Power Plant Maintenance Co., Inc.

POWER PLANT MAINTENANCE CO. 205 Power Plant Maintenance Co., Inc . and Internation- al Brotherhood of Boilermakers Local Union No. 30. Cases 11-CA-10459, 11-CA-10549, and 11-CA-10550 30 September 1987 DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND STEPHENS On 15 February 1983 Administrative Law Judge Thomas A. Ricci issued the attached decision. All parties filed exceptions and supporting briefs.The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order as modified.3 The judge failed to find an 8(a)(3) violation re- garding employee Victor Welch. The judge found an unlawful refusal to hire the other eight employ- ees who, along with Welch, were told by the Re- spondent that they would be hired but were not hired because of their union activity.4 The com- i The Respondent and Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to over- rule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are in- correct 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. 2 The judge found that Supervisor Ollis unlawfully interrogated Ed- wards on two separate occasions The record reveals that although Ollis made two statements to Edwards , both were made during the course of only one conversation We also correct the sequence of events to show that during this conversation, Ollis' question to Edwards immediately pre- ceded his threatening remark We agree with the judge that Ollis' ques- tioning of Edwards about his union activities violated Sec 8(a)(1) We also agree that Ollis' subsequent statement to Edwards that the employ- ees might be "run off' because of their union activities was an unlawful threat of reprisal Contrary to the judge, however, we do not find that this threatening remark contained any question and thus we are unable to conclude that this threat was also an unlawful interrogation. The judge also found that Supervisor Hancock 's inquiries to Edwards regarding Edwards and a fellow committeeman's union activity were un- lawful. We find it unnecessary to pass on this finding inasmuch as any finding would be cumulative and would not affect the remedy. We also correct certain other factual eirors made by the judge First, we correct his inadvertent reference to "boiler No 2" when clearly he was referring to "boiler No 3 " Second , we correct his findings concern- ing Brian Walsh's employment on Boiler 3 Respondent's payroll records show that work on Boiler 3 began on 1 June and continued until 25 June The employee complement reached its peak during the second week and tapered off slightly during the third week, but did not dramatically de- cline until the fourth and final week on the job These same records show that Brian Walsh worked on Boiler 3 from 13 to 17 June, logging in 53- 1/2 hours during this period 3 The Order is modified to conform with our decruon in Dean General Contractors, 285 NLRB 573 (1987) 4 In finding the Respondent's refusal to hire the committeemen unlaw- ful, Member Babson disavows the judge's reliance on the statement of the Respondent's president, Moree, that he would do all he legally could to keep the Union out of his business In so doing , Member Babson notes plaint alleges that Welch was unlawfully dis- charged on 11 May but reinstated on 28 May. The judge found that because the unit 2 job shut down completely on 25 May, Welch could not have been reinstated on 28 May because there was no work available. The judge dismissed the complaint con- cerning Welch concluding that a "respondent has a right to consider the complaint against him at face value, and I am limited rationally to the complaint as written." We disagree. The record is clear, and the judge made no con- trary finding, that Welch was one of nine commit- teemen whom the Respondent failed to rehire be- cause of this protected activity. Although the com- plaint was technically incorrect, 5 the error was not prejudicial to the Respondent, nor did it prevent the Respondent from fully and fairly litigating its case . Accordingly, we find that the Respondent violated Section 8(a)(3) when it unlawfully refused to rehire Welch.6 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Power Plant Maintenance Co., Inc., Rox- boro, North Carolina, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer Barry Edwards, Bill Teague, Bryan Walsh, Bruce Walsh, Benjamin Owens, Danny Owens, Henry Loftis, and Kevin Gainey immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them and the estate of Victor Welch whole for any loss of earnings and other benefits suffered as a result of the discrimination against them with interest to be computed in the manner prescribed in New Horizons for the Retard- ed."7 that the judge, earlier in his decision , concluded that Moree's statement was not unlawful 8 In his brief in support of exceptions, counsel for the General Counsel moved to amend the complaint to reflect the correct date of Victor Welch's return to work We deny the motion as untimely 6 The fact that Welch did work from I to 3 June on the No 2 turbine project would mitigate against the Respondent 's backpay liability, if any. However, that matter is best left to the compliance stage of the proceed- ings r In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 286 NLRB No. 15 206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 essential issues presented are whether the Respond- ent discharged 10 employees in May 1982 , and thereafter refused to employ them because of their activities in sup- port of the Union , in violation of Section 8(a)(3) of the Act. Briefs were filed, after the close of the hearing, by the Respondent and the Charging Party. On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT 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. WE WILL NOT refuse to employ or otherwise dis- criminate against our employees because they have engaged in concerted union activities. WE WILL NOT interrogate our employees con- cerning their union activities or concerning the union activities of their fellow employees. WE WILL NOT threaten to discharge employees in retaliation for their union activities. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WILL offer Barry Edwards, Bill Teague, Bryan Walsh, Bruce Walsh, Benjamin Owens, Danny Owens, Henry Loftis, and Kevin Gainey immediate and full reinstatement to their former jobs or, if those jobs no longer exist , to substantial- ly equivalent positions , without prejudice to their seniority or any other rights or privileges previous- ly enjoyed, and WE WILL make them and the estate of Victor Welch whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings , plus interest. POWER PLANT MAINTENANCE CO., INC. Jasper C. Brown Jr., Esq., for the General Counsel. Robert A. Valois, Esq. and Margie T Case, Esq. (Maupin, Taylor & Ellis), of Raleigh, North Carolina, for the Re- spondent. Robert L. Dameron, Esq. (Blake & Uhlig), of Kansas City, Kansas, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge . A hear- ing was held in this proceeding on November 2, 3, and 4, 1982, at Durham, North Carolina, on complaint of the General Counsel against Power Plant Maintenance Co., Inc. (Respondent or the Company). The complaint issued on September 29, 1982 , on three separate charges filed by International Brotherhood of Boilermakers Local Union No. 30, on June 10, 1982, and August 13, 1982. 1. THE BUSINESS OF THE RESPONDENT In the States of North and South Carolina this Compa- ny is engaged in the business of providing maintenance for power plants at several jobsites, including the Caroli- na Power and Light Plant, CP & L, in Roxboro, North Carolina, and in Bowater, South Carolina. During the 12 months before issuance of the complaint, a representative period, the Respondent received gross revenues in excess of $50,000 for services provided directly to customers outside the State of North Carolina. During the same period it also purchased goods and materials directly from points outside the State of North Carolina valued in excess of $50,000. I find that the Respondent is an em- ployer within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that International Brotherhood of Boilermakers Local Union No. 30 is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Case in Brief Correct understanding of this case requires a clear pic- ture of its underlying realities at the outset. This Compa- ny is in the business of repairing and maintaining power plants throughout several states . It enters into one con- tract after another, each with a power company, to do a job to completion. It will carry on several such commit- ments simultaneously , one here and one there, some of them hundreds of miles apart . For each separate job it hires the necessary personnel and then releases them when it is completed . In the course of a single year, for example, it will have as many as 30 different jobs at dif- ferent sites. It uses as many as 1200 employees, many of them skilled craftsmen. Some jobs are small, some large. One job will require only 5 or 6 men, another as many as 650. None of the men who work for it have steady, regu- lar employment, such as would be the case in a perma- nent factory or other fixed establishment. When a man is no longer needed on a particular job, he looks for work elsewhere, wherever he can find it. Often he applies at some other project this Company is about to start, or is already carrying on. If needed , he will be rehired . If not, either he waits or seeks other employment. By employee Bryan Walsh : "Q. And how often each year will you work for him [the general foreman of the Respondent]? A. Well, I would say usually around 6 months a year, just depending on how the jobs run ; off and on, you POWER PLANT MAINTENANCE CO. 207 know, sometimes it will be a week; sometimes it will be two or three months." By employee Lloyd Owens: "Q. When did you work for the Company? A. Several differ- ent occasions but with reference to Boiler 2, 1 work from, it was about February to the last of April." By Walter Patton: "I called these people 25 to 30 times per year depending upon my employment elsewhere; when I am unemployed, I call them weekly." This is an important fact in this case at bar because the complaint alleges that when nine men were sent home from a certain contract job the Company was finishing- called Boiler 2 in Roxboro for CP and L--the Respond- ent refused to "reinstate" them. This is misleading, for the project they had worked on for several months was finished, there simply was no more work for anybody. Another contract repair job, called Boiler 3, also for CP and L, started a number of days later, and for that job the Company called in many out-of-work employees who had worked for it before on other projects. This was a continuation of its usual practice. The men who worked on Boiler 3 were simply new hires, as is always the case when this Company takes on another repair job in one city or another. If in fact Respondent refused to hire the pinpointed nine men on the new job with an ille- gal motive, that is one thing. But the idea of "failure to reinstate," as stated in the complaint, is wrong. This true nature of employment with this Company touches as well on the other half of the complaint, which says that when discharged from the first job-Boiler 2- the Respondent did not hire them on Boiler 3 because it knew them to favor the Union. Here, the fact that the job they were on was petering out and that they could expect to be among those to be let go, is ignored. Again, the fact is these men were not "fired," or "discharged," in the usual sense of the term, i.e., as when an employer just picks a man from among his steady, fixed, and per- manent complement and sends him home. The project ended, the work was finished, and therefore they were left without any work. B. The Alleged Discharge of the Committeemen In the spring of 1982 the Respondent did a contract job for CP and L at Roxboro , repairing a power plant referred to as Boiler 2. It started in February and ended in late May. At one point, the week ending April 30, there were 160 employees, at least according to a payroll record received in evidence.' During April a movement ' As witnesses at the hearing a number of employees who worked there spoke of there being over 100 employees at a time on this job. It was a very large one and the individual employees could not have known how many employees really worked at any given time Payroll records for each week of the job were received in evidence, with all parties agreeing they are authentic company records They show clearly just how many employees worked each week, indeed they show exactly on which day each of them was released when the job came to an end. Jack Vance, the Company's secretary-treasurer, as a witness, said there were 100 on the job at its peak, but I am unable to reconcile that statement with the agreed on company record In any event, whatever the number, it is clear it was well over 100 men After the close of the hearing the Respondent mailed to my office an- other payroll record, assertedly of the Respondent, for the weeks ending May 21 and May 28, saying they had inadvertently been omitted from the received exhibit. I have not relied on that for figures here, because it is not clear Some refer to , without explanation, two jobs-Boiler 2 and started towards joining Boilermakers Local 30; the activ- ists obtained about 35 signatures to authorization cards. On April 26 the Union sent a telegram to the Company, informing it that nine employees-each named in the telegram-were active in the organizational campaign and reminding it that the statute protects such employees against illegal discrimination in employment. This was just a way of telling Respondent not to lay off these par- ticular people. As time went on, through the month of May, each of these employees was released, as was ev- erybody else. Was the dismissal of these men an unfair labor practice, unlike the dismissal of all the others, or were they entitled to preferential treatment because they called themselves the organizing committee? The Company was opposed to its employees being represented by the Union. Shortly after the Company re- ceived the Union's telegram, Willie Street, a general foreman who works regularly for the Respondent, called the nine men named in the telegram to meet with him. Several employees testified about what he said there. Ac- cording to Bryan Walsh: "... he ended up asking us, you know, if there was any problems or anything wrong with the job, why we would like to, you know, have a union come in there?" According to Barry Edwards, Street "went on to say that he didn't know why we wanted a union, that we should come to him with our problems, if we had any." "Then he went into saying that he had once been a member of the union himself, and that he was no longer a member of the union; he told us he didn't want the job to suffer, that he had had one man to quit because he felt like he was being har- assed on the organizing drive and he didn't want to see his men, that he didn't want to lose his men right there, that he didn't want the job to suffer ...." According to Henry Loftis: "He first asked us, you know, what did we want a union for, and why did we want a union, you know, that we should have come to him with any prob- lems; and then he said how good a job that Barry and the other welders had done; and that he was well pleased with the way that they were working and that he would, that it would be a short break between Unit 2 and 3, and that he would guarantee us a job, you know, on Unit 3 ...." Also by Edwards: "He told us that he knew that we were doing a fine job, that we had bailed him out a number of times, that he appreciated it, and then he went on to talk about the work on Unit 3; and I asked him: `Was it going to hurt us when we went over to Unit 3 since we were, you know, trying to organize the job.' He told me: `No, we had bailed him out, that we were among the best people, he had on the job, and he would see that we got over on Unit 3, that he would guarantee us a job on Unit 3."' Street's version of this talk with the nine men is that all he told them was the Union was "their business and whatever they wanted to do about it, that I appreciated Boiler 3 Some referred to a later "turbine" job The transcript testimony clearly shows the "turbine" job was contracted by CP and L to General Electric Company, which operated entirely apart from the Respondent, albeit it did employ some employees who had worked on Boiler 2 for the Respondent at the same location 208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it, I would appreciate it if they would keep it out down on their job while they were working on the job ... . Street admitted telling the men they were doing "a fine job," but denied saying they should have brought their problems to him instead , or promising them unequivocal- ly they would, all nine, have jobs on the next project, which was to begin the next month. I credit the employ- ees against the manager. A number of times later, while the men were applying for jobs on Boiler 3 or on other projects the Company had, Street admittedly told Ed- wards he was hesitant about rehiring him because he feared Edwards' union activity would go contrary to the desires of others and cause others to walk off the job. Street also said, at other points in his testimony, that by about the end of May he had already prepared a list of employees he was planning to hire on Boiler 3 and that on that list were all nine of the men he was speaking to that day. Moreover, Street, as well as other manage- ment representatives, said that all these men were very well qualified, indeed were among the better workmen in the very large group it ordinarily employed. A few days later the Company gathered all its employ- ees-well over 100-in the large lunchroom for a mass meeting. Henry Moree, the company president, opened the meeting by telling the employees he had received the Union's telegram and he was opposed to having a union in the place. By employee Dennis Mitchen: "He said `I received a telegram from the Union. . . . and imposing that they have a committee on this job.' He said, `I know who the people are' which they were there in front of him with the telegram and he went on to say that the union, he said 'It is good for some people and is not good for others.' He said, `I myself elect not to go with the Union being, I mean,' he said: 'I will fight it anyway in my power legally.' I don't know if that is the exact wording that he used but it was something to that order that it would protest it legally, and then he went on to stress a few points about safety." By Edwards: "He [Moree] . . . received a telegram from the union . . . he would do everything he could to oppose it; he made that statement twice; and everytime he made it, he added on to the end of it `that he would do everything he could to oppose it legally . . . .' He went on to say that he was opposed to the union, that he had worked union, he didn't agree with the philosophy of the Union, that it was okay for some people, and for some people it wasn't; that the Union did their job at $22 a man hour, that he had bid his $13 to $15 an hour in order to get the work; in order for him to get work, he had to bid at that; that if he had to pay union rates, that wouldn't nobody there have a job because he couldn't get any work if he had to pay union rates." By Loftis: "[Moree] would do what he could to keep the union out . . . and he said that if he had to pay union scale that none of us would be working because if he had to pay the man hour rate because he couldn't compete with the other contractors." Other em- ployee witnesses quoted the owner the same way, but there is no purpose in repeating it all here, for Moree ad- mitted it all. From his direct testimony: Q. And you told them that you opposed the meeting; I mean oppose the Union, rather; is that right? A. Yes, sir. Q. And you said that you would do anything le- gally within your power to keep the Union out? A. Yes, sir . . . . I told them that my total charge was $13 a man hour, other than a specialty craft. I told them that a regular fitter or boiler- maker, my total charge, taxes, insurance and profits, was $13 a man hour. I told them that my competi- tors paid out $14 a man hour and that I couldn't get the job if I charged 20 to 25 dollars a man hour ... I told the employees that if I had to charge $25 a man hour they wouldn't be working for me. They could be working for some other contractor that might get the job, but they wouldn't be work- ing for me. Moree's opening remarks at this meeting were short. He then turned the meeting over to his managers, who proceeded with what the employees referred to as the usual safety meeting. Among the things General Fore- man Street then said was that, because of pressure put on him by CP and L, the men must be sure to wear their safety helmets while at work and their safety glasses as well, and that if they did not they would be discharged. Again, no need to belabor all the repetitive testimony of the listeners, for it is clear that is what he said. The em- ployees recalled Street saying his warning was dictated by the power company, which did exercise a measure of control over what was going on in its plant. Some of the employees even recalled there had been instances of per- sonal injuries caused by failure to use the protective gadgets . In fact, there is uncontradicted testimony that several employees had recently been hospitalized because of this carelessness. I find nothing wrong with the owner's statement that he would do all in his power "legally" to keep the Union out of his business. Nor do I find it an unfair labor prac- tice, as apparently alleged in the complaint, for Moree to have said he could not afford a union because union wages were much higher than what he could afford on the basis of his bids, which were getting him the jobs on which his people were working. Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 618 (1969). I do not know what the prevailing union wages for this kind of work are in the general area where this Company operates, but the fact is none of the employees present when Moree was talking quarreled with him on that score, and some of them were old unioneers. Nor is there any contention that the owner was lying about that, so that this situation might be likened to false propaganda preceding a Board election. Finally, the enforcement announced that day by Street was also dictated by OSHA's applicable rulings. On this pinpointed aspect of the case no supporting precedent was cited by anyone; in fact the Charging Party's brief, 30 pages long, cites no case at all, and the General Counsel did not file a brief of any kind. But these two meetings held by the Company do es- tablish clearly one fact that is germane to the two princi- pal issues of the case-were the men named dismissed POWER PLANT MAINTENANCE CO 209 because of the union activities, and, were they denied employment at the next Boiler No. 3 for that reason? The Respondent was determined to put at stop to the prounion activities if he could do so legally. This reality will be fairly appraised together with other pertinent facts of record concerning the principal complaint allega- tions. There were some 8(axl) violations of the statute com- mitted by supervisors in other conversations with the employees. While Edwards was still on the Boiler No. 2 job, Supervisor Ollis told him "he hated to see that, that he gave such a high recommendation of me from the previous job that I worked for him on, that he was afraid that it was going to get him in a bind, and it might result in the people that was talking union being run off as well as himself." Edwards also recalled another supervisor, Ronnie Hancock, asking him, "Your buddy over there, he's union too, ain't he?" When Edwards said, "Yeah," the supervisor asked what position did he hold. And Ed- wards said he was an organizer. Hancock did not testify, and Ollis denied having asked Edwards that question. I credit Edwards instead; his testimony fits the picture as a whole. Moreover, on another point, Ollis' testimony left much to be desired. He spoke of another employee, Patton, being absent 3 days because of trouble with his girlfriend. The higher supervisor, who also knew about that absence, admitted instead he was told Patton's ab- sence was because of a funeral in his family. This was consistent with Patton's testimony about what he told Ollis. The attempt by Ollis to put Patton in a bad light did not enhance his credibility. I find that both Ollis' and Hancock's questioning of Edwards about his union activ- ity, and about the union activity of others, were viola- tions of Section 8(a)(1) of the Act. I also find that Ollis' statement telling Edwards the employees might be run off because of their pressing for the Union illegally threatened discharge, and thereby again violated Section 8(a)(1). Ollis questioned Edwards on another occasion, still ac- cording to Edwards, "Bobby came to me and told me that he had heard rumors on the job that there was a lot of union talk and he knew that I was a union man, and he wanted to know if I had anything to do with it." I do not credit Ollis' denial of this questioning, and therefore find it another instance of illegal interrogation. Edwards also testified that one day another admitted supervisor, Stewart Gentry, asked him about the Union, and when the employee said he was for the Union, the supervisor said, "that the union ain't done nothing for me, and if I ever get a shot at them, any of them, that they are gone." Loftis also recalled a conversation with Supervisor Gentry: ". . . he said the Union wasn't worth a dame and that if he had anybody or know anybody that had anything to do with it that, you know, that he would do his best to get them run off." Gentry denied having made that threat, but I do not credit him. I find he violated Section 8(a)(1) in both his talks with Ed- wards and with Loftis. The nine employees named in the Union's April 26 telegram were terminated from the Boiler No. 2 job on various dates between May 8 and 28, according to the complaint.2 There is a confusion in the record as made by the General Counsel about just when these men were released or, indeed, dust who was released and named in the complaint. Four of them did not appear at the hear- ing-Victor Welch, Bruce Walsh, and two men named Owens-Benjamin and Danny. A man named Benjamin Lloyd Owens Sr. testified for the General Counsel, but he said he was the father of someone else who had worked on Boiler 2; in any event he also made it clear he was a general foreman on the project when released, so he could not have been one of the alleged discrimina- tees. One man, Edwards, said he left the job on May 13 when he was injured, and was unable to work for 2 weeks. By that time there was virtually no one left on the job. What "refusal to reinstate" him at that time means, I do not understand. The company records do show that all nine of the named men last worked on varying dates between May 8 and 24. The question is: Were all of them released exactly on those days because the Company had learned they favored the Union? Considering all the related factors, I find the record as a whole does not prove that complaint allegation. It is not enough that the Company was opposed to the Union; that is a clear enough fact. In other circum- stances, coupled with knowledge of these particular em- ployees' prounion activities, it might do, as, for example, had they been summarily discharged in the peak season of a business, or when there was no other plausible ex- planation for the dismissals. Here, it is true it was time for not only these people, but for everybody else to get off the job. What the General Counsel really relies on for the in- ference of illegal motivation are two facts. One is that these men were capable, desirable employees, as their su- pervisors admitted. Again and again those who appeared as witnesses stressed the fact they were not only good welders, but certified welders. The trouble with this is that they were not the only certified welders; there were about 35 or 37 other certified welders on the job, and all those others were dismissed as well. There was, there- fore, no selective picking among the skilled workmen as to who to let go. And while it is true some people re- mained on the job when these men were sent home, I have no reason to believe they-the nine committeemen, as qualified as they were-were more qualified than others. Merely to show how skilled one group may be does not serve, absent evidentiary proof, to show the others were less skilled. The other fact on which the General Counsel rests is that the Company knew these were among the prounion group. There were others, of course, for 35 had signed union cards, but there is no evidence the Company knew 2 Edwards stopped work on May 13, when he was injured on the job The complaint about him is ambiguous It gives May 28 as the day he suffered illegal discrimination, calling that day both a discharge and a re- fusal to reinstate The Boiler 2 job was completely finished by that time, so there could have been no discharge then at all The Boiler 3 job did not start at all until sometime in June, so there could have been no refus- al to give the man a job there that day From Edwards' testimony about a conversation with Street at the end of May-"He told me that most of the people had been laid off, that they didn't know exactly when Unit 3 was going to go, and he couldn't use me at that time " 210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the identity of all the rest. Ergo, according to the Union, because the Company knew about these nine, it follows it was influenced by that fact. It will not do in this case. When General Foreman Street talked to the nine men in his office, he told them he expected to use them on the next job, Boiler No. 3. Could not the General Counsel now say that was a promise of benefit, a bribe offer to influence them away from their prounion resolve? The argument would be no less persuasive than the one that is actually made. Looked at in this light, the Company was damned if it did and damned if it did not. Merely putting into the hands of an employer a paper listing some of the union-minded employees cannot serve as guarantee of employment, regardless of what the eco- nomic needs of the Company might be, or of preferential treatment of one group against another. Cf. Economy Stores, 120 NLRB 1 (1958). As already stated, during the week of April 24 to 30 there were about 159 men on the job, with a great many of them working during that week. During the week of May 1 to 7, 94 men worked, with 23 men sent home. The next week 76 men worked, with 46 leaving during the week. During the week ending May 28, 21 men worked, but all were sent home by about May 25. Loftis last worked on May 8; 4 others stopped work that day, and 29 went off the payroll the day before he left, ac- cording to the records. Walsh and B. Owens last worked on May 11; 21 others left the same day. D. Owens and Teague last worked on May 14; of the 59 men who worked on May 14, only 11 were still at work on the start of the following week. In such a picture I cannot find that these particular men were deliberately selected out of turn with an unlawful motive. There simply is not sufficient affirmative proof. However, the theory be stated, failure to prove a prima facie case, or convincing proof by the Respondent that it all involved a purely economic motivation, I shall dismiss this aspect of the case. C. Refusal to Hire at Boiler 3-8(a) (3) Violations The job on Boiler 3 started just a few days after the last man finished on Boiler 2. Street had been preparing for it for some time; in fact he had made up a list of starters that included the nine committeemen whom he later learned about. They were good people, he very much liked their work, and much of the work to be done on Boiler 3 was welding, for which they were well qualified. Street even told them he was going to use them on Boiler 3. With him saying he had made up the list with these names on it, how can I not credit the em- ployees, several of them who testified he told them he was planning to use them? Street tried to get around that by explaining that when he heard, by surprise, that the Boiler 3 complement would be smaller than he had been led to believe, he threw his first list away and made a new one, without the names of any of these men. It was not a convincing story. I do not say he promised them employment later as an inducement to quit the Union, for he may not have had that in mind, but he did say he would use them. And when the new job began, the first week, there were 65 employees present at work; 6 were added, making it a total of 71 throughout the second week. No less than 39 of these had just left Boiler 2. At the hearing an employee witness who had worked on Boiler 2 looked at the Boiler 3 payroll record received in evi- dence and identified 28 men, exclusive of supervisors, as people who had also worked on Boiler 2. In his brief, counsel for the Respondent uses that number to compare the two payrolls. But on careful examination of the pay- rolls for both jobs, I find 11 additional names as employ- ees who were taken from 2 and put on Boiler 3: Billy Barefoot, Troy Fields Jr., Jeffrey Grove, James Mooney, John Sims, Randy Keith, Wallace White, Bobby Ollis, Russell O'Briant, Jeffrey Martin, and Don Ratcliff. But not one of the nine committeemen was used at Boiler 3 during the full 2 weeks when the plant was in real oper- ation. The job only lasted just short of 3 weeks, with the peak period being the first 2 weeks. During the last week one man, Walsh, was used for only 3 days. When to all this is added the fact that Moree was so strongly re- solved to do all he could to keep the Union out of his business, the inference that the reason not a single com- mitteeman was taken on at Boiler 3 was to frustrate their objective, is inescapable. Street defended his apparent discrimination against these men by saying he thought it right to prefer those employees of the Company who had been out of work for some time. I can see the merit of the position, but it cannot explain away his hiring 39 of the old cadre with- out including a single one of the 9 committeemen whose activities the owner of the Company had announced he would, if at all possible, stop. There is more to indicate that Street's real reason for not hiring any of the com- mitteemen on Boiler 3 was their union activity. He ad- mitted, several times, telling Edwards his union solicita- tion had been wrong, that the employees had "harassed" others, indeed, even saying that some others had left the job because of it. Street told Edwards, directly, he was concerned about the reoccurrence of such conduct. Equating solicitation with harassment is an old story. "I told Barry [Edwards] that if something came open, if I put him back to work, I didn't want him to go back up there interfering with the men because they would walk off the job. . . . Interfering with the men again with union activity because he caused the men to walk off the job once before." Street said that an employee named "Eldridge" told him "the boys kept bugging him until he just couldn't stand it no longer." He even said Eldridge quit because of it. The Respondent then called employee Eldridge Meeks as a witness; I take it this was the "Eldridge" Street had talked about. Meeks said he left work one day-at about the end of April-"Because I was ap- proached to sign a union card so many different times that I just felt that I didn't have no obligation to sign it, so I quit." Meeks added Edwards had asked him to sign the card "4 or 5 times a day for about 3 or 4 days." Meeks returned to work anyway 3 or 4 days later. Ed- wards' later version was that he only asked Meeks to sign three times, on consecutive days. Although profess- POWER PLANT MAINTENANCE CO. 211 ing an antiunion feeling, Meeks admitted he went to the Union's hall later asking for work when this Company no longer needed him. He was clearly exaggerating at the hearing, and Street was building up on what was no more than the usual solicitation in any union campaign into a reason for keeping Edwards off the job on Boiler 3. Employee Dennis Mitchen testified that about June 3, as the Boiler 3 job was starting, Street told him Edwards had come by asking for a job, and that Edwards was "a good welder . . . good fitter, good rigger, good every- thing . . . I would like to have fifty more like him . . . I wish I could hire him but . . . I just wish that he wasn't messed up with that union." Edwards said that he was on the jobsite several days then, always asking for em- ployment. When he saw others being hired , and as he was told there was no place for him, he talked to Street. Street called him aside and said, ;still according to Ed- wards, "that he hated to tell me, that it couldn't hurt him any worse if I was his own brother, but he said that he couldn't hire me because he had some people on that job that would walk off if he hired any of us union people and he said that he would rather have me than three men that he had on the job but he couldn't hire me, that he hated it." "I told ... Willie Street, that I was an orga- nizer, that he had put the committee in a bad light be- cause he wasn't hiring any of us, that he wasn't hiring any of us committeemen, and that these people were wanting to know why they weren't hired, and that's when he told me that he didn't hire any of us because if he hired any of us union boys he would have some people walk out . . . ." With this, Edwards asked Street to speak with Shackleford, a union business agent. Again from Edwards' testimony: "Mr. Shackleford introduced himself and asked Mr. Street how come he couldn't hire me; Mr. Street said that he would like to hire us but he couldn't hire me and the other boys; he hated it; and he said that he would rather have any one of us than three people that he had on the job but if he had some non union people on the job that would walk off." Street denied that the reason why he did not hire Ed- wards, or any of the other nine committeemen on Boiler 3, was because of the union activity. But there was the following in his testimony: "Q. Now let me get some- thing straight here: You talked about a conversation with Barry Edwards and you said you didn't want Barry going up on the job causing trouble? A. That's right, causing my help to walk off." Given the total circum- stances of this case, I credit Edwards, and Mitchen, against Street, and find he actually told them his reason was fear that the solicitors might upset the other employ- ees. He had no basis for that assertion. Another defense argument is that certified welders were not needed on the next job, and that therefore the fact that each of the nine committeemen was a very good certified welder is irrelevant to the case. But the fact is that welding work was performed by the large group who worked on Boiler 3, and that many other welders were taken from the 2 job. I find that the Respondent deliberately refused to hire eight of the nine committeemen named in the complaint for fear they might succeed in their union campaign, and thereby violated Section 8(a)(3) of the Act concerning each of them. Four of the nine listed in the complaint did not appear at the hearing-Bruce Walsh, Benjamin Owens, Danny Owens, and Victor Welch. But it is a fact Street had listed them all in his prepared hiring plan for the next job and told the men he intended to use them . Regarding one of the four-Welch, I cannot make a finding that an unfair labor practice was committed against him. The payroll records show he last worked on Boiler 2 on May 11. The complaint gives that date as the date of unlawful discharge. But the complaint also states-very precise- ly-he was "reinstated May 28 , 1982." Everybody left the 2 job on May 25, but one man, who left on May 26. Nobody worked there again. Does the complaint mean Welch was "reinstated" to another project on May 28? This Company does regularly run more than one job at a time. I do not know, and the General Counsel offered no explanation of his complaint about his man . A respond- ent has a right to consider the complaint against him at face value, and I am limited rationally to the complaint as written. Unfair labor practice findings cannot be based on speculation. D. Walter Patton Alleged 8(a)(3) Violation Patton was a fitter on Boiler 2 . He worked 4 years for this Company, on and off, as he was needed from one job to another. He was often used as a foreman. He was released from the Boiler 2 job on May 7 and was not used on Boiler 3 . The complaint alleges he was illegally discharged from Boiler 2 and illegally refused a job on Boiler 3. At lunch on May 7, sitting at a table with 40 or 50 em- ployees in the crowded lunchroom, Patton signed a union authorization card. The sole proof of illegal moti- vation about him centers on the contention that manag- ers saw this happen, learned of his prounion attitude, and therefore fired him later that day for that reason. Sitting at his table was a foreman, Ray Dunn. At a nearby table 5 feet away was another foreman-Dick Ravel. Patton said that when this happened, Ollis, a supervisor, was passing by behind him, how far away "I really don't know." Q. When you were sitting at the table on the day that you were laid off, asking Mr. Edwards for a union card, do you know if Bobby Ohis was there when you asked for the card? A. No, ma'am, I do not. Q. Where was Ollis? A. He was behind me. I had my back to him. Q. And what was the distance between you and Ollis? A. I really don't know. I just noticed him when he walked by me and went to the other table. Q. Now when did you first notice Ollis? A. I guess about 5 minutes before we got ready to go back to the jobsite. Q. Did you have your union card in your posses- sion at the time? 212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A. No, sir, I had just given it back to Mr. Ed- wards. Ravell did not testify. Dunn said he did not see Patton sign the card, and Ollis testified he did not either. There is an affirmative defense of release for just cause that more than offsets whatever suspicion may arise from Patton's having signed that union card, even assuming the supervisors saw him do that. A week earlier, on May 1, Patton's hours of work were reduced and he was demoted from the position of foreman over his crew, a position he had held for several weeks. As Patton himself admitted, Street, the general foreman, gave him several reasons for the action: "Mr. Street said that he had been hearing some bad things about me; he said that he heard that I was sleeping, that I was smoking marijuana, and was letting people in the boiler do whatever they wanted, and was not doing my job and I denied this." Patton denied to Street that he did all these things, but he did admit to the general fore- man as follows: "I said `as far as the sleeping,' I said `one morning we didn't have any material to work with,' and I said `the job was going slow, that I sat back under some tubes for about 2 hours, but I was right at my job- site."' Asked, on cross-examination, had anyone seen him smoking "pot" in the plant, Patton again and again equivocated, tried to avoid answering the question. Fi- nally, came the following: "I had a supervisor walk up on me and two other guys in 1979; they smelled the marijuana; but did not actually see anyone smoking it, and I did admit to it. . . ." Patton also said that on Boiler 2 he had been "confronted" by his supervisors about "not doing my job." Street closed the conversation on May 1 saying "he would make his decision whether he was going to keep me or not that afternoon . . . that I was being busted back to a fitter to my tools and on my pay rate would be $10 an hour and that I could take it or leave it and I took it." Within a day or two Patton took 3 days off from work for personal reasons, a funeral in the family. The day after he returned, this was the day he signed the union card, after lunch he told his supervisor, Ollis, he had to leave early, again for personal reasons. When he clocked out later, he was told he was being laid off. He then asked Blackman, a foreman there, would he be used in Boiler 3, and Blackman said, "yes, that I would be okay when they straightened me out." Patton then shook hands and left. He returned several times to look for work on Boiler 3, but was told, still as he testified, "that they were full, that they weren't going to hire anymore people that day." At the hearing Street said he released Patton when he did because his, Patton's, job was finished. I believe him. There may have been others on the total project still doing the kind of rigging work Patton was then doing, but it is a fact people were being released that week in large numbers and a general reduction in force was taking place. Not only were others laid off the same day, but even Dunn, who had replaced Patton as foreman on their crew, was laid off the same day. What more con- vincing proof than this that Street was telling the truth when he said he no longer needed Patton on the job? Be- sides, if Street saw no reason for transferring Patton to other rigging work, in some other crew still on the job, he had ample reason to do so quite apart from anything that happened the day the man was sent home-i.e., the business of signing a union card. It must be remembered that the man had been severely criticized a week before for what cannot be denied were serious faults on the job. He was demoted, his hours were cut, and he was told off in no uncertain terms. But all that happened before any suggestion of union activity by Patton. He may have had good reason to ask for 3 days off immediately after that, but the fact remains the Company was easily able to do without him, not really needing him at all with the whole job tapering off. And the very day Patton re- turned on the job he had to leave early again. I can find nothing wrong with Street telling him it was time enough to do without him altogether. Patton was not a persuasive witness, and I therefore find his testimony insufficient to prove Supervisor Ollis, or any other member of management, really knew he was prounion. But even were I to believe Dunn or Fore- man Ravell saw him sign the union card that day, I would still find the real reason why he was chosen for release that day was because management justly decided he was undesirable as an employee and no longer needed. And if Street, or any other management representa- tive, did later say Patton would have to straighten out before he could again work for this Company, it too was an understandable idea. The phrase is not entirely inap- posite when a man lazies on the job and smokes "pot." Street added that he learned, before Patton left, that there had been stealing going on in the plant, somebody taking gloves and things that properly should have been paid for. He said he only learned Patton had been the guilty one after Patton left. There is testimony by a former employee about actually knowing that Patton had stolen things. I do not think it necessary to decide if Patton was a thief or not. It was enough for Street to think so even absent proof positive. The complaint also alleges Patton was unlawfully re- fused employment at the Boiler 3 job and was again re- fused employment at another project of the Company at Bowater, 200 miles away in another city. These conten- tions rest essentially on the same assertions made with re- spect to his release from the Boiler 2 job-that manage- ment knew he had signed a union card, and that Street felt Patton had to be "straightened out." Again, consid- ering the general state of affairs in June-with Patton being only one of who knows how many employees seeking work-I cannot find that the reason the Compa- ny did not take him in particular, while turning away ap- plicants every day, was because of any union activity on his part. As stated, the credible evidence does not suffice to prove the managers knew he had signed a card. And while it is true Street felt the man was undesirable, he had basis for believing so, perfectly proper reasons. He even admitted telling the Bowater manager, Robert Small, that in light of Patton's behavior on the Boiler 2 job he was not a desirable employee, and the Company POWER PLANT MAINTENANCE CO. 213 therefore "didn't need him." With this, the Bowater manager even told Patton to save himself the trip to Bowater. I deem perfectly acceptable Small's statement, at the hearing, that after hearing Street tell him about Patton's sleeping on the job, smoking dope, and stealing, "you can take a barrel of apples and one of them will [sour] sooner or later." Besides, there is not even adequate evidence that when Patton applied, here or there, for work, there was need for hiring anybody. On his own testimony, when he went in early June to Boiler 3, to see if there was work available, he was told "they [the people coming into work] had been hired earlier and were scheduled to work on the unit." In July, when he telephoned Manager Small at Bowater, he was told, still as he testified, "that the job was full." On August 2 he went to Bowater per- sonally, with Edwards and Teague„ two of the old com- mitteemen; all three of them wore Local 30 hats. When they asked for work, Small told them he had hired all the people he needed. There is no evidence in this record to indicate otherwise. Did Small have to find a way to put Patton to work that day because the man was wear- ing a union insignia? This seems to be the General Coun- sel's argument running through the case. I find this pinpointed allegation of discrimination against Patton at the Bowater job unsupported by the evidence in toto. 289 (1950) and Florida Steel Corp., 231 NLRB 651 (1977).3 Nothing that happened after that, anywhere else, bears any relationship to the make-whole remedy in this proceeding. The Respondent must, of course, also be ordered to cease and desist from further commission of unfair labor practices it has committed in the past. It must also be or- dered to post appropriate notices assuring its employees of future neutrality. The notices must be posted at all projects carried on by the Company during the 60-day posting period starting the day it first posts the notice. This remedy is necessary because of the shifting nature of employment with the Company, and the continuing rotation of employees from one project to another. The Respondent must also be ordered to mail copies of the notice to the eight employees who actually suffered direct discrimination, as found here. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY In the course of examining witnesses, the General Counsel evaded direct answers to the question: Was he contending there had been illegal discrimination prac- ticed by the Respondent when other employees applied for work at Bowater? From the transcript: JUDGE Ricci: Mr. Brown, is it a contention of the General Counsel that at this other place where this witness said that he applied for work like the main office, and he was not hired, that a further dis- crimination or unfair labor practice, 8(a)(3) com- plaint on those occasions would be warranted? MR. BROWN: . . The General Counsel's posi- tion . . . is . . . that the employees were not hired at Roxboro only; however, I think that the testimo- ny may bear going into, the fact that some of the employees applied at places and were not hired, to reflect upon Roxboro. I do not understand this sort of reasoning. This entire case is limited to (1) alleged illegal discrimination of 10 men at Boiler 2; (2) alleged illegal refusal to hire nine men at Boiler 3; and (3) alleged refusal to hire Patton at Bowater. I have found that the Respondent improperly denied employment to eight committeemen at Boiler 2. Had they been hired they would have worked there about 2 weeks, some of the eight even less, unless they were entitled to preferred treatment for being known union members. They must be made whole for what earnings they lost with backpay and interest in the manner prescribed in F. W. Woolworth Co., 90 NLRB CONCLUSIONS OF LAW 1. By refusing to hire known union activists at its Boiler 3 job in Roxboro, North Carolina, for the purpose of curbing their union activities, the Respondent has vio- lated and is violating Section 8(a)(3) of the Act. 2. By the foregoing conduct, by questioning employees about their union activities and the union activities of fellow employees, and by threatening to discharge em- ployees in retaliation for the union activities, the Re- spondent has violated and is violating Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed4 ORDER The Respondent, Power Plant Maintenance Co., Inc., Roxboro, North Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to hire employees because of their known union activities and in order to curb their union activi- ties. 8 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 4 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 214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (b) Questioning employees about their union activities and about the union activities of their fellow employees. (c) Threatening to discharge employees in retaliation for their union activities. (d) 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 necessary to effectuate the policies of the Act. (a) Make whole Barry Edwards, Bill Teague, Bryan Walsh, Bruce Walsh, Benjamin Owens, Danny Owens, Henry Loftis, and Kevin Gainey for any loss of earnings that they may have suffered by virtue of the discrimina- tion against them by paying to them an amount equal to what they would have earned in consequence of the ille- gal discrimination against them, with interest. (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 each and every one of the job projects being carried on by the Respondent at the time of post- ing of this notice, copies of the attached notice marked "Appendix."a Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Mail to each of the eight employees named above who suffered illegal discrimination copies of said notice. (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. 5 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 "