D.C. Construction Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 930 (N.L.R.B. 1985)

930 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Donald Dean d/b/a D .C. Construction Company and
George Mrakovich
Laborers ' International - Union of North America,
Local 125 and George Mrakovich and D.C.
Construction Company , Party in interest. Cases
8-CA-17958 and 8-CB-5328
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 7 May 1985 Administrative Law Judge Joel
A. Harmatz issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting
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, and
conclusions' and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Donald
Dean d/b/a D.C. 'Construction Company, Canfield,
Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order and that
the complaint in Case 8-CB-5328 is dismissed.
i Member Babson , in adopting the judge's dismissal of the alleged
8(b)(1)(A) and (2) violations , notes that no exceptions have been taken to
the judge's finding that Stojkov's testimony constitutes unreliable hearsay
evidence
Richard F. Mack, Esq., of Cleveland, Ohio, for the Gen-
eral Counsel.
George Mrakovich, of Campbell, Ohio, pro se.
Lawrence M. 'Oberdank, Esq., of Cleveland, Ohio, for the
Respondents.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This
proceeding was heard in Youngstown, Ohio, on 5 March
1985, on an initial unfair labor practice charged filed on
26 October 1984, and consolidated complaints issued
against Respondent Union in Case 8-CB-5328 on 7 De-
cember 1984 and against Respondent Employer in Case
8-CA-17958 on 31 January 1985. The complaints allege
that Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act by demanding termination of Charging
Party George Mrakovich because he lacked union mem-
bership, and that Respondent Employer violated Section
8(a)(1)(3) of the Act by acting on, that request acid termi-
nating Mrakovich In duly filed answers, Respondents
denied that any unfair labor practices were committed.
Following 'close of the hearing, a ,brief was filed on
behalf of the -General Counsel and a statement was sub-
mitted on behalf of Respondents. _
On the entire record in this proceeding,' together with
my opportunity directly to observe the witnesses while
testifying and their demeanor, and on consideration of
the posthearing briefs, it is found as follows:
I. THE BUSINESS OF THE EMPLOYER
Respondent Employer is a sole proprietorship operat-
ing under the laws of the State of Ohio, with a principal
place of business in Canfield, Ohio, from which it is en-
gaged in the rebuilding and rehabilitation of roads and
bridges within the State of Ohio. In the course of the op-
erations, Respondent on an annual basis, provides serv-
ices valued in excess of $50,000 to' the State of Ohio,
which itself is engaged directly in commerce under con-
ditions having an effect upon commerce.
The complaint alleges , the answer admits, and it is
found that at all times material herein, Respondent Em-
ployer is and has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and it is
found that Respondent Laborers' International Union of
North America, Local 125 is now, and has been at all
times material a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Mrakovich was hired by Respondent Employer on 12
July 19842 and after only 4 hours was laid off that day
for nondiscriminatory reasons. He was never recalled
and the legitimacy of termination of his employment in
this fashion is the focal point of the respective com-
plaints. The issues essentially are factual, requiring deter-
mination whether Respondent Employer terminated
Mrakovich's employment because of the Union's inter-
vention, or acted upon its own, terminating Mrakocvich
for reasons constituting legitimate cause.
By way of background, it appears that Respondent
Employer operates under a collective-bargaining agree-
ment with Respondent Union, which does not provide
for an exclusive hiring or referral system The basic dis-
pute concerning the job rights of Mrakovich emerge
from a repair project performed by Respondent Employ-
er, entailing simultaneous work on six bridges on an
interstate highway. Approximately 15 laborers were em-
ployed in jackhammering, sandblasting, and the pouring
of concrete on that job. It began in the beginning of June
and as of the. date of the hearing had yet to be complet-
ed.
i Transcript errors have been noted and corrected
2 Unless otherwise indicated all dates refer to 1984
276 NLRB No. 97
D.C. CONSTRUCTION CO. - 931
Mrakovich had been a member of Respondent Union
since 1968. However, in 1980, he left the labor trade, al-
lowing his union membership to lapse in order to go into
business for himself as the owner of a tavern. The ven-
ture proved unsuccessful and, at the end of June 1984, he
sought to have his membership in the Union reinstated.
This effort began with a visit to the union hall where
James Southerland, the Union' s, business agent , told Mra-
kovich that he could not be reinstated at the time as em-
ployment was unavailable. Mrakovich was reminded by
Southerland that he had to get a job before his member-
ship could be reinstated, and he urged Mrakovich to seek
out work on his own.
Consistent with Southerland's advice, even before his
visit to the union hall, Mrakovich had sought work on
his own. He approached several contractors directly, in-
cluding Respondent Employer. In that connection, Mra-
kovich discussed employment with Bob Stojkov, a fore-
man for that firm. Stojkov indicated that he would con-
tact Mrakovich as soon as he needed men.3
Later, Stojkov, about 10 or 11 July telephoned Mrako-
vich, directing him to report to the aforedescribed bridge
rehabilitation job.4 In the course of that conversation,
according to Stojkov, he advised Mrakovich that "To-
morrow we are going to hire four guys, go in the union
hall and then if they send you on the job, you got a
.job."5
Mrakovich reported to the jobsite the next morning
between 7 and 8 a .m. Stojkov advised him that the
Union already had referred four men. Mrakovich admit-
ted that, on his arrival,-the four laborers that had been
referred from the , hall were working.6 As indicated,
Mrakovich concedes that when he arrived, Stojkov
asked Mrakovich if he got an okay from the Union. Mra-
kovich replied that he had called the Union at 6:20 a.m.
and Southerland had told him that it was okay for him
to go to work. On his arrival at the jobsite, Superintend-
ent Dominic Cicchi agreed to "put -him to work, too."7
Mrakovich's work consisted of operating a -jackham-
mer to chip concrete off -the freeway. As indicated- he
worked but 4 hours that day. This was due to failure of
the compressor which powered the jackhammers. In
consequence of the breakdown, work on the job was
called to a halt. Mrakovich avers that he and the other
four laborers were told that they would be recalled as
soon as the compressor was repaired. -
Later, on 15 July, a Sunday night, according to Mra-
kovich, Stojkov telephoned informing that he was in-
structed by Albert Carceli, secretary-treasurer of the
Union, that Stojkov was not to permit Mrakovich "to
work anymore" because •he "did not have a union card
at the time."8
The next morning Mrakovich went to the union hall.
While there, Orlando Timmons, the Union' s president in-
quired as to why Mrakovich was not out working on the
job. Mrakovich replied that Carceli told Stojkov not to
let Mrakovich work. According to Mrakovich, Timmons
then confronted Carceli, iii the presence of another indi-
vidual, Thomas Warda, stating "What business do you
have getting this man 'knocked off the job?" Carceli, ac-
cording to Mrakovich, responded by stating "You mind
your own g-damned business and I 'll mind my own."9
Following this incident , Mrakovich returned to the
jobsite where, Stojkov, at Mrakovich's request, signed a
document' stating as follows: -
I Bob Stojkov Foreman for D.C. Construction called
Local- .125 and asked for George Mrakovich to
work for us. This man worked for us Four Hours
and the Business Agent and secretary told the Com-
pany that George Mrakovich could not work for
them. 10 -
8 Based on the credited testimony of Mrakovich . Stojkov admitted to
these contacts , but claims that he informed Mrakovich , "George, you
know, if you got a union card . maybe we can give you a job " This
was one of several suggestions that Respondent Employer labored under
a privately held understanding that its operations were to be conducted
on a union only basis
* Stojkov could not recall whether the call was placed by himself or
Mrakovich It is considered unlikely that Mrakovich would have done so.
S Mrakovich 's version was slightly different He testified that Stojkov
told him that Respondent had requested four men from the Union to fill
these vacancies , and that Mrakovich was one of them . In this instance I
credit Stojkov , whose credibility is enforced by certain seeming contra-
dictions in the account of Mrakovich Thus, the latter testified that when
he reported for work on 12 July, Stojkov inquired as to whether he got
an "o k " from the Union Mrakovich also testified that before going to
the jobsite , he telephoned Southerland at 6:20 a in inquiring as to wheth-
er it was all right for him to be put to work In these latter respects, Mra-
kovich 's testimony is more readily reconcilable with the account of Stoj-
kov than his own assertion that he had been told that he had been re-
quested by name - Notwithstanding that such a reference was included in
G C Exh 2, I believed Stojkov Beyond the foregoing , Mrakovich -testi-
fied that during this early morning phone conversation with Southerland,
his employment was approved by the Union when in reference to the
bridge job , Southerland stated "All right , go ahead and go." Southerland
denied having received such a call . Although Mrakovich might have at-
tempted to reach Southerland that morning, I am inclined to believe that
he did - not succeed
6 Mrakovich explained his lateness as attributable to Stojkov's having
neglected to specify the reporting time
7 Stojkov confirmed that Mrakovich stated that he had been referred
for work by Southerland . Stojkov, with corroboration from Cicchi, testi-
fied that ultimately it was on this representation that Cicchi put Mrako-
vich to work Note , however, . that it is the sense of Cicchi's testimony
that Stojkov actually put Mrakovich to work poor to his arrival at the
jobsite Thus, Cicchi testified that he did not arrive until 8.30 a.m when
Mrakovich was already on the job See also G C Exh 3, p 6
- 8 The above is based on Mrakovich 's credited testimony . Stojkov ap-
parently concedes that the Carceli "story" originated with him He
denies, - however, that Carceh ever told him that Mrakovich could not be -
recalled because he was not a union member Instead , Stojkov relates that
he concocted the tale because Mrakovich was his friend , he felt sorry for
him and did not want to tell Mrakovich ,that he would not be rehired
because his work was regarded as deficient
8 Timmons denied having any conversation with Carceli concerning
Mrakovich 's employment . He testified that just recently in June 1984 he
had been elected , and that in his capacity as president he has no responsi-
bility in connection with job referrals However, he admits to a conversa-
tion with Mrakovich in the union hall in July 1984 He asserts that Mra-
kovich confronted him with the accusation "Southerland threw him off
the job." Timmons asserts that he then went to Southerland 's office to
inquire about Mrakovich 's allegation, where Southerland denied any
intervention explaining instead that "the Company laid him off because
he could not do the work " Southerland was not examined in this regard
Neither Warda , nor Carceli were called to refute the account of Mrako-
vich I credit the latter Considered against the total record , it is incon-
ceivable that Mrakovich would have made any accusation against South-
erland of the type described by Timmons.--
10 See G.C Exh 2
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Armed with Stojkov's statement, Mrakovich - once
again went to the union hall. Southerland called him into
his office, asking "George, what do you want to-start
trouble for?" He again promised to get Mrakovich a
job.I I
When laid off on '12 July, Mrakovich, according- to
Cicchi, was told that the Company would be in touch
with him. Unlike the other laborers sent home that day,
Mrakovich was never recalled. Respondents deny that
this was in consequence of union considerations. The
Union denies any communication, whatever, with the
Company concerning the job tenure of Mrakovich, while
the latter claims to have acted on its own, having de-
clined to, recall Mrakovich because his work was less
than satisfactory. ' '
In evaluating these contentions, objective, indisputable
facts suggest that Respondent Employer conducted this
job under union limitations- which would have blocked
hire and continued employment of Mrakovich. Thus, in a
letter- to the Union sent after the layoff in late 1984,
Cicchi states:
We did agree as a company in a Pre-Job Confer-
ence that all people would be hired thru Local No.
125 and they would have a work slip to get on the
job 12
Moreover, although Stojik's testimony is by no means
consistent, at several points lie expresses his own under-
standing that union membership was required. of appli-
cants on this jobsite. Finally, the defense, to - survive,
must surmount admitted statements by. Stojkov to Mra-
kovich, which on their face embody a direct admission
that the Employer withheld employment from Mrako-
vich because of his lack of union membership. 13
In the face of the foregoing, Cicchi insists that, before
recalling the operators, he consulted with Stojkov and
concurred that they would recall the four best laborers.
As a result only those referred by the Union were target-
ed for recall. Mrakovich was not among them. Accord-
ing to Cicchi, Mrakovich was deemed objectionable
I IMrakovich testified that when Southerland failed to deliver on this
promise, within. 2- weeks after this conversation , he filed unfair labor
practice charges It is clear for the record , however, that the initial
charge in this proceeding was filed in Case 8-CB-5328 on 26 October
1984, while the charge in Case 8 -CA-17958 was filed on 19 December
1984 Despite this apparent discrepancy , it is entirely possible that Mra-
kovich may have sought relief from sources other than the NLRB within
the time frame he describes '
12 See R Exh 2 This. reference is hearsay about, and would not be
binding on , the Union There is no evidence that such an agreement exist-
ed -
13 Although counsel for Respondents denied that Stojkov was an
agent of D C Construction , his status was admitted on the face of the
pleadings in Case 8-CA-17958 See G C Exhs 1(h) and (j) Moreover,
Respondents ' own testimony reveals that Stojkov, without direction from-
any other representative of management, himself initially put Mrakovich
to work on 12 July Cicchi, who with corroboration from Stojkov,
claimed to be ' the only representative of management with authority to
hire and fire, nonetheless admitted that he was not on the job "all the
time," and that he solicited Stojkov's evaluation of workers Finally, the
prehearing affidavit afforded by Cicchi included an admission that Cicchi
would terminate a worker based on the recommendation of Stojkov In
these circumstances - it concluded that the statements of Stojkov were
binding upon Respondent Employer in that he was an agent and statuto-
ry supervisory at all times material
solely because of the amount of work he produced. In
the words of Cicchi "Quality was fine but he was taking
too much time doing what he was doing." 14
In contrast with the assigned reasons for the action
taken against Mrakovich, during investigation of the
case, •Cicchi informed a Board agent that he did not
recall `Mrakovich because it was a "headache" to take
him to the union hall and'get him'a card. Moreover, al-
though Cicchi claims that the work of Mrakovich was
inadequate, Stojkov denied that he reported that this was
the case,- and Cicchi admittedly left the project -on put-
ting Mrakovich to work. The fact that he did not return
until after Mrakovich was sent home raises unanswered
question as to whether Cicchi was ever in a position to
evaluate the "quality" of Mrakovich's output. I s
In my opinion the better explanation for the Compa-
ny's action lies within the admissions by both Cicchi and
Stojkov that the job in question was to be performed
under union oriented conditions which never were ful-
filled by Mrakovich.Is
On balance, the testimony offered on behalf of Re-
spondent Employer concerning work inadequacies of
Mrakovich struck as shifting and impausible. It was not
believed and considering the more direct evidence of
union-related causation, I find that Respondent violated
Section 8(a)(3) and (1) by refusing to reemploy Mrako-
vich because he was not a member of, or referred for
work by Respondent Union.
The case against Respondent Union is complicated by
the absence of direct evidence that it ever communicated
with, or in any respect interfered with the employment
or retention of Mrakovich.17 It has been held, however,
is Cicchi dented having any contact from the Union concerning the
employment of Mrakovich and further testified that he did not inform the
Union about his reasons for refusing to call Mrakovich However, Orlan-
do Timmons, the newly elected president of Local 125, testified that
when he informed Southerland of Mrakovich 's complaint that Souther-
land "threw him off the job," Southerland denied the charge, explaining
that "the company laid him off because he could not do the work "
is Stojkov testified that the decision not to take back Mrakovich was
Cicchi's alone He denies that he told Cicchi what he thought of Mrako-
vich's work He described the sclitary nature of Cicchi's decision as fol-
lows
He don't call Mrakovich back And I asked him why, and he said
he watched him on the job He said, "I'm not satisfied " Just like
that that 's all That's it
Later, Stojkov appeared to give a different explanation for the denial of
recall stating - .
[B]ecause the -guys union referrals start first We got to call those
guys first Okay? When we have a little compressor , we don't
have enough hoses for George You know, he was last on the job
And Domonic [sic] don't call him Dominic said "We don 't need him
right now because we don't have hoses for him He can't run the
jackhammer because it is not "with the hose "
16 Also note my disbelief of Stojkov's attempt to explain away his as-
sertion that Mrakovich was removed from the job because of union inter-
vention Nor did I believe that in signing G C Exh 2, Stojkov failed to -
grasp the significance of the contents of that document or that he did so
under 'pressured conditions As for the Union, however, this does not
mean, however, that the hearsay deficiency in this testimony is removed
or that Mrakovich's recantation is in any sense binding upon Respondent
Union There still is no primary evidence that any such statement was
made by Carceli or any other union official
17 Note that according to Mrakovich 's own testimony, Business Agent
Southerland did whatever was necessary to foster Mrakovich 's employ-
ment with Respondent Employer
D C. CONSTRUCTION CO. . 933
that "unlawful discrimination may be caused by less than
an express demand and an intent to do so may be in-
ferred from the circumstances.". See, e.g., Teamsters
Local 1980 ' (Auburn Construction), 268 NLRB 894, 900
(1984). Here, however, the probative evidence does not
allow such an inference. As against the Union, the state-
ments of Stojkov are plainly hearsay, and in of them-
selves nonbinding. See Groves Granite, 229 NLRB 56, 65
(1977); Walter-J. Barnes Electrical Co., 188 NLRB 179,
187 (1971). Apart from the suspicion generated thereby,
the only possible indicia of union culpability derives
from Mrakovich's account of the confrontation between
President Orlando Timmons and Secretary-Treasurer
Carceli. Thus it will be recalled that when Timmons
confronted Carceli, stating, accusingly, "What business
do you have getting this man knocked off the job?" Car-
celi responded: "You mind your own g-damned -busi-
ness and I'll mind my own." Standing alone, the incident
is viewed as ambiguous, for, the expression attributed to'
Carceli involves an indignant response not necessary syn-
onymous with guilt, nor indicative that the accusation
leveled by Timmons had merit. Indeed, it is just as easy
to conclude that Carceli's anger derived from the fact
that Timmons, a recently elected president, with no
operational responsibility in connection with referral pro-
cedure, seemed to be intruding in Carceli's operational
domain. Simply put, the link is far too tenuous to supply
the foundation for a reasonably based inference that the
Union through Carceli made a request for termination of
Mrakovich.
Unquestionably, the illegal action by Respondent Em-
ployer creates a strong suspicion implicating Respondent
Union in a conspiratorial effort to prefer members for
employment. i 8 Indeed, it may strike as anomalous that a.
union be exonerated, as having failed to communicate a
request, at the same time that the employer is deemed
guilty of discrimination where the evidence includes the
employer's -declaration that it acted on the: union's
demand. However, pursuant to established principles of
evidence, this testimony, founded as it was upon the tes-
timony of Stojkov, an agent of the Employer, was pri-
mary evidence and probative as to the Employer's intent,
but hearsay and incompetent insofar as the Union is con-
cerned. A similar dilemma was presented in Groves-Gran-
ite, 229 NLRB 56, 65-65 ("The Stevenson situation"). In
that case, as here, there was no direct. evidence that the
union had communicated a request that the employer
take adverse action against the employee involved.
Nonetheless, the element of union causation was inferred
from several factors, including the , union's declared
animus, timing, and the fact that the reasons given by the
employer for the termination of the discriminatee were
pretextual. However, despite these findings, the employ-
er was exonerated. In doing so, the administrative law
judge discounted hearsay testimony that employer repre-
18 As pointed out on behalf of the Union, the fact that an employer
discriminates to encourage membership on the basis of its own perception
of its obligations to a union imposes no automatic liability upon the union
in circumstances where the employer 's action is not taken under compul-
sion of exclusive hiring arrangement or pursuant to union request See,
e g, United Construction Co, 169 NLRB 1 ( 1968) See also Steelcom, 266
NLRB 881, fn . 2 (1983)
sentatives admitted to conspiring with the union in the
effort to discriminate. Finding this evidence to; be sec-
ondary and nonprobative, the 8(a)(3) allegation was dis-
missed, even though the judge had, also concluded that
the discrimination was union-induced, that the timing
was suspect, and that the reason assigned by the employ-
er for the discharge was pretextual. i 9 On comparison,
the total circumstances herein offer a far less compelling
basis for giving weight to hearsay testimony either on a
direct basis or through the inference drawing process.
Simply put, the suspicion of illegality herein does not
reach the level deemed inadequate in Groves-Granite,
supra to fix liability on the employer in that'case. For,
apart from the single ambiguous confrontation between
President Timmons and Secretary-Treasurer Carceli and
exchange which may or may not be viewed as suggestive
of union causation, there is no corroborative link tending
to confer reliability on the hearsay evidence, so as to im-
plicate the Union in any unlawful hiring scheme. Hence,
it is found that the General Counsel has failed to estab-
lish-by a preponderance of the evidence that' the Union
"caused" or "attempted to cause" Respondent Employ-
er's failure to recall Mrakovich. Accordingly, the 8(b)(2)
and (1)(A) allegations herein-shall be dismissed.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in
commerce within the-meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Union did not cause or attempt to cause
Respondent Employer to deny recall to George Mrako-
vich and hence Respondent Union has not violated Sec-
tion 8(b)(1)(A) and (2) of the Act in this respect. '
4. Respondent Employer, by refusing to recall George
Mrakovich in order to encourage union membership,
violated Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Employer has engaged
in certain unfair labor practices, I shall recommend that
it be ordered to cease and desist therefrom and to take
certain affirmative action to effectuate the policies of the
Act.
Having found that Respondent Employer unlawfully
refused to consider George Mrakovich for recall to em-
ployment, it shall be recommended that it be ordered to
offer Mrakovich reinstatement to the position to which
he would have been - recalled,- absent discrimination
against him .20 Respondent Employer shall be ordered to
19 Cf Shattuck Denn Mining v. NLRB, 362 F 2d 466, 470 (9th Cir
1966)
20 Evidence was adduced at the heating that following restoration of
operations, Respondent Employer merely recalled the four who were re-
ferred by the Union and that at no time thereafter did it request any addi-
tional employees This evidence , however, is viewed as failing to detract
from Mrakovich's entitlement to traditional remedies of reinstatment and
Continued
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make Mrakovich whole for any loss of earnings resulting
from its unlawful refusal to consider him for reemploy-
ment, with backpay computed in the manner set forth in
F. W. -Woolworth Co., 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corp., 231 NLRB 651 (1977).21
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
ORDER
The Respondent Donald Dean d/b/a D.C. -Construc-
tion Company, Canfield, Ohio, its officers, agents, suc-
cessors , and assigns, shall
1. Cease and desist from
(a) Failing to recall George Mrakovich for employ-
ment under conditions designed to encourage union
membership.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative - action necessary to
effectuate the policies of the Act.
(a) Offer immediate reinstatement to George Mrako-
vich in the job to which he would have been recalled
absent the discrimination against him.
(b) Make whole George Mrakovich for any loss of
earnings he may have suffered by reasons of the discrimi-
nation against him in the manner set forth in the remedy
section of this decision.
(c) 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.
(d) Post at its place of business in Canfield, Ohio,
copies of the attached notice marked "Appendix."23
backpay. Respondent Employer hired Mrakovich even though all vacan-
cies on 12 July had been filled by union referrals. In light of the instant
findings, it is fair to assume that Respondent Employer would have ex-
hibited the same flexibility in connection with the recall of Mrakovich as
shown upon his initial hire , were it not possessed of an intent to discrimi-
nate Accordingly, it is concluded that the terms of the recommended
order are not subject to alteration on grounds that additional,laborers
were not hired for the balance of Respondent Employer's performance
on the project in question.
Si See generally Isis Plumbing Co., 138 NLRB 716 (1962).
82 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings; conclusions, and recommended
Order shall, as provided- in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
as 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
Copies of the notice, on forms provided by the Regional
Director for Region 8, after being signed by the Re-
spondent, Donald Dean d/b/a D.C. Construction Com-
pany's authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
Donald Dean d/b/a D.C. Construction Company to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Forward copies of said notice to the aforesaid Re-
gional Director for posting by Laborer's International
Union of North America, Local 125, if willing, at all lo-
cations where notices to its members are customarily
posted.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps ' the Re-
spondent has taken to comply. -
IT IS FURTHER RECOMMENDED that the complaint in
Case 8-CB-5328 be dismissed in-its entirety.
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
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 thet National Labor Relations Act and has or-
dered.us to post and abide by this notice.
WE WILL NOT refuse to employ George Mrakovich
because of his nonmembership in Laborer's International
Union of North America, Local 125. -
WE WILL NOT 'in any like or related.manner interfere
with, restrain, or coerce our employees in the exercise of
any rights guaranteed them by the National Labor Rela-
tions Act.
WE WILL offer George Mrakovich recall to the job
which he would have had absent our discrimination
against him. -
WE WILL make whole George Mrakovich for any loss
of earnings he may have suffered because of our dis-
criminatory refusal to recall him, with interest.
DONALD DEAN D/B/A D .C. CONSTRUC-
TION COMPANY -