Adscon, Inc.

ADSCON, INC. Adscon, Inc. and Earl Morgan and Bobby Lee Morgan, and Lloyd Parish Plumlee and Henry L. Plumlee and James F. Muse and Randall Gosseen, and Don Fox and Dean E. Herd Adson, Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 598. Cases 19-CA-18435, 19-CA-18436, 19-CA-18437, 19-CA-18438, 19-CA-18439, 19-CA-18453, 19-CA-18454, 19-CA-18483, 19-CA-18557, and 19-RC-11401 July 29, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND CRACRAFT On November 12, 1987, Administrative Law Judge Gerald A. Wacknov issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief, and the Charging Parties filed an an- swering brief to the Respondent's exceptions. The General Counsel filed a brief in support of the judge's decision and limited exceptions and a sup- porting brief. The Respondent filed an answering brief to the General Counsel's limited exceptions. 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 briefs and has decided to affirm the judge's rulings, findings," and conclusions as modified , but not to adopt the rec- ommended Order.2 ' 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. In her limited exceptions, the General Counsel notes several inadvert- ent errors in the judge's decision We correct the judge's decision as follows. ( 1) The judge states that this case involves the unlawful dis- charge of six individuals . As is evident from the remainder of the deci- sion, the judge found that seven individuals were unlawfully discharged and that the Respondent unlawfully failed to hire an eighth individual. (2) The judge refers to "Gosseen" passing the welding test . The reference should be to "Muse " (3) The judge states that Company President Saum told employee Muse, "[Y]ou been going to the office complaining about being harassed ... you haven't seen harassment yet " In fact , Project Superintendent Rick Lakey made this statement. We note that the Respondent does not except to any of the judge's 8(a)(3) termination findings. Rather, the Respondent argues that the un- lawfully terminated welders' (Tom Morgan, Bob Morgan, and Jim Muse) reinstatement rights ceased because of their violation of code welding procedures. We agree with the judge's finding that this defense is pretex- ual and that any deviation from code was on express instruction of Rick Lakey. 2 The judge recommended broad cease-and-desist language. However, we have considered this case in light of the standard set forth in Hickmott Foods, 242 NLRB 1357 (1979), and have concluded that the narrow cease-and-desist language is appropriate. We shall modify the judge's rec- ommended Order accordingly. 501 1. We agree with the judge that Hank Plumlee was not a supervisor. However, we do not rely on the judge's differentiation between Hank Plumlee's status before and after May 15 , 1986. Although the Respondent asserts that Plumlee had the authority to make hiring decisions, the record indicates that Plumlee, as well as other employees, could sug- gest persons for employment, but it fails to show that the Respondent invested Plumlee with the dis- cretion to make hiring decisions or to exercise in- dependent judgment in any other area . We con- clude that the record as a whole fails to establish that Hank Plumlee was a supervisor before or after May 15, 1986. On July 1 , 1986, Hank Plumlee arrived at the construction trailer at 6:30 a.m. As he entered the trailer, President Saum said he had caught Randy Gosseen pilfering company property that morning, and that charges were being pressed. Plumlee turned to leave the trailer to begin work and Saum said, "Yeah, get out there and bust your ass and ... if you don't think you can handle the heat of that ... just hit the fucking road." Plumlee told Saum not to "hard ass" him, and to fire him if that is what he wanted to do. Plumlee then indicated he was quitting by walking over to the desk and put- ting down his keys. Saum asked Plumlee if he was quitting, and Plumlee walked to the door. Saum told Plumlee to leave the hardhat, and asked Su- perintendent Lakey to go with Plumlee to remove any of the Respondent's property from Plumlee's pickup truck. The judge found that new, albeit unspecified, working conditions were imposed on Plumlee and were intended to be so unpleasant as to cause him to quit. The Respondent excepts to the judge's finding that Hank Plumlee was constructively dis- In her limited exceptions, the General Counsel notes that the judge found the Respondent unlawfully threatened employee Gosseen with arrest in retaliation for his union activity , as alleged in par. 6(g) of the complaint The judge failed to include a remedy for this violation in the recommended Order and notice. We shall conform the recommended Order and notice with the judge's findings. We agree with the judge that Parish Plumlee's May 15, 1986 layoff violated Sec 8(a)(3) To remedy this violation the judge ordered that Parish Plumlee be made whole for any loss of wages or benefits resulting from the discrimination , but failed to provide him with reinstatement rights. It appears the judge decided that Plumlee's recall as a laborer for a week in July satisfied the Respondent's reinstatement obligation. The General Counsel excepts. We shall provide the traditional reinstatement remedy and leave to compliance whether Parish Plumlee's job as a pipe- fitter's helper existed at the time of his recall and, if not , whether his recall as a laborer was substantially equivalent to his former position. Regarding the representation case, we shall modify the judge 's recom- mended Order to direct the Regional Director to open and count the ballots of the six employees found to be eligible and, thereafter, to issue the appropriate certification. Because the Respondent's objections are overruled and the Union filed no objections , we will not set aside the election results. In the absence of exceptions, we pro forma adopt the judge's rulings on the challenged ballots. 290 NLRB No. 63 502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD charged in violation of Section 8(a)(3). We find merit in the Respondent's exception. The Board has held that a constructive discharge occurs when an employee quits because an employ- er has deliberately made working conditions un- bearable. Keller Mfg. Co., 237 NLRB 712 (1978). Two elements must be proven to establish a con- structive discharge. First, the burdens imposed on the employee must cause, and be intended to cause, a change in working conditions so difficult or un- pleasant as to force the employee to resign. Second, it must be shown that those burdens were imposed because of the employee's union activities. Crystal Princeton Refining Co., 222 NLRB 1068, 1069 (1976). We find that the facts fail to demonstrate that the Respondent imposed conditions on Hank Plum- lee that were so intolerable as to force him to resign. Unlike the judge, we find that Saum's state- ment to Hank Plumlee-"Yeah, get out there and bust your ass and . . . if you don't think you can handle the heat of that . . . just hit the fucking road"-although demeaning, did not change Plum- lee's work circumstances. See Algreco Sportswear Co., 271 NLRB 499 (1984). Saum's statement may well be a threat to impose onerous working condi- tions, but "[a] threat is not the equivalent of the actual imposition of unlawful conditions of employ- ment; it does not in any meaningful sense render the conditions of employment so intolerable as to compel an employee to leave his job." Central Casket Co., 225 NLRB 362, 363 (1976). Because we cannot find that any new conditions were imposed on Plumlee,3 we conclude that he was not con- structively discharged and is not entitled to rein- statement and backpay. 2. In her limited exceptions, the General Counsel argues that the judge erred by not finding an addi- tional 8(a)(3) violation because the Respondent conditioned Jim Muse's reemployment on his drop- ping his unfair labor practice charges . We do not agree with the General Counsel that the Respond- ent's offer to reinstate Muse on the condition that he drop his unfair labor practice charges constitut- ed a separate violation of Section 8(a)(3) of the Act. Rather, we find that this statement was a con- ditional offer of reinstatement, made in the context of settlement negotiations with employee Muse. Muse was free to accept or refuse this settlement offer. He chose to pursue his rights under Section 8(a)(3) of the Act. The Respondent's conditional settlement offer, however, does not satisfy its obli- gation to offer the unlawfully discharged Muse full and unconditional reinstatement , nor does the offer toll the Respondent's backpay obligation.4 ORDER The National Labor Relations Board orders that the Respondent, Adscon, Inc., Renton, Washing- ton, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees regarding their own union activity and the union activity of other em- ployees. (b) Threatening to discharge employees because of their union activity. (c) Telling employees that the Company will prolong negotiations and will never sign a contract with the Union. (d) Threatening employees with a reduction in wages if they vote for the Union. (e) Threatening to contract out work if the em- ployees vote for the Union. (f) Creating the impression of surveillance of em- ployees' union activity. (g) Withholding pay increases because of the advent of the Union. (h) Threatening to close the fabrication shop if the Union is voted in. (i) Imposing more onerous working conditions on employees because the Union was voted in. (j) Telling employees that they will be blacklist- ed because of their union activity. (k) Refusing to hire employees because of their union affiliation. (1) Discharging and demoting employees because of their union activity. (m) Threatening employees with arrest in retalia- tion for their union activities. (n) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) To the extent it has not already done so, offer Parish Plumlee immediate and full reinstatement to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Offer Bob Morgan, Earl (Tom) Morgan, Jim Muse, Don Fox, Randy Gosseen, and Dean Herd a In this respect , we find the case is distinguishable from K & S Cir- cuits, 255 NLRB 1270 (1981), cited by the judge, in which the respondent actually imposed onerous working conditions on the employees found to be constructively discharged. 4 Member Cracraft agrees with her colleagues that the Respondent's conditional reinstatement offer did not satisfy its remedial obligations; she finds it unnecessary to reach the issue of whether the offer itself violated the Act ADSCON, INC. immediate and full reinstatement to their former jobs or, in the case of Dean Herd, the job he would have been hired for or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed , or that they would have been entitled to, and make them, and also Parish Plumlee, whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the judge's decision. (c) Remove from its files any reference to the unlawful discharges and refusal to hire and notify the employees in writing that this has been done and that these actions 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 copy- ing, all payro 11 records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its main office in Renton , Washington, and in all field offices and mail a copy of the notice to each employee who was employed at the Yakima Firing Center jobsite or the fabrication shops, copies of the attached notice marked "Ap- pendix."5 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent and mailed to the employees immediately upon receipt and maintained by Respondent for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that the Respondent's election objections are overruled and this matter is remanded to the Regional Director for Region 19 to open and count the ballots of John Sphuler, Kevin Rye, Donald Fox, Lloyd Parish Plumlee, Earl (Tom) Morgan, and Bobby Morgan and that a revised tally of ballots be prepared and served on the parties and the Regional Director shall issue the appropriate certification. 6If 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 503 The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT interrogate employees regarding their own union activity and the union activity of other employees. WE WILL NOT threaten to discharge employees because of their union activity. WE WILL NOT tell employees that the Company will prolong negotiations and will never sign a con- tract with the Union. WE WILL NOT threaten employees with a reduc- tion in wages if they vote for the Union. WE WILL NOT threaten to contract out the work if the employees vote for the Union. WE WILL NOT create the impression of surveil- lance of employees' union activity. WE WILL NOT withhold pay increases because of the advent of the Union. WE WILL NOT threaten to close the fabrication shop if the Union is voted in. WE WILL NOT impose more onerous working conditions on employees because the Union was voted in. WE WILL NOT tell employees they will be black- listed because of their union activity. WE WILL NOT refuse to hire employees because of their union affiliation. WE WILL NOT discharge and demote employees because of their union activity. WE WILL NOT threaten employees with arrest in retaliation for their union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. To the extent we have not already done so, we will offer Parish Plumlee immediate and full rein- statement to his former job, or if such job no 504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL offer Bob Morgan, Earl (Tom) Morgan, Jim Muse, Don Fox, Randy Gosseen, and Dean Herd immediate and full reinstatement to their former jobs or, in the case of Dean Herd, the job he would have been hired for or, if such jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed, or that they would have been entitled to, and make them, and also Parish Plumlee, whole, with inter- est, for any loss of earnings and • other benefits suf- fered as a result of the discrimination against them. WE WILL remove from our files any reference to the unlawful discharges and refusal to hire and notify the employees in writing that this has been done and that these actions will not be used against them in any way. ADSCON, INC. Martha A. Barron, Esq., for the General Counsel. Judd H. Lees and Thomas H. Fain, Esgs. (Williams, Kastner & Gibbs), of Bellevue , Washington, for the Respondent. John Burns, Esq. (Hafer, Price, Rinehart & Schwerin), of Seattle, Washington, for the Charging Parties. DECISION STATEMENT OF THE CASE GERALD A. WACKNOV, Administrative Law Judge. Pursuant to notice, a hearing regarding this matter was held before me in Yakima, Washington, between 27 Jan- uary and 12 March 1987. The captioned unfair labor practice cases were filed between 9 July and 29 August 1986 by the various named individuals and by United As- sociation of Journeymen and Apprentices of the Plumb- ing and Pipefitting Industry of the United States and Canada, Local 598 (Union). Pursuant to a representation petition filed by the Union on 1 May 1986 in Case 19-RC-11401, an election by secret ballot was conducted on 30 June 1986. The tally of ballots reflects that of the approximately 12 eligi- ble employees, 5 cast ballots for the Union, 3 cast ballots against the Union, and 8 ballots were challenged. The challenged ballots are sufficient to affect the results of the election. Thereafter, the Respondent filed timely ob- jections to the election . On 20 August 1986 the Acting Regional Director for Region 19 issued a Report on Ob- jection and Challenged Ballots and recommended that a hearing be held to resolve the issues. On 22 August 1986 the Acting Regional Director issued an order consolidating cases, consolidated com- plaint and notice of consolidated hearing, which consoli- dated the unfair labor practice proceeding and the repre- sentation proceeding for the purpose of hearing, ruling, and decision by an administrative law judge . On 20 No- vember 1986, the Board issued a Decision and Direction sustaining the Acting Regional Director's determination in the representation case. The parties were afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, and to introduce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel, counsel for Respondent, and counsel for the Union. On the entire record,' and based on my observation of the witnesses and considerations of the briefs submitted, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a State of California corporation with an office and place of business in Renton , Washington, is engaged in the construction business. During the 12 months preceding the issuance of the complaint, in the course and conduct of its business oper- ations, the Respondent purchased and caused to be trans- ferred and delivered to its facilities within the State of Washington goods and materials valued in excess of $50,000 directly from sources outside the State. It is admitted, and I find, that Respondent is, and has been at all times material, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED It is admitted that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues raised by the pleadings are wheth- er the Respondent has committed various unfair labor practices during the course of a union organizational campaign, including the discharge of six individuals, in violation of Section 8(a)(1) and (3) of the Act. Further, challenged ballot and election objection issues in the con- solidated representation proceeding are also resolved. B. The Facts The Respondent, a construction contractor, contracted with the Army Corps of Engineers (Corps of Engineers) to perform work at the Yakima Firing Center, an army installation near Yakima, Washington. The job involved the demolition and replacement of an outdated heating system that supplies heat and hot water to approximately 71 barracks and other buildings at the base. I The General Counsel's unopposed motion to correct transcript is granted and is hereby made a part of the record Also, the General Coun- sel's motion to correct It. Exh . 20 is granted, and the quality control re- ports submitted therewith, dated 12 November 1985 and 2 May 1986, are substituted in place of those two reports introduced at the hearing. ADSCON, INC. On 29 April 1986,2 following an organizing meeting on 23 April, Union Business Manager Glenn Hickman sent the following letter to the Respondent 's headquar- ters in Renton, Washington: A majority of the pipefitter/welders and pipefit- ter helpers on your project at the Yakima Firing Center have designated Local 598 as their repre- sentative for collective bargaining. I am writing to request recognition and begin bargaining. Hank Plumlee, a journeyman pipefitter, worked for the Respondent on several Corps of Engineers projects and in various capacities since 1984 . In January 1986 he was transferred from the Bonneville Dam project in Bonne- ville, Oregon, to the Yakima Firing Center (the base) where he remained until 1 July as pipefitter foreman. Plumlee testified that on 1 May, Rick Lakey , project superintendent, asked Plumlee to go for a ride with him in Lakey's pickup. Lakey parked the truck in the con- struction area and told Plumlee that Richard Saum, Re- spondent's president and Lakey's uncle, had called from Seattle and said that the Company had received the aforementioned letter from the Union . Lakey asked Plumlee if he knew anything about it . Plumlee said no. Lakey said, "Well, you know how Saum feels about the union . . . he's going to come over here and . . . fire ev- erybody . . . including you." Plumlee asked, "Well, are we fired or what?" Lakey replied, "No, he's going to come over tomorrow and do it himself." Lakey said he believed that Bob Morgan would favor the Union but that Tom Morgan3 would not. Lakey asked whether Randy Gosseen was Union and Plumlee said "Yes, he is union." Lakey asked whether Plumlee's son, Parish Plumlee, might have called the Union, and Plumlee said he doubted it.4 Hank Plumlee testified that during the conversation Lakey engaged in further speculation regarding the union sympathies of certain other plumbing employees. Lakey doubted whether Roger Miller or Bruce Roybal would bring the Union in, but said that Don Fox5 had been complaining a little bit to Bruce Roybal about not making journeyman's scale. Lakey asked if Plumlee would try to find out and let him know who had called the Union and signed cards, and said that Saum would be at the base the following day. Lakey then drove Plumlee back to where he had been working and dropped him off. On the next day, 2 May, Lakey asked Plumlee if he had learned who called the Union . Plumlee said he had not heard anything. Lakey said he had talked to Saum. He again told Plumlee that Don Fox had been complain- ing to Roybal about not being paid journeyman's pay. He said that he believed Fox had to be the one causing 2 AI I dates or time periods are within 1986 unless otherwise specified. ' Bob Morgan and Earl Tom Morgan (Tom Morgan), brothers, were welders on Plumlee's crew. 4 Gosseen and Parish Plumlee were pipefitter helpers on Plumlee's crew. 5 Bruce Roybal and Don Fox were plumbers on Roger Miller's crew. 505 all the trouble and that he was going to fire Fox that day. Later that day Fox was laid off by his supervisor, Roger Miller, who told Fox that he was being temporar- ily laid off for about a week or so . The layoff slip he was furnished states : "Temporary layoff. "e Respondent maintains that Fox's layoff was caused by a temporary quarantine of certain barracks in which the plumbing crew, including Fox, had been working. The quarantine was imposed by the Corps of Engineers due to the discovery of asbestos particles in mattresses. A Corps of Engineers' quality assurance report, dated 28 April-2 May, shows that whatever problem existed in this regard had been resolved. Thus the report ex- pressly states that "Conditions are now we're to work in bldgs. as long as not in body contact with mattress. Re- gardless of signs, etc." Roger Miller, plumbing crew foreman, testified that even though access to some of the buildings had been curtailed by the asbestos problem, nonetheless there was work to be performed in the building the crew was then working in at the time he laid off Fox , and there was access to one other building that the crew had not yet started. Tom Morgan, a welder, was also discharged on 2 May.7 Lakey advised Plumlee that Morgan was being laid off, and told Plumlee to sign Morgan's layoff slip, which had previously been prepared by Lakey . The slip Morgan was furnished states : "Temporary layoff."8 Morgan testified that on 2 May, Lakey told him he was to be laid off for "one week and one week only," and that he was to report to work in a week . Morgan reported for work a week later, as instructed, but was told to go home and to thereafter keep checking in by telephone. Three weeks later when he checked in he was told by Bob Harvey, Respondent's quality control in- spector, that he was no longer needed. Plumlee testified that at the time of Morgan's layoff Lakey said the layoff could be a week or even less. Plumlee further testified that during the months of May and June there was fabrication welding work to be done at the base sufficient to occupy the time of all three cer- tified welders, namely, Bob Morgan, Tom Morgan, and Plumlee. Lakey testified that Morgan had been hired only to assist in the prefab work and that this had been virtually completed on 2 May. Therefore, he told Plumlee the fol- lowing: I just told him that we didn't have no access to any more buildings and that we was going to have to ' However, the layoff slip submitted by Respondent during the course of the investigation states : "Temporary layoff-ran out of work; may recall." 7 Tom Morgan began working for the Respondent on 16 January. He was laid off for a week and a half in late January, and was also laid off on 24 February for about 4 weeks. His last period of work apparently began in late March and he worked steadily until his final layoff on 2 May. ' Plumlee had never been asked to sign any previous layoff slips. The slip submitted by Respondent during the course of the investigation states: "Temporary layoff; ran out of work." 506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lay him off and Hank's comment at that time was that he was only planning on him [Plumlee] and Bob Morgan doing the condensate line and that since the prefab was done that he was planning on laying him [Tom Morgan] off permanent at that time. Plumlee denies that this conversation occurred and testi- fied that, in fact, he suggested to Lakey that Tom Morgan not be laid off because there was other work to do. About 13 May, Saum said he wanted to talk to Plum- lee. Saum said he had talked to his lawyer and it was perfectly legal to solicit Plumlee's vote. He asked if Plumlee knew any of the guys who had signed cards, or whether they had any union meetings. Plumlee answered no. Saum asked about Plumlee 's son, Parish, and Plumlee said he was sure Parish had not signed a card. Saum said he knew the Morgan brothers were against him from the start and "were locked into the union tight as hell." He said that both Tom and Bob Morgan were "not worth a shit" and that he was going to start playing hardball and was going to send Bob Morgan into the shop on Rudkin Road9 to keep an eye on him, and move Jim Muse from the shop to the jobsite to increase production . He said, according to Plumlee, "Morgan'll have a job but he'll have a hell of a time keeping it." Saum told Plumlee that the Union would screw up the job and that "I'm going to fight like hell to keep it out of here"; that he was nonunion because he chose to be; that the matter could be negotiated for years and tied up in court; that it was not uncommon to go for a couple of years' negotiations and that the job would be long com- pleted; that they could cut off his right arm before he would sign a contract; that if the employees went Union, they would take a cut in pay, and the wages would go down; that Plumlee would be sitting on the bench like the rest of the welders; and that there was a lot of work at the firing center and that he was going after the work, but the guys who were against him would not be part of it. Plumlee interrupted Saum and said , "Before you tell me much more, I have not really fully decided which way I'm going." Saum then walked away. Jim Muse began working for Respondent at the end of January in the fabrication shop on Rudkin Road. He was hired by Al Lakey, fabrication shop foreman and Saum's brother-in-law and Rick Lakey's father. Muse primarily welded pipe supports and also mechanical stands but was not a certified welder. About the first of May, Al Lakey told Muse that some of the guys at the base were wanting to go Union. About a week later Muse overheard a phone conversation be- tween Saum and Al Lakey regarding whether Muse could certify as a welder at the base. Muse asked what was going on and Lakey said , according to Muse, that they were "having problems out at the base." Lakey asked if Muse wanted to try to pass a welding certifica- tion test. Muse said yes. In mid-May, Lakey asked Muse "how big of an asshole [he] could be," and went on to explain that they wanted to get Bob Morgan down to the fabrication shop and wanted to know whether Muse "can piss him off enough to get him to quit." Lakey said, however, that this would not happen until Respondent's attorney okayed whether the Company could get away with it. t o Lakey asked Muse and another employee what they thought of the Union. Muse said he did not have any plans to fool around with the Union. Muse testified that Lakey, on more than one occasion , said if the Union did come in no one in the fabrication shop would have a job because the Company would subcontract the work. Later, Muse asked Lakey what the lawyer said about the plan to get rid of Bob Morgan. Lakey said that the matter worked out well as the Corps of Engineers "shut us down on the line and so we just laid him off." Bob Morgan and Parish Plumlee were laid off on 15 May by Bob Cole. I t Hank Plumlee had been given no prior notification of their layoffs.' z Respondent main- tains that the suspensions were due to a 14 May phone call to Saum from Terry Childers, project engineer for the Corps of Engineers, instructing Saum to suspend all work on both the steam and condensate lines. Saum testi- fied that Childers told him that the suspension was due to the fact that it had been discovered that the insulation requirements on both lines were not sufficient to protect the lines from freezing weather in the winter months, and that the intention was to insulate both the steam and condensate lines with thicker insulation than had been previously scheduled. Childers told him that a letter would be forthcoming in 2 weeks with further instruc- tions. Saum testified that as a result of this instruction from Childers, all work on the steam and condensate lines, and the fabrication of poles in the fabrication shop, was suspended for 2 to 3 weeks, after which time the problem worked itself out and the work continued. A confirmation letter of the foregoing phone call, de- noted as Serial Letter No. 31, dated 16 May, was sent by the Corps of Engineers to the Respondent , as follows: In accordance with CC-7, SUSPENSION OF WORK of your contract, you are directed to sus- pend work associated with removal of insulation on the exterior steam line. All other work associated with the steam line may continue. 9 The Respondent maintained a fabrication shop on Rudkin Road in Union Gap, Washington, some 8 miles from the base , where various items were fabricated, particularly the pipe supports or poles from which the condensate and steam lines were to be suspended . The steam lines bong steam into the buildings. The condensate lines return the water to the boilers. Respondent's contract provided for the replacement of some 1200 existing wooden poles with metal pipe supports , and also for the re- placement of approximately 21,000 feet of condensate line. Also, the Re- spondent was to remove the existing insulation from 21 ,000 feet of steam line. 10 The law firm currently representing Respondent was retained subse- quent to the date of the alleged unfair labor practice. 11 Cole had replaced Rick Lakey on 12 May as project superintendent at the base, and Rick Lakey became designated as general foreman. This change was at the direction of the Corps of Engineers because it was felt that Rick Lakey was spending too much time in the field with the em- ployees and was not readily available in the Respondent's office trailer at the base. Therefore, Cole was brought on to apparently perform the ad- ministrative duties so that Lakey could remain in the field. 12 Their layoff slips, signed by Cole, state- "RIF due to suspension of work." ADSCON, INC. 507 This suspension is necessary due to a re -evalua- tion of the insulation requirements on the exterior steam line. All other contract work may continue. You will be notified when the suspended work may continue. If you have any questions regarding this direc- tive, please contact the Ft. Lewis Resident Office at (206) 967-6937. Saum testified that as a result of this steam line suspen- sion order it was not possible to continue with "all other contract work," even though the Corps of Engineers said the work could continue. Thus, Saum testified that it was necessary to know the dimensions of the insulation on the steam lines in order to be able to ascertain the proper dimensions and placement of the poles that sup- port both the steam and condensate lines, and that weld- ing on the condensate line could therefore not continue. Therefore, Bob Morgan, who welded on the condensate line, Parish Plumlee, who worked in the mechanical rooms, and two laborers, who worked on the crew in- stalling the pipe supports, were laid off. Hank Plumlee testified that he was never aware of any suspension of work by the Corps of Engineers, and that he continued welding on the condensate line until Jim Muse came out from the fabrication shop and began welding, infra. According to Plumlee, and contrary to Saum's testimony, there was no slowdown or suspension of any work on the condensate line during this period. At the time of the layoff, Parish Plumlee was perform- ing plumbing work in the mechanical rooms located in each barrack. This work was independent of the work being done on the outside lines . Plumlee was replaced, apparently the following day, by Kevin Rye. Rye testi- fied that he thereafter worked steadily, without interrup- tion, in the mechanical rooms. The record discloses that two laborers were laid off on the same day, Thursday, 15 May, ostensibly because of the shutdown. However, on Monday, 19 May, and Wednesday, 22 May, two new la- borers were hired. Richard Alvord, a laborer hired on 22 May, testified that he assisted in pouring the concrete bases for the poles. Brian Longmire, a laborer hired on 19 May, testified similarly . James Muse testified that his work in the fabrication shop, where he was primarily en- gaged in the fabrication of pipe supports , did not slow down. Muse did not pass the first welding test , and his sample weld or "coupon" was rejected by the independent shop that performs tests on welds and certifies welders. Prior to making another coupon , Al Lakey told him that Lakey would guarantee that he would pass the test be- cause if he had any more problems Saum, who was a certified welder, would come up and take the test for him. Gosseen passed the welder's certification test on the second attempt about the end of May. Shortly thereafter, he was told by Saum that Saum had to work Muse into the base slowly so that the Union would not "get on his case about just sticking a brand new guy up there after they'd laid Bob Morgan off." He said by the first of June, Muse should be working there full time and would be receiving full journeyman's scale. Muse was curious about his test results and Saum said, "Who gives a damn, you passed." Later that day Muse received a phone call from Rick Lakey who said he was not going to bring Muse out to the base that week because he (Lakey) would not be there and he did not want Muse and Plum- lee together by themselves. Muse was permanently transferred to the base about I June as a welder. On that day, Lakey told him not to ask Plumlee any questions and to stay away from him. He further told Muse that if Muse needed help or anything he was to call Lakey on a radio that Lakey would pro- vide for him and Lakey would come down and help him. Half an hour later Muse , who had never done this type of work, was looking at some welds and asked Lakey, "Well, what do I do?" Lakey said, "You're the welder. You tell me. That's your job." He then told Muse to do whatever Plumlee told him to do. Muse told Plumlee he wanted to watch him weld. Then Muse asked Plumlee if he would watch Muse weld. Plumlee gave Muse, who was having some prob- lems, pointers. During the first few days Lakey came by and inspected Muse's welds. Lakey said he was not very impressed and said they would have to get better. During a subsequent conversation on a later date, Lakey again told Muse to stay away from Plumlee. About 19 June the Company held a meeting of the unit employees. t 3 Muse testified that Saum said he knew there had been a union meeting the night before "be- cause his spies had let him know."" He said all he had to do was negotiate in good faith and "he could stall it for two years, and by that time the job would be over and everybody would be gone." He said that the em- ployees could go somewhere else if they did not like working for him, but he did not want the Union to have anything to do with the Company. He said there were three or four people who deserved raises but he could not grant them raises because it would look like he was trying to buy their votes. Apparently during a side con- versation Saum asked Muse, "Well, I heard you were going to vote for the union." Muse said no, he just went to the meeting to hear both sides. Hank Plumlee gave the following account of Saum's remarks at the meeting: Saum said that he heard the Union had a meeting the night before, and that he heard there had been a lot of carrots dangled in front of guys' noses. He said that if the Union won the election it would only give the Union the opportunity to sit at the bargaining table with the Company, and that it would not change the job a bit . He said the matter could be tied up in court for a couple of years, and that the employees would definitely take cuts in pay . Saum had a sheet of paper that compared union scale with the wages the em- ployees were then making, and said there were some em- i3 On I I June, the Regional Director approved a stipulation for certifi- cation upon consent election defining the appropriate unit as follows- All pipefitters, pipefitter welders, and pipefitters helpers working for the Employer within the jurisdiction of United Association of Jour- neymen and Apprentices of the Plumbing and Pipefitting Industry Local 589, excluding all other employees, guards, and supervisors as defined in the Act. 14 Those attending the union meeting were Hank Plumlee, Parish Plumlee, Don Fox, Randy Gosseen, Jim Muse, Randy Anderson, and Kevin Rye. 508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees who had been under consideration for raises, but because of the union deal the Company could not give out raises then because it would look like the Company was trying to buy their votes . He said the Company was looking into an insurance program for the employees. Sawn said the Union would not do anything but screw the job up and that he knew there were problems, but that they were working on them. He said there was a lot of work out there at the firing center that the Company was going to bid. Plumlee testified that Al Lakey, who also spoke at the meeting, pointed at some of the employees and said, "I know a couple of you guys in there at the shop . . . they were dangling carrots in front of your noses and you better take a real hard look at this because . . . that shop could be closed down if this thing goes." The election was held on 30 June. Immediately before the election, which was held at the jobsite on the base, Gosseen observed three employees from the Rudkin Road fabrication shop drive up. When they got out of the car they were approached by Al Lakey. Gosseen heard Lakey tell them, "Now, remember, if you vote for this union you're going to be out of a job." Gosseen then told Lakey that this was not the place to be politicking. Immediately after the election , in which the Union prevailed, Rick Lakey told Gosseen and Kevin Rye that he wanted to have a meeting with them . Gosseen testi- fied that Lakey was shaking and acted nervous or upset and said, "This is the way it's going to be ... from now on you're going to be working at 6:30 , you're not going to pick up your tools until 3 :00... no more coffee and soda pop on the job except at lunchtime. No more radios on the jobsite . . . and production will increase." He told the two employees that they were no longer work- ing for Hank Plumlee but rather were working for Roger Miller, and that if they were caught out of their work area, they would be terminated. Gosseen testified that the practice prior to that day was that the employees would get into the trucks near the Respondent's construction office and begin driving to the actual worksite at 6:30 a.m., and they usually picked up their tools 10 minutes before the 3 p.m. quitting time. There had been nothing said prior to that time regarding coffee, soda pop, and radios, and employees were permit- ted to have soft drinks or coffee while they were work- ing. Further, there had never been a rule about being outside their immediate work area, and the employees would periodically leave their work area to pick up ma- terials needed on the job. Lakey returned about 15 minutes after the aforemen- tioned conversation and, according to Gosseen , told Rye that he would no longer be working with Gosseen, and took Rye inside the barracks . Then Plumbing Foreman Roger Miller came out with Randy Anderson and told Gosseen that he would thereafter be working with An- derson. Anderson knew nothing at all about the work in the mechanical rooms and did not even know how to run a pipe-threading machine, which was the primary tool. Miller said he had been instructed to tell Gosseen that Gosseen and Anderson were required to complete two mechanical rooms a week . Gosseen said he would be unable to do that with a new man who did not know be unduly critical of Muse's work performance. the tools, and that he would have to train Anderson as he had trained Rye. Miller said he understood that but "that's the word I got from above." On 30 June, prior to the election , Lakey told Muse about some changes in the work and helped Muse move some pipe. Lakey told Muse that he "better hope the union doesn't go through or you're going to be out of a job." Immediately after the election Lakey told Muse that he could not leave his immediate work area to get parts, that he would be on location working at 6:30 a .m. rather than arriving on the jobsite at 6:30, and that he would not pick up his tools until 3 p.m. Prior to this time Muse had begun picking up his tools about 2 :45 p.m. Also, at that time Lakey furnished Muse with a radio, as he had told Muse he would do about 1 June , so that Muse could contact Lakey if he needed any help. Shortly thereafter Saum started berating Muse about not leaving a 1/16-inch gap on his socket welds. Later he told Muse, "You been going to the office complaining about being harassed . . . you haven't seen harassment yet." 1 s He told Muse that he (Saum) would provide him with a ledger book to keep a record of his welds, and Muse would make 18 to 20 welds a day or he would be terminated . There had never been a welding quota before. The next day, 1 July, Gosseen arrived at the jobsite at approximately 5:30 a.m., although work did not begin until about 6:30 a.m. Gosseen testified that he arrived early because he was nervous about the job as a result of the aforementioned quota he was expected to meet with Randy Anderson, an inexperienced person, and believed he was being set up to be dismissed for lack of produc- tion. He sat in his truck and waited awhile and then began looking through the nearby junk pile for valves and strainers, which were to be salvaged from the old piping and reused in the mechanical rooms. Saum drove up and stopped . Gosseen said "Good morning." Saum asked what he was doing and Gosseen told him that he was looking for valves and strainers. Saum asked, "What have you been stealing?" Gosseen said he had not been stealing anything and opened the door of his pickup and told Saum to search it. Saum glanced inside the pickup and glanced into the bed of the truck and said, "Well, I don 't see anything, but we've been having these poles come up missing and . . . I'm sick and tired of these thefts and I'm going to get the FBI and investigate these thefts." Saum drove to the Military Police (MP) station and told the MPs he wanted to swear out a complaint. After doing so, Saum left and went back to the construction trailer. Gosseen, who had followed Saum to the MP sta- tion, told the MPs that there had been a union election the day before, which the Company lost , and that Saum was looking for a reason to discharge Gosseen . The MPs said they had no reason to detain him any further, and that he could go back to work. Gosseen told them that he did not want to go back until they searched his truck, 16 Muse had complained about his treatment by Lakey, who seemed to ADSCON, INC. which they did. Nothing was found. Before Gosseen got back to the construction trailer, he met Plumlee, who was driving down the road. Plumlee waved him over, and asked what happened. Plumlee told Gosseen that Saum had told him, "We caught your fucking buddy," that Gosseen had been caught stealing, that Saum was going to press charges, and that Gosseen was going to be fired. When Gosseen walked into the office, Saum told him to pick up his check. Bob Harvey gave him a separation notice that states that Gosseen was discharged for pilfer- ing property belonging to the Government and to Re- spondent. Plumlee testified that when he got to the construction trailer at 6:30 that morning, Saum said, "Well, Hank, I got your fucking union buddy out here pilfering around this morning . . . and I've got his ass down at the MP station and I'm pressing charges on him ." Plumlee asked who he was talking about , and Saum said Randy Gos- seen. Plumlee asked, "Well, what was he doing?" and Saum said, "He was pilfering through my stuff." Plumlee proceeded to leave the construction trailer to go to work and Saum said, "Yeah, get out there and bust your ass and . . . if you don't think you can handle the heat of that . . . just hit the fucking road." Saum also said that if Plumlee could not take the heat, he should stay out of the kitchen. Plumlee told him not to "hard- ass" him, and said if Saum wanted to fire him, then fire him, but get off his back. Then Plumlee decided that he could not tolerate that harassment and laid the keys to the Respondent's pickup on the desk. Saum asked, "Are you quitting Hank . . . are you quitting?" Plumlee did not say anything, and as he started to walk back out the door, Saum told him to "leave the fucking hardhat." Then Saum directed Lakey to accompany Plumlee to Plumlee's pickup and look through the personal things he was taking. Plumlee then left the site. On the morning of 1 July, Lakey asked Muse if he saw some undercut on some welds Muse had made. Muse said yes. Saum, who was present, said he was suspending Muse for failing visual examination of his welds. Muse asked why Saum did not do this 2 weeks ago when the line was hydrotested.' a Saum said he was not worried about it then or did not have the time. Saum asked why he was using 5-P rod for all three passes, infra, and Muse said that Plumlee told him to, and he had been told by Lakey to do what Plumlee told him. On the way back to the office Lakey told Muse that Gosseen had been caught stealing and that they threw him in jail. Muse asked where Plumlee was and Lakey said, "We got rid of him, too." Back at the office Saum told Muse he was being suspended for failing visual ex- amination of his welds. Saum said that he could go back to the fabrication shop at his old rate of pay, and could recertify as a welder on his own time and expense, and if there was an opening at the base then they could talk about reinstating him. Muse said he knew that Saum was mad because Saum could not buy his vote and that his vote was not for sale. Saum started swearing at him and 16 This particular line had previously been inspected and hydrotested and was found to be satisfactory. 509 said, "You're goddamn right I'm mad . . . I'm not going to send you to school here and pay you 1100 bucks a week." Lakey repeatedly asked Muse whether he wanted to go to work at the shop and would accept the job, which was at considerably lower pay , and stated that he had to call his dad, Al Lakey, at the shop and let him know. Muse accepted the offer of the job at the shop. Muse walked in the front door of the shop and Al Lakey said he heard Muse was looking for a job. Muse said, "You guys are going to play hardball , huh?" Lakey said, "You're goddamn right. You guys started this union bullshit." Muse said he did not start any of it. Lakey said, "Well, you're involved in it and now you're going to pay for it." Lakey said he had work for him at $11.30 an hour. On the next day, 2 July, Lakey said he only had labor- ers' work for Muse at $8.77 an hour and asked if he wanted the job. Muse said yes . Muse finished a job at I1 a.m. that Tuesday and asked Lakey what else he wanted done. Lakey said there was no more work. He gave Muse his check and told Muse to call him in a week. Muse called the following Monday, and Lakey said he had no work for him . He also said that Muse would be getting a letter explaining why he would no longer be working for the Respondent. On 2 July, Plumlee remembered that he had not turned in the keys to the storage trailer at the base and that he also had several acetylene and oxygen bottles at his home that he used when doing 1-day jobs for Re- spondent away from the base. Fearful of the threats Saum had made against Gosseen, Plumlee anticipated that Saum would also accuse him of stealing. He, there- fore, took the items to the local police department with the intention of delivering them to the Company at a later date when he got a chance . Later that day he got a call from Saum, who apparently had been notified about the bottles by the police, pursuant to Plumlee's request. Plumlee explained that he had kept the bottles at his home because he needed to have the equipment available when he was assigned work at other jobsites. Saum said he would probably have the sheriff waiting for Plumlee when he came to deliver the bottles to the Respond- ent." Saum then asked , "Why'd you bring this union shit down on me?" Plumlee said, "I didn't; you brought it down on yourself by not taking care of the job." Saum said the Morgan brothers were professional organizers. He said, "I hope you and the union get what you want out of this thing . . . I've already talked to nonunion contractors . . . you won't work another nonunion job." He told Plumlee, "You're going to end up losing about $25,000... over this," and he repeated that he'd cut his right arm off before he would sign a contract. He then told Plumlee that Plumlee would never work for him again. 17 Respondent does not dispute Plumlee's testimony that he had been given permission to keep the bottles at his home as a convenience and that Respondent had been aware of this. Saum did not carry out his threat to have the sheriff waiting, and Respondent does not maintain that Plumlee had done anything improper. 510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Then Saum asked him why he changed the welding procedure, below. Plumlee replied that he did not have authority to change the welding procedure on the job and had not done so . Saum said, "Well, we found some welds out here . . . where you were using 5-P rod .. . in violation of the contract." Plumlee said he was doing what he was told to do by Rick Lakey. On the following day, 3 July, Respondent sent letters to Plumlee, Muse, Bobby Morgan, and Tom Morgan re- garding their welding on the job . The letter to Plumlee, signed by Bob Harvey, Respondent's quality control in- spector, is as follows: Our employment records indicate on the morning of July 1 , 1986, at 6:30 A.M. you voluntarily quit and left the project on your own volition. We also note on July 2, 1986, at 2:30 P.M. you returned all company tools and equipment per the enclosed inventory list. If this inventory is not cor- rect, please let me know. Shortly before your departure, I was investigat- ing the welds on the new schedule 80 condensate piping installed throughout the courtyards between 4th and 6th Avenues . It is apparent you and the other welders directly under your daily supervision changed the welding procedures for this work. Spe- cifically, the pipe has been welded using the Lin- coln 5-P electrode for the entire three-pass weld ap- plication. As of this date, all welds have been identified and accounted for. The welds were made by yourself, Jim Muse, Bob Morgan and Earl [Tom] Morgan. To complete my Quality Control Report to the Government, I need your explanation as to why you arbitrarily changed our welding procedure without permission from my office. Hank, this is a serious matter. Think it over care- fully and give me a collect call soon to discuss this further. Adscon will correct the welds to satisfy our Contract requirements as I intend to fulfill my obli- gations to the Government as this Company 's Qual- ity Control Officer for this project. If you take exception to this letter in any form, you are welcome to come out to the project imme- diately and walk the condensate line with me. I will show you the welding work performed by yourself and your crew. You are also encouraged to bring your entire crew for definite identification of indi- vidual welds if you would like. I want reasons why this procedure was changed. You and your creware professionals, you know welding procedures and the ASME code-why did you do the work differently? Plumlee sent the following reply: In response to your letter written 7-3-86 regarding me changing the welding procedure at the Yakima Firing Center, as I told you on the phone I had nothing to do with changing the procedure. As a working foreman I only followed orders from the job superintendent Rick Lakey. We were all told to use 5-P rod because it was faster and clean -up time date May 8, 1986. on welds were quicker. I am qualified on both 5-P and 7018 rods and was not responsible for any pro- cedure changes. Every welder on the job was told the same thing by Rick Lakey (Job Superintendent). There was never any comments made counterdict- ing [sic] this by Adscon Q.C or Corp of Engineers compliance officer until after my dismissal by Adscon Inc. The letters to both Bob and Tom Morgan, signed by Saum are identical, as follows: Our records indicate on May 15 , 198618 you were laid off on a temporary basis due to lack of work at the time. It is our intent to start recalling welders for this project in the near future. Please be advised we have found several welds that you have completed that are not in conform- ance with the welding procedures established for this project. Before your employment can be reinstated, we are investigating the reasons why you changed your welding procedure. For further details, you should contact Hank Plumlee. In the meantime, your re-employment with this company is under suspension. Both Morgan brothers replied as follows: I have received your letter of July 3, 1986. The statement that some of my welds were not in con- formance with procedure is untrue. All welds I did were in accordance with company policy and were approved, as stated by the Superintendent. I am ready, willing and able to resume working and have been ready, willing and able to resume working since my improper layoff. The letter to Muse, signed by Saum, is as follows: Our records indicate on July 1 , 1986, you were suspended from work for violating the welding pro- cedure you were qualified for. In addition, you failed a visual examination for severe undercutting on several welds we inspected . As you recall, the welds in question are located in 4th Avenue be- tween Poles 942 and 1002. Your reinstatement with Adscon as a journeyman certified welder is conditional dependent upon your requalification by test under the same established welding procedures, with your statement explaining why you changed your welding procedures on these welds. We will look forward to your immediate re- sponse. In the meantime, your employment with Adscon is suspended until further notice. On 24 July, Muse responded as follows: 18 The letter to Tom Morgan, who was laid off earlier, contains the ADSCON, INC. Upon request of your letter, I have retested and passed. Enclosed is a copy of my test results. In regards to the welding procedure in question, Rick Lakey did not explain or give me specs or procedures for the job . He stated, do it any way you want. Then he said do it like Hank, so I asked Hank and he said Rick told him to use 6010 on the filler and cap, because it was faster . I did what man- agement told me to do and my foreman. After two weeks I asked Rick Lakey if I could switch to 7018 Hi-Lo, because thats what I qualified with and I could do a better job, he said do it any way you want. I will expect a reply on being reinstated as soon as possible. Thank you. About 28 July, Muse received a call from Saum. Saum asked why Muse changed the welding procedure. Muse said that Lakey told him to do it the way Plumlee did it, and that Plumlee told him to do what management told Plumlee, namely that 5-P was to be used for all three passes. Saum said that Lakey was not a welder and Muse should not have listened to him. Saum went on to say that he was satisfied with Muse's explanation and if he would drop his charges with the NLRB he could have his job back. During the conversa- tion Muse asked why Lakey had been giving him (Muse) such a hard time on the job. Saum said that Lakey was retaliating because he thought Muse was going to vote for the Union, and that Lakey had seen Plumlee and Muse associating with each other, riding home together, and that was the only way Lakey knew to get even. Saum said, "You're probably the only clean welder out there because you didn't know any better ... you were used by Hank [Plumlee] and the union and the Morgan boys." Muse said he would think about Saum's offer to withdraw the NLRB charges. One week later Muse phoned Saum and said he would accept the offer to return to work but would not drop his charges against Respondent with the Board. Saum said no. On 21 August, Muse wrote Saum a confirmation letter of this conversation, as follows: On or about the 28th of July 1986, you received a call from me concerning your earlier phone call with my wife. In this conversation we talked about several things, the one in question was concerning my re-employment with Adscon. You stated and I quote, "I'll give you your job back if you drop your charges against the Company ." I stated let me think about it for a week and if I want the job I'll call back. One week later I called and stated I will come back to work, but I will not drop my charges. You stated and I quote, "If you don't drop your charges you can't come back to work ." I stated I would not come back to work on those conditions. I await your response. Respondent's attorney replied to Muse on 27 August as follows: 511 The Company has forwarded your letter of August 21, 1986 regarding its settlement offer of re- employment. The National Labor Relations Board recognizes and, indeed, encourages the parties to any unfair labor practice proceeding to engage in informal efforts to settle a dispute . You have alleged that you were improperly laid off, the Company of- fered to reinstate you to settle that unfair labor practice charge . In your letter of August 21, 1986, you have declined that offer. As a result, the offer of reinstatement is no longer available. Fox was called back to work by Rick Lakey on 8 July. Fox began working on Roger Miller 's crew with five other employees. Fox testified that Miller made him work by himself on the other side of the barracks for about a week and a half, and that none of the other em- ployees would speak to him . Miller laid him off again on 24 July. Dean Herd, a certified welder, went to the base look- ing for a job on 7 July. Bob Harvey gave him a job ap- plication. Bob Cole, project superintendent, came into the office and said it was possible that they would be needing some welders. Herd returned his completed ap- plication the next day and Harvey said he had received verbal word of some work being awarded . Harvey asked Herd if he was Union. Herd said yes, and stated that he had worked on some union jobs. Cole asked if his union dues were paid up. Herd said yes. Harvey said the Com- pany was nonunion but paid union scale. Herd said okay. Cole requested that Herd come back on 11 July to take a welding test. Herd returned for the welding test on 11 July. During the test Saum introduced himself. After the test, Saum told Herd that his "coupon" 19 looked fine and that they would let him know if they needed him. Saum asked if he belonged to the union and Herd said yes. He asked the name of Herd's home local, and Herd advised him that it was Local 598 (the Union herein). Saum said he had been having some problems with the Union and that the Union wanted to organize the Company but he was not going to permit it. Saum said, "Your welding test looked good and . . . I'd like to have you but . . . I have a problem with hiring you because you belong to the union." Herd said he was just as hungry as the next man down the road , union or nonunion. Saum said he just did not want any more problems with the Union. He said they would look over his application and keep it in mind. A copy was made of a prior certification Herd had received after testing on the same procedure that cov- ered the Respondent's job. Thereafter Respondent hired several other welders who, at the time of Herd's test, had not yet submitted an application for employment with Respondent. The contract between Respondent and the Corps of Engineers requires that the welding be performed in ac- cordance with a particular welding procedure. Each complete weld is to be made with two types of welding rod, or electrode, as follows: The initial, or root, pass or 'B A "coupon" is a section of welded pipe that is sent to a testing shop to determine whether the weld is satisfactory. 512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD weld is to be made with 5-P rod (also called 6010 rod), having a tensile strength of 60,000 pounds per square inch; the second, or middle, pass is to be made with 7018 rod, having a tensile strength of 72,000 pounds a square inch; the third, final or cap, pass is also to be made with 7018 rod.2O The Respondent maintains that the welders were dis- charged because they did not conform their welds to this procedure, but rather used 5-P rod on all three passes. Moreover, according to Respondent, they made welds that were otherwise defective for various reasons. Tom Morgan testified that: Q. (By Mr. Fain, Respondent's attorney) Now, Rick Lakey never told you to use anything other than the procedure required by the Corps, did he? A. Mr. Lakey let it be known to every person on the job that they could weld any way they desired with any rod they desired in order to facilitate the speed of the job. Numerous times the welders had complained on that job to him about the 7018 elec- trode being unstable. Q. Who did you hear complain like that about that to Rick Lakey? A. Mr. Plumlee, myself and my brother and any- body else that had anything to do with welding. Q. Well, is there anyone else you can think of that you heard talk to Rick Lakey about that? A. No, there's not, because we were the only ones out there that knew anything about welding.21 Q. All right, so it would just have been Mr. Plumlee, Mr.-the other Mr. Morgan, Bob Morgan,- A. Uh-huh. Q. -and yourself? A. Yes, sir, to my knowledge. Q. And Mr. Lakey never directed you to use a 5- P rod for all three passes, did he? A. Would you repeat that again? Q. Mr. Lakey never directed you to use a 5-P rod for all three passes; did he? A. Mr. Lakey directed us to weld any way that we desired in order to facilitate the job for speed. Q. Tell us what happened during that discussion with [Mr. Harvey]? A. Well, simply stated, I made the comment to Mr. Harvey that we needed an electrode-stabilizing oven for the 7018 electrode. Q. And what did Mr. Harvey say? A. He mumbled something and went back in the trailer; what it was I don't know. Q. Were you requesting an oven? 20 The condensate pipe being welded together has a tensile strength of 60,000 pounds a square inch , which is the same as the 5-P rod , the pur- pose of the 7018 rod , however, according to Saum, which has a greater tensile strength, is to provide a margin of error against imperfection in the weld to insure that the weld will be as strong as the pipe itself The water pressure within the condensate pipe, however , is only about 30 pounds a square inch. 21 At the time of the discharge of the Morgan brothers, Muse had not yet been brought out to the base. A. Yes, sir, some means of stabilizing the 7018 electrode. Q. And did you then get an oven? A. No, sir. Plumlee, Bob Morgan, and Tom Morgan testified that they knew the contract specifications provided for 5-P rod on the root pass and 7018 rod on the two subsequent passes. However, they were experiencing "porosity" problems when welding with the 7018 rod because they were provided no "rod heaters" or ovenS22 in the field to maintain the correct temperature for the 7018 rod prior to its use. Porosity results in defective welds that may have to be grounded out and redone, thereby slow- ing down the work, and is caused by the absorption of atmospheric moistures by the rod, a condition particular- ly noticeable on cold or windy days when welding is performed in open areas. They spoke to Rick Lakey about the matter on various occasions and were told to use whatever rod they wanted to use regardless of the procedure in the specifications. The employees, all highly qualified and experienced welders, with the ex- ception of Muse, who had recently been certified, deter- mined that 5-P rod on all three passes would often result in the best weld under the prevailing circumstances. Plumlee testified that he refused to stamp his noncon- forming welds with an identification stamp because he did not want to be falsely certifying that the welds were performed in accordance with the specifications. The record shows that any experienced inspector can readily tell whether the cap weld was made with 5-P or 7018 rod. Wallace Giesler, the Corps of Engineers' compliance inspector on the project, testified as follows: Q. (By Judge Wacknov): Let me ask, Mr. Giesler, and we haven't been talking about this yet, my understanding of 5-P versus 7018 is that 7018 has more strength to it, the welding rod; is that cor- rect? A. Well, in a general case it would probably be true. Q. In this particular situation of condensate pipes, what difference did it really make whether the second and third pass, cap pass, were 7018 or 5-P? A. Well,- Q. I mean, as a practical matter. I understand the specifications may provide for it, but as a practical matter for my own -- I'd just like to know; what difference would it make? A. Well, it was a-practically it probably wouldn't make a bit of difference under the system that was being installed there. However, it was a violation of the contract specifications. [Emphasis added.] 22 A rod heater is a metal container with a heating source used to keep the welding rod at a particular temperature prior to its use. There was only one rod heater, a converted small refrigerator that Plumlee had brought from his home, and it was inadequate and sometimes not func- tioning. Moreover, it was located in the shop at the base and was not portable for field use. ADSCON, INC. C. The Status of Hank Plumlee Respondent maintains that Plumlee, pipefitter foreman, is a supervisor within the meaning of the Act. Respond- ent included Plumlee on the eligibility list in the repre- sentation proceeding. On 13 May, Saum engaged Plum- lee in a conversation regarding the forthcoming election and attempted to solicit his vote. Plumlee voted in the election without challenge. Plumlee was the most experienced and qualified pipe- fitter working for Respondent. He had worked for the Respondent on several projects, and as a previous project was coming to a close, Plumlee was made super- intendent on that project for a brief time and for a spe- cific purpose. He was the first pipefitter hired for the in- stant project. As pipefitter foreman, he was paid $1 an hour more than the other certified welders until the pay period immediately preceding the election, when his wages were reduced by $1 an hour. Regarding purchasing certain equipment for the project, Plumlee testified that at the beginning of the project he was told by Saum to call a certain local sup- plier and check out the prices on welding rod and a welding machine. Plumlee obtained the information and was told by Bob Harvey, who also occupied the position of purchasing agent, and apparently Saum, to order the merchandise from the local source because by the time the items were shipped from Seattle the cost would be about the same. Plumlee did so. Bob Morgan and Tom Morgan were hired in January, shortly after the project began. Plumlee testified that he did not hire these individuals. Rather, he had been ac- quainted with the Morgan brothers, particularly Bob, and knew that both were experienced welders. They asked him if there was welding work available on the project. Plumlee gave them Respondent's phone number and told them to talk to Saum. Plumlee also mentioned to Saum that he knew the Morgan brothers, and said he thought they would be "real good hands."23 Bob Morgan talked to Saum on the phone about the job and thereafter transmitted some certification papers to Saum. Apparently Saum directed Plumlee to hire the Morgan brothers. About 6 January, Plumlee notified Bob Morgan that he was hired, and about 15 January he noti- fied Tom Morgan that he, too, should report to work. Parish Plumlee began working for the Respondent at the fabrication shop about February, under the supervi- sion of Al Lakey. He had worked for the Respondent on two previous projects for short periods of time. He testi- fied that his father told him that Saum had said to bring him to the fabrication shop, show him how to weld pipe supports, and get him started.24 Thereafter, Parish worked at the fabrication shop and Hank Plumlee worked at the base until, sometime in March, Parish was brought to the base as a pipefitter helper and worked on the condensate lines with Bob Morgan . Then he was moved into the mechanical rooms and worked with Randy Gosseen plumbing the mechanical rooms. 2 Plumlee and other employees testified that in the construction indus- try it is customary for employees to obtain jobs through word of mouth. 24 Al Lakey, shop manager, was not a welder and apparently was not qualified to train Parish Plumlee to do some of the necessary work. 513 Hank Plumlee testified that, apparently in February, Saum asked him whether he thought Parish would want to work at the project. Plumlee said he was sure Parish would, and Saum asked whether Parish could handle the job of welding pipe supports. Plumlee said yes. Saum then told him to go ahead and find out if Parish wanted to work at the fabrication shop and to bring him out. Saum's testimony regarding the hiring of Parish is simi- lar, except that Saum maintains that Hank Plumlee ap- proached Saum and asked if Parish could be hired. Gosseen began working on 17 April. He was hired to work at the base as a pipefitter helper. He worked inside the mechanical rooms of the barracks, fabricating and in- stalling the systems for the steam heat and hot water. Gosseen testified that he had initially spoken to Plumlee about employment . Then, on 17 April, Plumlee phoned him and asked if he would like to begin working as a pipefitter helper. Gosseen said yes and drove to the base to the location where Plumlee was working, and Plumlee accompanied him to the office trailer where he filled out the employment forms Harvey gave him. He then went with Plumlee back to the mechanical rooms where Plumlee had been working, and Plumlee told him what part of the system to work on. Plumlee told Gosseen that he could go to look at a completed mechanical room if he had questions about what needed to be done, and divided the work in half so they would stay out of each other's way. Gosseen testified that he worked with Plumlee on me- chanical rooms for several weeks, after which Plumlee began working in the field, and Gosseen remained in the mechanical rooms by himself. Several days later, Parish Plumlee was brought out to work with Gosseen, and then, after Parish was laid off, Kevin Rye took his place. Gosseen trained both Rye and Parish and told them what work to do. Gosseen was thereafter given instruc- tions by Harvey, Rick Lakey, and Cole; and Roger Miller, plumbing foreman, tested some of the work that the employees had completed in the mechanical rooms. Gosseen asked Lakey for time off on 3 June. Hank Plum- lee would only come by occasionally to eat lunch with Gosseen and Parish. Rye testified that when he first began working with Gosseen in the mechanical rooms , Plumlee came in on five or six occasions "to check on the work to see how things was going, if we had any questions." Regarding the hiring of Gosseen, Rick Lakey testified that Gosseen had come to the jobsite on several occa- sions and talked to Plumlee and both Morgan brothers. Later, Plumlee told Lakey that he needed somebody to work in the mechanical rooms. He said that Gosseen had experience as a pipefitter and he recommended that Gos- seen be hired. Lakey told Plumlee to go ahead and hire him. Plumlee did not deny this testimony of Lakey. Plumlee testified that he never recommended that any employees be laid off, disciplined, discharged, or re- called. Rather, all these decisions, as far as he knew, were made by Rick Lakey. Each morning the welders, who generally worked alone, would begin doing the work that they had been working on the day before, unless they were assigned different work by Lakey. 514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Plumlee did not keep the time of the welders or pipefit- ter helpers, attend management meetings, or do any pa- perwork. If Lakey had not already spoken to the welders regarding their assignments, Plumlee would relay the in- structions. Plumlee did not oversee or inspect the work of the other employees and performed the same work as they did virtually all the time.25 Plumlee testified that on one occasion, Plumlee asked Muse for some assistance . Muse asked Lakey if he could help Plumlee. Lakey said no, that Plumlee was a jour- neyman and could do it himself. As noted above, when Muse was brought out to the base from the fabrication shop, he was initially told by Lakey not to have any- thing to do with Plumlee, and on the day of the election Lakey gave Muse a radio so that he could call Lakey if he had any questions about the work. Saum testified that prior to the beginning of the project he told Plumlee there would be a supervisory job as welding foreman open for him and that he was going to leave the responsibility of hiring welders to Plumlee. Plumlee said he knew a couple of welders and Saum said, "Well, I'll leave that responsibility to you. When the job requires it let's bring the guys in. Plumlee denies this conversation. D. Analysis and Conclusions 1. The status of Hank Plumlee Respondent maintains that Hank Plumlee is a supervi- sor within the meaning of the Act. It is clear that wheth- er Plumlee possessed or exercised any supervisory au- thority prior to the advent of the Union, he neither pos- sessed nor exercised any such authority after about mid- May. By 15 May three of the four employees Plumlee had called to work, pursuant to the instructions of Saum or Rick Lakey, had been laid off or discharged,26 and only Gosseen remained. Plumlee had received no prior notice that these members of his crew were to be discharged, nor had he been consulted regarding their replacements. Rye replaced Parish Plumlee in the mechanical rooms, and was trained by Gosseen. I find that Plumlee did not direct the work of Gosseen or Rye and had very little daily contact with them. 27 When Muse was transferred from the fabrication shop to the base he was told by Rick Lakey to stay away from Plumlee and thereafter Lakey, who spent more time in the field after 12 May when Cole was hired as superintendent, inspected Muse's work until he apparently felt that Muse was capable of working on his own. Muse and Plumlee worked sepa- rately and Plumlee did not inspect his work. Thus, the record is devoid of any evidence of supervi- sory authority exercised by Plumlee. Instead , Plumlee did not even have the authority to direct Muse to assist him, as Lakey denied Plumlee's request in this regard; 2 1 credit Plumlee's testimony and also the testimony of Bob Morgan and Tom Morgan, who corroborated the foregoing testimony of Plumlee 26 Tom Morgan, Bob Morgan , and Parish Plumlee 27 Although Rye testified that Plumlee came to check on work in the mechanical rooms shortly after 16 May, this was apparently of short du- ration Moreover, this is not determinative of supervisory authority. Gerber Co., 270 NLRB 1235, 1237-1238 ( 1984). and Muse went to Lakey, not Plumlee, for time off. Fur- ther, Saum solicited Plumlee's vote in the forthcoming election; Plumlee's foreman's pay of $1 an hour was taken away from him prior to the election; and he voted without challenge. On the basis of the foregoing, I find that whatever Plumlee's prior status , he was clearly not a supervisor on and following 13 May , the date Saum solicited him to vote against the Union. 2. The discharges On 2 May, Superintendent Lakey told Hank Plumlee that Lakey was going to discharge Don Fox that day be- cause of his suspected union activity. Fox was, in fact, laid off that day and was told by his foreman, Roger Miller, that it would only be for a week or so. However, Fox was not recalled until 8 July, some 2 months later. I credit the testimony of Plumlee and Fox. Respondent maintains that Fox's layoff resulted from a quarantine of certain barracks in which Fox was work- ing. However, a Corps of Engineers' quality assurance report shows that on 2 May the asbestos problem was no longer precluding work in the barracks. Moreover, Roger Miller testified that the building in which Fox had been working on 2 May, and still another building yet to be started, was not affected by the quarantine. I therefore find that the evidence does not support Re- spondent's alleged reasons for the layoff of Fox, and that Fox was laid off for the reason that Lakey stated to Plumlee, in violation of Section 8(a)(3) of the Act. After being recalled on 8 July to Roger Miller's plumbing crew, Fox was again discharged on 24 July. Respondent maintains in its brief that Fox was dis- charged because of "performance problems." Rick Lakey testified that Fox was discharged because: It was another complaint, no hardhats, no shoes, Mr. Fox was constantly out of his area, no hardhat, completely two buildings away from his area. I fi- nally had enough of it, I went up and told Roger to fire him. Superintendent Cole testified that Roger Miller told him that Fox was not performing and should not have been called back and, therefore, Cole told Miller to dis- charge him. Cole, however, made out the layoff slip, which indicates that Fox was being let go because of lack of work. Miller testified that there were only about four or five more buildings that needed plumbing and Cole told him that he should cut back on his crew . Therefore, Fox was laid off. When asked whether there was any problem with Fox's work, Miller testified , "No, not really." He then testified that when he was discussing layoffs with Cole, something was mentioned about a productivity problem with Fox "but there was nothing-no big to-do about it." The reasons for the second layoff of Fox given by var- ious managers and supervisors are contradictory. On the one hand Lakey and Cole maintain that Fox was dis- charged because of problems with his work. Miller, Fox's immediate supervisor, however, not only does not ADSCON, INC. corroborate this, but maintains that Fox was laid off be- cause, even though there was more work to be done, the Respondent was nearing the end of that phase of the project. The General Counsel maintains that the conflicting reasons for Fox's second layoff, coupled with the forego- ing finding that Fox's earlier layoff was unlawfully moti- vated, mandates the conclusion that Fox's second layoff was also violative of Section 8(a)(3) of the Act. I agree and so find. Tom Morgan was discharged on the same day as Fox, 2 May. Morgan was told by Lakey that his temporary layoff would last for "one week and one week only." Plumlee testified similarly. I credit Morgan and Plumlee. Respondent maintains that Morgan , who had been laid off on two prior occasions, had been hired only to per- form prefab work and when this work had been com- pleted Morgan was permanently laid off. Indeed, Lakey maintains that Plumlee acknowledged that Plumlee was planning on permanently laying off Morgan for that very reason. Plumlee denied this and testified that there was abundant welding work to be done on and subsequent to the day Morgan was discharged. I credit Plumlee. Although Lakey told Plumlee on 1 May that he did not believe that Tom Morgan would favor the Union, Saum told Plumlee, on 13 May, that he knew the Morgan brothers were against him from the start and "were locked into the union tight as hell." That remark of Saum's, coupled with the Respondent's discredited ra- tionale for discharging Morgan on the very day that, it has been found, Respondent discharged Fox because of his suspected union activity, mandates the conclusion that Morgan's discharge was similarly motivated. I so find. On 13 May, as noted, Saum advised Plumlee of Saum's disregard for the Morgan brothers and also said he was going to start playing hardball and was going to send Bob Morgan to the fabrication shop on Rudkin Road. Meanwhile, at the shop, Al Lakey had told Muse, whom I credit, that they wanted to bring Bob Morgan to the shop so that Muse could "piss him off enough to get him to quit." This plan, however, did not materialize and Bob Morgan was laid off on 15 May allegedly because, as Saum testified, work on the project had been halted by the Corps of Engineers. Also, on the same date, Parish Plumlee, a pipefitter helper, was laid off, as were two la- borers. The credible evidence establishes, contrary to Saum's testimony, that the work Bob Morgan and Plumlee had been performing had not been suspended . In fact, the contemporaneous letter from the Corps of Engineers states that the suspension involved only the "removal of insulation on the exterior steam line," which work con- stituted only a relatively minor part of the overall project, and that "[A]11 other contract work may contin- ue." Moreover, Plumlee credibly testified, contrary to Saum, that the work on the condensate line was not sus- pended and that it continued thereafter; and Muse credi- bly testified that the fabrication of pipe supports contin- ued throughout the time of this alleged 2-week shut- down. Further, the two laborers discharged on 15 May 515 were replaced within a week by two new hires who con- tinued working in the field on the installation of pipe supports.28 Parish Plumlee was working in the mechanical rooms of the barracks with Gosseen at the time of his layoff. It is clear that this work was independent of any outside work on the steam or condensate line, and continued after Parish's discharge, as Parish was replaced by a plumbing employee, Kevin Rye. Clearly, the Respondent seized on the Corps of Engi- neers' steam line suspension order to fabricate a rationale for the dismissal of these employees, and the credible record evidence shows that the suspension of the steam line work had no impact on the work that Bob Morgan and Parish Plumlee were performing. Respondent maintains that there is no record evidence that Respondent knew or suspected that Parish was in favor of the Union. Although Saum had explicitly ex- pressed his animus toward Bob Morgan and had even concocted a scenario for getting him to quit, it is clear that the Respondent had been attempting to identify all the union sympathizers and Saum stated that he had spies at one union meeting . Parish had attended a union meet- ing and signed a union authorization card prior to his discharge. Moreover, there was no valid reason given for his discharge, and he was not offered either of the labor- er jobs that were available the following week even though on 8 July, when Parish was recalled, he was put to work as a laborer on the laborers' crew, thus showing that Respondent had no reservations about recalling Parish as a laborer rather than as a pipefitter helper.29 For the foregoing reasons I conclude that the 15 May layoffs of Bob Morgan and Parish Plumlee were discri- minatorily motivated in violation of Section 8(a)(3) of the Act. Gosseen was discharged on 1 July, the day following the election, purportedly for pilfering property. The property that Gosseen was accused of allegedly stealing was scrap iron that had been removed from the mechani- cal rooms during the demolition stage. Respondent was selling this scrap for 2 cents a pound to a local salvage dealer. I credit Gosseen and find that he had arrived at the jobsite early because he was apprehensive about his con- tinued employment because of the events the day before, and that he was attempting to locate valves and strainers that were to be reused in the mechanical rooms.90 Even though Gosseen's truck was searched by Saum and the military police and nothing was found, Saum nevertheless allegedly determined that Gosseen had indeed intended to pilfer something, and therefore dis- missed him. I do not credit Saum and find that he dis- charged Gosseen in retaliation for Gosseen's suspected 28 1 agree with the General Counsel's position that the layoff of the two laborers on 15 May was contrived "camouflage " to mask the true reason for the layoff of Bob Morgan and Parish Plumlee. 29 Parish was thereafter discharged again for excessive absenteeism, ap- parently due to injury he sustained on the job, and there is no complaint allegation that this final discharge is violative of the Act 30 Various employees testified that these items , which were to be reused , had sometimes been discarded with the rest of the scrap and had to be obtained from the salvage pile 516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD union activity. Saum's virtually contemporaneous remark to Plumlee, whom I credit, that Gosseen was Plumlee's "fucking union buddy" and was going to be fired, pro- vides clear evidence of Saum's true motivation . There- fore, I conclude that Gosseen was discharged in viola- tion of Section 8(a)(3) of the Act, as alleged. As noted, Saum told Plumlee that his "fucking union buddy" had been caught stealing and that Saum had Gosseen at the MP station and was going to press charges against him . Immediately following this, as Plumlee was about to begin work, Saum told him "Yeah, get out there and bust your ass and . . . if you don't think you can handle the heat of that . . . just hit the fucking road." Plumlee told Saum not to "hard ass" him and to fire him or get off his back. He then indicated that he was quitting by laying the keys to Respondent's pickup on the desk which, as evidenced by Saum's re- peated questioning of whether Plumlee was quitting, was just what Saum had intended. Shortly thereafter, Lakey told Muse that Gosseen had been caught stealing and had been thrown in jail and that "We got rid of [Plum- lee], too." Respondent maintains that this confrontation did not constitute a constructive discharge, citing K & S Circuits, 255 NLRB 1270, 1295 (1981). Contrary to Respondent's assertions, it is clear that the case that Respondent cites constitutes clear precedent for the determination, which I make, that the new, albeit unspecified, working condi- tions imposed on Plumlee were intended to be so diffi- cult or unpleasant as to cause him to resign, and that such conditions were imposed because of Plumlee's union activity. I therefore find that Plumlee was con- structively discharged in violation of Section 8(a)(3) of the Act. Muse was suspended by Lakey on 1 July, allegedly for making unacceptable welds, and was permitted to take a cut in pay and return to work at the fabrication shop. When Muse arrived at the shop, he made the rhetorical statement to Al Lakey that the Respondent "was going to play hardball." Al Lakey agreed, stating "You're god- damn right. You guys started this union bullshit." Muse denied that he started it and Lakey said, "Well, you're involved in it and now you're going to pay for it." I credit Muse's testimony. Further, I do not credit the tes- timony of Al Lakey regarding Muse's alleged insubordi- nate conduct at the fabrication shop. Thereafter, on the following day, Muse was laid off allegedly for lack of work. I find that Muse was, in effect, discharged by Rick Lakey on 1 July at the base because of his suspected union activity. The welds pointed out to Muse on 1 July, which allegedly resulted in his demotion to the fabrica- tion shop, were welds that he had made some 2 weeks earlier. Moreover, Muse had been welding steadily for a month prior to his discharge and Rick Lakey, who had inspected his work, had not found it unacceptable. Final- ly, when Muse arrived at the fabrication shop, he was told in no uncertain terms by Al Lakey, who had spoken to Rick Lakey shortly before, that Muse's demotion to the shop was motivated by his union activity. I find that the 1 July removal of Muse as a welder was discriminatorily motivated in violation of Section 8(a)(3) of the Act. Moreover, I find that the 2 July layoff was similarly unlawful , as credible record evidence does not show that there was no further work for Muse at the fabrication shop. I credit the testimony of Dean Herd, an applicant for employment, and find that on 11 July, after taking a welding test, he acknowledged to Saum that he was a member of the Union . Thereupon, Saum told Herd that his welding was good and he would like to hire Herd, but he just did not want any more problems with the Union. Herd was not hired. Thereafter, the Respondent hired other welders who, at the time of Herd's conversa- tion with Saum, had not yet applied for employment. Therefore, I find that Respondent's failure to hire Herd was discriminatorily motivated in violation of Section 8(a)(3) of the Act. Young Hinkle Corp., 244 NLRB 264 (1979). 3. The noncode welding Respondent maintains that even if the four certified welders, Bob Morgan, Tom Morgan, Jim Muse, and Hank Plumlee were unlawfully discharged, nevertheless they would have been discharged for a legitimate reason because of their admitted failure to follow the proper welding procedure and because of various defective welds that were subsequently discovered. I find this de- fense to be without merit. Hank Plumlee and the Morgan brothers credibly testified that they had been told by Lakey that it was permissible to use 5-P rod in place of 7018 rod if they desired, and this instruction was relayed to Muse by Plumlee.91 Moreover, I credit the employ- ees' testimony that the primary reason for using 5-P rod in place of 7018 rod was because, after advising Lakey and Harvey of the porosity problem with 7018 rod, the Respondent failed to provide them with rod ovens in the field. I discredit Lakey's and Harvey's denials of these conversations, and find that indeed there were no rod ovens provided to the employees in the field until after they were discharged and new replacement welders were hired. I do not credit the assertions of Saum, Bob Harvey, or Rick Lakey that the welding of Plumlee and the Morgan brothers was initially so exceptional that Respondent never thereafter inspected the work until immediately prior to the election.32 The welding work was readily observable and, indeed, it was Bob Harvey's admitted primary responsibility as Respondent's quality control representative, who was on the job at all times, to insure to the Corps of Engineers that the work was in conform- ity with the contract. Harvey and Lakey testified that, 91 It is quite reasonable that Lakey would have so instructed the em- ployees, as Giesler, the Corps of Engineers' representative, testified that the use of one rod or the other "probably wouldn't make a bit of differ- ence " a= Bob Harvey, quality control representative , testified that "I was so impressed with these men's welds that I didn 't watch it all that close I never seen better welding in my life " Rick Lakey said that "all three was damn good welders ." Regarding Plumlee's welding, Saum testified that the work was "as good as I've seen The guy was an artist," and when asked how the noncode welds could have gone undetected, Saum said, "I don't know I don't know I'd still like an answer to that . it's a mystery." ADSCON, INC. although the noncode welding was discovered several days prior to the election and was a serious violation of the contract specifications, the matter was not reported to the Corps of Engineers because Saum did not want anything to affect the 30 June election. This contention, regarding which the Respondent did not elaborate by way of supportive explanation, is nonsensical and prepos- terous, particularly in light of the fact that Respondent, prior to the election, threatened the employees with dis- charge should they vote for the Union. I credit the testimony of the employees , detailed above, and find that they endeavored to make the best possible welds under the prevailing field conditions and at all times were following the instructions of Lakey. Based on the foregoing, I find the Respondent's argu- ment that the employees are not entitled to reinstatement to be without merit . The Respondent has adduced no credible evidence that the employees did something im- proper by following Lakey's instruction, or otherwise performed defective welding that would justify their dis- charge.33 4. The 8(a)(1) violations As discussed above, I concluded that it was unneces- sary to determine whether Hank Plumlee was a supervi- sor prior to 13 May, on which date Saum solicited Plum- lee's vote. On 13 May and thereafter, however, I found that Plumlee was not a supervisor within the meaning of the Act. I credit Plumlee and find that on 13 May, Saum inter- rogated him about the union activity of other employees. Saum told him, in effect, that he was going to retaliate against Bob Morgan because of his involvement with the Union; that Saum would prolong negotiations and would not sign a contract; that if the Union got in, wages would go down ; and that the employees would be dis- charged. I credit Muse and find that in mid-May, Al Lakey in- terrogated Muse and another employee regarding their union activity, stated that if the Union came in, the fabri- cation shop employees would not have a job because the work would be contracted out, and advised Muse of plans to get rid of Bob Morgan because of his union ac- tivity. Also, on 1 June and thereafter, Rick Lakey told Muse to stay away from Plumlee, clearly because of Plumlee's involvement with the Union, as Saum later ex- plained to Muse. I credit Muse's testimony regarding the 19 June em- ployee meeting and find that Saum told the employees that he knew of the union meeting the night before "be- cause his spies had let him know," thus creating the im- pression of surveillance of employees' union activity. I as Respondent's extensive evidence concerning the identification and alleged repairs of some 42 welds from 13 August to 6 November is con- tradicted by record testimony. Thus, for example , Fritz Flowers, called by the General Counsel, who was assigned to repair only one weld, cre- dibly testified that he repaired that single weld on 18 November , and the repair took less than an hour. Respondent's repair log shows, however, that Flowers spent 13 hours that day repairing four welds. I do not credit any of Respondent's evidence regarding the alleged repair of any of the welds. It is significant that none of the other welders who allegedly made the other 41 repairs were called as witnesses by Respondent. 517 find that Saum also said he could stall negotiations for 2 years, that he was withholding raises because of the up- coming election, and that he heard Muse was going to vote for the Union. Also at the aforementioned meeting, I find that Al Lakey told the employees that the fabrication shop would be closed if the Union won the election. More- over, I find that immediately prior to the election Al Lakey told the employees that if they voted for the Union they would be out of a job. Contrary to Respond- ent's contentions, I find that these statements of Lakey constituted direct threats rather than lawful predictions based solely on economic considerations. Immediately following the election, I find that Rick Lakey imposed more onerous working conditions on Gosseen and Rye by changing their actual working hours, disallowing coffee and soda pop on the job, re- quiring them to remain in their work area, and requiring them to increase production.Similarly, new and more on- erous working conditions were imposed on Muse by Rick Lakey at the same time.34 I find that on 1 July, Saum threatened Gosseen with arrest in retaliation for his union activity and, for the same reason, Al Lakey threatened Muse with more oner- ous working conditions. I find that on 2 July, Saum, for a discriminatory reason, threatened to have Plumlee arrested when he re- turned certain items to Respondent, interrogated Plumlee about his union activity, told Plumlee he would never work another nonunion job, and that the Respondent would never sign a contract. I credit Herd's testimony and find that on 11 July, Saum told Herd that he was not hiring Herd, a union member, because he did not want any more problems with the Union. On 28 July, Saum told Muse that Rick Lakey had re- taliated against Muse because Lakey thought Muse was going to vote for the Union as he had been observed as- sociating with Hank Plumlee. The foregoing findings of 8(a)(1) and (3) violations are based on the credited testimony of the named employees. I do not credit the testimony of Saum , Rick Lakey, and Al Lakey to the extent that their testimony differs with that of Hank Plumlee, Gosseen, Muse, and Herd, who impressed me as forthright and reliable witnesses with accurate recollections of the various events and conver- sations. E. The Representation Proceeding The Union challenged the ballots of John Sphuler, Larry Barnhart, Kevin Rye, and Al Lakey. The Board agent challenged the ballots of Donald Fox, Lloyd Par- rish Plumlee, Earl (Tom) Morgan, and Bobby Morgan. At the hearing it was agreed that the challenge to Al Lakey's ballot should be sustained as he is a supervisor. I shall also sustain the challenge to the ballot of Larry Barnhart, laborer foreman, as laborers are not included within the approximate unit and there is no evidence that 34 Such new working conditions also constitute violation of Section 8(ax3) of the Act. 518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent performed any unit work. The challenges to the ballots of John Sphuler and Kevin Rye are over- ruled, as the Union presented no evidence that these two employees were not eligible unit employees. The challenge to the ballots of Donald Fox, Lloyd Parish Plumlee, Earl (Tom) Morgan, and Bobby Morgan are overruled, as the record shows that they are eligible unit employees who were unlawfully discharged prior to the election. Respondent offered evidence in support of only one of its election objections. The objection is as follows: 2. The Union, by and through its agents, officials, representatives, employees and/or supporters, un- lawfully promised to waive or reduce substantially initiation fees for employees who joined the union prior to the election. It was stipulated that the testimony of Union Business Agent Waldbauer, who was present in the hearing room, would be as follows: that at one, or possibly two union meetings Waldbauer told the employees that the Union had a special organizing initiation fee, and that members of the bargaining unit could join the Union for $200 as long as they join the Union within 8 days of when a con- tract was signed between the Union and Adscon; and further, that Waldbauer said nothing else about organiz- ing fees. Several employees testified on this matter. I credit the testimony of Hank Plumlee and Don Fox, who specifi- cally recalled that Business Agent Waldbauer stated that the offer for reduced initiation fees extended beyond the election. Parish Plumlee could not recall Waldbauer es- tablishing a time limit for reduced initiation fees, and ap- parently thought the offer was for an indefinite time. Tom Morgan's testimony on this matter indicates that he had only a vague recollection of Waldbauer's actual statements. On the basis of the foregoing I find that the Respond- ent has not sustained its burden of proof and recommend that this election objection, 96 as well as the other elec- tion objections, on which no evidence was offered, should be overruled. It is also recommended that this matter be remanded by the Board to the Regional Director for Region 19, di- recting that the ballots of John Sphuler, Kevin Rye, Donald Fox, Lloyd Parish Plumlee, Earl (Tom) Morgan, and Bobby Morgan be opened and counted, and that a revised tally of ballots be prepared and served on the parties. If the revised tally reveals that the Petitioner has received a majority of the valid ballots cast, the Regional Director shall issue a certification of representative. If the revised tally shows that the Petitioner has not re- ceived a majority of the valid ballots cast, the Regional Director shall set aside the election results, dismiss the petition, and vacate the proceedings. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Because I have found that the Respondent has en- gaged in certain unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act, I shall recom- mend to the Board that the Respondent be ordered to cease and desist from engaging in such unfair labor prac- tices and to take affirmative action designed to effectuate the policies of the Act, including the posting of an ap- propriate notice attached as "Appendix," and the mailing of the notices to all employees. I shall recommend to the Board that the Respondent be ordered to offer Hank Plumlee, Bob Morgan, Earl (Tom) Morgan, Jim Muse, Don Fox, and Randy Gosseen immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions of employment, without the loss of their senior- ity or any other rights and privileges. I shall further rec- ommend that Respondent hire Dean Herd to the position for which he would have been hired, with seniority and other benefits beginning on the date he would have been hired. I shall further recommend to the Board that the Re- spondent be ordered to make whole the aforementioned employees, and also Parish Plumlee, for any loss of earn- ings and other benefits resulting from the discrimination against them. Backpay is to be computed in accordance with the Board's decision in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest on such backpay to be computed in accordance with the Board's decision in New Horizons for the Retarded, 283 NLRB 1173 (1987.)36 In accordance with the Board's decision in Sterling Sugars, 261 NLRB 472 (1982), I shall recommend to the Board that an expunction remedy be included in the Order. The General Counsel has requested that a visitatorial clause be included in the Order in this case. This request should appropriately be addressed to the Board. [Recommended Order omitted from publication.] 3e Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest accrued before 1 January 1987 (the effective as See Savair Mfg. Co., 414 U.S 270 (1973). Cf. Crane Co., 225 NLRB date of the amendment) shall be computed as in Florida Steel Corp., 231 657 (1976). NLRB 651 (1977)