Elion Concrete, Inc.

ELION CONCRETE Elion Concrete, Inc. and Muhammad Ibn Hoballah Elion Concrete, Inc. and Carpenters District Coun- cil, Baltimore and Vicinity, a/w United Broth- erhood of Carpenters and Joiners of America. Cases 5-CA-17977 and 5-CA-18313 11 December 1987 DECISION AND ORDER BY MEMBERS BABSON, STEPHENS, AND CRACRAFT On 18 September 1987 Administrative Law Judge Bernard Ries issued the attached decision. The Respondent filed exceptions' and a supporting brief The National Labor Relations Board has delegat- ed - 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 brief and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Elion Con- crete, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' The General Counsel filed a motion to strike the Respondent's excep- tions because the exceptions fail to comply with the requirements of Sec 102 46(b) of the Board's Rules and Regulations The Respondent filed a response to the General Counsel's motion Sec 102 46(b) states that any exception which does not comply with the requirements of that section "may be disregarded " Although the Respondent's exceptions do not fully comply with the requirements of Sec 102 46(b), we find that they are not so deficient to warrant striking Accordingly, we deny the Gener- al Counsel's motion Z The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We correct the judge's citation to Dither Bros Printing Co, 258 NLRB 357 (1981), in fn 27 of his decision Steven J. Anderson, Esq, for the General Counsel Edward J. Gutman, Esq and Frank L. Kollman, Esq. (Blum, Yumkas, Mailman, Gutman & Denick, "P.A.), of Baltimore, Maryland, for the Respondent. Eugene J. Shanahan, of Severna Park, Maryland, for the Union Charging Party. DECISION 69 STATEMENT OF THE CASE BERNARD RIEs, Administrative Law Judge These consolidated cases' were tried in Baltimore, Maryland, on 20 and 21 April and 1 May 1987 Their only common link is that they happen to involve the same Respondent; they were tried together for purposes of economy 2 Briefs were received from the General Counsel and Respondent about 20 July 1987 Having carefully consid- ered the briefs, having reviewed the exhibits and the transcript of proceedmgs,3 and keeping in mind my im- pression of the witnesses as they testified, I make the fol- lowing FINDINGS OF FACT 1. THE CASE OF MUHAMMAD IBN HOBALLAH A. The Issues The complaint alleges that Respondent committed two unfair labor practices with respect to Hoballah. It first asserts that his 23 October 1985 discharge was unlawful- ly motivated by his various protected concerted activi- ties. Second, the complaint claims that Hoballah, having been reinstated on 4 November 1985, and then legiti- mately laid off on 17 January 1986, was again discrimi- nated against on and after 9 April 1986, when Respond- ent failed to recall him to work, the latter discrimination assertedly violative of Section 8(a)(1) and (4) The pur- ported causes of this violation were both that Hoballah continued to concertedly complain about terms and con- ditions of employment after 4 November 1985 and that he "threatened to file and/or Respondent believed Ho- ballah had filed an unfair labor practice charge against Respondent." B. Preliminary Observation The witnesses in this case, on both sides, were mostly an unimpressive lot- defensive, partisan, evasive, some- times simply victims of poor recollection but also gener- ally committed to winning the case for their side Through the murk, however, taking into account the concessions, contradictions, and probabilities littering the landscape, certain truths seem to twinkle faintly but steadily C The Material Facts On 24 August 1985 Hoballah went to work as a labor- er for Respondent, a Baltimore concrete contractor, at a construction site called St Paul Street Plaza There may ' The complaint caption misspells the first name of the individual Charging Party in Case 5-CA-17977 I have corrected it here ' The charge in Case 5-CA-17977 was filed on 9 April 1986, amended on 16 April , and again amended on 29 September , the original complaint in that case issued on 22 May, and the amended complaint on 5 Decem- ber The charge in Case 5 -CA-18313 was filed on 29 August 1986, and the complaint issued on 16 March 1987 (the date " 1986" shown on the latter complaint, which also consolidated the two cases, is obviously er- roneous) I Errors in the transcript have been noted and corrected 287 NLRB No. 10 70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have been four supervisors on the job, but only three are relevant here Tom Williams (evidently a primus inter pares among the foremen), Elwood (Woody) Hartman, and Maybry ( "C.D.") Lynch The job superintendent was James L (J. L.) Parks 4 Hoballah was first assigned to Williams' crew and later was transferred to Hartman's crew. The job consisted of hauling materials to areas where carpenters constructed concrete forms. Hoballah was occasionally assigned to take charge of a crew in the absence of a foreman or to perform a task as the head of a small crew, as was fellow employee Rex; in such ca- pacities, they were known as leadmen. The General Counsel undertook to paint a picture of a series of incidents, all assertedly constituting concerted protected activity, in which Hoballah engaged between his hiring on 24 August 1985 and his discharge on 23 Oc- tober 1985, and a continuation of such conduct after his reinstatement about 4 November 1985 and his layoff at the time the job ended in January 1986. One major prob- lem with the present record is that none of the witnesses had any reliable idea about when in these two periods a particular incident took place, an evidentiary gap that might, in one view of the case, be of significance. A second problem is that Hoballah and most of the other witnesses displayed contempt for the truth. Al- though a comprehensive catalogue of Hoballah's fabrica- tions is unnecessary, a good example may be his un- abashed willingness to insert, at almost every conceiva- ble point in his testimony, magic words that would show that the particular problem under discussion was either concertedly embraced by fellow employees or that an- other employee requested Hoballah to act on his behalf, and that Hoballah conveyed these facts to supervisors in the course of discussions with them.5 Hoballah described several occasions on which he made some effort to assist other employees (or, in one in- stance, to protect the dignity of all the black employees on the job) by making approaches to supervisors Judg- ing from the concessions made here and there by Re- spondent's witnesses, who were just about as un- trustworthy as Hoballah, it seems clear that on a number of the occasions, Hoballah did play a role by speaking to a supervisor, but the time at which each instance oc- curred and whether they entailed all the elements neces- sary to Section 7 protection, as set out by the Board in Meyers Industries, 268 NLRB 493, 497 1984 (Meyers 1), 4 Because racial attitudes are adverted to here, it may be worth noting that Hoballah and Williams are black, and Parks, Hartman, and Lynch (and one "Rex," a fellow employee of Hoballah's) are white A majority of the laborers were black 5 Thus, for example, in describing his alleged conversation with Super- intendent Parks about the discharge of an employee named Green, Ho- ballah's first version of the discussion was silent about what he-said to Parks about his own role in the matter, but after a few leading questions by the General. Counsel, Hoballah quickly added that he not only told Parks that "Green asked me to talk to [Parks]," but he was also certain that he mentioned the same request to Hartman "when he gave me per- mission to go see Mr Parks " Nothing in Hoballah's detailed account of the Green incident in his first pretrial affidavit refers to having told Parks or Hartman that Green had asked Hoballah to speak for him Hoballah made three Board affidavits, on 16 April, 7 May, and 15 Sep- tember 1986 In addition to their internal inconsistencies and external conflicts with Hoballah's testimony, they raise certain questions that will be considered at the appropriate time remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D C. Cir. 1985), reaffirmed 281 NLRB 882 (1986), are, by and large, unanswerable questions. For example, given the coy and defensive testimony of Foreman Lynch and the hedged admissions of Foreman Hartman , I believe that there was a day on which Lynch uttered a particularly offensive racial slur over the walkie-talkie and that Hoballah complained to Hartman about the use of such language 6 I further believe it pos- sible that Hoballah spoke to the other black workers present, as Hartman's testimony in the preceding foot- note attests. The question of whether the other employ- ees were, as Hoballah testified, also incensed by the re- marks and appointed him to complain, or whether they simply said, as Hartman testified, "Hey, you know, we are on a construction job," is not answered by the whole of Hoballah's evidence.' In any event, it is probable that Hoballah went to see Williams; that the two of them in turn spoke to Lynch; that Williams told Lynch that he "did not want this sort of thing going on";8 that Lynch apologized and said it would not happen again, but that, as Hoballah left with Williams, he heard Lynch again making racist remarks over the radio;9 that Williams and Hoballah went to see J. L. Parks, who called in Lynch, that Lynch told Parks that he had already apologized; that Parks asked Hobal- lah if that was acceptable, that Hoballah said that it was; and that Parks told everyone to return to work, which they did. It is not at all clear that any other employees joined in Hoballah's protest or, expressly or implicitly, authorized him to represent them in prosecuting it. Even if they did, however, the record does not show that such support was known either to Williams or Parks. Finally, as in the 6 Hartman was the sort of witness who, if enough questions on the subject were asked, tended to go from the "possible" to the particular without blinking an eye In this instance, he first stated that Hoballah "might have" complained to him about racist remarks made by Lynch, "I don't know He might have said something I don't remember " After pages of such "possibles" and "don't remembers," Hartman eventu- ally, in answer to the question, "So Muhammad said to you that he over- heard racist remarks on the radio when he was standing next to you')", replied, "I told him I didn't hear them, you know [H]e just went and asked, you know, as he was working, he talked to the other guys and they didn't think nothing of it " 7 He testified that a fellow worker named "Big Jerry" became very angry at Lynch, that Hoballah calmed him down, that Big Jerry said that someone should complain to Williams, and that the employees chose Ho- ballah as their emissary In his April affidavit, however, Hoballah stated only that he "looked over at the other crew members and I knew by the way they looked that they had heard this [they stopped working] " Then, after asking Hartman to chastise Lynch and being told to "ignore it," Ho- ballah went to see Williams (with, as he testified, Hartman's permission) As shown above, even Hartman had Hoballah more engaged with the other employees than Hoballah's first affidavit indicates The affidavit further states that Lynch frequently used "racist terms" on the job and that Hoballah had talked to him "many times" about the use of such language The affidavit then says, "None of the other em- ployees asked me to talk to 'CD' about this-it was something I did on my own " This sentence, however, is scratched out, and the following sentence is squeezed into the last two lines of the paragraph "The black employees talked often about 'CD' using such racially derogatory terms, and, in one such discussion, I told them that I would talk to 'CD' about it " At the hearing, Hoballah explained that the sentence was crossed out not because it was untrue, but because it was misleading a See Hoballah's first affidavit 9 See Hoballah's first affidavit ELION CONCRETE foregoing incident, the record shows that Hoballah was generally catered to by the foremen The other incidents offered as examples of protected concerted activity all have to do with Hoballah acting on behalf of aggrieved employees As noted, it is not easy to discern which of these reported events occurred before Hoballah was discharged on 23 October and which after he was reinstated about 4 November. 1 ° An- other similarity between the incidents is the seeming pa- tience and consideration with which, even according to Hoballah, he was generally treated by the supervisors. There was an instance, in "maybe November-Octo- ber or November, somewhere in there," when Hartman engaged in extended horseplay with Hartman's cousin, employee Rex (patting him on the buttocks), infuriating Rex and causing him to ask Hoballah to intercede with Hartman . Hoballah privately reminded Hartman that Rex was sensitive. Hartman said, "Fuck him." The conversa- tion ended on that note. Rex did not testify. None of Ho- ballah's three affidavits mention such an incident. There is no indication in Hoballah's testimony that, if Rex did ask him to intervene, Hartman was aware of the request. In the next incident related by Hoballah (in "Novem- ber, somewhere around that time"), a discharged em- ployee named Green assertedly asked Hoballah to help him regain his job. As earlier related, Hoballah says he spoke to Hartman and Parks about Green's possible rein- statement, but his testimony varied about whether he told them that Green had asked him to do so His affida- vits do not state that he told Parks that Green had asked Hoballah to represent him. On some day ("maybe around the first of November, somewhere around in that first week or so. I don't really recall"; "I think after I was reinstated."), employee Mark Parks was sent home for going to lunch despite the fact that Hartman had asked him to postpone lunch in order to lend him a hand. Hoballah, who cultivated the false notion on the job that Mark was his child, asked Hart- man for leave to see Parks to "save my son." Hartman gave him 5 minutes to do so. After Hoballah made his plea to Parks to spare "my son," Parks conferred with Hartman and others and told Hoballah the verdict- that Mark would be retained but henceforth would be denied the privilege of working overtime In another incident involving Mark Parks (in the first or second week of October, according to Mark), his crew was laid off He asked Hoballah to help him Ho- ballah approached Williams, who said that he would keep Mark on his own crew if J. L Parks approved. The next day, Hoballah and Mark spoke to Parks, who said that Mark could stay on the payroll . Hartman was not involved in this episode. Hoballah testified that a discharged employee named Coleman asked for assistance. Hoballah went to Hart- man, and then to Parks, to determine the reason for the discharge. Parks gave his reasons, and Hoballah attempt- ed to defend Coleman. In answer to a leading question, io For what it may be worth, at one point Hoballah agreed with Re- spondent's counsel that "most of these incidents where you testified about where you helped the men took place after you came back to work " 71 Hoballah testified that he told Parks that Coleman had asked him to speak for him I I Hoballah testified that "maybe around the middle of November or December, somewhere around in there" (but later, "around somewhere around November, the first week, second week"), a fellow employee (known as "Shorty Schiz") approached Rex and said that he had been discharged because he had refused to buy a cup of coffee for Lynch Rex then told Shorty, according to Hoballah, that "Muhammad might be able to help you." Hoballah told Shorty that he would research the matter in the library after work. He told the men that they had to put up a united front against such treatment (they asked, "Well, what can we do, man? What can we do?") He urged that they go to see Parks. Lynch had been standing not far away and his crew had stopped to listen; Lynch told the men to get back to work. When Hobal- lah asked about the discharge, Lynch replied that he did not have to talk to Hoballah. This latter testimony con- tradicts Hoballah's first affidavit, which states that after Lynch told the men to work, "I left." 12 The next morning, as the men lined up to work, Ho- ballah spoke to Parks about the matter, and Parks agreed to investigate. 13 Hoballah testified that Shorty later came to Parks' office with a woman, and the two conferred with Parks, Lynch, and Williams. Hoballah later learned that Shorty had been transferred to another jobsite. Hartman played no part in this incident. Hoballah was discharged on 23 October Hoballah tes- tified that he, Rex, and an employee named Mark14 were instructed by Hartman to move certain materials on the top deck They were told by some carpenters what was to be done, but Hoballah wanted, for some reason, to confirm the instruction with Lynch, who told him to do what the carpenters had indicated. While they were doing so, however, Hartman appeared and, addressing Rex, said, "Goddamn, Rex. What the hell. Why didn't you do what I told you to do?" Rex responded, "Woody, what the hell are you hollering at me for. God- damn you, we did what you said." The argument continued in this vein, with Mark and Rex explaining that they had done what the carpenters had instructed Then, according to Hoballah, Mark said " Hoballah further testified that Coleman got his job back the next day-but had to pay Williams $200 for the privilege 12 Employee Norman Drenning recalled this incident in "November " He said that Hoballah told the 15 men present that they should "all stick together and take the grease [sic], complaints , to the superintendent and discuss that with him " Lynch was standing directly above their heads, listening, and told them to return to work Drenning seemed a credible witness 13 Hoballah 's testimony went "[P]arks said, 'Muhammad, I don't think it happened that way ' He said, 'I will investigate into it' And I said, 'Well, Shorty asked me to say something in his defense' And he said, 'I'll look into it Go to work "' Hoballah's first affidavit states that he cannot recall whether Shorty requested such help "or if I volunteered," despite the subsequent elaborate testimony about Rex's referral 14 At another point, Hoballah testified that "maybe 4 or 5 employees" were sent out Mark Parks testified that he was part of the crew selected by Hartman But Hoballah, testifying after Parks, stated, "We all was sent upstairs precisely by name 'Malcom, Rex,' a white guy that they say was not on the crew but was, and his name was Mark also , not this Mark [Parks] but it was a white Mark " 72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to him, "Talk to that damn fool" and Rex said, "Muham- mad, would you try to explain this, because you can ex- plain things better than I." Whereupon Hoballah under- took to explain the sequence of events, and Hartman re- plied, "Shut up I wasn't talking to you I was talking to Rex " Hoballah persisted in attempting to talk, conceded- ly "yelling" even louder than Hartman in his attempt, and was again ordered to "shut up," Hartman allegedly adding, I'm not talking to you. Why are you always rep- resenting the men? Why don't you let them talk for themselves?" Hoballah assertedly reminded Hartman that Mark and Rex had just asked him to intervene. More angry words were exchanged. Hoballah finally told Hartman that he kept "trying to instill fear in all of us, including me," and that he would like to go back to his original crew under Tom Williams. Hoballah testified that Hartman gave him permission to see Williams, but told him, "If you go, don't come back." When he asked Williams for a transfer, however, Hoballah was told that Williams was being "put in a bind" because taking him back would "look like I'm going over Woody's head " Hoballah returned to Hartman and received permission to speak to Parks. Parks called Lynch on the walkie- talkie to find out what had happened, told Lynch and Hartman to come to his office, and had Hoballah step outside Hoballah could hear Parks criticizing Hartman for "pressuring" the men when he had no right to, and he heard Hartman say that Hoballah was "the problem." Parks then called Hoballah in and said that he had been in the business for 30 or 40 years and came from the old school, and whether it was right or wrong, Hartman "works for Elion Concrete" and if anyone is to go, "It won't be Woody because I need him." In response to a leading question, Hoballah recounted that at some point, Hartman had said he was "tired of me representing the men and standing in the way of him doing his job." Another leading question adduced the ad- ditional information that Parks had said, when he men- tioned the "old school," As long as I'm superintendent here, there is never going to be a union here" and that Hoballah had replied that he was not trying to form a union because the men were "not ready" for one In the end, Parks told him that he was terminated. In certain aspects, Hoballah's April affidavit with re- spect to this incident differs from his testimony. The affi- davit fails to state that either Rex or Mark asked Hobal- lah to use his good offices to make Hartman understand the background of the dispute, and also omits any refer- ence to the fact that Hartman repeatedly told Hoballah to "shut up " The affidavit also neglects to note that, as Hoballah and Mark Parks testified, before there was any suggestion of involving Parks, Hoballah had told Hart- man that he wanted to see Williams about transferring to his crew; it states instead, "Woodie said to go downstairs and see the old man, because he was tired of me telling him his job and representing the men I said that I wanted to see Tom first" The affidavit says that, in the termination conversation, "Woodie said that I was always finding fault in what he tells me to do I asked Woodie for an example, and Woodie said, `Just like upstairs just now."' (Emphasis added) At the hearing, however, this colloquy became Q. Did Woody ever say what it was that you had done that upset him? A. Woody said he was tired of me representing the men and standing in the way of him doing his job. Q Representing the men Did he give any exam- ple or did he just say "representing the men" A He said, "Just like upstairs, there." Hartman testified that, as Hoballah admitted,' 5 on 23 October, Hoballah kept butting into his chastisement of Rex, despite repeated instructions to "shut up," until eventually Hoballah said that he wanted to transfer to Williams' crew Hartman replied that that was fine, but that if Williams did not want him, Hartman did not want him back either. Although Hartman had not thought of discharging Hoballah, once the latter had said that he no longer wanted to work for Hartman, Hartman "didn't think it would be appropriate for him to come back and work for me when he didn't want to work for me." J. L Parks was obviously confused about the events surrounding the termination of Hoballah. He testified, contrary to both Hartman and Hoballah, that on two oc- casions prior to the discharge, Hartman had come to him complaining about "having problems with Muhammad and him telling the other laborers that they didn't have to do what he told them to do," both occurrences having to do with the movement of lumber from one location to another, and that the second time, Hartman "let him go." Subsequently, he testified that he "guess[ed] when it comes down to it, you could say that I" made the termi- nation decision, because Hartman told him that Hoballah "is telling a lot of men to interfere with what I'm doing He's telling the other men they don't have to do the work " Hoballah's testimony, however, does not reveal a single instance which could even generously be charac- terized as Hoballah "telling the other men they don't have to do the work." As discussed, while the timing of the incidents testified to by Hoballah is most unclear, it tenuously appears that most of them may have occurred after Hoballah was re- instated on or about 4 November, of the incidents dis- cussed, Hartman generally played a most tangential role in the events, which in no wise constituted efforts by Hoballah to "tell the other men they don't have 'to do the work 1116 Accordingly, I view Parks' testimonial contribution to this issue as the product of uncertainty about what it was that he was supposed to testify to." is Asked on cross-examination if he had been "yelling" at Hartman, Hoballah answered, "Yes", and when asked if he had been "interfering with [Hartman's] conversation with Rex," Hoballah said, "I guess you can say that to some degree " is On brief, the General Counsel agrees that "[t]here is no explanation on this record of what instructions J L Parks might be referring to " 17 Keeping the defense theory firmly in mind seemed to be a problem for Parks In answering the question whether Hartman had "complained that Muhammad was talking for the other men," Parks paused and re- plied. "No comment " To a witness prepared, as he was, to prevaricate for Respondent, the answer should have been easy, but, lacking supple- ness of mind, Parks was unable to decide what the "right" answer would be ELION CONCRETE D. Conclusions as to Hoballah's Discharge From the record as a whole, I do not infer that the conduct of Hoballah prior to 23 October 1985 (whatever it consisted of) played any part in his discharge on that date. Rather, I conclude that events of 23 October were the sole cause of the termination. It seems reasonable to find that Hoballah's actions on that day fell within the definition of "concerted" activity articulated by the Board in Meyers II, supra. There, the Board reaffirmed that the question of engagement in con- certed activity "is a factual one based on the totality of the record evidence When the record evidence demon- strates group activities, whether `specifically authorized' in a formal agency sense, or otherwise, we shall find the conduct to be concerted." (281 NLRB 882, 888) In this rather unusual case, Hoballah was literally attempting to offer "mutual aid or protection" to Rex against the on- slaught by Hartman, and while I doubt that it was "spe- cifically authorized" by Rex,18 neither did he object to this effort to come to his defense. One feels reasonably safe in assuming that he welcomed Hoballah's interven- tion, either for the substantive assistance it could offer or because it might at least draw Hartman's fire away from Rex and toward Hoballah. See Rockwell International Corp., 278 NLRB 515 (1986), enfd. 814 F.2d 1530 (11th Cir. 1987) (employee voiced concerns about noise in the workplace that was common to the other employees; while not "specifically authorized," the group was aware of her actions, and the employer knew that she spoke on their behalf); Salisbury Hotel, 283 NLRB 685 (1987). Recent Board cases, however, also require a conclu- sion here that Hoballah's behavior was not protected by Section 7 of the Act. In the presence of other employees, he persistently disobeyed Hartman's injunction to "shut up," while admittedly "yelling louder" than Hartman in order to express his views; he conceded that he "inter- fered" with Hartman's attempted communication with Rex Postal Service, 268 NLRB 274, 275-276 (1983) (dis- regard of a "reasonable order to quiet down by continu- ing to shout on the work floor, hurling personal insults, and disrupting operations constituted unprotected activi- ty"); Postal Service, 282 NLRB 686 (1987) (employee dis- obeyed repeated directions to calm down); Potential School for Exceptional Children, 282 NLRB 1087 (1987) (intemperate remarks and "refusal to be quiet"); Marico Enterprises, 283 NLRB 726 (1987) (employee repeatedly refused to leave presence of company president unless he was discharged) Hoballah was not a union steward acting in a representative capacity He was, rather, an in- termeddler, no matter how worthy his intentions may have been, and he stood at the outer edges of the zone of protected activity His repeated refusals to comply with Hartman's exercise of supervisorial authority propelled him beyond the statutory boundary line. The record does not show, however, that Hartman ef- fectively discharged Hoballah solely for his insubordina- tion . Hartman testified that if Hoballah had not sought 18 For what it may be worth, Hartman testified that he did not hear Rex ask Hoballah to come to his defense More importantly, of the two affidavits by Hoballah which discussed the termination facts, neither made mention of Mark or Rex asking Hoballah to speak in their behalf 73 the transfer, Hartman probably would not have fired him What triggered the termination was the demand by Hoballah for a transfer to Williams' crew. At that point, Hartman said that he could ask Williams, but that if Wil- liams was not interested, Hartman would refuse to take him back I tend to believe Hartman's testimony that having been publicly disobeyed by Hoballah and then told by him that Hartman was attempting to instill fear in the em- ployees, Hoballah interjected a new element into the re- lationship, souring it to the point that Hartman under- standably would no longer wish to employ Hoballah, lust as the latter had expressed his distaste for further contact with Hartman 19 Accordingly, I conclude that the discharge of Hobal- lah on 23 October did not violate the Act E Hoballah's Reinstatement On Friday, 1 November 1985, Hoballah filed a charge (Case 5-CA-17604) with the Baltimore Regional Office, alleging that his October discharge had resulted from his protected concerted activity The return receipt shows that the Region mailed the charge on Monday, 4 No- vember. Although the receipt does not indicate when Respondent received the charge, it may be assumed that it was no earlier than 5 November There is also in evi- dence a letter of reference for Hoballah, dated 4 Novem- ber, written on the stationery that, according to the un- controverted testimony of Hoballah, Respondent custom- arily used. Hoballah testified that on 4 November, he visited Parks and requested a recommendation, which Parks said was "no problem " The recommendation reads, in part, that Hoballah "was a very good worker," that he "was always prompt and did what was expected of him," and that any questions should be addressed to Parks at a given telephone number. The letter is not in Parks' hand- writing, but the initials "P.M " in parentheses after Parks' name indicate that it was done by his secretary, Patty Miller. Despite some bizarre backing and filling by Hoballah about this letter, and an equally silly denial by Parks of any knowledge of it, I have no doubt that Parks did dictate the letter and authorize its signing I so con- clude not only because of the logic of the evidence, but also because it contains Parks' telephone number; if, as Respondent suggests, the letter was unauthorized, I do not believe that Hoballah would have included the phone number. Hoballah never came to use the letter, however, because he was soon rehired Reconstruction of the rehiring process is probably im- possible and, fortunately, unnecessary. Hoballah testified that he received a call from Mark Parks one evening that J L Parks, Williams, and Hartman wanted Hoballah to ' e I take note, as cited by the General Counsel on brief, that when asked at the hearing what was so had about seeking a transfer, Hartman replied, "There was nothing bad about it " But Hartman went on to say that he did not think it was "appropriate" for Hoballah to return to work for him, after Williams had declined his services, once Hoballah had stated that "he did not want to work for me " It also seems quite proba- ble that Hartman was still angered by Hoballah's conduct on 23 October, and that that was a substantial thrust of the presentation to J L Parks, who obviously effected the termination himself 74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD report to the jobsite the next day, so that they could rehire him "because you filed a suit at the Labor Board and they are angry about it." According to Hoballah, when he showed up and was rehired, J. L. Parks told him, among other things, to "go down to the Labor Board and drop that charge that you have against us."20 Parks testified that he did not know until a couple of days after he rehired Hoballah that the latter had filed a charge with the Board, and that Hoballah "volunteered" to withdraw it. Hartman, however, testified that "we" found out that he "had put a lawsuit in against us" at noon on the day Hoballah returned to work. It seems ob- vious to me, however, either that Respondent had heard about the charge through the grapevine by the evening of 4 November, or had received a copy of the charge on 5 or 6 November (which may well have been one of the days that Hoballah returned to work). Otherwise, the record offers no explanation at all for the abrupt decision to reinstate Hoballah, especially after having just kissed him off with a letter of reference.21 Thus, the rehiring was clearly done under pressure of the charge, and it is relevant to the 8(a)(4) aspect of the next allegation that, at the hearing, J. L. Parks was asked the specific ques- tion whether it was not true that when he was rehired, Hoballah "had filed a charge by that time against the company at the National Labor Relations Board," and he answered, "So I found out after I rehired him"; and Parks also conceded that Hoballah had told him that he "had filed a charge" and volunteered to "withdraw it " Who said what to Hoballah on his return to work is in irresolvable conflict. Hoballah testified to several condi- tions laid down by Parks. to do his job, to mind his busi- ness, to not "represent nobody with their problems," and to go to the Board and withdraw his charge. In his first and most detailed affidavit, Hoballah's entire description of Parks' instructions to him was- "This is all I have to say Don't represent nobody's problems Tom and Woody want to talk to you together Go upstairs and they will talk to you" (emphasis added). His second affi- davit added the assertion that, on reinstatement, Parks had said that "he did not want any conflicts between me and Woody." His third affidavit describes an extended conversation between him and Parks, referring, inter alia, to Parks having said that he understood that Hoballah had filed a charge against the Company and would have to withdraw it. 20 Because the letter of recommendation was written on 4 November, it would seem obvious that that date was not also the one on which Ho- ballah was rehired pursuant to a telephone call received by Hoballah the night before At the hearing, the parties stipulated that Respondent's "records show" that Hoballah was reemployed on 4 November Confu- sion reigns The General Counsel now contends on brief that Respondent must have falsified its records, in order to argue that Hoballah was re- hired before Respondent would have received the charge that Hoballah signed on I November and that was mailed on 4 November That seems likely, and if so, it does indicate that Respondent was willing to falsify documents in an attempt to win this case 21 Although Respondent's brief asserts that Hoballah "came back to the jobsite and asked Tom Williams to get his job back, which he did (Tr 28)," the cited page (testimony by J L Parks) is not that specific As already discussed, because Parks authorized a letter of recommenda- tion for Hoballah on 4 November, I do not believe that Hoballah then returned that day or the day or two after and asked for, and was given, his job back, without more This September version is a far cry from April's "This is all I have to say. Don't represent nobody's problems" (and gone is May's brief flirtation with "he did not want any more conflicts between me and Woody") The one conclusion I think I can reach is that Parks and/or Wil- liams did not make any such artificial sounding statement about "not representing the employees." Such "represen- tation" as Hoballah had afforded in the past had been no burden on the Respondent and, indeed, had apparently met with considerable success. As for the 23 October in- cident, I cannot imagine that Parks would have charac- terized Hoballah's behavior on that occasion as "repre- sentation" of the men rather than something like interfer- ence with Hartman's supervisortal prerogatives.22 As discussed, some (or most) of the incidents earlier noted may have occurred after Hoballah returned to work on 5 or 6 November. He worked at the St Paul Street Plaza job until he and almost everyone were laid off on 17 January 1986. Hoballah testified, without con- troversion, that when Williams was passing out the final checks, with Parks standing there, Williams said that as soon as they received confirmation of one of two other potential contracts, the men would be recalled, and he took their telephone numbers. F. The Refusal to Rehire Hoballah Elton was awarded a contract on the Baltimore Civic Center job, and Hoballah testified that he went to the site "at least four or five times" looking for work. He spoke to Williams, to Hartman, to "Oscar," to "the other superintendent of the job site," and more than once to J. L. Parks. The first time he spoke to Parks, which he placed in April and then said may have been a "little before," he was told to "come back in two weeks." His second conversation with Parks was "precisely" 3 April.23 On this second visit, said Hoballah, "the other superin- tendent" was present in Parks' office. Parks said that he had "made no promises" about rehiring anyone, and Ho- ballah told him that he "remember[ed] what you said to us on January the 17th."24 Parks replied that Hoballah should keep "checking back." According to Hoballah, as he left, he told two employees known as Scotty and Rambo that he intended to file another "charge" against Respondent. His 16 April affidavit, however, states that he had mentioned to "another employee" that he was "thinking of filing a suit against the Company " When asked at the hearing whether he really told the employee 22 i also find that Hoballah did state that he would withdraw the charge against Respondent Whether he did so because Parks conditioned reemployment on such withdrawal, as Hoballah stated in his third affida- vit, or as a volunteer, as Parks testified, I do not know Hartman testified that Hoballah did leave the job to withdraw the action, Hoballah did not in fact do so-he testified that he decided against it on the advice of a Board agent 23 When asked why he returned so soon if Parks had told him to come back in 2 weeks, his typically Hoballahesque reply was that Parks had actually told him, "It may be in two weeks, it could be at any time It may be tomorrow It could be two weeks " 24 As shown above, Hoballah had earlier attributed to Williams a promise to recall the laid-off employees, with Parks standing there ELION CONCRETE that he intended to file "a charge," Hoballah replied, "No question " On 9 April Hoballah filed a charge with the Board, claiming that "[s]ince on or about January 17, 1986," Re- spondent had laid off and failed to recall him because of his protected activities He also testified that on 7 April, he returned to the construction site and ran into Fore- man Williams, who said, "I understand you filed another case against us," a fact he had heard "through the grape- vine." Hoballah said that he must have heard this from Scotty or Rambo Williams told him to speak to Parks, who was "angry already." When he finally got to Parks, the latter said, according to Hoballah's testimony, "I [make] no bones about it I heard you filed some action against us Let me tell you something, and I am not joking with you. As long as I'm superintendent here, you will never be hired here Now take that suit and ram it up your ass Get off this property." (Emphasis added ) Hoballah's 16 April affidavit refers to Parks having said he had "heard through the grapevine that Hoballah had been talking about filing a suit against the company" and that Hoballah should "[t]ake your suit and shove it." His September statement, however, quotes Parks as saying, in part, "Look here, I make no bones about it, I have heard through the grapevine you are talking about filing another charge against us " In discussing at the hearing the first affidavit attribu- tion to Parks ("filing a suit"), Hoballah pronounced it an error: Parks "probably said," "charges with the National Labor Relations Board." Pressed on the point, Hoballah retreated' "He said your case you're going to file or whatever . He may not have [used] the word [charges] . . [but] he did mention [] the National Labor Relations Board " Subsequently, Hoballah became expan- sive "I told [Williams] before I even went to the Nation- al Labor Relations Board that I was going down there to do that I told Woody. I told Mr Parks and I told Tom Parks [sic] . Even the men. Everybody " The Board agent took down the information in the first affi- davit "incompletely" (even though Hoballah clearly studied and changed it at the time) 25 The foregoing leaves me disinclined to doubt that Parks expressly spoke of "filing a charge" in this final interview with Hoballah On the other hand, called as a hostile witness, Parks substantiated a good deal of what Hoballah later testified to He conceded that during the time Hoballah had come job hunting in April, Parks had "heard a rumor, through the grapevine, as they say, that `if he don't put me back to work I am going to sue him."' He further testified that he said, in his final office conversation with Hoballah, "Muhammad, I'll never hire you again. So now sue me "26 But, he said, he had not 25 The difference between the first affidavit, which has Parks referring only to Hoballah "filing a suit," and the second supplemental affidavit, taken 5 months later, which has Parks referring to "filing another charge," raises serious institutional questions Although Respondent scratched the surface of the issue at the hearing, I believe that deeper excavation is in order 26 Parks contended that at the time Hoballah was rejected in April, his son Garland Parks was the job superintendent at the Civic Center site, and J L had no authority to hire until he later took charge when "they started the double shift " This was not directly contradicted, and it was corroborated by Garland Despite this, J L sat in the office, discussed 75 been told, and he and Hoballah did not discuss, the "kind of lawsuit" that might be involved Although Hoballah's' uncertain testimony makes me chary of finding that he told Parks that he planned to file another charge with the Board, it is a fair inference that Parks so understood. He knew, as pointed out above, that the first action in November 1985 had been a Board charge, there was every reason to believe that the second "action" would similarly be a Board charge. The use of words such as "sue" and "bring a suit" were employed by witnesses in this proceeding to refer to the filing of a charge In his first appearance as a wit- ness, Hartman spoke of Hoballah, in November, having "put a lawsuit in against us" and "was suing us", in a second appearance, when he was asked if he ever "ex- cused Muhammad from the job so he could go to the Labor Board," Hartman replied, "Yes, sir. I did excuse him " It is inconceivable to me that all supervisors famil- iar with the November reinstatement did not know that the legal action taken by Hoballah at that time was an NLRB charge, and it is quite probable that they believed in April that he would pursue the same course of action. 2 7 ,Moreover, even if it be argued that the evidence does not sufficiently establish that Parks knew or believed that the second action in April was the filing of a Board charge, there can be little question that the first charge played a major role in the refusal to hire Hoballah at the Civic Center job Although, in April, Parks told Hobal- lah to "keep coming back," Hoballah's account that Parks told him at one of the April discussions that he was not "even sure I want you back" is confirmed by Parks' testimony that, as early as at the time of the layoff at St Paul Street, his "intention was to never hire [Ho- ballah] again." He explained that Hoballah's "work didn't suit me," which meant, he said, "interfering with the' foreman's duties " But he conceded his belief that after Hoballah had been rehired in November, he did not "continue the same kind of activities that he had before": "If he had, he wouldn't have stayed " When the illogic of his position was pointed out to him, all Parks could say and repeat was, "His work wasn't satisfactory " . The record demonstrates that Hoballah was in fact a productive employee Hartman testified that Hoballah the possibility of a job with Hoballah, testified at first that he told Hobal- lah "I wasn't hiring nobody," which he rapidly changed to "They wasn't hiring at that time," admittedly told Hoballah, "I'll never hire you again So sue me," and failed to send Hoballah to be interviewed by his son or anyone else for potential employment His explanation for the latter omis- sion was that he knew that Garland "wasn't hiring at that time," but the parties stipulated that there were 16 laborers working on the job in the week ending 1 April, 21 in the week ending 8 April, and 27 in the week ending 15 April It thus seems evident that J L played an integral part in the hiring process during the period in which Hoballah was applying I note that Richard Bergling, although a most unreliable witness, testified in passing that J L was the person who "told" him that he was transferred from the St Paul Street job to the Civic Center site, this was not contradicted Even if I believed that J L had no actual authority to hire during this time period, he at least clearly possessed actual authority to screen appli- cants and to refuse to enter them into the hiring process, and a wrongful exercise of such a power can obviously be unlawful 27 Dotter Bro Printing Co, 268 NLRB 357 (1984), cited by Respond- ent, is factually inapposite 76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD did "good work"; other proofs are his occasional ap- pointment as a leadman and the letter of recommenda- tion dictated by Parks before he discovered that Hobal- lah had filed the November charge. Although Parks was plainly under pressure to reinstate Hoballah because of that charge, it seems equally clear that he was not happy about it (when asked if the filing had angered him, Parks answered, "Not necessarily") Parks was unable to ad- vance an intelligible reason for his determination that Hoballah's work was not "satisfactory " I can only conclude, given this testimony, that the reason for the refusal to consider Hoballah lay in the filing of the November charge.28 Even before Hoballah applied at the Civic Center job in April, J L Parks had concluded, based on the November charge, that he would not rehire Hoballah, and when Hoballah first ap- peared to seek reemployment, Parks decided on a strate- gy of wearing him down by putting him off. When he got word of the new "action," Parks became enraged and the strategy simply dissolved in a flood of anger But the fundamental motivation, I believe, can be found in the November action, known to Parks as a charge filed with the Board. Section 8(a)(4) makes it an unfair labor practice to dis- criminate against an employee "because he has filed charges" under the Act That is, I find, what motivated the refusal to rehire Hoballah in April 1986. To the extent that the motivation became even more fixed as a result of the rumor conveyed to Parks in April, which I believe he' must have understood to refer to a second Board charge'29 it is also clear that such anticipatory motivation satisfies Section 8(a)(4). First National Bank & Trust Co, 209 NLRB 95, 101 (1974), Clark & Hinojosa, 247 NLRB 710, 715-716 (1980) (ex-employee) The complaint also alleges that Respondent violated Section 8(a)(1) about 9 April when it "implied" to Ho- ballah that it "would not hire employees who filed charges with the National Labor Relations Board." Al- though I find that to have been Parks' intention, based on all the evidence, I hesitate to conclude that Parks "implied" such a message on 9 April I would, therefore, recommend dismissal of this allegation. II. THE ALLEGED VIOLATIONS AT THE TOWSON SHERATON SITE The complaint alleges that later in 1986,30 and at an- other construction job, Elion discharged three employees for engaging in union activities, in violation of Section 8(a)(3) of the Act, and was responsible for various state- ments to its employees that abridged Section 8(a)(1). 28 Mark Parks testified that Hartman told him in December 1986 that J L Parks "wasn't going to hire none of those guys that came from that other job [at St Paul Street] because they sued too much " This testimo- ny seems unlikely, not only because I had my doubts about Mark Parks' veracity, but also because, as Hoballah testified, prior to 9 April, four em- ployees from his old crew had been recalled to the new job 29 As the General Counsel points out on brief, Parks was never asked at the hearing what sort of "suit" he might have thought Hoballah was referring to if it was not a charge with the Board 10 Unless otherwise indicated, all dates refer to 1986 A Material Facts Respondent began work at the Sheraton Hotel site in Towson, Maryland, around the last week of July, by the week ending 26 August, some 44 carpenters and laborers were on the payroll The job superintendent (until about mid-September) was David Hamm. The carpenter fore- man important to this case was Harold Rummell; there is also reference to one other foreman. The three alleged discriminatees are Richard Bergling, who began employ- ment at the job on 11 August and was discharged'on 26 August, Walter Broil, who started on 13 August and was let go on 27 August; and Robert Compel, whose tenure spanned the period 15-21 August. 1. The Garland Parks incident Union Charging Party's business representative Eugene Shanahan began to show up, sometime in mid- August, in a parking lot across from the site, where many of Respondent's employees ate lunch. He spoke to the employees about forming a union On 18 August Garland Parks, the previously men- tioned son of J. L and regularly a superintendent for Re- spondent, was present at the site with a small crew for a few days to perform a special job Garland readily con- ceded that at lunchtime, Richard Bergling, who Garland had known for some 8 years and who had worked for Garland at different locations, came from across the street (where Shanahan was speaking to employees) to the first deck, while Garland and his crew were eating lunch, and began handing out authorization cards to the employees. He also handed one to Garland, telling him he had "been over and signed up with the Union." Gar- land read the card and told Bergling that he had in fact only authorized the Union to act as his agent but was not a member. According to Garland, he then threw the card on the ground and yelled at Shanahan to "shove it." Bergling more dramatically testified that Garland "grabbed" the card out of his hand, tore it in pieces, and "stomped" on them. He then yelled, "Hey, Union man, take this card and stick it up your ass. And if you keep fucking around, you'll be wearing concrete galoshes, just like Jimmy Hoffa " For reasons shown hereafter, I have little faith in Bergling's reliability, but employee Walter Broil told pretty much the same story (except that he could not recall the reference to "concrete galoshes") and Foreman Rummell testified that he heard a rumor that Parks "tore . . up" the card. I am inclined to accept the lengthier version, particularly considering the notoriety of the incident at the jobsite shown by the record. After this outburst, according to Bergling, Garland said, "Look, Richard, you can do what you want. If you want to go union, then go union, but I was union before . . . and they didn't do a damned thing for me . . [I]f you want to go, go ahead." When Bergling replied that he wanted to, Garland said that "they lay you off in the winter after they work you all summer and you lose all those benefits and everything." He further "was explain- ing" to Berglmg that he "wouldn't have any benefits anyway," and Bergling replied that he would "see about that " Bergling conceded that Parks was not speaking "in ELION CONCRETE 77 anger." Parks also testified that he told Bergling, "Look, Richard, if you want to go work for the union and you can better yourself, go ahead. If you don't make it there, you can always come back." The complaint alleges that Parks "threatened employ- ees with violence for engaging in activities on behalf of the Union" and "threatened to discharge employees" for engaging in such activities. It is reasonable to assume that employee bystanders who heard the blast directed by Parks against Shanahan would have had few doubts about the risks entailed in engaging in union activity. I therefore find that Parks' tirade constituted a threat to employees who engaged in union activities , tended to coerce employees , and violated Section 8(a)(1) of the Act. 2. The alleged Broll-Rummell encounters Word of the frequent presence of the "Union man" spread quickly. Superintendent Hamm testified that while he never felt curious enough to go and take a look at Shanahan and the employees to whom the latter spoke at lunchtime, he was informed by "a couple of employees" of this phenomenon and it was "common knowledge" among the supervisors. Although Hamm testified that he had not heard from the employees that the Union was handing out "cards," his immediate subordinate, Rum- mell, when asked if he and Hamm had discussed "hand- ing out cards across the street, " answered, "Oh, we men- tioned it in conversation, but it did not bother us none." Walter Broil was a longtime union member, and Shan- ahan had recommended that he apply for the Elion job. After being hired on 13 August, Broil passed out union cards during lunchtime in the parking lot, but always re- turned any signed cards (about four or five in total) to Shanahan away from the site . He himself signed a card in the parking lot on 18 August.31 Foreman Rummell, according to Broil, entertained some strong views about unionization. At some time before Robert Compel was fired on 21 August, Rummell asked Broil, according to the latter, if he was acquainted with Compel and "whether he was a union carpenter or not." Broil did not know Compel at the time (although he met him later) and said so. According to Broil, Rummell approached him around 21 August and said he "heard I had been talking a lot of union shit." Broil said he did not think of the Union in those terms. Rummell said, "We do not go for that around here. You keep it up and something will happen." When Broil asked the meaning of this remark, Rummell responded, "Just keep it up, you will find out.': Apparently on 20 August, when Broil was not at work,32 a dangerous accident occurred involving a fall- ing concrete bucket. Someone mentioned it to Broil a few days later, and Broil broached the subject with Rummell that afternoon . Rummell snapped, "I am warn- ing you about these silly -ass questions. You should have 31 Broil explained that he had not signed an authorization card previ- ously because he was already a member of the Union , but Shanahan sug- gested that he should sign an authorization card as well 32 See G C Exh 12 learned a lesson from your buddy Bob."33 Compel, as noted, had been discharged on 21 August . Rummell also assertedly said, "Keep your eyes open and you will see another union agitator leave here soon ." Rummell denied having made any such union-related remarks to Broil. The complaint alleges that Rummell, "on or about August 25," "interrogated employees about," "threatened to discharge employees for," "informed employees that an employee was discharged for," and "made unspecified threats of reprisal for," engaging in activities on behalf of the Union. The statements attributed to Rummell by Broil clearly fall into these categories (the "on or about" August 25 allegation can be read distributively). Broil appeared to be an honest, open witness, and Rummell left a poor impression. Although Broil made one error in his pretrial affidavit, discussed hereafter, Rummell's testimony contained several internal conflicts and evasions that raised serious questions about his trust- worthiness.34 I recognize, however, that Broil's testimony is striking- ly pat. One has to wonder if Rummell would really utter so many usefully incriminatory remarks to a known ac- tivist, incorporating direct or veiled ominous references to himself, Compel , and (or so the General Counsel con- tends) Bergling. There is no doubt that Bergling is an untrustworthy witness. Compel, whose demeanor was persuasive, none- theless testified, as will be seen, that on 20 August, the day before he was discharged, he signed a card for Shan- ahan while the two of them were standing alone in the parking lot just as the lunch hour ended , and he saw Rummell standing across the street on the first deck of the building project watching this transaction. This is a handy piece of testimony. Similarly, Bergling testified that during Garland Parks' tantrum on 18 August, Rummell was also present, and Bergling further saw both Hamm and Rummell standing on the first deck on 18 August (he "believe[s]") watching as Broil signed his card; moreover, he could see Hamm "pointing" at the group and speaking to Rummell as Broil was signing. Broil testified that he saw "several" white-hatted em- ployees he assumed to be supervisors standing on the deck that day. Broil also testified that perhaps a "couple of days" after he signed his card, he was talking to Shan- ahan and another union representative in the parking lot 33 With regard to the "silly-ass questions," Broil agreed on cross-exam- ination that he had raised a number of safety issues with Rummell, and that Rummell had become upset and once called him an "asshole." He also freely stated that he had been fired "probably two or three times," usually for "trying to tell the boss that I thought I knew better to do something that he was doing " Respondent, however, gave no testimony to indicate that Broil's safety inquiries played any part in his discharge. '* See infra, for example, regarding the vacillating testimony of Rum- mell as to whether he had had any discussion with Broil at the time of discharging him about the termination of Bergling the day before. Again, when the General Counsel asked if the "rumor" Rummell had heard about union activity "link[ed] Bergling at all to the union," Rum- mell responded, "No." When, on the following day of hearing, he was asked if he knew that Bergling "favored the idea of a union there," Rum- mell's reply was, "I have no idea No idea at all." Continued exami- nation brought out, however , that he was aware of the incident between Bergling and Parks regarding the "union papers ," and he subsequently conceded that he "did know that [Bergling] supported the union " 78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at lunchtime when he noticed Rummell and Hamm look- ing at him from the first deck, Rummell "pointed" at Broil, the only Elion employee present There was, it seems, a goodly amount of supervisory looking and pointing taking place at just the right moments. Rummell and Hamm both denied all this public postur- ing, saying that they always spent the entire lunch period in the office trailer and never were tempted to view the activities of the "union man " Frank Mitchell, a former "wall foreman" on the Towson job , still employed by and testifying for Respondent , said on cross that Hamm and Rummell "always" had lunch in the trailer; but when asked if they stayed in the trailer the "whole 45 minutes," he first answered, "Right," and then said, "Most of the time." Mitchell himself had his lunch with the employees across the street from the site, where Shanahan was stationed He was asked if he had ever ob- served Hamm and Rummell from his lunch location, Mitchell answered , "No," but, when asked once more, said, "Not really." Thus, it may be that Hamm and/or Rummell did make appearances from time to time on the deck facing Shana- han's location. Nonetheless , the very neatness of Broil's 8(a)(1) testimony , indicating, as it does, that Rummell not only knew about Broil's and Compel 's union affiliation, but also was vibrantly opposed to it, gives me pause for doubt.35 The pause grows more profound when I con- sider all the fortuitous watching and "pointing" which allegedly occurred . Because Broil was a very persuasive witness, I am most reluctant to say that I cannot credit his testimony here, but after much consideration, I feel that I should so conclude. This is not so much a "dis- crediting" of Broil as it is a reluctance to rely on his tes- timony, which may, for all I know, be perfectly true.36 If I have done a disservice to Broil by this conclusion, I regret it However, as discussed below, even if I err in this resolution , the principal remainder of the case-the 8(a)(3) violations to be found hereafter-can, I believe, stand in any event Garland Parks' conceded and vehe- ment outburst ' against the Union on 18 August; the ad- mitted fact that "a couple of employees" brought news of the union activities to Hamm , and the shifting, incon- sistent, and insubstantial reasons given by Respondent for the three discharges are enough , I believe, to carry the day for the General Counsel . We turn now to the dis- charges. as The General Counsel would also read Rummell 's alleged allusion to a "another union agitator leav[mg] here soon " as a reference to Bergling, how Rummell could have been in a position to believe that Bergling would thereafter act in a manner that would provide some colorable basis for discipline, see infra, is not explained 36 I note that Broil's pretrial affidavit attributed Parks' 18 August tan- trum to Rummell I can understand that Broil , not knowing Parks and seeing, from a distance, a man in a white safety hat , which was believed by Broil to be the sole province of supervisors , might think the actor was Rummell Broil 's testimony about who was watching him as he spoke to the two business agents was a little stickier Although he agreed that one "could not clearly identify somebody's face" when looking from the parking lot to the first deck , and stated , when asked if he could recognize Rummell from that distance , " I guess If I had looked at him very care- fully," he became , on cross, "absolutely positive " about the identity of Hamm and Rummell in the second "pointing" incident 3 The discharge of Compel Compel was hired on 15 August and released on 21 August . He testified that the first time he listened to Shanahan address a group of employees in the parking lot, probably on Monday, 18 August, Shanahan handed him an informational leaflet He went on to testify that he signed a card for Shanahan the day before he was dis- charged; that he and Shanahan were alone in the parking lot at the time he signed ; and that as he signed, he no- ticed Rummell standing across the street on the first deck of the building site facing in their direction. Compel testified that a few days before he was fired, he was working with some other employees , handing lumber up to them on a scaffold , and that Rummell was nearby but did not "say anything to [Compel ] about the way [he was] working that day." Frank Mitchell testified that Compel was working with him that day, that he told Rummell that Compel was too slow, and that Rum- mell thereupon moved Compel to another job and got a substitute for him . I would credit Mitchell ' about this oc- currence. The day before he was fired , which was the same day he signed a card at lunchtime (the card is in evidence and appears to be authentic as to date), Compel was put- ting up expansion joints with another employee named Pete, when Rummell came by in the latter part of the day and asked if the employees were "still messing around with that ." Compel said that they were almost done The next morning, after the expansion job was completed, Compel was assigned to work with two em- ployees to plumb scaffolding . Compel asserted at the hearing that the scaffolding was already in place, and there had -been a brief wait while one of the other em- ployees picked up a maul from the tool trailer After Compel began to line up the scaffolding for about 10 minutes, Rummell approached and said he would take over the work that Compel had been doing Rummell said that he had been standing on the upper deck for 15 minutes watching Compel "put in four little nails " When Compel tried to "explain to him exactly what had hap- pened," Rummell retorted , "I do not need your shit, get out of here, you are fired " Rummell testified that on the occasion when he took Compel off the job of handing lumber to other carpen- ters, he told Compel that he had "to speed it up a little bit" and Compel replied that his pace was "the faster [sic] that he could go " But what caused the discharge, said Rummell, was Compel 's reaction to an order given to him on 21 August Rummell testified that Compel was not helping the other two men carry the scaffold and braces to be erected . 37 Rummell averred that he told Compel that the other two, despite being carpenters, had to carry the equipment, and "you can carry it also." 3' Compel identified the two employees as "Dirt," a black man, and "Ricky," a white man Rummell said that the other two men were in fact both white, and their names were Tim Lynch and Joseph Gately But since Compel described "Ricky" as a young white man, "maybe 22 years of age," with "reddish " hair, and Rummell said that Gately had "red hair" and was "probably in his early 20's," and further testified that there was a black carpenter on the job named "Ricky," the discrepancies seem irrelevant ELION CONCRETE Compel purportedly replied, "Well, I am no laborer, I am a carpenter. I do not get paid to tote." Rummell ter- minated the conversation by saying , "If that is the case, I do not need you." Thus, there is a fairly unusual foursquare conflict re- garding the nature of the incident that provoked the dis- charge. Compel says Rummell charged him with work- ing too slowly on 21 August; Rummell says the cause was Compel's "insubordinate" refusal to help carry the scaffolding. Although Rummell and Compel testified to the two in- cidents discussed above intimating slow work by Compel, Rummell had not relied on these matters when called as a hostile witness; rather, when asked then why Compel was fired, he outlined the refusal to carry scaf- folding and concluded , "I fired him for insubordination." But, strangely enough, even after Rummell had so testi- fied, counsel for Respondent stated, in arguing a line of questioning, "The allegations we are going to make are he is a slow worker." Intriguingly, to another question put to him by the General Counsel-"Did you ever tell anybody that you fired him because he was slow?"-Rummell answered simply, "Yes." Neither side attempted to follow up on this disparity, and it was left hanging there at the conclu- sion of the hearing. There is, however, in evidence as General Counsel's Exhibit 13, a document prepared for Respondent's counsel that purports to show the names, hire and fire dates, and "Reason" for the release of all employees terminated from the project . The "Reason" given for Compel's discharge is "not able to keep up with work." The foregoing facts raise serious doubts about the story told by Rummell to explain the circumstances of Compel's discharge. What legitimate explanation could there possibly be for Rummell stating under oath that he terminated Compel for being "insubordinate" but also conceding that he had elsewhere given the reason that Compel was too "slow?" This sort of explanation-shifting is a common feature of established 8(a)(3) violations, based on the logical theory that it should not be difficult for an employer to tell a consistent story as to why an employee was properly discharged. It is a "rare" case in which discriminatory motivation can be proved by direct evidence; it is almost always true that the General Counsel satisfies the statutory burden of proof-"the preponderance of the testimony taken"38-by adducing circumstantial evidence of the forbidden motive. NLRB v. Link-Belt Co., 311 U.S. 584, 602 (1955); Darlington Mfg. Co., 165 NLRB 1074, 1083 (1967). In the present case, Rummell may have been standing on the deck on 20 August watching Compel sign a card; Compel made a good personal impression, as Rummell did not, and Frank Mitchell 's reluctant qualify- ing remarks on this subject, set out above, suggest that Rummell may have made such an appearance . Candidly, I cannot reach a confident conclusion on the point and therefore must discredit Compel. But I do believe that Compel, as did others, took a leaflet from Shanahan early in the week, and then signed 38 Sec 10(c) of the Act. 79 a card on 20 August. I think that Garland Parks' out- burst on 18 August demonstrated a strong antipathy to the Union.39 I know that Hamm had information about the activities of Shanahan, as he conceded, at least through "a couple of employees."40 I am finding here and below that, within a 7-day period, Compel and two union activists were fired, the only discharges shown on Respondent's records as having occurred between 16 July and 30 December, with certain considerably differ- ent exceptions.41 Finally, there is the significantly inexplicable testimony of Rummell that he discharged Compel for an act of "in- subordination," while conceding that he also had else- where given as the reason that Compel was "slow." Such duplicity can only be explained as an effort to mask the truth,42 to assign what might appear to be an accept- ably substantial reason for the discharge . Similar defi- ciencies in explanations have for many years been ac- knowledged to give rise to a strong adverse inference against employers. NLRB v. Griggs Equipment, 307 F.2d 275, 278 (5th Cir. 1962); NLRB v. Joseph Antell, Inc., 358 F.2d 880, 883 (1st Cir. 1966). The Board holds, as in Wright Line., 251 NLRB 1083, 1088 fn. 12 (1980), "The absence of any legitimate basis for an action , of course, may form part of the proof of General Counsel's case." In the present circumstances , I conclude that Compel's discharge was prohibited by Section 8(a)(3) of the Act.43 4. The discharge of Bergling The next to go was Richard Bergling, a carpenter who was employed on 11 August44 and discharged on 26 August. 39 Parks testified that his remarks were "personal." He was, however, a longtime superintendent with Respondent and very likely reflected Re- spondent's views Moreover, he testified that he told Bergling that if he wanted "to go to work for the Union and you can better yourself, go ahead. If you don't make it there, you can always come back ." I doubt that Parks was speaking of Bergling becoming employed by the Union; rather, I think he was making clear that Respondent would simply not be a union-represented firm. 40 "The Board has not hesitated to infer a respondent 's knowledge of employees' protected activity where the circumstances [the timing of the discharges and the pretextual quality of the respondent's asserted justifi- cation for them] reasonably warrant such a finding . . . [citing cases.]" Dr. Frederick Davidowitz, D.D.S., 277 NLRB 1046 (1985) 41 G C Exit 12 shows that on 13 August , two employees named Sor- rell and Kearney began work and were let go after 6 hours, the reason being given that they were unable to perform the required work. The cases of Robert Wiechert, who was released on 8 September , Ron Clark, apparently let go in September, John Opert, said to have been fired on 19 November, and Darren Owens, who last worked on 18 November, are discussed below in the case of Bergling . There is no evidence in the record that any charges were filed with respect to any of these employ- ees, in contrast with the prompt filing of charges on 29 August relating to Compel, Bergling, and Broil. 42 Given the variance in Rummell 's explanation, as well as my own impression that the passive Compel would not likely engage in such a confrontation, I credit Compel's version of the events of 21 August. 43 Having found that there were no lawful motives for Compel's ter- mination, I also conclude that Respondent "necessarily failed to carry its burden under Wright Line, 251 NLRB 1083." Stor-Rite Metal Products, 283 NLRB 856 in. 9 (1987). 44 See G .C Exh 12, p. 3. 80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bergling is the Hoballah of this part of the case. As Hoballah, his mind is quick, and his specialty is defend- ing to the death the accuracy of an utterance, no matter how tortured the defense may be Despite such prob- lems, however, I believe that the General Counsel has made his case with regard to Bergling. As discussed above, Bergling induced the onslaught by Garland Parks against the "union man," and there is no question in my mind (despite his denial) that Superin- tendent Hamm quickly became aware of this encounter. Thus, Bergling obviously became known as a union ad- herent whether, as Bergling testified, Rummell was present on the deck at the time that Parks challenged Shanahan 45 Bergling testified that on payday, Friday, 22 August, the check for his pay, normally $12 an hour, was short He complained to Hamm, who told him that he was worth $13 or $14 "if you don't go with those union as- sholes If you go with them, don't even come back here because you ain't going to have a fob " The complaint alleges that in "August 1986," Hamm "promised employ- ees a wage increase if they refrained from engaging in ac- tivities on behalf of the Union" (emphasis added) The al- legation makes no mention of a contemporaneous threat of discharge by Hamm.46 Hamm did "not recall" telling Bergling that he was worth more money than he was earning at the time, but he denied conditioning a raise on not going "with those union assholes" and further denied threatening Bergling about a loss of his job. On the basis of this record, I find it impossible to credit the testimony of Bergling in the absence of some extra-Bergling convincing reason to do so. It also seems 46 An example of my problems with Bergling's testimony follows He said that he first discussed forming a union with Shanahan in the parking lot on 18 August Shanahan asked him "how long I had worked for Elton Concrete and I said I'd been there for about eight years And he said eight years as a carpenter and I said I'd been working for them about eight years and I'm a carpenter And he said, would you sign a card for me and I said , yes, i would And i signed a card and there was other people present " Any reasonable listener or reader would assume from this that Bergling and Shanahan were total strangers until 18 August But we eventually came to be told by Bergling that prior to 18 August , Bergling had passed out union literature and gotten some union cards signed on the jobsite And where did he obtain this material? From Shanahan And how had he come to know Shanahan? Because, after being laid off by Elton on 2 July from the Baltimore Marina job, he "went to the union and got into the Local 101 " Did he join the local at that time? "Yes, I did " Did he sign a card then? No, because he "didn 't officially Join " When he met Shana- han at the local hall , he told him he wanted better benefits at Elton, and this union business agent said that he could be of no assistance in that area, and told him "if you got any gripes, go to the Labor Board and see them," which is how he fortuitously came to give an affidavit in the case filed by Hoballah, whom he knew from the St Paul Street Job When asked what took so long for him to sign the card if he favored the Union, Bergling answered amazingly, "I was always working " Fur- thermore, even though Shanahan gave him 150 pieces of literature to hand out , "the first couple of times he didn ' t have that card with him" (this despite the earlier testimony that Shanahan had given him cards that he had gotten signed prior to 18 August) Thereafter, Bergling testified that the reason he had not signed the card earlier was that he "wanted time to think about it before I made myself any commitment to whether I wanted to go union or whether I stay with Elton" (despite the fact that he had distributed literature and cards prior to 18 August), no mention here of inability to sign because he was "always working " 46 One other allegation relates to Hamm "implicitly " telling employees on 26 August "that they were discharged for" union activities strange that the complaint alleges no more than that on this occasion (if this is the occasion to which the com- plaint refers-note the plurals used in the allegation), Hamm offered a wage increase for refraining from union activities, while Bergling's testimonial account tacked on a serious threat of discharge Although cross-examination of Bergling did not disclose that the threat fails to appear in his pretrial affidavit, it is difficult to believe that, if it was there, the Region would not have relied on it as a separate violation of Section 8(a)(1). I would, therefore, dismiss this allegation Bergling testified that, on Wednesday, 20 August, he was absent from the job all day because he had to take his wife to a doctor. He did not call in to inform Re- spondent that he was going to miss the day, despite the fact that, as he testified on direct, a temporary foreman named Buzzy had told the employees at the start of his .employment that "if we're late or if we're going to miss, we got to call. If we don't call, we'll be fired " When he came to work the following day with a written medical excuse, he was directed by Frank Mitchell, Buzzy's re- placement, to show it to Hamm, and he did so Although Bergling also testified on direct that, "to my knowl- edge," he was never late other than on 26 August, the day he was discharged, he conceded on cross, at least initially, that he was "late that morning when I came in after that day I missed," i e., that he was late on 21 August. On the latter date, when he gave Hamm the medical excuse, he also told Hamm , "I'm a couple of minutes late this morning," but Hamm simply told him to get to work 47 On cross-examination, however, Bergling affirmed the statement in his affidavit that, on this second occasion, he asked Hamm, "Do I still have a fob?" Bergling ex- plained that he asked the question not because he was late but because of his failure to call in to report his ab- sence on the preceding day. Hamm replied that Bergling still had a job Bergling said , "I am a couple minutes late to work today,"48 and Hamm told him to go to work. Bergling was asked on cross-examination whether Hamm did not also say, "I'm going to give you three strikes and you're out. And you've got two." His first answer was perhaps, in its argumentativeness , revealing : "I don't call that a strike when you take your wife to the doctor's." Thereafter, he denied that Hamm had made such a threat on this occasion Bergling was discharged on Monday, 26 August He testified that he called the jobsite about 6:15 a.m and told Patty Miller, the secretary, that he was "running a few minutes late" and did not know whether he would 49 As he continued to be questioned along this line , however, Bergling began to take the position that he had told Hamm that he was "late" only in the sense that he had stopped to discuss the previous day 's absence with Mitchell "and I done wasted three to five minutes talking to Frank " Now, despite all his previous testimony (e g, "Q When you got into work that day, were you on time? A No, I was running a few min- utes late "), he began to, assert that he had arrived at the job on time and was "late" because he stopped to speak to his foreman He even persisted in this interpretation after being read a portion of his affidavit which stated, " It was one day during that second week that I was five minutes late This was the day after I missed work because I took my wife to the doctor I showed up five minutes late and Dave Hamm saw me " 411 But cf the preceding footnote ELION CONCRETE arrive on time. He told her to ask Hamm whether, "if I'm a few minutes late, do I still have my job ." Miller immediately responded that Hamm "said if you call in late, you're fired." He asked whether she meant call in late or come in late. She told him to hold on, and he could hear her muffled voice saying that Bergling was going to be a few minutes late and inquiring whether he still had a job. He heard Hamm reply, "Tell him he's fired if he's going to be late," and then "mumble some- thing like, I don't need any union assholes solicitating [sic] on my job." On cross, Bergling added to the re- marks by Hamm overheard by him, "You tell him, three strikes and you're out." Bergling told Miller that he would try to get there, and he arrived in the parking lot 3 minutes after starting time. He saw Miller coming out of the office trailer and asked if he had a job; she asked what time it was; he told her; and she said that he had no job. Hamm testified that he "[thought] Richard was late a couple of times and I approached him and with that same thing I said, three strikes and you are out." When Bergling called on 26 August to announce his imminent lateness, Hamm told Miller to tell Bergling not to bother coming in because he was fired. He denied making any remarks about "union assholes solicitating." In a Bergling-Hamm confrontation, I cannot, as dis- cussed above, credit Bergling.49 I therefore do not credit Bergling's testimony that in the overheard telephone conversation of 26 August, Hamm made reference to the undesirability of "union assholes solicitating on my job."so The fact that Bergling asked Miller to inquire of Hamm on 26 August if he "still [had] my job" arguably indicates that Hamm had indeed said something to Ber- gling on 21 August about "three strikes and you're out." When asked why he had put that question, Bergling spoke of how Leadman Buzzy had said that if they were going to be late or absent and did not call in, they would be fired. When it was pointed out that Bergling did not fall into that category because he was calling in, he changed his tack and said that he asked the question "be- cause of the attitude they had towards me," i.e., that "they knew I was going union ." He agreed, however, 49 Not that I believe that Hamm is a necessarily reliable witness; I have noted, for example, that Foreman Rummell contradicted Hamm's testimony that he had no knowledge that union cards were being passed out. Bergling, however, simply provides scant basis for trust so There are other reasons for discrediting Bergling on this point. One is that his September 1986 affidavit offers a less vindictive version "1 don't need any solicitators on this job ." Bergling testified that he remem- bered the pejorative descriptives "while I was being questioned" at the hearing, derived from his "inner feelings" and his "memory bank " But four pages later, those sources seem to have failed him: his final version was "goddamn union solicitators." A most useful witness on this score might have been Patty Miller. The Board has held in a series of cases that no adverse inference can be drawn against a party for failure to produce a potentially corroborating witness when that witness is presumably available to the other party, even in such extreme instances as supervisors Weisser Optical Ca, 274 NLRB 961 In 4 (1985), see also Plumbers Local 40 (Mechanical Contrac- tor), 242 NLRB 1157, 1160 fn 10 ( 1979). There is no evidence that Miller was still employed by Respondent at the time of the hearing or that any party was privy to her then-current address In light of these precedents, I can draw no inference adverse to either party for the failure to call Miller. 81 that such an "attitude" had not been displayed on his 2 previous days of not reporting without calling in and being late without calling in. However, although Hamm stated that he warned Ber- gling of the "three-strike" standard on 21 August, the manner in which the testimony came in makes one wonder. I note that Bergling had asked the same ques- tion about being retained on 21 August . Bergling's affida- vit shows that when Miller, on 26 August, conveyed to him the message of "three strikes and you 're out," Ber- gling had asked what he meant. Referring to this, coun- sel for Respondent inquired of Bergling at the hearing, "Was it not explained to you that one time for the doc- tor's, one time for the next day when you were late. That's two strikes. And that day, August 26th, was a third strike. That was explained to you, wasn't it?" Bergling said that it was. But implicit in the question posed by counsel is the suggestion that the "three -strike" policy had never been discussed with Bergling previously and therefore had to be explained on 26 August. Again, however, in choosing between Hamm and Ber- gling, I feel constrained to credit the former . Hamm's testimony, nonetheless, gives rise to a substantial question about whether the standard he applied to Bergling com- ported with the policy he otherwise followed. Hamm said that in Respondent's company, each superintendent established his own attendance policy, and he testified at first that his policy was rather discretionary: "When I felt that the system had been abused, someone would be fired." Subsequently, however, he testified that "you had to keep a precedent on the job site, so you could not let one slide and another not . . . . [Y]ou had to use the same rule for everybody. . . . Normally, I used the rule, three strikes and you are out." Hamm did not precisely explain the nature of a "strike" or the period over which the three-strike rule extended. While he seemed at one point to be saying that a tardiness or absence was a "strike," he also appeared to be saying that the reason mattered: Q. For purposes of letting [losing?] the job, it is no different, or is it, if someone is late or absent? A. It depends on the excuse. Hamm knew that Bergling's first "strike" was an ab- sence for a medical reason . As for tardiness, on this job- site, the record shows that employees did not punch a clock or sign in, and they were not docked any pay for short periods of absence such as Bergling's on 21 and 26 August. Timesheets for the period 19 July-30 December are in evidence. These records show that in August and the first part of September (after which Hamm left), several employees did not work on more than 3 days in close proximity, but Hamm testified that they might have been working temporarily at another site or have been out on an excused absence . He was unable to recall the reasons for the absence of any employee on particular days, which is understandable, and there appear to be no writ- ten records reflecting reasons for absence. Respondent, however, had Rummell testify to the rea- sons he "discharged" two employees . He fired a carpen- 82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ter named Owens because "he was missing time, showing up late " The timesheets show that Owens began em- ployment on Friday, 15 August; was absent Thursday, 21 August, and Friday, 22 August; was absent on Thursday and Friday, 28 and 29 August; missed Friday, 5 Septem- ber, and Saturday, 6 September (assertedly a nonobliga- tory day, but one on which virtually the whole crew worked); and continued to work more steadily, missing a day here and there, until the week ending 14 October, when he was gone on 10 and 13 October, and then missed the entire week ending 21 October. He thereafter worked 2 full weeks ending 28 October and 4 Novem- ber, but missed 5, 6, 12, and 14 November. There is no entry indicating that Owens was fired, and it is notewor- thy that even after missing 5, 6, 12, and 14 November, he worked a full day on Friday, 15 November.51 Thus, in the first 22 days of his employment, Owens was absent for at least 5 days. In the latter part of his employment, Owens missed 4 of 8 working days, pre- sumably the "missing time" to which Rummell referred; but because he was allowed to work on 15 November, a real question arises whether he was in fact discharged. Rummell also recalled discharging a carpenter named "Overt" because he "had missed time, showed up late"; the timesheets show a carpenter named John Opert. After being hired on 10 September, Opert worked stead- ily until the pay period ending Tuesday, 7 October, when he was out on Wednesday, 1 October, and Tues- day, 7 October. He worked the following 2 weeks, but was absent the entire pay period ending Tuesday, 28 Oc- tober, and was also missing on Wednesday, 29 October. He was absent the following Monday, 3 November, but was allowed to work on 4 November. He was out again on Wednesday, 5 November, came back to work for the remainder of that pay period ending 11 November, but failed to work on the latter day. He was out on Friday, 14 November (as were a number of others), and not at work on Monday, 17 November. He worked only 6 hours on 18 November, when all other employees worked at least 8 hours. It would appear that he was ter- minated on Wednesday, 19 November; an entry on the timesheet for the period ending Tuesday, 25 November, reads. laid off John Opert - Fired [other names follow] The summary sheet, however, does not mention Opert. Again, under a "three strikes-you're out" policy, it would appear that Opert was permitted a good deal more latitude than Bergling, although one cannot say that all of the absences were not excused. Looking at the latter portion of his tenure, he was gone for 6 straight days at the end of October, and 5 of 11 workdays between 3 and 17 November-and still was permitted to work on 18 51 G C Exh 13, a compilation of employees released from the job made especially for litigation purposes , shows a blank for the date Owens was released and for the " Reason " and 19 November. Whether he really was "fired" or "laid-off' is arguable. Respondent elicited Rummell's tes- timony about these two employees, and if there were reasons to explain the apparent largesse accorded Owens and Opert, as opposed to Bergling Respondent could presumably have undertaken to do so. Although it is true that the termination of Owens and Opert took place under the regime of Hamm's successor, and there is testi- mony that each superintendent had discretion in these matters, there is no reason to believe that Hamm's suc- cessor instructed Foreman Rummell to be more liberal than Hamm had been in the past. Because Respondent itself raised the issues of Owens and Opert, indeed, there is reason to believe the opposite. The four-page summary of terminations shows a "Reason" for the release of only 12 of the 38 terminated employees named there. Of the 12, 5 are called "quits." Only 3 of the 12, of which 1 is Bergling, reflect a reason having to do with attendance. The others in this catego- ry were Ron Clark and Robert Wiechert. Wiechert worked on September 3 and never returned. Clark's "Reason" is shown as "fired-missed too many days," and it is worthy of consideration. Clark was hired, and worked, on 28 August He missed Friday, 29 August, Wednesday, 3 September, and Thursday, 11 September. He was, nonetheless, permitted to work for 8 hours on Friday, 12 September, and al- though the summary sheet states that he was released on 12 September, that seems inconsistent with his working on that day.52 More probably, his release occurred sometime after Saturday, 13 September, when, although voluntary, the great majority of employees worked and Clark did not.53 That Clark was still considered to be on the payroll as late as 16 September is shown by the diag- onal lines drawn to indicate that he was absent on 15 and 16 September; no such diagonals appear subsequent to the dates of discharge of Broll and Compell (Bergling was discharged at the end of a pay period). Reflecting on the uncertainty of Hamm's "policy," a reader strongly senses its discretionary aspect. For exam- ple, when asked whether an absence would be consid- ered "excused" if an employee called in to say he would be late or absent, Hamm answered, "Perhaps, the first time that [he] did it." He went on, "But if it was to the point where it was being abused, then I thought other measures need to be taken sometimes, yes." However, when asked if a doctor's note made the absence an ex- cused one, Hamm said, "Oh, yes, sir, of course."54 Bergling was absent on 20 August for 1 full day.55 He did not call in, but he did bring in a medical excuse on 21 August He was about 5 minutes late on 21 August, but he did not call in to say that he would be. He was perhaps 5 minutes late 3 workdays later, but he did call in On the latter occasion, he was summarily discharged, 52 The sheet also misstates the first day of Bergling's employment 5s See testimony of Hamm, Tr 584 54 Whether Hamm intended to apply this to medical excuse situations in which the employee had not called in was not explored at the hearing 55 G C Exh 12 also shows that Bergling was absent on 14 August The record sheds no light on that absence, but obviously Hamm did not know of or think of it as belonging under a "three-strike rule " ELION CONCRETE under a "three-strikes-you're-out" standard However, even according to Hamm, there are "strikes" and there are "strikes." Interestingly, Rummell testified to another kind of "strike" He said that Hamm told him that Ber- gling was fired because "he called in late and it was his third strike" Nowhere else do I find in the record any time limitation as to when a call-in notification must be made Bergling was, in Hamm's words, a "good carpenter." In fact, the record shows that Garland Parks had called Bergling to work repeatedly over an 8-year period in which Bergling had worked for Elion, despite the fact that Parks had fired him once around 1981 because of tardiness stemming from his lack of adequate transporta- tion Thus, in the recent past, Bergling was transferred from the St. Paul Street job to the Baltimore Street Marina to the Sheraton site But Bergling had become a union activist, a fact as- suredly known to Hamm after the Garland Parks shout- ing incident The record demonstrates union animus on Respondent's part. Taking into account the foregoing, the fact that I find that Respondent unlawfully dis- charged two other union adherents within a 7-day period; the fact that Bergling's 20 August absence was excused, his 21 and 26 August tardinesses extremely brief, and the last tardiness covered by a prearrival tele- phone call; and considering the apparent liberality with which other employees were treated before Rummell discharged them,56 I am persuaded that Hamm seized on Bergling's trivial lateness on 26 August as an excuse for getting rid of him.57 I find, therefore, that the discharge of Richard Ber- gling on 26 August violated Section 8(a)(3) of the Act. On the assumption that this case may be classified as a "dual motive" problem, The General Counsel has estab- lished to my satisfaction that Bergling's union activity was a "motivating factor" in his discharge, NLRB v. Transportation Management Corp, 462 U.S. 393, 401 (1983), and Respondent has failed to "demonstrate" that it would have taken the same action even in the absence of Bergling's protected conduct Wright Line, 251 NLRB 1083, 1089 (1980). 5 The discharge of Broil Finally, there is the case of Walter Broil, hired as a carpenter on 13 August and discharged on 27 August. As earlier noted, Broil was a veteran union member who was told about the Towson job by Shanahan, and he passed out authorization cards in the parking lot during the lunch period and elsewhere Broil testified, however, that to his knowledge, no supervisor saw him engage in such activities, and he further said that he handed to s6 Hamm's testimony is that he had lunch in the office trailer with Rummell every day Surely, the standards applied, and to be applied, for recidivist absentees was a matter of discussion between them As Hamm testified on this point, "I lay down the rules " 57 In so concluding, I have taken into consideration the facts that Hamm has since been discharged by Respondent and "did not leave on the best of terms " This is a factor in Respondent's favor, on the other hand, Hamm is still working as a manager (see Tr 590, L 6) and likely would not enjoy being found to have committed an unfair labor practice 83 Shanahan, at another parking lot away from the jobsite, the four or five cards he had gotten signed Broil testified that on 27 August, he was engaged in a project with another carpenter An electrician came out of the portable toilet and stopped, and Broil made a small joke, the electrician laughed and walked away. Minutes later, Rummell came up and asked if Broil had finished cutting the panels; Broil said he had not. Broil then asked Rummell why Bergling had been fired the preceding day Rummell responded, "That is it I am tired of all this union bullshit This is a nonunion job and we are not interested in the union Dave and I watched you for 20 minutes this morning talking to an electri- cian " Broil denied the latter allegation Rummell told him he was through, and Broil left Hamm and Rummell gave some rather remarkable tes- timony, in two different respects, regarding the reason for Broil's dismissal. Rummell, when called to testify by General Counsel, said that, on 27 August, he stood on the second floor and watched Broil "walk away from where he was working" and talk to an "electrician" for "fifteen, twenty minutes." Rummell also testified that he had seen Broil doing this previously and had warned him that "if he wanted to keep his job, he had to keep his mind on our work." Broil denied that he had ever been "warned about anything " The most interesting aspect of Rummell's testimony is that when he testified as an adverse witness, he answered "Yes" to the General Counsel's question whether it was he who "decided" to fire Broil and "No" to the question "Did you consult with anybody else?" Before Rummell reappeared as Respondent's witness, however, Hamm testified, also as an adverse witness He testified that on 27 August, he had observed Broil for 20 minutes "b.s.ing with everybody walked by, electricians, plumbers and was just not doing work " Having witnessed this, Hamm said, he "told Harold to go fire the guy " Hamm subse- quently made" clear that Rummell discharged Broil "under my direction " . We thus have Rummell testifying that he had observed Broil for a period of time "walk[ing] away from" his work, and talking to an "electrician" and, without "consult[ing]" anyone, had "decided" to discharge him and did so; and Hamm testifying that he had watched Broil for 20 minutes, "b s ing with everybody walked by, electricians, plumbers," at the end of which he "told Harold" to fire him. Matters became even more confused when Respondent recalled Rummell as its witness Having testified at the 21 April hearing that he was the observer of Broil, that he made the decision to terminate, and that he did not "consult" anyone, on 1 May, in his second appearance on the witness stand, Rummell testi- fied that Hamm "called me over to the side . . . [and] said `Look at that man I want you to get rid of him.' And I went down and told him " The failure of Rummell's first version to jibe with Hamm's account and the subsequent 180 degree change in Rummell's testimony to accommodate that given by Hamm are strong signals that Respondent was engaging in falsification of its explanation of the discharge of Broil Added reason for doubting Rummell's fidelity to 84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the truth, and for bolstering Broil's version of the termi- nation colloquy, is found in the following course of events. Broil had testified, prior to Rummell's second ap- pearance as a witness, that just before he was fired, he asked Rummell why he had discharged Bergling the pre- vious day. When Respondent asked Rummell about this, the following occurred: Q. [W]as there any mention of Richard Bergling in the conversation that ensued between you and Walter Broil? A. No. Q.... Did you tell him you did not fire Rich- ard? Or did you have any discussion about Richard? A. I said I did not fire him. Q. Did he ask you whether you fired him? A. He might have. Q. Did he ask you at that time why you fired Richard? A. He might have, I do not know. Broil's probing about the reason for Bergling 's termi- nation quite naturally might have led to Rummell's out- burst about being "tired of all this union bullshit," and tends to confirm the reason not only for Broil's dis- charge but also for Bergling's. That Broil did in fact ask the question is strongly suggested by an exchange be- tween Respondent's counsel and Rummell about Hamm's notification to Rummell of Bergling 's discharge and the reason therefor ("[B]ecause he called in late and it was his third strike"). Counsel asked, "Did you tell that to Walter when Walter asked you?' Rummell replied simply, "No." I am inclined to believe that Broil, a union member and colleague of Shanahan's, who applied for the job at Shanahan's suggestion, was indeed engaged in the circu- lation of union cards, and it seems likely to me that, in this small community of employees, some of whom ad- mittedly talked to Hamm about Shanahan 's activities, Hamm and Rummell were very likely aware of Broil's own activism (putting aside, as previously discussed, the possibility that they did actually observe him with Shan- ahan on two occasions). I believe that Broil did ask Rummell about Bergling's discharge-Rummell virtually confirmed this-and Broil obviously was not posing an idle question-he was undoubtedly referring to, and Rummell undoubtedly perceived it as, a reference to Bergling's union adherence. There is good reason to assume that this calculated query would have provoked Rummell's reference to "union bullshit " to which Broil testified. But even if this were not so, there remain the truly in- credible problems with Respondent's vacillating attempts to explain the sequence of events that led to Broil's dis- charge. In considering, together with the other evidence, the inference to be drawn from the initial conflict be- tween Hamm and Rummell in explaining the circum- stances preceding the discharge , followed by Rummell's recantation of his original account, I find it eminently justified to believe that the discharge of Broil on 27 August-the third discharge of a union supporter in 7 days-was motivated entirely by his protected activities. In so finding, I also conclude that , on 27 August, Broil did not spend 15 or 20 minutes chatting with another tradesman. Being aware that Compel had been fired on 21 August and Bergling on 26 August , I cannot believe that Broll, an outstanding candidate for a similar fate, would have been so foolish as to provide such a pretext on 27 August . For the same reason, I doubt the veracity of Rummell's controverted testimony that he had twice before seen Broil wasting time in similar conversations and had warned him of potential discharge for such be- havior-had that been so, I do not imagine that, on 27 August, Broil would have openly invited such reprisal. CONCLUSIONS OF LAW 1. Elion Concrete, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Carpenters District Council, Baltimore and Vicinity, a/w United Brotherhood of Carpenters and Joiners of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to hire Muhammad Ibn Hoballah on and after 9 April 1986 , Respondent violated Section 8(a)(4) and (1) of the Act. 4. By, on 21 , 26, and 27 August 1986, discharging, re- spectively, Robert Compel, Richard Bergling, and Walter Broil Respondent violated Section 8(a)(3) and (1) of the Act. 5. By threatening employees, on 18 August 1986, for engaging in union activities Respondent violated Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except as set out above Respondent has not violated the Act in any other respect alleged in the complaint. THE REMEDY I shall recommend that Respondent be required to fur- nish certain remedial relief in order to restore the status quo ante. In Haberman Construction Co., 236 NLRB 79 (1979), enf. denied on other grounds 641 F.2d 351 (5th Cir. 1979), cited with approval in Daniel Construction Co., 276 NLRB 1093 fn. 5 (1985), the Board held that even where the respondent hired on a project-by-project basis, if there was a "distinct possibility" that, absent discrimi- nation, Respondent would have retained , transferred, or rehired at least some of the discriminatees for new projects, they should be ordered reinstated with backpay. There is evidence here of a pattern of recalling employ- ees (Hoballah testified without contradiction that he saw four laborers he had worked with at the St. Paul Street job who were employed at the Baltimore Civic Center site; Bergling and Garland Parks made it clear that Ber- gling had often been recalled to work by Respondent). Thus, even if the projects on which the four discrimina- tees were (or, in Hoballah's case, wished to be) em- ployed have been completed, "the possibility that some or all of the discriminatees involved in this case might also have been carried over or rehired for new projects but for Respondent's discrimination against them," Ha- ELION CONCRETE 85 berman, supra at 79 fn 3, provides a basis for a reinstate- ment and backpay remedy. "The determination of which employees, if any, would have continued in Respondent's employment and for how long can best be made at the compliance stage of the proceedings " Ibid Having found that Respondent unlawfully refused to hire or discharge the four employees at issue here, I shall recommend that it be ordered to offer them immediate and full reinstatement, without prejudice to their seniori- ty and other rights and privileges, and to make them whole for any loss of earnings they may have suffered from the dates set out in the Conclusions of Law above to the date of Respondent's offers of reinstatement, with interest, in accordance with F W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1988).58 I shall also recommend that Respondent be required to post appropriate notices As in every other brief filed by the General Counsel for many months now, a visitatorial clause is sought. With only one exception known to me, Shoppers Choice, 280 NLRB 1306 (1986), the Board has uniformly refused to grant the request, citing, simply, the "circumstances." Big R appears to be an oversight. Given this experience, I find no unusual circumstances here on which the Board would grant the remedy. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed59 ORDER The Respondent, Elton Concrete, Inc, Baltimore, Maryland, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discriminating against employees because of any activities on behalf of Carpen- ters District Council, Baltimore and Vicinity, a/w United Brotherhood of Carpenters and Joiners of Amer- ica, or any other labor organization (b) Refusing to hire or otherwise discriminating against employees for filing or intending to file a charge with the National Labor Relations Board. (c) Threatening employees for engaging in union ac- tivities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor or- se 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 1987 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) 59' 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 ganization, to bargain collectively through representa- tives of their own choosing, to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid, or to refrain from any and all such activities 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Immediately offer to Muhammad Ibn Hoballah, Robert Compel, Richard Bergling, and Walter Broll full reinstatement to their former positions of employment (or, in Hoballah's case, to the position for which he ap- plied in April 1986) or, if those jobs no longer exist, to substantially equivalent positions of employment, without loss of seniority or other privileges enjoyed, discharging if necessary other employees who may have been hired in their places. If those projects on which these employ- ees worked or would have worked have been completed, then the offers of reinstatement shall be to substantially equivalent positions of employment on any other project of Respondent's that these employees would have been employed but for Respondent's unlawful conduct (b) Make whole Hoballah, Compel, Bergling, and Broil for any loss of wages and other benefits, plus inter- est, suffered as a result of their being terminated or re- fused employment by reason of the discrimination against them, in the manner set forth in the remedy section of this decision. (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them, in any way (d) 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. (e) Post at its place of business and current construc- tion projects copies of the attached notice marked "Ap- pendix."60 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply IT IS FURTHER RECOMMENDED that those portions of the complaint found to be without merit are dismissed. so 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 " 86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, loin, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT discharge or otherwise discriminate against any employees to discourage membership in Car- penters District Council, Baltimore and Vicinity, a/w United Brotherhood of Carpenters and Joiners of Amer- ica, or any other labor organization WE WILL NOT refuse to hire or otherwise discriminate against employees for filing or intending to file a charge with the National Labor Relations Board. WE WILL NOT threaten employees for engaging in union activities WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their rights under the National Labor Relations Act WE WILL offer Muhammad Ibn Hoballah, Robert Compel, Richard Bergling, and Walter Broll immediate and full employment; WE WILL compensate them with interest for any loss of pay they may have suffered be- cause of our unlawful actions against them, and WE WILL remove from our personnel files any reference to the dis- charges of Compel, Bergling, and Broil in August 1986 and notify them of this action and of our intention not to rely on such discharges in future personnel actions. ELION CONCRETE, INC 87 PAGE LEFT BLANK INTENTIONALLY.