H. B. Zachry Co.

838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD H. B. Zachry Company and International Brother- hood of Boilermakers, Local 30, affiliated with International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Case 5-CA-17605 July 14, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On December 1, 1987, Administrative Law Judge Benjamin Schlesinger issued the attached de- cision. The Respondent filed exceptions and a sup- porting 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, I and conclusions and to adopt the recommended Order.2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, H. B. Zachry Company, Chesapeake, Virginia, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings. 2 We agree with the judge's finding that the appropriate remedy for the Respondent's unlawful refusal to hire employee Edwards should in- clude an offer of employment and backpay In so doing , we note that the Respondent in excepting to this portion of the remedy relies on the same asserted justifications for its refusal to hire Edwards which the judge re- jected. We further noted that the Respondent has not established that it has a policy or past practice of not hiring employees based on such rea- sons. Paula S. Schaeffer, Esq., for the General Counsel. William E. Twomey, Jr., Esq. (McGuire, Woods, Battle & Boothe,- David R. Simonsen, Esq., Maris M. Wicker, Esq. and Thomas P. Murphy, Esq., on the brief), of Rich- mond, Virginia, for the Respondent. Robert L. Dameron, Esq. (Blake & Uhlig, P.A.), of Kansas City, Kansas, for the Charging Party. DECISION STATEMENT OF THE CASE BENJAMIN SCHLESINGER, Administrative Law Judge. Respondent H. B. Zachry Company stipulated that about 20 August 1985, it did not hire Barry D. Edwards, a qualified boilermaker welder , who had applied for that position, "because Respondent believed it could lawfully refuse to hire a paid, full-time professional union organiz- er such as" Edwards. The complaint alleges that Re- spondent violated Section 8(a)(1), (3), and (4) of the Na- tional Labor Relations Act, 29 U.S.C. § 151 et. seq. i Re- spondent denied that it violated the Act in any manner. Respondent admits, and I find , that it is a Delaware corporation with an office and place of business in Chesapeake, Virginia, where it has been engaged in con- struction work and is the general contractor for con- structing and repairing boilers for Virginia Electric and Power Company on its property in Chesapeake. During the year preceding 3 June 1986 , Repsondent has pur- chased and received at its Chesapeake facility construc- tion site products, goods, and materials valued in excess of $50,000 directly from points outside Virginia. I con- clude, as Respondent admits, that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I also conclude, as Respondent admits, that the Union is a labor organization within the meaning of Section 2(5) of the Act. In an earlier unfair labor practice proceeding, H. B. Zachry Co., 261 NLRB 681 (1982), the Board found that Respondent had violated the Act in numerous respects, including the discharge of Edwards in violation of Sec- tion 8(a)(3) and (1), and ordered Respondent, among other things, to reinstate Edwards to his former job at the Mayo project near Roxboro, North Carolina, with full backpay. The administrative law judge wrote, at 685: Edwards began work at the site on March 28, 1980, as a journeyman boilermaker welder after suc- cessfully completing welding tests for heavy and light wall construction with results termed "one of the prettiest test he'd [the company official] ever seen of many he'd administered-and done expedi- ently, faster than most." Respondent stipulated that Edwards was a competent welder, and Edwards testified that Welding Foreman Dick Johnson com- plimented him on his work and the pains he took with it, as well as the help Edwards extended to co- workers about 2 weeks after Edwards started on B- boiler. General Foreman Pack also complimented Edwards on his work, a week or two later telling Edwards he "showed a lot of craftsmanship." Ed- wards, moreover, was never reprimanded in the course of his employment by Respondent. At the time when Respondent was obligated to rein- state Edwards, its work at the Roxboro facility had fin- ished, and so Edwards never obtained employment there; he applied for employment at Respondent's Chesapeake job in December 1984, and January, February, and July i The relevant docket entries are as follows - International Brotherhood of Boilermarkers, Local 30, affiliated with International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forges and Helpers, AFL- CIO (Union) filed an unfair labor practice charge on 4 November 1985, and a complaint issued on 12 December 1985, which was amended on 3 June 1986 and at the hearing, which was held in Norfolk, Virginia on 30 July 1987 289 NLRB No. 117 H. B. ZACHRY CO. 1985, without success. The final refusal of Respondent to hire him occurred on 20 August 1985. Edwards' uncon- tradicted testimony was as follows: I applied for work early in the morning be- cause I knew they were hiring employees. And I addressed the personnel lady at the personnel trailer in the parking lot. And she told me that the boiler- maker superintendent, [Jerrell] Barnes, would be coming out in a little while to interview applicants and he was needing tube welders, and if I was inter- ested in going to work I should talk to him. A few minutes later, approximately within an hour [Jerrell] Barnes came out, told me he was needing tube welders, he was having a hard time obtaining people that could pass a welding test, wanted to know if I'd ever been certified on tubes before, and I told him yes. I showed him some cer- tification papers that I had from various companies. And he told me that he needed to take my name and Social Security Number and he'd get me cleared through security and he would check with the welding technician to see that the test booth was open and when it came open he would give me a welding test. He told me to hang around, it would be about 45 minutes to an hour. He came back out about an hour later and he had another gentlemen with him by the name of Clar- ence Wade, who was the general foreman on the boilermaker craft, and he asked me had I ever worker for Zachry, and I told him yes. And he told me, he says, "When?" I said 1980 or '81, the best of my memory. And he said, "Well, I put your name in to the gate and Vepco, Virginia Power Company, okayed it through their security, but when we put it into the computer it came up with a star beside it, says not eligible for rehire," indicating I'd had some trouble in Roxboro in 1980. He asked me about this incidence [sic] and I told him at that time I had been discharged unlawfully, it went to an NLRB hearing, the Administrative Law Judge ruled on it in my behalf, it had been ap- pealed and the appeal had been upheld, and I had been ordered to be reinstated to the job and I was there willing to go to work and wanting a job. He told me as long as my name was on that list not for rehire that he didn't have any authority to hire me and the only one that could take my name off that list was George Fewox. Q And who is George Fewox.? A. He was the project manager at the Mayo job site back in 1980, but my understanding now he's a district representative for Zachry. Q. So were you ever hired at H. B. Zachry? A. No, ma'am, I was never hired. Have you continued to apply for jobs at H. B. Zachry? A. Yes, ma'am. Edwards' application for employment graphically cor- roborates his testimony. Across its front is a thick dark 839 slash, and in equally dark letters "DO NOT HIRE," fol- lowed by "ANYTIME per Jerrell Barnes." Section 2(3) of the Act makes no distinction between employees, employees who are opposed to labor unions, employees who favor labor unions, and employees who are full-time paid union organizers. The Act merely states: "The term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise. The Board views the word "employee" as a member of the working class generally. Giant Food Markets, 241 NLRB 727, 728 fn. 3 (1979); Little Rock Crate & Basket Co., 227 NLRB 1406 (1977); Oak Apparel, 218 NLRB 701 (1975). A job applicant is entitled to the protections of the Act, and the decision to hire that applicant must be made without consideration of the applicant's concerted and protected union activities. Copes-Vulcan, Inc., 237 NLRB 1253, 1257 (1978), enfd. in relevant part 611 F.2d 440 (3d Cir. 1979). This principle has been specifically applied to full-time paid union organizers who, although their ulterior pur- pose may be to organize the unorganized , are merely ap- plying for a job, just like any other employees, are to be judged on their abilities as employees, and are forbidden by the Act to be judged on their union sympathies. Pil- liod of Mississippi, Inc., 275 NLRB 799, 811 (1985); Palby Lingerie, 252 NLRB 176, 182 (1980); Margaret Anzalone, Inc., 242 NLRB 879, 888 (1979); Henlopen Mfg. Co., 235 NLRB 183 fn. 1 (1978), enfd. 599 F.2d 26 (2d Cir. 1979); Anthony Forest Products Co., 231 NLRB 976 (1977); Oak Apparel, supra.2 Respondent raises no question about Ed- wards' physical capabilities to perform safely to job of boilermaker welder; and Edwards met Respondent's other criteria for employment, to wit, experience and past employment by Respondent. The only reason for not hiring him was because of Edwards' status with the Union. Since 1 January 1987, Edwards was a representa- tive of the International Brotherhood of Boilermakers, but before, since 1983, he was a full-time paid organizer for Local 30. Respondent knew it. Eugene Hammond, Respondent's vice president, industrial relations, admitted knowing that Edwards was a union organizer because that is what he was doing at Roxboro and "he's been in- eligible for rehire by H. B. Zachry since that time." It is, therefore, clear that counsel for the General Counsel has, at the very minimum, established a prima facie case that Respondent violated Section 8(a)(3) and (1) of the Act. I note the establishment of a prima facie case because under the Board's test enunciated in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v. Transportation Management Corp., 462 U.S 393 (1983), where a dual motive, and a prima facie violation of the Act has been established, the burden then shifts to Re- 2 Respondent's reliance on the dissent of Member Kennedy in Oak Ap- parel has no merit Obviously, his views were rejected , and they have never been adopted by the Board Similarly , NLRB v Elias Bros Big Boy, 327 F 2d 421, 427 (6th Cir 1964), to the extent that it finds paid union organizers are not employees , does not represent Board law The Second Circuit in Henlopen Mfg. Co, supra, 599 F 2d at 30, agreed with the Board 840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent "to demonstrate that the same action would have been taken even in the absence of the protected conduct." Wright Line, supra, 251 NLRB at 1089. Here, however, the only evidence of what caused Respondent not to hire Edwards is contained in his testimony, and that is that Barnes put Edwards' name "into the comput- er [and] it came up with a star beside it, says not eligible for rehire." Barnes, the person who refused to hire Ed- wards, did not testify, and the record is barren of any ex- planation of why Respondent, which needed qualified boilermakers and which conceded that Edwards was a qualified boilermaker, should have blacklisted Edwards, other than (1) Respondent's admission of its belief that "it could lawfully refuse to hire a paid, full-time, profes- sional Union organizer"; (2) its maintenance of a list of the alleged discriminatees involved in the unfair labor practice proceeding, which culminated in the Board's de- cision at 261 NLRB 681, which list included Edwards separately as both an employee and organizer and was accompanied by instructions that the individuals on that list were not to be rehired;3 and (3) the fact that Ed- wards had previously testified in that Board proceeding. Accordingly, on the basis of what happened on 20 August 1985, and the information that was available to Barnes, this is not a dual-motivation case in the classic sense, one motive illegal, and the other legitimate. If there are two motives, they are both illegal, one under Section 8(a)(3), because Edwards engaged in union ac- tivities, and the other under Section 8(a)(4), because Ed- wards was involved in the prior Board proceeding and was still being punished for his testimony, participation, and success in that proceeding. I find, in these circum- stances, that Respondent violated the Act in both re- spects, as alleged in the complaint. Furthermore, assuming that there is actually a dual motivation4 and that I ought to consider Respondent's 8 Two other employees whom the Board had ordered reinstated in its prior decision, Frank and Garland Keatts, applied for boilermaker welder position about 19 August 1985 (the day before Edwards applied) at Re- spondent's Chesapeake jobsite and successfully completed preemployment welding tests on that date, but Respondent did not hire them, although it hired other applicants. The names of both employees were on the same list referred to above, and the parties stipulated that "Respondent's failure to erase that list directly resulted in Respondent 's refusal to hire Frank and Garland Keatts." Respondent's refusal to hire them and Edwards were incorporated in the same unfair labor practice charge filed 4 No- vember 1985, and the refusal to hire them was was originally alleged as a unfair labor practice in the complaint herein However, by letter dated 5 December 1985, Respondent offered employment to both Keatts, who started working for Respondent in Chesapeake about 11 December 1985 All allegations of the complaint , except those that referred to Edwards, were withdrawn at the opening of the hearing * Hammond testified that the reason Respondent would not hire Ed- wards "today" (the day of the hearing) is that Edwards is a paid union organizer "today." If he were not, Respondent "might possibly" hire him. Although Hammond's statement was less than completely definite, nonetheless nothing was said about all the other alleged reasons, now urged by Respondent, why Edwards should not have been hired. Only his position as a paid union organizer was the asserted obstacle to his em- ployment. In addition, in answer to my hypothetical question about an applicant for employment , who was a most capable employee, but a rabid union adherent, not a paid organizer , who openly admitted a desire to organize Respondent's employees, Hammond could not answer whether Respondent would hire him because: "When a person comes on board and makes those kind of statements, it makes one think." It appears that Respondent had such union animus that no union adherent , no less orga- nizer, was eligible for employment claims of other legal justifications for its action, I find them without merit because I found Hammond, Re- spondent's sole witness, unreliable. Respondent's primary contention in its brief is that it will not hire anyone who had other full-time employment. Actually, what Ham- mond testified to was that Respondent's policy was to "prohibit persons who [are] employed full-time else- where during the daytime to be employed by" Respond- ent. Because Respondent's normal workdays are from Monday to Friday, "during the daytime," I find it diffi- cult to imagine how and when the alleged policy would be applied because an employee could not work full-time for two employers during the same working hours. So really, what Hammond testified to was nonsensical and was simply a method of attempting to avoid Respond- ent's stipulation of the reasons it did not hire Edwards, quoted at page 1, above.5 The entire record persuades me that "full-time" was not the salient part of the stipula- tion; rather, it was because Edwards was a union orga- nizer (who also happened to be on the union's payroll as a full-time employee), who would , in Hammond's words, be disruptive on the jobsite, that Respondent did not hire him. Respondent produced no document that supported Hammond's alleged policy against hiring persons em- ployed full time by others, and Respondent's own hiring policies omit this policy. In addition, Hammond's testi- mony supporting the existence of this policy (pp. 142- 143 of the official transcript) was vague, hesistant, and, I find, unbelievable. Furthermore, other than the repetition of the adjective "disruptive"-which is synonymous for union activity-Hammond's rationale makes no sense be- cause he conceded that one of Respondent's employees could work a second job on weekends because that did not interfere with his work for Respondent. Edwards' earlier employment by Respondent indicates that his Sec- tion 7 activities did not interfere with his work for Re- spondent, and there is no reason to anticipate that it would have interfered at the Chesapeake project. Obviously, I am not at all persuaded with Respond- ent's newly found defense that it will not hire persons who are employed full time elsewhere. So many times, and in so many different ways, did Hammond repeat Re- spondent's motivation that it would not hire a paid union organizer. Indeed, he admitted that Respondent had an unwritten policy against hiring union organizers as early as 1980; and if Respondent had known then that Ed- wards was a paid union organizer and union president, Respondent would not have hired him in 1980. When Hammond referred to those whom Respondent would not hire, he did not refer to their "full-time" status; he talked about "professional union organizer" or "paid pro- fessional union organizer." His fears were directed not to the fact that such employees would report to work ex- hausted, or would not report at all, but what they would 5 I recognize that Respondent, by entering into the stipulation, did not waive any other arguments that it sought to litigate . However, it would have been simple enough for Respondent to have stipulated that it re- fused to hire Edwards only because it believed that he had a full-time job elsewhere, omitting any emphasis on the fact that the full-time job was with the Union. It did not, and Hammond's emphasis on Edwards' full- time employment as a union organizer was the only issue that motivated Respondent not to hire him. H. B. ZACHRY CO. 841 do when they were supposed to be working for Re- spondent, to wit, "we would find it most disruptive to co-employees working on the site"; and "[w]e did not need [Edwards] on the job since we know that he's a paid employee of the Boilermakers and would cause nothing but problems upon our job site." Edwards, as a paid union organizer, Hammond explained, would be more disruptive on the jobsite than an unpaid union or- ganizer because he would leave his work area, would talk to people during working hours, and would slow down employees' work performance. These reasons having nothing to do with whether Edwards is em- ployed full time or part time or no time elsewhere. They have only to do with Edwards' protected Section 7 rights to organize employees. Those rights, as noted above, are protected for all employees; and Respondent may not simply ignore them because it believes that the Act is not in Respondent's best interest. The gist of Respondent's argument is that Edwards owes Respondent a duty or loyalty, which he cannot have if he is a union organizer. That is simply unfound- ed, in fact and in law. Respondent's cited decisions hold only that merely because an employee favors union orga- nization, an employee is not insulated from discipline for not doing his or her job. They do not hold that an em- ployer is free to hire only those employees who are op- posed to union organization or to discipline employees solely because of their Section 7 activities. Respondent's additional defenses require little com- ment. First, Respondent contends that it has a no-solici- tation rule and that Edwards was engaging in "a ruse to enter [Respondent's] private property with the sole pur- pose of attempting to defeat its property rights," because it was entitled to exclude nonemployee union organizers from its private property, citing NLRB v. Babcock Wilcox Co., 351 U.S. 105 (1956). The simple answer is that Edwards was not attempting as a nonemployee to gain access to Respondent's premises. He was attempting to obtain employment; and, he had been hired, he would have the same Section 7 rights as any other employee. Respondent's argument would permit it and all other em- ployers to utilize no-solicitation rules to discriminate in their hiring policies against any union sympathizer in order to keep that sympathizer off their property. I know of no support for this argument, which flies in the face of Section 8(a)(3) of the Act. Second, Respondent contends that it refused to hire Edwards to avoid the creation of an inference that it supported the Union and to avoid financial assistance to the Union, in violation of Section 8(a)(2) of the Act. The first point may have been more persuasive urged had Re- spondent not already been found in violation of the Act. It is rather brazen for it to so urge when the Board has previously found that, among other things, it had en- gaged in surveillance and created the impression of sur- veillance of its employees' union activities, it has threat- ened employees with discharge and discharged them for engaging in union activities, it had refused to employ a prospective employee because he was related to employ- ees who supported the Union, and it had more strictly enforced its work rules because the employees engaged in union activities . Respondent's second point, that had it hired Edwards, it would be paying him for his union or- ganizing duties, is simply not so. It would be paying Ed- wards solely for his work performed for Respondent. Fi- nally, there is absolutely no support in the record that these reasons motivated Respondent to refuse to hire Ed- wards. Rather, the record amply supports my fording that Respondent did not hire Edwards not because it wanted to avoid favoring the Union but because it sought to ensure that it would do nothing to help any union organizational attempt.6 Third, Respondent contends that it would not have hired Edwards because he did not report his present and prior employment by the Union on his application form and because Respondent had in its files a 1983 psycho- logical evaluation, prepared for another employer, which recommended against hiring Edwards on a nuclear power plant project because of his alleged unstable mental condition. Like so much else in this proceeding, I find no evidence that these contentions played any role in Respondent's decision. Hammond testified that about a week after Edwards was refused employment, he spoke to Fewox and told him that he did not have to hire paid union organizers. He never asked him what Edwards had put on his application; and Hammond, in relating the conversation, seems never to have discussed the applica- tion. Rather, the sole reason for affirming Barnes' deci- sion (if Hammond ever had the conversation) was that Edwards, as a union organizer, "would cause nothing but problems upon our jobsite." Equally important, the Chesapeake job was not a nuclear power project and, if the evaluation had any substance, it applied solely to a nuclear site and nothing more. Furthermore, Hammond seems to have thought that the evaluation was insubstan- tial because he buried it in Respondent's Roxboro file and not in Edwards' personnel file. He had not looked at it from 1983 until the day before the hearing in this pro- ceeding when he also saw for the first time Edwards' ap- plication for employment. Fourth, as to that application, Respondent contends, in conformity with the rejected dissent in Oak Apparel, supra, 218 NLRB at 701: " It is logical to infer . . . that the duration of Edwards' employment with each non- union employer will be determined by the course of the organizational process, rather than by the duration of the contract's project." But, because Hammond had not seen Edwards' job application until immediately before the hearing, I am unpersuaded that he relied on Edwards' past work record, which shows, in any event, that Ed- wards left most of his jobs because they had been com- pleted, thus belying any inference to the contrary. 6 NLRB v. Vernitron Electrical Components, 548 F.2d 24 (1st Cir. 1977), cited by Respondent, is inapposite. There, the employer assisted the union by shepherding employees by department to meeting with the union organizers, by paying the employees their wages during the meet- ings, by monitoring the employees' execution of authorization cards, and by speedily recognizing the union in order to ensure that recognition would continue, in the face of erosion after the employer-assisted orga- nizing ceased. The "confluence" of these actions, which supported the Board's findings of violations of Sec. 8(a)(1) and (2), is clearly different from a single acceptance of an employment application from one known union organizer. 842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In sum, I find no motive other than the illegal motives found above that caused Respondent to refuse to hire Edwards and conclude that Respondent violated Section 8(a)(1), (3), and (4) of the Act.7 These unfair labor prac- tices, occurring in connection with Respondent's oper- ations described above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section (1), (3), and (4) of the Act, I shall recommend that it cease and desist therefrom and take certain affirm- ative action designed to effectuate the purposes and poli- cies of the Act. Respondent has finished its work at Chesapeake location and so I cannot order employment of Edwards on that project. However, Respondent gives its employees the opportunity, when one project is fin- ished, to obtain employment at another of its projects, provided that jobs are available. Furthermore, the Board has recently directed that, as standard relief in construc- tion industry cases, discriminatees should be ordered to be reinstated and, if an issue should arise with respect to that relief, the issue should be resolved in compliance proceedings. Dean General Contractors, 285 NLRB 573 (1987). Accordingly, I shall recommend that Respondent be ordered to offer Edwards full and immediate employ- ment in the position of boilermaker welder or a substan- tially equivalent position and to make him whole for any loss of earnings he may have suffered by reason of Re- spondent's failure to hire him on 20 August 1985, by paying him a sum of money equal to that which he nor- mally would have earned absent Respondent's unfair labor practices, less earnings during such period," to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest in accordance with New Horizons of the Retarded.9 Because the Chesa- peake job has been completed, I shall order Respondent to mail the usual notice to the employees who were em- ployed by Respondent at the jobsite at any time. In addi- tion, because Respondent appears to have learned little from its earlier experiences before the Board and contin- ues to violate the Act, I shall recommend a broad order, pursuant to Hickmott Foods, 242 NLRB 1357 (1979). The General Counsel also requests a visitatorial clause, authorizing the Board to engage in discovery under the Federal Rules of Civil Procedure so that it will be able to monitor compliance with the Order recommended herein, if adopted by the Board and enforced by a court of appeals. The Board heard oral argument on this issue in September 1986 but has not yet ruled. In the mean- time, it has uniformly denied the relief in individual cases, without explanation; and I will not recommend that the visitatorial clause be included in the relief, until the Board instructs otherwise. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edto ORDER Respondent, H. B. Zachry Company, Chesapeake, Vir- ginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to hire employees because of their mem- bership in or activity on behalf of International Brother- hood of Boilermakers, Local 30, affiliated with Interna- tional Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO or any other labor organization. (b) Refusing to hire employees because they have filed charges or given testimony under the National Labor Relations Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Barry Edwards full and immediate employ- ment in the position, or its substantial equivalent, in which he would have been employed on 20 August 1985, without prejudice to any seniority or other rights or privileges he would have acquired and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in the remedy section of this decision. (b) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Mail to all employees employed on 20 August 1985 by Respondent at its Chesapeake, Virginia jobsite copies of the attached notice marked "Appendix," I I copies of which will be provided by the Regional Director for Region 5. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. I Even if I found the existence of a different motive, I am persuaded that such a motive would be a mere pretext seized on by Respondent to avoid hiring Edwards 8 Concededly, the amount involved may be minimal because Edwards probably continued to receive pay from the Union or the International throughout the period . However, Edwards would have been entitled to retain any amount paid by a construction firm as overtime or a bonus 9 283 NLRB 1173 ( 1987) Interest will be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S.C § 6621 10 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 " 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 " H. B. ZACHRY CO. 843 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to hire employees because of their membership in or activity on behalf of the Interna- tional Brotherhood of Boilermakers, Local 30, affiliated with International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL- CIO or any other labor organization. WE WILL NOT refuse to hire employees because they have filed charges or given testimony under the National Labor Relations Act. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL offer Barry Edwards full and immediate em- ployment in the position, or its substantial equivalent, in which he would have been employed on 20 August 1985, without prejudice to any seniority or other rights or privileges he would have acquired and WE WILL make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, with interest. H. B. ZACHRY COMPANY