Andersen, B. B., Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jul 8, 1982

262 N.L.R.B. 721 (N.L.R.B. 1982)

B. B. ANDERSEN CONSTRUCTION CO., INC.
B. B. Andersen Construction Co., Inc. and Charles
R. Mayberry. Case 17-CA-10196
July 8, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On January 14, 1982, Administrative Law Judge
Clifford H. Anderson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order,' as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
B. B. Andersen Construction Co., Inc., Arkansas,
Kansas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs accordingly:
"(c) Expunge from its files any reference to the
discharge of Charles R. Mayberry on February 16,
1981, 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 ac-
tions against him."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I' n accordance with his dissent in Olympic Medical Coretion,. 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
262 NLRB No. 91
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT terminate employees because
they protest our work assignments.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
them in Section 7 of the Act.
WE WILL offer Charles R. Mayberry imme-
diate and full reinstatement to his former posi-
tion of employment or, if that position no
longer exists, to a substantially equivalent posi-
tion.
WE WILL make Charles R. Mayberry whole
for any loss of pay he may have suffered be-
cause we unlawfully terminated his appoint-
ment together with appropriate interest.
WE WILL expunge from our files any refer-
ences to the disciplinary discharge of Charles
R. Mayberry on February 16, 1981, and WE
WILL notify him that this has been done and
that evidence of this unlawful discharge will
not be used as a basis for future personnel ac-
tions against him.
B. B. ANDERSEN CONSTRUCTION CO.,
INC.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge: I
heard this case in Topeka, Kansas, on October 29, 1981,
pursuant to a complaint and notice of hearing issued on
April 7, 1981, by the Regional Director for Region 17 of
the National Labor Relations Board (the Regional Direc-
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tor and the Board, respectively) based on a charge filed
on February 23, 1981, by Charles R. Mayberry, an indi-
vidual, against B. B. Andersen Construction Co., Inc.
(Respondent).
The complaint alleges that Respondent terminated em-
ployee Mayberry because of Mayberry's protected con-
certed and union activity in violation of Section 8(a)(3)
and (1) of the National Labor Relations Act. Respondent
avers that it fired Mayberry due to insufficient work
quantity and not for any reason prohibited by the Act.
All parties were given the opportunity to appear and
participate at the hearing, to introduce relevant evidence;
to call, examine, and cross-examine witnesses; to argue
orally; and to file briefs. Upon the entire record' includ-
ing the oral argument of Respondent and briefs from Re-
spondent and the General Counsel and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT2
I. JURISDICTION
Respondent is a Kansas state corporation engaged in
the construction industry as a general contractor at var-
ious jobsites in Kansas. In the course of its business oper-
ations, Respondent annually purchases goods and serv-
ices valued in excess of $50,000 directly from sources lo-
cated outside the State of Kansas.
II. THE LABOR ORGANIZATION INVOLVED
Carpenters Local 201, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO (the Carpenters),
is now and at all times material has been a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Respondent has at relevant times had collective-bar-
gaining contracts with the Carpenters and an unspecified
local of the Laborers' International Union of North
America (Laborers), with each Union representing em-
ployees in its particular craft. In January and February
1981,3 the period at issue herein, Respondent was en-
gaged in a high school construction project in Arkansas,
Kansas (the project).
William Lyden, Respondent's project superintendent,
had some 25 years' experience as a construction supervi-
sor and for some 30 years had been a member of Local
1445, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO. He had been superintendent since
the project's inception on September 1980. Under Lyden
was Carpentry Foreman (also sometimes referred to as
the general foreman) Christopher Reno, a 2-year member
of the Carpenters, who oversaw the work of Respond-
I Counsel for the General Counsel's unopposed motion to correct ty-
pographical errors in the transcript is hereby granted.
a Substantial portions of the following facts were admitted in the
pleadings, stipulated to by the parties, or testified to without challenge.
Where not otherwise specified, these findings are based on such unchal-
lenged evidence, stipulations, or admissions.
3 All dates hereinafter refer to 1981 unless otherwise specified.
ent's carpenter employees on the project. Charles May-
berry commenced work at the project as a carpenter on
January 23 and worked until his discharge on February
16. Robert Hutson commenced work at the project as a
carpenter on January 27, was appointed the Carpenters
job steward on February 6, and left the job on February
20.
During the relevant period, Respondent experienced
difficulty obtaining sufficient laborer employees through
the Laborers' hiring hall and was forced to obtain such
employees directly or "off the bank" as was allowed
under the collective-bargaining agreement. This difficul-
ty appears to have resulted from the distance of the
project from the metropolitan area where the union
hiring halls and the residences of the employees were lo-
cated. Employees preferred to work closer to their
homes and, apparently, closer work was available, thus
making Respondent's hire and retention of qualified em-
ployees on the project more difficult. Respondent experi-
enced the same difficulty with regard to carpenters. In-
adequate numbers of carpenters were available through
the Carpenters hiring hall, employee turnover was high,
and, in Project Superintendent Lyden's view, carpenter
employee qualifications and performance were a problem
at the project.
Save for the dispute involved in the instant case, there
was no evidence of institutional or ongoing conflict be-
tween the labor organizations representing Respondent's
employees at the project and Respondent. Nor was there
significant evidence of union animus directed at the Car-
penters or Laborers by Respondent's agents. To the con-
trary there was evidence that Respondent's superintend-
ent, Lyden, took a generally cooperative stance in deal-
ings with the employees' representatives.
B. Events Surrounding the Discharge
The causes of Mayberry's discharge asserted by the
General Counsel and Respondent may be separately dis-
cussed.
1. The General Counsel's version
The various construction crafts, including the Carpen-
ters, have traditionally performed certain work which
both the unions and their members regard as exclusively
their own.4 Respondent's carpenters at the project had
become concerned that noncarpenters were doing car-
penters' work. On Friday, February 6, carpenter Robert
Hutson, on his appointment as the Carpenters steward,
spoke with Project Superintendent Lyden about carpen-
ter employee unrest because of noncarpenters doing car-
pentry work on the project. Hutson recalled that Lyden
said that he was not going to fire the men whose work
was in dispute, adding that the men had a right to work
and a right to make a living. Hutson agreed, but asked
4 The Carpenters collective-bargaining agreement with Respondent
refers to jurisdictional disputes and provides for their resolution. The
basic proposition that craft unions and their members guard that which
they think is their work from perceived encroachment by other crafts is
amply demonstrated in the legislative history of Sec. 8(bX4XD) and Sec.
10(k) of the Act and a myriad of Board cases. It is here judicially noted
without further discussion.
722
B. B. ANDERSEN CONSTRUCTION CO., INC.
Lyden to "ask them to limit their activities to something
other than carpentry work."
Work ended early on Monday, February 9, due to a
heavy snowfall and no work was attempted on February
10 or II. On February 12, the carpenters drove to the
project but were told that the weather still prevented
work. While at the site, several carpenters, including
Mayberry, spoke with steward Hutson concerning var-
ious matters including their continuing complaint that
noncarpenters were engaging in carpenters' work on the
project. Later that day, Hutson spoke to Reno about the
employees' complaint, but was told by Reno to talk to
Superintendent Lyden about the matter. No work was
performed on Friday, February 13, or over the weekend.
On Monday, February 16, in the morning between 8
and 9, Hutson was approached by three carpenters in-
cluding Mayberry, each of whom complained to him
that laborer employee Sam Oakes was working with car-
pentry tools and doing carpenters' work. Hutton pro-
ceeded to the area where Oakes was working with sever-
al carpenters. He observed Oakes wearing a carpenter's
belt and nailing plywood into forms. Hutson then went
to Foreman Reno and complained to him that Oakes was
wearing a carpenter's apron and was doing carpentry
work when he should be working as a laborer. Reno re-
sponded that he would ask Lyden about the matter.
Hutson asked to be informed of Lyden's ultimate deci-
sion and Reno left for the construction office.
Some 20 to 30 minutes later, Hutson observed Lyden
and Reno leave the office and pass by him on the way to
the working area of the project. Hutson hailed Lyden,
who stopped to talk. Reno continued on. Hutson testified
that he asked Lyden what he had decided about Sam
Oakes. Lyden said that the man "has a right to work, to
make a living." Hutson responded:
We agree with that completely. We're not asking
you to fire him. We just feel that you would have a
lot better spirit among the men if you would ar-
range for him to do a lot of the work that can be
done, that needs to be done, without his being in-
volved in actual carpentry work.
Lyden responded that he would go talk to Oakes. Lyden
then left and Hutson returned to his work.5
Lyden went to the area where carpenters, including
Mayberry and Richard Bordeaux, and laborer Sam
Oakes were working. Lyden asked Bordeaux if Oakes
was doing carpentry work. Bordeaux told Lyden that
Oakes was not doing carpentry work but was helping
him. Mayberry testified that he then interrupted and told
Lyden that he thought Oakes should not be doing car-
penters' work. Mayberry recalled that Lyden then assert-
ed that Oakes had the right to carry the tools. Mayberry
replied that Oakes could carry the tools but should not
be doing carpentry work with them. The conversation
then ended.6
aThe events to this point are not in dispute and are based on the un-
contradicted credited testimony of the noted individuals. Lyden and
Reno either did not address the specific conversations described or gener-
ally adopted the earlier testimony of Hutson and Mayberry.
I I credit Mayberry as to these events His demeanor was convincing
and his recollection clear. Bordeaux essentially corroborated Mayberry's
Hutson testified that some 15 or 20 minutes after his
conversation with Lyden he observed Lyden running
across the construction site. Lyden then saw Hutson, and
ran up to him, and the two had a conversation. Hutson
testified that Lyden said, "I found my agitator and he'll
be laid off tonight." Lyden then told Hutson, in Hutson's
recollection, that Lyden had just met with the men and
had asked about Oakes. Lyden then described that earlier
conversation in a manner consistent with the testimony
of Mayberry, supra. Lyden continued, in Hutson's testi-
mony, saying that the things that were said in his meet-
ing with Mayberry:
. . . made him [Lyden] so mad that he was afraid
that he was going to explode and the reason that I
had seen him running across the job was that was
one way that helped to vent his anger.
Lyden did not have a clear recollection of his conversa-
tion with Hutson. He did not dispute Hutson's version of
events, however, save for Hutson's assertion that he had
been running immediately prior to the conversation.'
Lyden testified that his remarks to Hutson were in-
tended to describe and refer to an unrelated situation
concerning employee Terry Christianson, who had-in a
drunken state-arrived at work and, at one point, refused
to leave Lyden's office. Lyden thereafter refused to give
Christianson further work. No evidence was introduced
establishing further details regarding Lyden's encounters
with and ultimate discontinuance of Christianson's em-
ployment.
Just before the normal end of the working day on Feb-
ruary 16, Mayberry was directed to the office and was
there terminated by Lyden.6 Lyden testified that at the
time he fired Mayberry he had no knowledge of and did
not believe that the carpenters' complaints about Oakes
and other noncarpenters had come from or been caused
by Mayberry.
There is no dispute that at relevant times Lyden re-
garded Oakes as possessing the skills of a carpenter and
wished to employ him in that capacity. Lyden testified
that he intended to utilize Oakes in a laborer's capacity
until Oakes was issued a permit by the Carpenters which
would allow him to work on the job as a carpenter.
There is some confusion in the record regarding the
exact timing of Oakes' and Lyden's contacts with the
Carpenters, the Carpenters view of the Oakes' matter,
and subsequent developments. It seems clear and I find
however that, as of the time of the conversations be-
version of the conversation. Lyden's recollection was not complete. He
did recall his remarks to Bordeaux and Bordeaux's response as noted, but
could not recall Mayberry's part in the conversation. Further, as noted
infra, Lyden's later remarks to Hutson substantiate my finding concerning
Mayberry's comments here.
I I credit the testimony of Hutson as to these events as his memory
was sharp and firm and he demonstrated an unsually sound sad con-
vincing demeanor. Lyden's version is not inconsistent with Hutson's so
much as it is partial and somewhat vague. I discredit it where inconsis-
tent with Hutson's. With respect to Lyden's pace across the project prior
to the conversation, it is unnecessary to find the opposing characteriza-
tions inconsistent. Lyden was moving in apparent haste from Hutson's
perspective, even if that haste does not rise to the level of running. Clear-
ly, Lyden was heated and I so find.
These events are discussed in greater detail, infi.
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween Hutson and Lyden on February 16, Oakes had not
as yet obtained a Carpenters permit and Lyden knew
this. Reno, Lyden, and others testified that Oakes had
been told by Reno, at the start of the February 16 work-
day, to work as a laborer in assisting carpenters at the
project at Lyden's instruction.
2. Respondent's version
Charles Mayberry's immediate supervisor was Christo-
pher Reno. Reno testified that he observed Mayberry to
be a good average carpenter during his first week of em-
ployment, i.e., Monday, January 27, thru Friday, January
31,9 but that after that time Mayberry's quantity of
work--as opposed to quality-dropped off. Reno attrib-
uted this reduction to Mayberry's developing propensity
to walk about the project or stand about observing
events rather than attending to his production duties.
Mayberry and Reno each testified to a brief conversa-
tion occurring after a particular portion of an auditorium
structure at the project had been completed. Their ver-
sions agree that Mayberry complimented himself on the
quality of his own workmanship and that Reno answered
that no one disputed the quality of Mayberry's work.
Reno testified, however, that he also told Mayberry that
there was a problem with Mayberry's quantity of work
and that he should step up production. Mayberry did not
recall Reno's additional remark concerning his work
quantity.
Reno testified that some 3 days prior to Mayberry's
discharge he spoke to Lyden about Mayberry and other
employees, saying that they were not putting forth an
honest effort. Reno also mentioned that he had observed
Mayberry standing around on the job. Reno recalled that
Lyden responded that he would check out the situation
himself Lyden similarly recalled Reno's report on the
employees, placing the conversation as occurring 3 to 4
days before Mayberry's discharge in his direct examina-
tion and as 2 to 3 days under cross-examination. Lyden
testified that following Reno's complaint he observed
Mayberry at work and noticed on two or three occasions
that Mayberry would stand upright without productive
effort for 15 to 20 minutes at a time. He further testified
that based on Reno's complaints and his own observa-
tions he determined to terminate Mayberry.
Mayberry testified that late on February 16 he was di-
rected to the superintendent's trailer by Reno and there
had a conversation with Lyden. Lyden handed him his
paycheck and told him he was terminated. Mayberry
asked for the reason for his firing and Lyden responded
it was Respondent's termination policy number onet °
and directed Mayberry to the rules posted on the office
door. Mayberry read the rule and answered that he was
probably one of the more knowledgeable carpenters on
the job. Lyden said he did not doubt that but that he had
to get a carpenter who would do the job for him. May-
berry said that he was not aware that he had not done
the job. Lyden said that he could only take the word of
his general foreman and that he had been told that May-
g Mayberry was hired on Friday, January 23, but the record does not
Indicate if he actually worked that day.
'° Respondent's termination rule I in essence asserts that inadequate
quality or quantity of work is grounds for termination.
berry did nothing but walk around all day. More collo-
quy ensued, but Lyden in conclusion reasserted his posi-
tion saying that he had to take the word of his foreman.
Mayberry left the office. Mayberry testified that he re-
turned to the office a few minutes later and told Lyden
that he felt he had not been fairly treated and that he in-
tended to file a grievance. Lyden testified that he told
Mayberry he was fired pursuant to termination rule 1.
He did not differ with Mayberry's version of the conver-
sation save with respect to Mayberry's remark upon his
return to the trailer after being discharged. Lyden re-
called that Mayberry told him that he had not seen the
last of Mayberry.
C. Analysis and Conclusions
1. Legal sufficiency of the theories of the parties
The legal principles asserted by the parties in support
of their respective positions are neither novel nor sub-
stantially disputed. Clearly, if an employer terminates an
employee for perceived inadequacies in his production
the discharge is not improper. So, too, it is clear that if
an employee is discharged for asserting, in good faith,
contractual job assignment or work jurisdiction claims,
irrespective of the merit of those claims or assertions, the
Act is violated, for such conduct is union and protected
concerted activity. Clayton Construction Corporation, 250
NLRB 798 (1980), enfd. 652 F.2d 6 (8th Cir. 1981); Inter-
boro Contractors, Inc., 157 NLRB 1295 (1966), enfd. 388
F.2d 495 (2d Cir. 1967); Merlyn Bunney and Clarence
Bunney, Partners, d/b/a Bunney Bros. Construction Com-
pany, 139 NLRB 1516 (1962). Thus, it is not law but fact
which turns this case.
2. Resolution of conflicting versions of fact
In my view the issue in this case is whether the evi-
dence is sufficient to meet the General Counsel's burden
of proof to show that Lyden fired Mayberry because
Mayberry was revealed as the suspected cause or source
of discontent among carpenter employees. For the rea-
sons set forth infra, I find that Respondent, through
Lyden, fired Mayberry because of his assertions that un-
authorized individuals were doing carpenters' work. I
further find that Respondent's asserted reason for May-
berry's discharge, i.e., his lack of sufficient quantity of
work, was but a pretext seized on by Lyden to cloak his
illegal motive for the discharge.
There was no dispute that there was discontent among
the carpenters regarding the work done by Oakes and
others and that this unhappiness had been conveyed to
Respondent. Indeed, as to Oakes, Respondent had been
acting on the problem. It is also clear that Lyden and
Reno were particularly aware of the jurisdictional dis-
pute on February 12 and 16. The successive meetings of
Lyden, first with Reno, then with Hutson, then the car-
penters, and finally with Hutson again, make it clear: (1)
that Lyden learned that it was Mayberry, rather than
other carpenters like Bordeaux, who held the view that
Oakes should not be performing as he had been the
morning of February 16; (2) that Lyden was upset by
this knowledge; and (3) that he intended to fire the "agi-
724
B. B. ANDERSEN CONSTRUCTION CO., INC.
tator" forthwith. I reject Lyden's assertion that he had
no knowledge of Mayberry's views regarding Oakes'
work at the time he fired Mayberry. The credited testi-
mony of Hutson, Mayberry, and Bordeaux establishes
what took place on February 16. These events admit of
no other interpretation. Lyden's attempt to avoid the fair
meaning of his remarks to Hutson announcing his inten-
tion to fire the "agitator" is rejected. His suggestion that
he in fact was referring to a different employee, who had
been drunken and belligerent, is wildly improbable.
Lyden's demeanor during his testimony with respect to
this assertion was particularly weak. He seemed subdued
and even guilty in making his assertions regarding this
incident.
In making this determination I have considered the
evidence that neither Lyden nor Respondent, on this
record, had a history of opposition to trade unionism or
to the Carpenters in particular. I do not believe that
Lyden's hostility to Mayberry because Lyden believed
Mayberry was responsible for fomenting unrest concern-
ing carpenter work assignments is inconsistent with an
otherwise benign attitude toward employee union repre-
sentation or his own longstanding membership in a
union. Clearly, Lyden wanted Oakes to perform as a car-
penter and had been working to achieve that goal. His
pique at Mayberry because he believed he was raising
the matter and causing the steward to complain when
other carpenters like Bordeaux were willing to be more
flexible as to Oakes is not implausible and, on this
record, is conclusively demonstrated.
I reject Respondent's defense that it fired Mayberry
due to inadequate work in part because it is inconsistent
with the admission by Lyden to Hutson that Mayberry
was to be fired because of his agitation. Further, howev-
er, I also reject it based on the inherent improbabilty of
Lyden's version of events and his unpersuasive demeanor
during his testimony. There was credible testimony that
Reno had an adverse opinion of Mayberry's work quanti-
ty and expressed this opinion to Lyden about 3 days
before Mayberry's discharge. Lyden's statement to May-
berry when he fired him, that Reno thought little of him
and that Lyden felt it appropriate to back up his fore-
man, substantiates the assertion that Reno had com-
plained to Lyden. Yet it is also clear that I.yden as a
general practice and in particular with respect to May-
berry, told Reno that he would make his own decision
on Mayberry after making his own independent investi-
gation. Thus, it is clear and I find that Lyden would not
have fired Mayberry based on Reno's recommendation
without independently observing Mayberry's work. This
I find Lyden did not do until after he determined to fire
Mayberry because of his protected activity, if at all.
Lyden had virtually no opportunity to observe May-
berry's work between the time Reno complained to
Lyden and the time of Lyden's conversation with May-
berry, Bordeaux, and the others on February 16. There
was no carpenltry work done at the project between
February 6 and February 16. Nor did Lyden indicate to
anyone that he had personally observed Mayberry's
work until after the discharge. Lyden did not tell May-
berry on February 16 that he was firing him based on his
personal observation that Mayberry's work was insuffi-
cient. Lyden said only that his foreman held that view
and that he must back up his foreman. This omission is
evidence that, in fact, he had not observed Mayberry's
work. Lyden did not tell Hutson in their last conversa-
tion that he was going to fire Mayberry for any reason
other than his "agitator" status. Thus, I am convinced
that Lyden did not observe Mayberry, if he did at all,
until after he had announced to Hutson his determination
to fire Mayberry for being an agitator. Any observations
by Lyden after such an announcement must be heavily
discounted as post hoc attempts to justify a decision he
had already made and to cloak the true illegal motive
with a seemingly legitimate rationale. t l Thus, I find
Mayberry's productivity was not a factor in Respond-
ent's decision to fire him.
3. Summary and conclusion
I have found Mayberry was fired by Respondent not
due to inadequate productivity but rather because he
complained of noncarpenter employees including Oakes
doing carpentry work at the project. I have further
found that such activity was union and protected con-
certed activity. Accordingly, I find that Respondent in
firing Mayberry violated Section 8(a)(3) and (1) of the
Act.
IV. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found Respondent has terminated the employ-
ment of Charles R. Mayberry in violation of Section
8(aX)() and (3) of the Act, I shall order Repsondent to
offer him immediate and full reinstatement to his former
position of employment, or, if said position is no longer
available, to a substantially equivalent position, without
prejudice to any seniority or other rights and privileges
to which he may have been entitled. I shall also order
that Respondent make Charles R. Mayberry whole for
any loss of earnings he may have suffered by reason of
the discrimination against him. Said losses are to be com-
puted in the manner described in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), together with interest there-
on in accordance with the policy of the Board set forth
in Florida Steel Corporation, 231 NLRB 651 (1977); see
also Isis Plumbing & Heating Cc., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, and the entire
record herein, I make the following:
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Carpenters is a labor organization within the
meaning of Section 2(5) of the Act.
II It is also unlikely, given the shortage of skilled carpenters on the
payroll and their continuing unavailability through the hinng hall, that an
admittedly able carpenter like Mayberry would have been fired without a
warning from Lyden, even had Lyden in fact determined that Mayberry
was "standing around."
725
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discharging employee Charles R. Mayberry be-
cause he, in good faith, protested Respondent's assign-
ment of work to certain employees, Respondent termi-
nated an employee because of his protected concerted
and union activities, thereby violating Section 8(a)(l) and
(3) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, I
hereby issue the following recommended:
ORDER 1 2
The Respondent, B. B. Andersen Construction Co.,
Inc., Arkansas, Kansas, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because they protest Re-
spondent's work assignments.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following action necessary to effectuate
the policies of the Act:
(a) Post at its Arkansas, Kansas, high school project,
or, if such project no longer exists, its other jobsite or
'1 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings. conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
jobsites where employees represented by the Carpenters
are employed, the attached notice marked "Appen-
dix." 1 3 Copies of said notice on forms provided by the
Regional Director for Region 17, after being:duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereaf-
ter in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(b) Offer Charles R. Mayberry immediate and full re-
instatement 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, and make him
whole for any loss of wages he may have suffered by
reason of the discrimination against him, in the manner
set forth in the section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
's In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
726