ORGANIZATION-PRELIMINARY CONCLUSIONS OF LAW The complaint alleges, Respondent admits, and I find that Dean General Contractors is an Alabama corpora- tion engaged in the construction business and under con- tract to the Department of Defense in Gadsden, Ala- bama. Jurisdiction is not in issue. Dean General Contrac- tors, in the past 12 months, in the course and conduct of its business operations, performed services for the De- partment of Defense valued in excess of $50,000 I con- clude and find that Dean General Contractors is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2) and (6) of the Act and whose operations exert a substantial impact on our national defense. 11. BUSINESS OF RESPONDENT Respondent has a construction contract with the De- partment of Defense to build a facility for the Air Na- tional Guard on the municipal airport grounds in Gads- den, Alabama The facility covers an acre of land and is valued at approximately $360,000 Wages and classifica- tions of workers on the jobsite are controlled by Davis- Bacon Act provisions and monitored by military liaison, Major Copeland The basic classifications employed are ironworker, carpenter, brickmason, electrician, plasterer, and laborer. Wages vary for each classification ranging from $13 99 to $7.28 an hour and are posted on the job- site in accordance with Davis-Bacon guidelines 2 Labor- ers on the job number between 4 and 10 with the jour- neyman classifications numbering between 3 and 5 de- pending on the given stage of production. Johnny Dean is president of Respondent and his son, Rodney Dean, is general superintendent of the Gadsden project A second son, Ronald Dean, was employed as a laborer, carpenter, and machine operator on the project Although the bulk of the employees were laborers at times several of them worked in the various skilled classifications and were paid accordingly Against this background of alternating classifications a dispute arose between certain employees and supervision over the hourly wage to be paid for cer- tain skilled work. Amid discussion of the wages an em- ployee was discharged which is the basis for this pro- ceeding. Pertinent testimony of witnesses is detailed below. III THE ALLEGED UNFAIR LABOR PRACTICE Gary Murphree testified that he was employed by Su- perintendent Rod Dean as a laborer on July 10 at $7 28 an hour. Murphree worked as a general laborer for sev- eral days and then was assigned to the ironworker crew as a helper by Rodney Dean Dean told Murphree to give the ironworkers whatever help they needed and do what ironworker Steve Fair told him to do. Murphree moved the raw materials around the jobsite and helped the ironworkers erect the various supports In addition, he tied concrete reinforcing rods with wire in prepara- tion for the pouring of concrete While helping the iron- workers, Murphree questioned the lead ironworker, Steve Fair, and one of the ironworkers, Ken Penlin, about ironworker wages He was told by Fair and Penlin that ironworkers receive $13 99 an hour Murphree then asked both Fair and Penlin if he should be getting $13.99 an hour Fair responded that it was a Government job and whenever an employee performed classified work he was supposed to get the pay as posted. Penlin said that he thought Murphree should get the wage scale of $13 99. On several occasions Murphree questioned Rodney Dean about the wage scale and on each occa- sion Dean told Murphree that his scale was $7.28 an hour and that was what he would be paid Murphree also talked to Roy Cole, a co-laborer, about what wage should be paid for helping the ironworking crew Cole told Murphree that the ironworker wage should be paid when an employee was doing ironwork but the best thing to do was wait until the job was over then talk with the Government men to try to collect any additional money. Cole told Murphree that Major Cope- All dates herein are in 1983 unless otherwise specified 2 The Davis-Bacon Act is only tangentially involved in this proceeding in that the hourly wage on the project is subjected to its provisions 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD land would periodically come to the jobsite to interview employees while they were working and if he did so while the employee was performing a skilled job, he would ask what wage the employee was getting. If the wage was not as posted, the employee would get the dif- ference. Rodney Dean assigned Murphree to help Roy Cole face cement block with plaster. As they worked, Murph- ree asked Cole what wage they should get for plastering. Cole replied $8.50 an hour. Before the two had finished the plastering, Murphree asked Rodney Dean what wage he and Roy would get for plastering. Dean responded the laborers wage of $7.28. Murphree was also assigned by Rodney Dean to help install electrical conduit. Dean himself was performing the electrical work and Murphree helped him run the conduit on the cement block walls and fastened the con- duit to the boxes being held in place by Dean. Murphree was paid the laborer wage of $7.28 when he helped Dean work the electrical conduit and did not question that wage. In August Murphree was working with Cole and an- other employee hauling cement to a scaffold above the doors to the building. Cole filled the buckets on the ground and Murphree hauled the buckets up to the scaf- fold where they were poured into the form. During the course of working, Cole was repeatedly splattered with cement. Words were exchanged between Cole and Murphree about the sloppy effort and Rod Dean, who was present, told both employees to stop the verbal as- sault and get back to work. Dean also told both men if they wanted to fight they could do so outside the gate at 3:30 p .m. Nothing more was said and the crew continued their work. The cement work lasted several days. After laboring for several days, Murphree was told to again help face the cement block with plaster. He was to work with laborer Cole on the plaster. On August 23 while they were plastering, Murphree again asked Cole if they were supposed to be getting $8.50 an hour for plastering. Cole said they were to get the wage posted which was $8.50, but Cole said it was best to wait until after the job was over to get their money. After several days of plastering, Murphree asked Rodney Dean what pay he and Cole would get for the plastering. Dean said he and Cole were hired as laborers at $7.28 and that was all they were going to get. Murphree told Cole what Dean said and Cole replied, "Well, I kind of figured that." Murphree asked Cole if he would stick with him if the wage dispute was reported to the architects and Major Copeland. Cole told Murphree that he would stick with him. Murphree then went into the company project office and phoned Ellis, the architect. He told Ellis that three employees, himself, Sonny Cole, and Roy Cole were performing plasterers and blocklaying work and were not being paid the proper wage. Murphree said he was calling for the three employees and that Ellis could use his name if he wanted to. Ellis told Murphree that he would check into it that day. Within a short time the work crew went to lunch. After lunch, about 1 p.m., Murphree was standing in front of the building when Ellis and some other man arrived on the jobsite . A little later Major Copeland also arrived. The men stayed on the jobsite for about 1-1/2 hours interviewing other em- ployees but did not interview Murphree. The only call that Murphree made from the jobsite was the call to Ellis. Although Murphree did call Cope- land, he never did so from the jobsite. The following day, August 24, Murphree worked the full day. When Rod Dean brought Murphree his time- card to sign, he also gave Murphree his paycheck. Dean told Murphree he would not be needed anymore. Murphree asked why he was being fired and Dean said he would rather not get into it. Murphree said he needed to know the reason for his discharge because it was not right for the Company not to give him a legitimate excuse. Dean told Murphree that he was being fired be- cause he had said and done some things against company policy. Dean then told Murphree to just get in his car and leave so the two of them could remain friends. Murphree then left the jobsite. Roy Cole testified he was hired as a laborer by Johnny Dean in June 1982. He worked on other Dean jobs before the National Guard job in Gadsden started up. He was moved to the Gadsden job when it began. Cole's ini- tial hourly wage was $4.50 but at Gadsden he made $7.28 an hour. After working 2 weeks at Gadsden, Cole was assigned to help the ironworkers tie steel rods for the concrete slab. Cole was not told that his hourly rate would change with different job assignments, but Rodney Dean did tell him that the Air National Guard would periodically interview employees on the job. Dean told Cole not to get caught using anything but a pick or shovel. If he was doing other work when the interviewers came on the job, he was to stop and get his pick or shovel. On one occasion Cole was laying block when Major Copeland stopped him for an interview. Copeland asked what his classification was and what his hourly wage was. Later Cole spoke to Rodney and Johnny Dean in the office about the job interview. The Deans told Cole that if he got caught again his job would be in jeopardy. Cole was caught laying block again by Copeland and Johnny Dean told Cole after the interview that if it hap- pened again he would be sent down the road. After each interview with Copeland, Cole received the higher hourly wage for the time he spent laying block. All block repair work that was needed on the job was per- formed by Cole and by the direction of Rodney Dean. Cole also did plaster work with Murphree. Murphree began a discussion of wages for the plaster work stating that the pay for plaster was higher and they should be paid more than the laborer wage . Cole told Murphree that it was not right to only pay laborers ' wages for plas- tering. Murphree said he was going to call Major Cope- land and Cole said he wished Murphree would because he could not afford to lose his job at that time. Cole told Murphree that he would stick by Murphree if he called Major Copeland. One day while the two were plastering and Rodney Dean was present , Murphree asked Dean what wage he and the other laborers were supposed to receive for plastering . Murphree said the wage should be over $8 an hour instead of the regular laborer wage of DEAN GENERAL CONTRACTORS 579 $7 28 Rod Dean replied that laborers are paid laborers' wage. Cole rode to work regularly with Rodney Dean in Dean's car, In mid-August, while riding back to Oxford from the Gadsden jobsite, Dean said to Cole that Murph- ree was making trouble with the other laborers by bring- ing up wage disputes Dean stated that if Murphree kept making trouble he was going to get rid of his ass. When the two arrived in Oxford, they went to the company office. Once inside Rodney Dean told Johnny Dean that Murphree was causing trouble over wages and was the one calling Major Copeland Johnny Dean told Rodney not to worry about it because they will get rid of his ass before long. Johnny Dean added that he was tired of Murphree's griping On cross-examination, Cole stated that at one point in time, while the wage discussions among employees and initiated by Murphree were taking place, he went into the company office and told Johnny Dean in the pres- ence of Rodney Dean that Murphree told Major Cope- land that he (Murphree) was representing Roy Cole, Sonny Cole, Ron Dean, and the other laborers Cole stated to J Dean that, regardless of what Murphree told Major Copeland, Murphree was not representing Roy Cole After Murphree was discharged, he appeared on the jobsite with a picket sign. Rodney Dean told the employ- ees who were still working not to speak to or associate with Murphree in any shape, form, or manner. Rodney said any employee who did would be fired on the spot. Rodney Dean testified that he is general superintend- ent of the Gadsden National Guard project Superintend- ent Dean hired Steve Fair as an ironworker and Gary Murphree as a laborer. Fair was a union ironworker sup- plied by the Union as were the additional ironworkers hired Murphree was specifically told by Superintendent Dean to do laborer work and not to do any welding, fab- ricating, or assembling of any steel materials. There was a laborer classification for the ironwork on this jobsite, but on one 2-day occasion Murphree fabricated by help- ing to tie steel reinforcement rods Eventually the Com- pany had to pay Murphree for 13 hours of journeyman work at the posted wage of $13 99 In addition to the steelwork outside his laborer's classification, Murphree also did plastering work for I week with Roy Cole. Rodney Dean's only comment on the plastering was that Murphree did not do as much work as Cole in that week's work Rodney Dean stated that he did not know- ingly work any of the employees outside of their classifi- cations If an employee was assigned work outside of his classification, he was always reclassified on the payroll in accord with the wage guidelines for a Federal project. For that reason, Dean would instruct the employees in whatever classification they were working and their wage scale on those days when Major Copeland was in- specting the jobsite Major Copeland's last inspection concerning the wages received by employees and preci- pitated by Murphree's complaints took place the day before Murphree was discharged At the peak there were 4 ironworkers and 10 laborers, while on the downside 3 ironworkers and 4 laborers were on hand Rodney Dean cited several events that led to Murph- ree's discharge- During Murphree's employment he had a near altercation with Roy Cole while pouring concrete; he was late to work several times; he smart-mouthed a journeyman mason by telling the mason to get his own block to lay when Murphree, at the time, was the mason laborer; his manhour production had decreased by 75 percent; and his attitude toward his job was bad Al- though Rodney Dean equivocated on whether he knew about Murphree's steel tying job before he discharged Murphree, Dean did state that the steel work was part of the accumulation leading to the discharge. Dean testified that he was not sure when Murphree actually tied the steel rods, but "It was right toward the very end, Your Honor. I'm just going to guess within the last couple of weeks. It may be a little bit further than that or not. He [Murphree] didn't receive his check until he was already fired for it." Murphree discussed wage scales with Superintendent Dean on several occasions, but Dean never told Murph- ree that he would take the laborer's wage or leave it. On the occasions of plastering when Murphree worked with tools the Respondent was directed to pay Murphree at the skilled wage level and he was paid. Roy Cole was also paid at the block mason's wage level three times when he was caught on separate occasions laying block by Major Copeland. Cole had previously been instructed not to lay block on the job by both Johnny Dean and Rodney Dean before any blocks were laid-and after each occasion that Cole did lay block contra to his work orders. The block laying that Cole performed was in pre- viously laid walls when he only had to insert one or two blocks to reface the wall Rodney Dean admitted that he and Johnny Dean were aware that Murphree had represented to the military liai- son that he was representing Sonny Cole, Roy Cole, Ronny Dean, and himself when he lodged complaints about improper wage scales for the work performed, but only after Murphree had been discharged. Rodney stated that Sonny, Roy, and Ronny told him after the discharge that Murphree did not represent them in any respect. Rodney denied saying that he would get rid of Murphree to Roy Cole while the two were in transit to Gadsden in Dean's car. Rodney Dean also denied hearing Johnny Dean state in the company office that he would get rid of Murphree. Rodney testified that he did consult with Johnny Dean about Murphree and a joint agreement was reached by the two to fire Murphree. The agreement was reached 2 days before Murphree was actually fired Rodney Dean stated that Murphree's work record, in- cluding the unauthorized steel work, simply accumulated to a point that he and his dad decided to fire Murphree. Rodney Dean waited until the week was out before actu- ally firing Murphree. Rodney Dean told Murphree he was discharged on Wednesday August 24 and handed him a pay check. Murphree asked why he was being fired and Dean said just "let it go and leave the jobsite." Murphree pressed Dean for a reason and Dean finally told Murphree it was because of his smart-mouthing the brick mason, his lateness on the job, his performing un- 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD authorized work, his reduced production, and his talking against company policy. Ronald Dean testified that he worked on the Gadsden job as a laborer at $7.28, a carpenter at $13.49, a backhoe operator at $10.92, and a plasterer at $8.50. Ron Dean, when told that Murphree said he was the representative of the laborers specifically Roy Cole, Sonny Cole, and Ron Dean, said that nobody represents him and he would like to "whip Murphree's ass" for saying what is not true. Ron made the statement in the office at a time when Murphree was on his picket line after he was dis- charged. During the Gadsden job, Roy Cole rode to work with Ron Dean for a week and a half. Alan Dale Roszell testified that he worked on the Gadsden job as a laborer and a plumber. He received la- borers' wages and plumbers' wages for whatever hours he worked in each classification. Analysis and Conclusions The determination in this case is based on the Board's most recent pronouncement of what constitutes concert- ed activity which is remedial under the Act.3 Therein the Board formed the following standard: To find an employee's activity to be "concerted," we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself. Once the activi- ty is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the employee's activity, the concerted activity was protected by the Act, and the adverse employment action at issue (e.g., dis- charge) was motivated by the employee's protected concerted activity. General Counsel's record evidence shows that Murph- ree engaged in wage discussions with Roy Cole on sev- eral occasions involving several different work tasks for which a different wage was established. Albeit Cole sug- gested waiting until the construction was completed before making a claim for additional wages, he did also stimulate Murphree's action to confront Superintendent Dean and agreed to stick with Murphree if the wage dis- pute was reported to contracting authorities. Notwith- standing Murphree's solo presentations to Superintendent Dean and the contracting authorities, he clearly had the authority of employee Cole and the apparent authority of employees Sonny Cole and Ronald Dean. In my view, Murphree's action relating to the various wage scales disputes constitutes concerted activity and I so conclude and find It is not subject to conjecture that a wage dis- pute is within the purview of Section 7 of the Act. The uncontroverted testimony of Murphree and Cole evinces that Murphree questioned the wages of himself and other laborers to Superintendent Rodney Dean on more than one occasion on the jobsite. Even though Murphree did not state to Superintendent Dean the col- lective nature of his action, Cole's credible testimony (elicited during cross-examination) clearly made Re- 3 Meyers Industries, 268 NLRB 493 (1984) spondent aware that Murphree was seeking wage adjust- ments for himself and other employees as the representa- tive of the affected employees. Cole's same testimony es- tablished for Respondent the identity of the employee initiating the job labor interviews by the military liaison, Major Copeland. Respondent knew that Murphree was the employee responsible. Indeed, Cole's further testimo- ny of overheard remarks by Superintendent Rodney Dean and Johnny Dean in which Murphree's conduct was characterized as "griping" and "causing trouble among the laborers bring up wage disputes" cements the fact of Respondent's knowledge that Murphree was en- gaged in concerted activity over laborers' wages. Rodney Dean's denial of knowledge of Murphree's col- lective action until after the discharge took place clearly applies only to Murphree's direct statement made during the picketing. Rodney Dean's denial is not operative against Cole's testimony of a separate event. Moreover, Johnny Dean did not deny Cole's testimony in any par- ticular. Cole's expressed denial of Murphree's representa- tive status to Superintendent Rodney Dean and Johnny Dean does not vitiate the concerted nature of Murph- ree's conduct nor does it alter Respondent's knowledge of Murphree's conduct, particularly in view of the fact that the remaining employees expressed to be represent- ed by Murphree did not deny such representation until after Murphree's discharge. Respondent knew that Murphree disputed the wages received by laborers doing ironwork and plastering and knew that Murphree had told Copeland he was representing - the underpaid em- ployees. That knowledge, coupled with the fact that Murph- ree's reports to Copeland resulted in the higher wage being paid several employees, circumstantially supports the General Counsel's contention that Murphree's wage action motivated Respondent to discharge him. Further motivational support is found in the record evidence that laborer Roy Cole was interviewed on three occasions when he was laying block, ostensibly against the direct orders of the Deans, which resulted in additional wages being paid, but all Cole received was a warning not to get caught again. Obviously, Respondent hired several employees as laborers who possessed minimal other skills. Each was used sparingly in such skilled work and at laborers' wages. That is not to say each time a laborer worked with tools that he was only paid laborers wages, but clearly if the Deans could avoid the journeyman wage for that limited skilled work they did so. It was Murphree's adamant pursuit of the skilled wage for mini- mal tasks that caused consternation for the Deans. As Rodney Dean testified, a resolution of Murphree's wage dispute did not come easy and was time consuming Under the Wright Line motivational test the General Counsel clearly' has established a prima facie case of un- lawful discharge. Not only did Respondent treat Murph- ree different than other laborers similarly engaged in skilled work, but singled out Murphree as the source of wage trouble. The final labor interview conducted by 4 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981) DEAN GENERAL CONTRACTORS several of the military authorities and occurring the day before Murphree's discharge was the straw that broke the camel's back Respondent rid itself of the only em- ployee causing trouble and confusion on the job Re- spondent's purported reasons for discharging Murphree when it did are not substantial for several reasons Murphree's conduct complained of by Respondent was no different than other employees, but he was the only employee disciplined. Also, Murphree's conduct on the job was tolerated until Respondent realized that Murph- ree was the cause of wage interviews which required Re- spondent to pay additional wages contrary to its often- stated policy of working laborers at laborers' wages no matter what work task was performed. In view of the above, I conclude and find that Respondent would not have discharged Murphree for its stated reasons had Murphree not initiated the wage discussions among em- ployees and reported such wage discrepancies to the military authorities. Respondent, thusly, has failed to rebut the General Counsel's prima facie case of unlawful discharge of employee Gary Murphree. With further regard for Cole's credible testimony of Rodney Dean's and Johnny Dean's remarks about Murphree's "griping" and "causing trouble among the la- borers bringing up wage disputes," I conclude and find that Rodney Dean and Johnny Dean in mid-August threatened to discharge Murphree for raising such wage disputes as well as any other employee causing like trou- ble I do not conclude nor find that Johnny Dean, on August 27, 1983, threatened employees for engaging in protected concerted activities However, Rodney Dean did threaten employees with discharge for engaging in protected concerted activity when he admonished em- ployees not to associate with, talk to, or join Murphree on his one-man picket line subsequent to Murphree's dis- charge Thus, I conclude and find that, despite Rodney Dean's denials, he and Johnny Dean did threaten em- ployees in violation of Section 8(a)(1) of the Act as the General Counsel alleged in three of the four counts of paragraph 6 I specifically find that the General Counsel failed to sustain his allegation that Johnny Dean, on August 27, 1983, on the jobsite, threatened employees with discharge. ADDITIONAL CONCLUSIONS OF LAW 1. Respondent, on August 24, discharged Gary F. Murphree because he engaged inprotected concerted ac- tivities with other employees and thereby violated Sec- tion 8(a)(1) of the Act 2 Respondent, through its Superintendent Rodney Dean, on August 15 and August 27, 1983, threatened em- ployees with discharge if they engaged in protected con- certed activities and thereby violated Section 8(a)(1) of the Act 3 Respondent, through its President Johnny Dean, on August 15, 1983, threatened employees with discharge if they engaged in protected concerted activities thereby violating Section 8(a)(1) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act REMEDY 581 Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli- cies of the Act. The Respondent, having unlawfully discharged Gary F. Murphree, an employee, I find it necessary to order it to pay him backpay computed on a quarterly basis and interest thereon to be computed in the manner prescribed in F. W Woolworth Co., 90 NLRB 289 (1950), and Flori- da Steel Corp., 231 NLRB 651 (1977),5 from August 24, 1983, the date of discharge, to the date on which the Air National Guard project at Gadsden, Alabama, was com- pleted. Because the record disclosed that the project was completed before the trial of this case and that the con- tract for the project was a single contract with the De- partment of Defense, there is little assurance that Murph- ree's former position and former wage is extant The classifications of work functions and the prevailing wage were a direct product of the contract between Respond- ent and the Department of Defense I therefore am not ordering Respondent to reinstate Gary F Murphree I shall, however, otherwise order the usual remedy On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, Dean General Contractors, Anniston, Alabama, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening employees with discharge for engag- ing in activities protected by Section 7 of the Act (b) Discharging employees for engaging in activities protected by Section 7 of the Act (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Gary F Murphree whole for any earnings he lost, plus interest, as outlined in the remedy section of this decision. (b) Remove from its files any references to the dis- charge of Gary F Murphree and notify him in writing that this has been done and that evidence of this unlaw- ful discharge will not be used as a basis for future per- sonnel action against him should he in the future apply for work with Respondent (c) Preserve and, on request, make available to the Na- tional Labor Relations Board or its agents, for examina- tion and copying, all payroll records, social security pay- See generally Isis Plumbing Co, 138 NLRB 716 (1962) e If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment records, timecards, personnel records and reports, and all other records necessary to effectuate the backpay provisions of this Order. (d) Post at its offices in Oxford, Alabama, copies of the attached notice marked "Appendix."7 Copies of the notice on forms provided by the Regional Director for ' 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 Nation- al 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 " Region 10, after -being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.