Charles H. McCauley Associates, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1980

248 N.L.R.B. 346 (N.L.R.B. 1980)

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles H. McCauley Associates, Inc. and Richard
L. Beck. Case 10-CA-14423
March 12, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On November 20, 1979, Administrative Law
Judge Michael O. Miller issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief,' and the
General Counsel filed a brief in opposition to Re-
spondent's exceptions.
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
briefs and has decided to affirm the rulings, 2 find-
ings, 3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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 and
hereby orders that the Respondent, Charles H.
McCauley Associates, Inc., Birmingham, Alabama,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
i At the time that Respondent filed its exceptions to the Administrative
Law Judge's Decision, Respondent also filed a Motion for Summary
Judgment in which it contends that the case should be dismissed because
the Charging Party has refused Respondent's unconditional offer of rein-
statement. As indicated in fn. 2. infra, the issue of whether Respondent in
fact made an unconditional offer of reinstatement has not yet been re-
solved. Accordingly, we find no merit to Respondent's Motion for Sum-
mary Judgment, and it is hereby denied. However, even if the issue of
the alleged unconditional offer of reinstatement had been resolved in Re-
spondent's favor, we would still deny the motion, as the instant case in-
volves other issues which have been resolved contrary to Respondent.
2 We find no merit to Respondent's exception to the Administrative
Law Judge's ruling to exclude evidence of Respondent's alleged uncondi-
tional offer of reinstatement to the Charging Party. The Administrative
Law Judge properly ruled that the issue of an offer of reinstatement is a
matter best raised during the compliance stage of the proceeding. In addi-
tion, since the issue of the alleged offer of reinstatement has not been re
solved, we also find no merit to Respondent's request, in the alternative.
that the language in the Administrative Law Judge's recommended
Order be modified by conditioning the order of reinstatement with the
phrase "to the extent it has not done so."
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
248 NLRB No. 47
DECISON
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: This
case was heard in Birmingham, Alabama, on August 8,
1979, upon a charge filed by Richard L. Beck, an indi-
vidual, herein Beck, on Februrary 28, 1 9 7 9 ,' and a com-
plaint issued by the Regional Director for Region 10 of
the National Labor Relations Board, herein the Board,
on April 9.
The complaint alleged that Charles H. McCauley As-
sociates, Inc., herein Respondent, violated Section 8(a)(1)
and (3) of the National Labor Relations Act, as amend-
ed, herein the Act, by prohibiting its employees from en-
gaging in union or other protected concerted activities,
by threatening them with discharge if they engaged in
union activities, and by discharging Beck because of his
union or other protected concerted activities. Respon-
dent's timely filed answer denied the commission of any
unfair labor practices.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and to cross-
examine witnesses, and to argue orally. Briefs, which
have been carefully considered, were filed by General
Counsel and Respondent.
Upon the entire record, including my careful observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent is an Alabama corporation with an office
and place of business located in Birmingham, Alabama,
where it is engaged in the business of providing architec-
tural services. Jurisdiction is not in issue. The complaint
alleged, Respondent admitted, and I find and conclude
that Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
Richard Beck was employed as a draftsman and job
captain by Respondent from approximately 1962 until his
discharge on February 26, 1979. Respondent's work
force during the final months of his employment ranged
between 25 and 30 employees and, in addition to Beck,
Respondent employed between 5 and 7 other draftsmen.
At one time, approximately 9 years ago, McCauley had
employed over 100 employees, including 75 draftsmen.
McCauley's employees were not represented by any col-
lective-bargaining agent.
In mid-Janaury, Beck had a conversation in the office
with fellow employee Billy Tate. Beck talked about im-
proving working conditions in the office, and their con-
tracts with the Employer, and about the frequency of
their wage increases. Beck asked what Tate thought the
Company would do if someone tried to organize a union.
Beck had a similar conversation with employee Bob
I All dates hereinafter are 1979 unless otherwise specified.
CHARLES H. MCCAULEY ASSOCIATES, INC. 347
Conville, at a restaurant, sometime in February. They
also discussed the termination of a fellow employee and
Beck raised the question, "What's going to happen to
us?" Noting that the Company had once been large and
had become small, he expressed his concern for their
tenure. Beck told Conville "that somebody might try to
organize a union one day and [I] asked him what did he
think about it." There was no evidence that either of
Beck's conversations came to the attention of manage-
ment.
In mid-February, Eloise Beeson, a secretary and book-
keeper, brought Beck an individual wage agreement set-
ting forth his wage and the manner in which overtime
payments would be computed. He refused to sign it be-
cause it erroneously showed him earning a salary rather
than an hourly wage and because he contended that
there was an error in the formula for the computation of
overtime. He asked for and received a copy of his prior
wage agreement. After refusing to sign the agreement,
Beck spoke with two other employees who wanted to
know what his discussion had been about. He told them
that he thought the contract was unfair. On Monday,
February 19, Beck discussed the contract and its errors
with his supervisor, Stan Corson, and Corson subse-
quently gave him permission to correct the agreement as
Beck wanted. Beck did so and signed it.
On Monday, February 26, Beck prepared an interof-
fice memorandum addressed to Respondent's officers and
supervisors: President Mack Freeman, Chairman of the
Board David L. Hand, and Vice President Corson. That
memorandum requested a conference with all three of
the named individuals. Prior to giving it to his supervi-
sors, Beck showed the memorandum to Tate and told
him that he was going to hand it in and request a meet-
ing. According to Beck's testimony, he told Tate that he
was ready to have a meeting with the employers "to dis-
cuss better working conditions and better wages and
better benefits and see what they would think about it
for you and I and all the rest of the employees." Beck
asked whether Tate would like to accompany him to the
meeting and told him that if the Company was not will-
ing to be fair and give them a better contract he "was
going to bring up the possibility of trying to possibly get
an outside third party to come in and try to bargain for
[them]." 2 Tate did not accompany Beck to this meeting.
The meeting Beck requested was held that same day,
beginning about 9:15 a.m. All three company representa-
tives were present. Beck began by requesting that they
allow him to make his presentation uninterrupted. They
agreed. Beck then expressed his concern over the reduc-
tion in the number of employees at the Company, ques-
tioned why, and told them that this situation made him
feel insecure. He then discussed his objections to the
wage agreement which he had earlier signed. He testified
that he told them the contract was unfair, one sided, and
incorrect. He said that it was inadequate and "that , as
well as my fellow employees, needed something a little
better than that." Beck discussed what he felt were
unfair practices by the Company in laying employees off,
pointing out that some more experienced, better educat-
Tale essentially olrroboratd tie, Iclnlr lln
ed draftsmen and architects were laid off while others
with less experience or seniority were retained. He point-
ed out that the Company had cut the hours of some
draftsmen while allowing others to work full weeks or
overtime. He questioned the Company's practice in
giving wage increases, including the necessity for em-
ployees to specifically request an increase or to threaten
to look elsewhere for employment in order to secure a
raise. He also objected to the fact that as the Company
became smaller in employee complement the employees'
health insurance premiums increased and the Company
was no longer picking up these increases. Hie said he
thought that was somewhat unfair because the Company
was responsible for reducing the number of employees.
He also voiced objections to revisions in the retirement
plan. Returning to the subject of wage increases, Beck
discussed the effects of inflation, pointing out that the
employees did not even get a cost-of-living increase to
cover inflation. In this regard he noted that the Compa-
ny's fees increased with inflation because they worked
on the basis of a percentage of the contract. Further, he
objected to the Company's termination of its practice of
granting Christmas bonuses.
For about 2 years preceding September 1978, the
office employees worked a 4-1/2-day workweek, totaling
40 hours. In September of that year the Company revert-
ed to a 5-day, 40-hour workweek. Beck voiced objec-
tions to this change and requested that the office go back
on a 4-1/2-day workweek. He said that all of the em-
ployees felt the way he did but would not request it. Ac-
cording to Beck's testimony, he then discussed his own
plans for the future and the possibility of getting a
"better contract for all the employees, not just for
myself, everybody."
Freeman asked why Beck was so dissatisfied. Beck
said that he felt there were a lot of unfair things in the
office and that he and the others were being treated un-
fairly. He insisted that all he wanted was a fair contract
and better benefits for all the employees. Freeman then
responded to each of the individual points that Beck had
raised, essentially stating that the Company would con-
sider them. Beck said that it did not seem as if that was
enough, that they should do more. Hand told Beck,
"Richard, we are just not going to give you any sort of
the things . .. like better contracts, or any thing like
that . . . None of the other employees have them, and
you don't have it, and you're not going to get it. The
company is not going to offer it to you." Beck replied
that he felt that there had been a failure of communica-
tion and that he was going to go back to the drafting
room and discuss the matters he had raised among his
fellow employees, on their lunchtime, to see if they
could get their thoughts together in the form of a con-
tract to submit to the Company. He told Hand that
whatever they put together would be fair to the Compa-
ny. Hand told Beck, "Richard, I forbid you to do that
. . . I forbid you to go out and discuss anything that's
been discussed in here today with any of the other em-
ployees . . I just forbid you to do it." Freeman asked
Beck if he was serious about what he had said and Beck
repeated that he was going to discuss it with his fellow
employees. Hand told him again he was forbidding such
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct and that if he did it the Company would consid-
er terminating him. At this point, according to Beck, he
told them that "I've been very serious about everything
. . .it seems like to me that you are all just leaving me
no other alternative except to contact the local union
representative to come in here and try to bargain with
us." Hand replied, "Richard, I've already forbid you to
talk to the employees, and I am telling you, I forbid you
to contact any type of union representative .... This
company will not tolerate a union." Beck was told that
that matter was not open for discussion and the Compa-
ny would not discuss it with any union representative.
At the conclusion of the meeting, Hand asked Beck once
again if he was serious about what he intended to do.
Beck said that he was and that he had to try to get some
security for himself and his fellow employees. Hand said
that he had no other alternative but to discharge him.
Beck was discharged, told to pack up his personal be-
longings, and told to leave the premises and never to
come back. There was no mention of any deficiency in
Beck's work or behavior at this meeting.
On cross-examination, Beck acknowledged that he did
ask for a written employment contract which would
guarantee him a job for as long as the Company func-
tioned and he did his work. He was told that even Presi-
dent David Hand did not have such a contract and that
Beck would get the same contract as all of the other em-
ployees. And, after Beck had told the three management
representatives that he felt there was a failure of commu-
nication and that he had no alternative but to contact a
union representative to bargain a better contract for the
employees, Hand told him, "Union or no union, neither
you nor [I] as president, nor any other employees was
going to have the type of employment contract that you
wanted."
The version of the February 26 meeting as presented
by the management representatives differs in some re-
spects from that described by Beck. All agree that Beck
expressed concern for his job security in light of the de-
clining employment level in the firm and that Beck re-
quested a written contract guaranteeing him employment
as long as there was work and he did his job. Hand re-
jected Beck's demand and told him that he had the same
guarantee of a job that Hand and the other executives
did, an oral understanding that he would have a job as
long as he did good work and the Company prospered.
Hand refused to place any employment contract in writ-
ing. Beck insisted that he would get a voluntary contract
in writing or he would seek union assistance. Hand told
him that union or no union there would be no written
contract. Beck persisted, stating that he could not accept
that answer. At that point he was told that his demands
were unacceptable and he was terminated.
The management representatives all insist that Beck
was seeking a written agreement only covering himself'
They do admit, however, that in the course of this meet-
ing Beck spoke about or questioned such matters as the
health benefits, pension rights, and wage increases for
himself and other employees.
None of the three supervisors related any statements
being made to Beck precluding or forbidding him from
discussing the contents of the meeting with other em-
ployees. In response to a question by the Administrative
Law Judge, Corson testified that there was no such
order given to Beck.
Respondent contended that, because of chronic tardi-
ness and absenteeism, Beck was a marginal employee
from whom it would not accept unreasonable personal
demands. There is no dispute as to Beck's chronic tardi-
ness. Beck admitted that for a considerable period of
time, since well prior to a change in management 15 or
so months prior to the hearing, he had come in late to
work more frequently than any other employee. His tar-
diness, ranging from a half hour to a half day, occurred
at least two or three times a week. He sometimes missed
entire days as well. 3 Beck's behavior had been tolerated
by the former chairman of the board, Frank Burford, to
whom Beck was somewhat of a protege. After Burford
left, the Company continued to tolerate Beck's tardiness.
Beck admitted, however, that he was spoken to some 6
or 8 months prior to his discharge concerning his illness
and other problems affecting his attendance. He denied
being warned "repeatedly" that he would have to work
the same hours as everyone else. Respondent's officers
testified that each of them spoke with Beck on one or
more occasions concerning his attendance. Thus, Hand
said that he told Beck "to get his act together" and dis-
cussed with him the problems his absenteeism created
with the customers and other employees. He also
claimed to have discussed Beck's absenteeism with Beck
some 6 or 7 months prior to the discharge, at Beck's
salary review, at which time Beck was given a wage in-
crease. Freeman similarly testified that he had one or
two individual discussions with Beck concerning Beck's
attendance and hours of work and further testified that 2
or 3 weeks prior to Beck's discharge he had a discussion
with Hand and Company Controller B. R. Winstead, Jr.,
wherein Freeman recommended that consideration be
given to discharging Beck for a number of reasons, in-
cluding his attendance. No conclusion was reached at
that time. Corson, Beck's immediate supervisor, also tes-
tified that he had a number of friend-to-friend conversa-
tions with Beck, encouraging him to bring his hours in
line with those of the other employees. Beck did not im-
prove his attendance. The timecards reveal that Beck
was permitted to make up lost hours on Saturdays and
Sundays.
B. Analysis and Conclusions
There exists no credibility dispute in regard to Beck's
tardiness and absenteeism other than in regard to the
extent to which he had been admonished about it. The
evidence herein, particularly the extended period of time
during which Respondent tolerated Beck's attendance
problems and made allowances for them, leads me to
conclude that while Respondent may have made some
approaches to Beck concerning this problem, manage-
ment never considered it to be so serious as to warrant
any kind of official reprimand. Of particular significance
is the assertion, by Hand, that one of the occasions on
:' ()her han herl- hcllg a rather naglue reference to a medical reason
foi Beck's inabhlit Io conic it i tork o time. heC record does noL explait
thCe% ilt'cidclt o ltldilleSs
CHARLES H. MCCAULEY ASSOCIATES, INC 349
which Beck's attendance problem was discussed was a
salary review. Beck was given, rather than denied, a
wage increase at that time.
As to the meeting itself, the credibility issues are essen-
tially limited to whether or not Beck was directed not to
speak to other employees in regard to the discussions
held in the meeting or forbidden to seek union assistance.
Beck asserted that he was so ordered; neither Hand nor
Freeman made any mention, either affirming or denying,
of such statements in their testimony. Corson denied only
that Beck was forbidden to speak with other employees.
Considering all of the evidence, including the failure of
Hand and Freeman to deny certain portions of those
statements, the detail with which Beck recalled the inci-
dents of that meeting, and Tate's corroboration of Beck's
intention to seek improvements in the benefits for all em-
ployees, I must conclude that Beck's version of the Feb-
ruary 26 meeting is the most accurate rendition of those
events presented in this record.
Accordingly, I find, in agreement with the General
Counsel, that Respondent prohibited Beck from discuss-
ing the events of that meeting with his fellow employees
under threat of termination and forbade him from seek-
ing union representation. Such threats go to the very es-
sence of the activities protected by the Act and tend to
restrain employees from ever commencing to engage in
those activities the statute was written to protect. By
such threats and prohibitions, I find, Respondent has in-
terfered with, restrained, and coerced its employees in
the exercise of their Section 7 rights and has violated
Section 8(a)(1) of the Act.
The question remains whether Beck was discharged
for engaging in protected concerted activities and/or
union activity, or whether he was discharged for his tar-
diness and absenteeism record, his unreasonable demand
for an individual contract, or some combination thereof.
It is clear that Respondent did not discharge Beck solely
for his failure to observe more traditional work sched-
ules. It may have preferred that he do so and the matter
may have been discussed with him on more than one oc-
casion. But, Respondent's long toleration (3 years at
least) of his behavior, the apparent understanding with
which it treated Beck's medical problem, and indeed its
condonation of his attendance problems, as reflected by
the fact that it permitted him to make up lost time during
weekend hours and gave him a wage increase, together
with the absence of any reference to his attendance prob-
lems during the February 26 meeting and at the time of
his discharge, and the precipitate nature of that discharge
following Beck's threat to engage in union or other pro-
tected activity establish that his attendance problems
were neither the sole reason nor any significant portion
of the reason for his termination.
Respondent contends that Beck was not engaged in
any concerted activity within the meaning of the Act,
that he was seeking solely personal gain and had "neither
the support of his peers nor the appointed authority to
represent them." In support of this position Respondent
cited Aro. Inc. v. NL.R.B., 596 F.2d 713 (6th Cir. 1979),
wherein the Sixth Circuit denied enforcement to Aro,
Inc., 227 NLRB 243 (1976). In Aro, a temporary employ-
ee who had been laid off was denied recall because,
while on layoff status, she had complained to the em-
ployer about what she believed to be improprieties or
violations of the collective-bargaining agreement in
regard to the order of selection for layoff. The Board
held that the employee, by relying on the provisions of a
collective-bargaining agreement, brought her actions
within the ambit of protected concerted activity and that
she was therefore protected in her protest. The Board
further held that the Administrative Law Judge had
erred in concluding that the employee therein had been
concerned only about the retention of her job and that,
that being the case, there had been no concerted activity.
The Board, citing Hugh H. Wilson Corporation, 171
NLRB 1040, 1046 (1968), enfd. 414 F.2d 1345 (3d Cir.
1969), stated in Aro, supra at 244:
[I]f the matter at issue concerns the group of em-
ployees and is brought to management's attention
by a volunteer acting in their interest this will be
deemed sufficient to invoke the Act's protection.
Even individual protest which redounds to the
group's benefit is protected concerted activity.
The Board noted that the employee in Aro had discussed
the problem with a fellow employee and with a union
representative and that, if her contention was correct,
the benefit would have been to another employee, not
herself. It further stated, relying upon Interboro Contrac-
tors, Inc., 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d
Cir. 1967), "Individual complaints of this sort are similar
to grievances, and since they will have an affect on all
employees, the Board has taken the position that such
conduct is protected by the Act."
The Sixth Circuit, in denying enforcement to ro,
pointed out that there was a split among the circuits over
the application of the Interboro test for concerted activity
under Section 7 of the Act. It elected not to follow the
Second and Ninth Circuits which, it stated, "have given
at least limited approval to the doctrine."4 Rather, the
Sixth Circuit elected to follow the Thirds and Fifth Cir-
cuits 6 which, it concluded, had declined to follow the
Interboro doctrine. The court held that for individual
action to be deemed concerted "it must be shown that
the individual in fact was acting on behalf of or as repre-
sentative of other employees rather than acting for the
benefit of other employees only in a theoretical sense."
Aro, supra at 717.
The Administrative Law Judge is, of course, obligated
to follow Board law until changed or until reversed by
the Supreme Court. The Board law is as expressed in the
Board's decision in Aro, and under the principles de-
scribed by the Board in that case Beck was engaged in
concerted activity when he presented demands to the
employer for the improvement of working conditions
(wages, pensions, and health benefits) which would inure
4 Citing lnterbor o Cotractors. Inc . siupru. .:L.R.B. John Lagel-
hbacher Co. Inc. 398 F 2d 459. 463 (2d Cir 1968): and C & I .ir Condi-
rioning. 486 F 2d 977. 978 (9th Cir 1973)
s Citing .%lthrool, TrmIisporl Conpu)nl Ilnc X . :LR.B.. 330 F2d 683.
6bS (3d Cir 1964)
e Citing NV . R Buiddics Suip'rlmarct I nc.. 481 F 2d 714 (5th Clr
1973). and i our'n holding in L.LRB Grns,-l- .UIlviikmrgut Electric
Coioperai , Inc11. 285 F 2d 8 (6th Cir 19h60)
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the benefit of all employees. Moreover, I note that in
the instant case, Beck had spoken to several of his fellow
employees and apprised them of his intentions regarding
seeking improvements in working conditions and, while
the employees did not overtly support him or accompa-
ny him to the meeting, there was no evidence that they
expressed disinterest in his taking that course of action.
Further, Beck's course of action contemplated group
action among his fellow employees in order to achieve
improvements in benefits for all of them. He so stated to
the employer and was expressly forbidden to involve his
fellow employees. As the Third Circuit stated in Mush-
room Transportation Company, supra at 685, "Activity
which consists of mere talk must, in order to be protect-
ed, be talk looking toward group action." Beck's activity
satisfies that test.
Moreover, Beck threatened to seek union assistance in
his drive for better benefits and greater security. A threat
to bring in a union must, itself, be deemed union activity.
"To protect concerted activities in full bloom, protection
must necessarily be extended to intend contemplated or
even referred to group action, Mushroom Transportation
Co. v. N.L.R.B. [supra],. . . lest employer retaliation de-
stroy the bud of employee initiative aimed at bettering
terms of employment and working conditions." Hugh H.
Wilson Corporation, supra at 1347. See also Owens-Cor-
ning Fiberglas Corporation v. N.L.R.B., 407 F.2d 1357,
1365 (4th Cir. 1969), enfg. 172 NLRB 148 (1960), wher-
ein the court pointed out, in agreement with Board, that
"The activity of a single employee in enlisting support of
his fellow employees for their mutual aid and protection
is as much concerted activity as is ordinary group activ-
ity. The one seldom exists without the other."
Finally, I must conclude that Beck was terminated be-
cause of his threat to engage in union and other concert-
ed activities. That conclusion is required by the order of
events at the termination. Respondent had rejected his
requests and demands and had forbidden Beck to engage
in union or concerted activity. It was only when Beck
indicated that he would not accept Respondent's answer
as final and insisted that he would pursue the course of
concerted action which he had outlined that he was dis-
charged. Had Respondent not intended to prevent him
from engaging in such activity, it could merely have al-
lowed the meeting to end with no resolution of Beck's
demands. That it fired him rather than doing so estab-
lishes its true motivation. Moreover, while Respondent
made much of Beck's work habits vis-a-vis attendance
and tardiness, the record shows that it had long tolerated
and condoned that behavior, even to the extent of allow-
ing him to make up lost time on weekends and giving
him a wage increase. And it must be noted that Respon-
dent made no mention of his attendance and tardiness
problem at the time it discharged Beck. Thus, while Re-
spondent may have been less than fully satisfied with
Beck's work habits, and may even have been glad to get
rid of him, it is clear that his work habits were not a mo-
tivating factor in his discharge.
Accordingly, I find that by discharging Richard Beck
on February 26 because he had engaged in concerted ac-
tivities and threatened to engage in further concerted ac-
tivities and in union activities, Respondent has violated
Section 8(a)(3) and (1) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It having been found that Respondent discriminatorily
discharged Richard L. Beck on February 26, 1978, Re-
spondent shall offer him immediate and full reinstatement
to his former or substantially equivalent position, with-
out, prejudice to his seniority or other rights and privi-
leges,7 and shall make him whole for any loss of pay he
may have suffered as a reslt of discrimination against
him. Any backpay found to be due shall be computed,
with interest, in the manner prescribed in F W. Wool-
worth Company, 90 NLRB 289 (1950), Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), and Florida Steel
Corporation, 231 NLRB 651 (1977).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By forbidding its employees to engage in protected
concerted activities and/or union activities and by
threatening them with discharge if they did so engage,
Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed them
under Section 7 of the Act, thereby violating Section
8(a)(1) of the Act.
3. By discharging Richard L. Beck because he en-
gaged in union and other protected concerted activities,
Respondent has discriminated against him in regard to
the hire and tenure of his employment, in violation of
Section 8(a)(3) and (1) of the Act.
4. The unfair labor practices enumerated above 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 Act, I hereby make the following recommended:
ORDER"
The Respondent, Charles H. McCauley Associates,
Inc., Birmingham, Alabama, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
7 hile the record reflects that Respondert made an offer of reinstate-
ment to Beck sometime subsequent to the filing of the charge herein. the
issue of whether that offer satisfied the Board's requirements \was not
fully litigated It is appropriate that that issue be left to the compliance
stage of this proceeding.
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 find-
ings, conclusions, and recommended Order herein shall, as prosided il
Sec 10)2 48 of the Rules and Regulations. he adopted by the Board arid
become its findings, conclusions, ad Order. and all objection, thereto
shall bhe deemed waived for all purposes
CHARLES H. MCCAULEY ASSOCIATES, INC. 351
(a) Forbidding its employees to engage in union or
other protected concerted activities and threatening them
with discharge if they so engage.
(b) Discriminatorily discharging its employees because
they engage in union or other protected concerted activi-
ties.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Richard L. Beck immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered by
reason of the discrimination against him, in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) 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 re-
cords necessary to analyze the amount of backpay due
under this Order.
(c) Post at its facility in Birmingham, Alabama, copies
of the attached notice marked "Appendix." 9 Copies of
said notice, on forms provided by the Regional Director
for Region 10, after being duly signed by Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
In the eent Ihat his Order is enforced by a Judgment of a United
States Court of Appeals, the s, ords in the notice reading "Posted by
Order of the National I abor Relations Board" shall read "Posted Pursli-
ant to a Judgment of the UInited States Court of AppealB Enforcing an
Order of the Natoinal I ahor Re allons Board "
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 parties had an opportunity
to their present evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice.
The Act gives the employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any such activi-
ties.
WE WILL NOT forbid our employees to engage in
union activities or to talk among themselves con-
cerning wages, hours, and working conditions.
WE WILL NOT threaten to discharge employees
who engage in union activity or in conversations
about wages, hours, and working conditions.
WE WILL NOT discharge any of our employees
because they engage in union or other protected
concerted activities.
WE WILL NOT in any like or related manner, in-
terfere with, restrain, or coerce our employees in
the exercise of their rights under Section 7 of the
National Labor Relations Act.
WE Wl L offer Richard L. Beck immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent job, with-
out loss of seniority or other rights and privileges
and WE WILL make him whole for any loss of earn-
ings he may have suffered by reason of the discrimi-
nation against him.
CHARLES H. MCCAULEY ASSOCIATES, INC.