Amason, Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1984

269 N.L.R.B. 750 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amason, Incorporated and Local No. 1, Internation-
al Union of Bricklayers & Allied Craftsmen,
AFL-CIO. Cases 11-CA-10638 and 11-CA-
10712
30 March 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 22 September 1983 Administrative Law
Judge Richard A. Scully issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,I and
conclusions 2 and to adopt the recommended
Order. 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Amason, In-
corporated, Ladson, South Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order, except the attached notice is
substituted for that of the administrative law judge.
I The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
s In concluding that the Respondent violated Sec. 8(aXl) by illegal
surveillance of employees at two union meetings, the judge found the co-
ercive effect of the surveillance "readily apparent." A violation, howev-
er, need not be predicated on such a finding of actual coercive effect. It
is well settled that it is not the actual effect of an employer's conduct that
determines an 8(a)(1) violation, but the tendency of such conduct to
interfere with the free exercise of employee rights under the Act. A.A.
Superior Ambulance Service, 263 NLRB 499 (1982); American Freightways
Co., 124 NLRB 146 (1959).
Inasmuch as the Respondent's discharge of Smoot independently vio-
lated Sec. 8(aXI) of the Act, we find it unnecessary to consider whether
the Respondent's conduct also violated Sec. 8(aX4). See H. H. Robertson
Co., 263 NLRB 1344 (1982); Oil City Brass Works, 147 NLRB 627 (1964),
enfd. 357 F.2d 466 (5th Cir. 1966); Better Monkey Grip Co., 115 NLRB
1170 (1956), enfd. 243 F.2d 836 (5th Cir. 1957). In reaching this decision,
we do not find it necessary to rely on the judge's citation of General Nu-
trition Center, 221 NLRB 850 (1975).
s We have modified the judge's notice to conform with his recom-
mended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interrogate our employees con-
cerning their union membership or activities.
WE WILL NOT engage in unlawful surveillance of
our employees' union activities.
WE WILL NOT discharge or otherwise discrimi-
nate against our employees or supervisors because
they furnish information to the National Labor Re-
lations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Thomas Smoot Jr. immediate and
full reinstatement to his former position of employ-
ment or, if that position no longer exists, to a sub-
stantially equivalent position of employment, with-
out prejudice to his seniority or other rights and
privileges previously enjoyed, and WE WILL make
him whole for any loss of pay resulting from his
unlawful discharge, plus interest.
WE WILL expunge from our files any reference
to the unlawful discharge of Thomas Smoot Jr. on
November 18, 1982, and WE WILL notify him that
this has been done and that evidence of this unlaw-
ful discharge will not be used as a basis for future
personnel actions against him.
AMASON, INCORPORATED
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge.
Upon charges filed on October 12 and December 6,
1982, by Local No. 1, International Union of Bricklayers
& Allied Craftsmen, AFL-CIO (the Union), the Regional
Director for Region 11 of the National Labor Relations
Board (the Board), issued a consolidated complaint on
January 13, 1983, alleging that Amason, Incorporated
(the Respondent) had committed certain violations of
Section 8(a)(1) and (4) of the National Labor Relations
Act (the Act). The Respondent has filed an answer deny-
ing that it has committed any violation of the Act.
A hearing was held in Charleston, South Carolina, on
January 27 and 28, 1983, at which the parties were given
a full opportunity to participate, to examine and cross-ex-
amine witnesses, and to present other evidence and argu-
ment. Briefs submitted on behalf of the parties have been
269 NLRB No. 135
750
AMASON, INC.
given due consideration. On the entire record and from
my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
At all times material, the Respondent was a Georgia
corporation engaged in masonry construction work at
various locations, including a school construction project
at Ladson, South Carolina. During the 12-month period
preceding January 13, 1983, a representative period, the
Respondent, in the course and conduct of its business,
performed services valued in excess of $50,000 in States
other than South Carolina. The Respondent admits, and
I find, that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find, that at all times
material the Union was a labor organization within the
meaning of Section 2(5) of the Act.
I111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent has a contract for the masonry con-
struction work at the Stratford High School being built
at Ladson, South Carolina. In May 1982,1 Union Presi-
dent and Business Manager Charles Dingle was contact-
ed by employees of the Respondent concerning represen-
tation by the Union. Dingle obtained the requisite
number of signed authorization cards and, on August 19,
filed a representation petition with the Board in Case 11-
RC-5100. There was a Board hearing in that case on
September 8 and an election was held on October 19.
The Union was certified as the bargaining representative
of all bricklayers, welders, and apprentices employed by
the Respondent at the Stratford High School project and
at a parking garage project in Charleston, South Caroli-
na. Dingle testified that shortly after he filed the petition
with the Board he had a telephone conversation with
William Amason, who is one of the owners and an ad-
mitted agent of the Respondent, in which Amason told
him that the Respondent was a nonunion contractor and
was going to stay that way. Amason said that he was "a
mean Georgia cracker" and told Dingle to "get those
damned cards out of Winston-Salem or I'll kick your
ass." Amason also threatened to sue Dingle as an individ-
ual if he did not withdraw the authorization cards from
the Board's Regional Office. Amason did not deny
making these remarks to Dingle, and I credit Dingle's
testimony.
Thomas Smoot Jr. has been a brick mason for over 27
years and has worked for the Respondent on four differ-
ent construction projects since April 1981. During the
last 5 months on the first project and on the second
project, Smoot worked as a brick mason foreman. On
the third job, which lasted about a month, and when he
I Hereinafter, all dates are in 1982.
began working at Stratford High School in May 1982, he
worked as a brick mason but was not a foreman. He
became a foreman on the Stratford job on September 21.
B. Interrogations
Smoot testified that during June he was involved with
the Union's attempt to organize the Respondent's em-
ployees at the Stratford job, speaking to employees about
the advantages of the Union, attending meetings, and
passing out authorization cards for the employees to sign.
During the first week of August, he had a conversation
with Paul Ashley, who is a vice president of the Re-
spondent and at that time was the supervisor on the
Stratford job. Ashley asked Smoot if he was a member
of the Union and Smoot said he had not been a member
for quite some time. Ashley then asked Smoot if he knew
"about cards being circulated on the job." Smoot said
that he did not and Ashley left. On direct-examination,
Ashley generally denied that he had interrogated any-
body about union activities, but was not specifically
asked about a conversation with Smoot. On cross-exami-
nation, he stated that there had been union talk on the
job for a long time and that he had heard employees, in-
cluding Smoot, talk about it. Ashley said he might have
talked with Smoot about the Union, but he could not re-
member any specific conversation. He denied that he had
any interest in whether there was union activity on the
job.2 Having observed their demeanor while testifying,
and considering the content, I credit Smoot's testimony,
which was straightforward and convincing, over the un-
certain, generalized denials of Ashley and find that
Ashley did question Smoot about the Union and that
such interrogation violated Section 8(a)(1) of the Act.3
Smoot also testified that on September 6 Foreman
Shellree Gaines had a conversation with him at the
Stratford jobsite. Gaines said that he had heard that
there had been a meeting down at the store, which
Smoot acknowledged, and asked Smoot if there were
enough men for the job to go union if an election were
held. Smoot told Gaines he was sure there were and
I I find this incredible, given William Amason's testimony concerning
the Respondent's intention to remain "an open shop company" and its
willingness to do "whatever is necessary" to achieve that end, as well as
his similar comments to Union President Dingle after the petition was
filed, not to mention the emphatic manner in which they were phrased.
s At the time of this interrogation and that by Foreman Gaines, dis-
cussed infra, Smoot was working as a brick mason and layout man and
not as a foreman, although the Respondent paid Smoot at the same rate
he had received while working as a foreman on an earlier project. Ac-
cording to Smoot, the Respondent's policy was that when a foreman
goes to another job and is going to be put back into a foreman position
again, his rate of pay remains the same even though he is doing rank-and-
file work. Apart from receiving a slightly higher rate of pay (S10 versus
$9.40 per hour), there is no evidence that Smoot had any of the responsi-
bilities, performed any of the duties, or in any way served in the capacity
of a foreman while on the Stratford project prior to being made the fore-
man of a crew on September 21. Salary is a factor to be considered in
determining supervisory status. Para-Chem Southern, Inc., 258 NLRB 265
(1981). However, under the circumstances presented here, the fact that
Smoot possessed none of the aspects of supervisory authority referred to
in Sec. 2(11) of the Act outweighs his wage rate in determining whether
he was a supervisor. The fact that he had a prospect of being elevated to
a supervisory capacity with the Respondent is not indicative of supervi-
sory status. Fred Rogers Co., 226 NLRB 1160 (1976). 1 find that Smoot
was not a supervisor when these interrogations occurred.
751
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gaines said he hoped so because he had a union card
himself. Gaines asked Smoot if he had signed a card and
Smoot said that he had. Gaines also asked who had
passed out the union cards and how many employees
had signed cards, but Smoot said he did not know.
Gaines testified that he had been a foreman for the Re-
spondent for 3 years, including all of the time he was on
the Stratford project. He denied that he had interrogated
anyone. On cross-examination, Gaines said that he had a
conversation about the Union with Smoot, but said that
Smoot had come to him and asked him how he felt
about the Union. After that Gaines asked Smoot, "what
do the guys think about it?"
I credit the testimony of Smoot over that of Gaines.
Gaines admitted that his conversation with Smoot oc-
curred about a week after he heard a rumor that the em-
ployees had had a meeting at a nearby store called the
Zippy Mart and that they were trying to form a union. I
find it unlikely that Smoot would bring up the subject of
the Union with a foreman or would ask Gaines how he
felt about it, particularly after having been questioned
about it by Ashley. Gaines' questions about how many
employees had signed cards and who had passed them
out went well beyond simply answering how he felt
about the Union, if Smoot had, in fact, asked him that
question.
The record fails to disclose any legitimate purpose to
the questioning of Smoot about union activity at the
Stratford project by either Ashley or Gaines. The fact
that no threats were made during the course of the con-
versations with Smoot and the fact that Smoot affirma-
tively responded to Gaines' inquiry about whether he
had signed an authorization card did not remove the co-
ercive nature of the interrogations. 4 These inquiries,
even if seemingly motivated only by curiosity, reason-
ably tend to interfere with the free exercise of an em-
ployee's protected rights.5 I find that the Respondent
violated Section 8(a)(1) of the Act by its supervisors' in-
terrogations of Thomas Smoot.
C. Surveillance
Charles Dingle testified that, on October 6, he was
holding a meeting with about 20 of the Respondent's em-
ployees, after work, on a dead end dirt road near the
Zippy Mart,6 which is about one-half mile from the
Stratford jobsite. During the course of the meeting,
Dingle observed Paul Ashley drive into the parking lot
of the Zippy Mart in a pickup truck, enter the store, and
come out with a drink in his hand. Dingle was acquaint-
ed with Ashley and had talked with him on several occa-
sions on different jobs in the area. Ashley sat in his truck
and observed the meeting for about 30 minutes. On the
following day, Dingle held another meeting, after work,
at the same location with about 18 of the Respondent's
employees. Ashley pulled into the Zippy Mart parking
lot driving a van with a woman and small children in it.
4 Raley's Inc., 256 NLRB 946, 954 (1981).
' Shirn Shed. Inc., 252 NLRB 292, 301 (1980).
' This was the first meeting at the Stratford job that Dingle attended
although the employees had previously held union meetings at the same
location.
After returning to the van from the store, Ashley ob-
served the meeting for a while and then drove over to
the dirt road where the meeting was going on. Dingle
and Ron Anglin, another union representative, left the
meeting and walked over to where Ashley had parked
and had a conversation with him which lasted about 20
minutes.
Paul Ashley testified that, on October 6, he pulled into
the Zippy Mart, which is located across the road from
the housing development in which he lives and where he
stops almost every day on his way home. He noticed
several of the Respondent's employees on an adjoining
road drinking beer. He drove over to where the employ-
ees were congregated and Ron Anglin came over to him
and offered him a beer. Ashley declined the offer and
left. Ashley denied that he knew that there was a union
meeting going on when he approached. He stated that
when he saw the men there he thought they were having
a beer party and "wanted to be in on it." He said that he
saw the employees at the same spot on several occasions,
but could not recall exactly when.
Based on their demeanor while testifying and the con-
tent of their testimony, I found Dingle to be a more
credible witness than Ashley. Although he was undoubt-
edly aware of the Union's representation petition, filed
on August 19, Ashley testified that he thought the men
were simply having a beer party and did not know that
it was a union meeting. However, Foreman Shellree
Gaines was aware that a union meeting had been held at
the Zippy Mart in early September shortly before he had
questioned Thomas Smoot. I find it unlikely that Ashley,
who was the project superintendent at that time, would
not also have been aware of the fact that union meetings
were being held at the Zippy Mart or aware of the
rumor about such a meeting that Gaines had heard.
Ashley admitted first observing the meeting from 20 to
25 yards away before going over to it. Although he said
he did not notice Dingle and Anglin before he got'to the
meeting, it is difficult to believe he could make out the
identities of the employees at the meeting and determine
that they were drinking beer, but not see either Dingle
or Anglin.
Based on the credited, detailed testimony of Dingle, I
find that Ashley did observe the meeting on October 6
from the Zippy Mart parking lot. Even if he were there
solely by virtue of the fact that he stops at the store
every day, there was no reason why he would sit in the
parking lot for 30 minutes except to observe the union
meeting. On the following day, Ashley first observed the
meeting from the Zippy Mart and then drove over to
where the employees were standing. I find it unlikely
that Ashley, although uninvited, would take a woman
and small children, presumably his family, into a crowd
of men standing around drinking beer, because he
wanted to take part in a beer party. I find it much more
likely that he wanted to be sure that any employees who
might not have seen him at the Zippy Mart were aware
that he had observed their participation in a union meet-
ing. Coming less than 2 weeks before the scheduled rep-
resentation election, the coercive effect of such surveil-
lance is readily apparent. I find that the Respondent vio-
752
AMASON, INC.
lated Section 8(a)(1) of the Act by Ashley's surveillance
of union meetings on October 6 and 7.
D. The Discharge of Thomas Smoot Jr.
The consolidated complaint alleges that Thomas
Smoot was discharged by the Respondent because he
gave testimony to the Board in the form of an affidavit
and that this discharge violated Section 8(a)(l) and (4) of
the Act. Although Smoot was made the foreman of a
brick mason crew on September 21 and served in that
capacity until his termination, at the time he gave the af-
fidavit to a Board agent, September 15, he was not a su-
pervisor. In any event, if Smoot were discharged because
he gave an affidavit or otherwise cooperated with the
Board during the course of its investigation, it would be
a violation of the Act regardless of whether or not he
was a supervisor since the effect of such a discharge:
. . .is to tend to dry up legitimate sources of infor-
mation to Board agents, to impair the functioning of
the machinery provided for the vindication of em-
ployees' rights and, probably, to restrain employees
in the exercise of their protected rights.7
On November 16, a Board agent met with William
Amason, Paul Ashley, and Shellree Gaines, at the Re-
spondent's office in Charleston to discuss alleged inci-
dents of interrogation by Ashley and Gaines. In the
course of those discussions, Thomas Smoot was the only
employee whose name was mentioned in connection
with the interrogations. Amason denied that the Board
agent specifically mentioned Smoot in discussing the in-
terrogations and Ashley said he could not recall. Howev-
er, Gaines admitted that he was asked about whether he
had a conversation with Smoot. Two days after this
meeting with the Board agent, Smoot was called into the
office of the Respondent's project supervisor, Donald
Arrigo, and was discharged. According to Smoot,
Arrigo told him he was being terminated because he was
not meeting the production the Company had set for him
and it was company policy not to put a foreman back in
a crew. Arrigo gave Smoot a termination slip which
stated that his services were no longer required because
he was "not meeting job schedules and job require-
ments."
Although Amason denied that he became aware on
November 16 that Smoot had talked with the Board
about the interrogations by Ashley and Gaines, such a
conclusion is almost inescapable. As noted above, Smoot
was the only employee whose name was mentioned in
the course of the discussion about the interrogations. I
have found that Ashley and Gaines did, in fact, interro-
gate Smoot about union activity. While Amason may not
have known that Smoot had actually given the Board an
affidavit, it was obvious that the source of the Board's
information about the interrogations had to have been
Smoot. The timing of an adverse action can be persua-
' NLRB v. Electro Motive Mfg. Co., 389 F.2d 61, 62 (4th Cir. 1968).
Accord: City Brass Works v. NLRB, 357 F.2d 466 (5th 1966); H. H. Rob-
ertson Co., 263 NLRB 1344 (1982).
sive evidence of an employer's motivation.8 Here, the
discharge of Smoot only 2 days after the Respondent
learned that he had furnished information to the Board
clearly supports the inference that Smoot was terminated
because of that fact and makes out a prima facie case
that his discharge was a violation of the Act.9
Arrigo's comments to Smoot at the time of the dis-
charge and the language of the termination slip Smoot
was given indicate that Smoot was discharged because
his crew was not meeting its production schedules.
When called as a witness by the Respondent, Arrigo tes-
tified that he fired Smoot because of "bad workman-
ship." Only in response to leading questions by William
Amason, who was representing the Respondent, did
Arrigo make any reference to low production as a reason
for Smoot's discharge. The Respondent also placed in
evidence certain company records which purportedly
show that Smoot's production was deficient.' 0 On cross-
examination, Arrigo testified that failure to meet produc-
tion had nothing to do with Smoot's discharge, which he
attributed solely to the poor quality of the work done by
Smoot's crew. This is not surprising in view of Smoot's
credible testimony that he never had a discussion with
Arrigo about production schedules until November 17,
when Arrigo told him that the part of the building
Smoot was working on had to be finished by December
10. Smoot was fired the following day. Based on Arri-
go's unequivocal denial and the lack of any probative
evidence that Smoot failed to meet production schedules,
I find the Respondent's reliance on that reason as cause
for firing Smoot to be a pretext. The reason given by
Arrigo, poor quality workmanship by Smoot's crew, is
likewise suspect.
On direct examination Arrigo testified that on more
than one occasion poor quality work done by Smoot's
crew was pointed out to him by the architect and the
construction manager on the project and that he, in turn,
showed it to Smoot. Arrigo was unable to give any dates
when this happened. When pressed for details on cross-
examination, Arrigo said that Smoot's work was good up
until about 2 weeks before he was fired. He said he
spoke to Smoot about poor work every day during the
last week Smoot was on the job, but he was unable to
remember where the conversations occurred or what
was said. Although he said that the work was so bad the
last 2 or 3 days that he was forced to let Smoot go, he
could not specify what brought about this decision other
than to say generally that Smoot's men were not finish-
* South Nuaou Communities Hospital, 262 NLRB 1166 (1982); Lime-
stone Apparel Corp., 255 NLRB 722, 736 (1981).
g See Wriglr Line, 251 NLRB 1083 (1980).
'o The records submitted are not conclusive proof of anything. While
they show that some weeks Smoot's crew lost money under the Re-
spondent's system of accounting, there is no indication that Smoot's pro-
duction was significantly lower in November than in previous weeks.
There is no valid basis for comparison of Smoot's production figures with
those of other foremen since there is no way of knowing what kind of
work each crew was doing during a given period. There was evidence
that Smoot's crew worked on more difficult areas of the building. such as
bathrooms, which have short walls and in which allowances must be
made for pipes and fixtures. At the same time, another crew might be
working on a less complicated part of the project which could account
for more bricks or blocks being laid in the same period of time.
753
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing work properly, not firestopping walls, not cutting
mortar off the walls, and not filling joints properly. Al-
though Arrigo said that he had to tear down a bad sec-
tion of a wall Smoot's crew had put up, he never identi-
fied where this wall was located, but said he found it
"possibly Wednesday of the week before I let Smoot
go." Smoot, however, candidly and credibly testified
that his crew had put up three walls that were improper-
ly laid out and had to be torn down, two in late Septem-
ber and one in October. He was not aware of any other
wall which had to be torn down. According to Arrigo's
testimony, he found no fault with any of Smoot's work
in September or October. It seems reasonable that if
Arrigo had found a wall so defective that the architect
demanded that it be removed a week before Smoot was
fired, he would have discussed it with Smoot. There is
no evidence that he did. The only specific instance
wherein Arrigo actually called Smoot's attention to al-
leged poor quality work, established in the record, was
on November 17 when Arrigo told Smoot that a wall in
a bathroom in section A of the building had not been
properly firestopped. Smoot told Arrigo that he already
had a man working to correct it." There was undis-
puted evidence that the quality of the Respondent's ma-
sonry work on the Stratford project was so poor that it
was once in danger of being thrown off the project. Nu-
merous walls had to be torn down and replaced because
they did not have the seismic reinforcement required by
the project plans. In the face of such evidence, it is diffi-
cult to believe that failure to firestop a wall was deemed
so serious a failing as to warrant Smoot's discharge.
The Respondent called as a witness Anthony Mag-
lione, the architect's representative on the Stratford
project, in an effort to support its claim that Smoot was
responsible for poor quality work. While Maglione con-
firmed that he had found and pointed out defective work
done by the Respondent, he could not recall ever point-
ing out defective work to Smoot, personally, and was
unable to identify any specific area in which Smoot's
crew had done work where poor quality work was
found. Interestingly, the only one of the Respondent's
foremen that Maglione could specifically recall being re-
sponsible for poor quality work was Shellree Gaines,
who is still employed by the Respondent.
James Spencer, the construction manager on the Strat-
ford project, testified that he had found problems with
work done by Smoot's crew and had reported it to
Smoot on one occasion and to Arrigo at other times. He
was unable to say how many times this happened or to
say when it occurred other than having spoken to Smoot
shortly after he became a foreman, which would appear
to coincide with the time in late September when, as
Smoot acknowledged, his crew put up bad walls. Spen-
cer's testimony does not provide any support for Arri-
go's claim that during the last 2 weeks and, particularly,
the last 3 days that Smoot was on the job, the work his
crew did was so bad as to compel his firing. Spencer
mentioned an area on the first floor of section B of the
building as the last area on which Smoot's crew
" This incident was described by Smoot, Arrigo apparently did not
recall it.
worked' where he found defective work and ordered it
repaired. Arrigo, however, testified that Smoot was
working in bathrooms in section A when the problems
which he found so significant arose.
Every witness who was familiar with Smoot's masonry
work testified that he was a highly qualified brickmason
and layout man. In view of this, it is difficult to under-
stand why, whatever his shortcomings as a foreman, the
Respondent, which was plagued throughout the Strat-
ford project by poor quality work by its masons, would
fire Smoot rather than relieve him of his supervisory
duties and put him back to work as a brickmason. Al-
though Arrigo told Smoot there was a "company policy
to not place a foreman back in a crew," Smoot had been
a foreman with the Respondent on previous projects but
had worked as a member of a crew on one subsequent
project and on the Stratford project for several months
before taking over as a foreman. Also, in contrast to
Smoot, Foreman Robert Wilson, whose crew built two
walls without reinforcing bars, which had to be torn
down when Arrigo returned from his vacation and dis-
covered them, is still employed by the Respondent as a
supervisor at another project although, according to
Arrigo, "he'll never come back there [Stratford.]" The
clear inference, which I draw from the Respondent's in-
ability to support either of the reasons it gave for
Smoot's discharge, is that having learned that Smoot had
given information to the Board in support of the Union's
unfair labor practice charges against it, the Respondent
wanted him off the Stratford project and out of its
employ.
As noted above, one of the Respondent's alleged rea-
sons for firing Smoot, failure to meet production sched-
ules, has been disavowed by Arrigo, the man who fired
him. Its other reason, that Smoot permitted his men to
do poor quality work during his last 2 weeks on the job
to an extent that Arrigo was compelled to fire him is not
borne out by the evidence in the record. It is well estab-
lished that where the stated motive for a discharge is
false, another motive may be inferred from the facts in
the record as a whole.'3 I find that the evidence as a
whole fails to establish that the Respondent would have
discharged Thomas Smoot on November 18 had it not
learned that he had cooperated with the Board by giving
information in support of the Union's unfair labor
charges against it. Accordingly, I conclude that the Re-
spondent discharged Smoot because of his cooperation
12 Although Spencer referred to poor work done by Smoot's crew, it
appears that his conclusion was based on the fact that Smoot's crew
worked in the particular area involved rather than on direct knowledge
of what work Smoot's crew actually did, as evidenced by the following
testimony:
Q. [By Mr. Favors.] How did you know Mr. Smoot was responsi-
ble for that?
A. I don't know he was responsible for it. The only thing that I
know is he was assigned to that area. I don't know whether he done
it or somebody else done it. All I know is that he was assigned to
that area. I don't know who done it, really. All I know is that Mr.
Smoot was assigned to that particular area.
Q. So some other foreman could have done it?
A. I have no knowledge of that. All I know is that Mr. Smoot was
assigned to that area. Anybody could have done it.
iS Shattuck Denn Mining Corp. v. NLRB, 363 F.2d 466 (9th Cir, 1966).
754
AMASON, INC.
with the Board's investigation in violation of Section
8(a)(l) and (4) of the Act. x4
CONCLUSIONS OF LAW
1. The Respondent, Amason, Incorporated, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 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 violated Section 8(a)(l) of the Act
by:
(a) Interrogating an employee concerning his union
membership and activities.
(b) Engaging in surveillance of its employees' union
activities.
(c) The Respondent violated Section 8(a)(1) and (4) of
the Act by discharging Thomas Smoot Jr. because he
gave information to the Board during the course of its
investigation of unfair labor practice charges.
4. The unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that the Respondent has violated the
Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having also found that the Respondent discharged
Thomas Smoot Jr. in violation of Section 8(a)(1) and (4)
of the Act, I shall recommend that it be ordered to offer
Smoot immediate and full reinstatement to his former po-
sition, without prejudice to his seniority or other rights
and privileges, and to make him whole for any loss of
earnings he may have suffered by reason of the discrimi-
nation against him. Backpay shall be computed in the
manner prescribed in F. W Woolworth Co., 90 NLRB
289 (1950), with interest to be paid on the amount owing
in accordance with Florida Steel Corp., 231 NLRB 651
(1977). 1 5 The Respondent should also be ordered to ex-
punge from its records any references to the unlawful
discharge of Smoot and not to use it as a basis for future
personnel actions against him. 1
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended l '7
4 General Nutrition Center, 221 NLRB 850 (1975).
I' See generally Isis Plumbing Co., 138 NLRB 716 (1962).
'6 Sterling Sugars, 261 NLRB 472 (1982).
"t If no exceptions are filed as provided in Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, Amason, Incorporated, Ladson,
South Carolina, its officers, agents, successors, and as-
signs, shall
I. Cease and desist from
(a) Unlawfully interrogating employees concerning
their union membership or activities.
(b) Engaging in unlawful surveillance of employees'
union activities.
(c) Discharging or otherwise discriminating against
employees or supervisors because they have furnished in-
formation to the Board.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act.
(a) Offer Thomas Smoot Jr. immediate and full rein-
statement to his former position of employment or, if
that position no longer exists, to a substantially equiva-
lent position of employment, without prejudice to his se-
niority or other rights and privileges previously enjoyed,
and make him whole for any loss of wages he may have
suffered by reason of his unlawful discharge, in accord-
ance with the recommendations set forth in the section
of this decision entitled "The Remedy."
(b) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Expunge from its records and files any references
to the discharge of Thomas Smoot Jr. and notify him in
writing that this has been done and that evidence of this
unlawful discharge will not be used as a basis for future
personnel actions against him.
(d) Post at its facilities in Ladson and Charleston,
South Carolina, copies of the attached notice marked
"Appendix."' s Copies of notice on forms provided by
the Regional Director for Region 11, after being signed
by Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
be maintained 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 said notices are not al-
tered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
755