Delta Eletric

National Labor Relations Board - Board Decisions

Jun 21, 1978

236 N.L.R.B. 1108 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Delta Electric and Roy K. Aandal. Case 3 1-CA 7054
June 21, 1978
DECISION AND ORDER
BY MEMBERS PENELLO. MURPHY, AND TRUISDAIE I
On February 14, 1978, Administrative Law Judge
James S. Jenson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering 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 briefs
and has decided to affirm the rulings, findings,' 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, Delta Electric, Saticoy,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order.
At fn. 9 of his Decision, the Administrative ILaw Judge stated that em-
ployee Aandal "was the first one to lease the confined areas following gas
alerts " whereas it is clear from the record that Aandal wlas only onte of
the first employees to leave the confined areas. This apparently inadvertent
error is insufficient to affect the results of our decision
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON. Administrative Law Judge: This case
was heard before me in Santa Maria, California, on Sep-
tember 27 and 28, 1977. The complaint, which issued on
June 30, 1977, pursuant to a charge filed on May 16, 1977,
alleges agents of Respondent made statements in violation
of Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended, and that Respondent refused to rehire
Roy K. Aandal because he joined or assisted the Union or
engaged in other protected concerted activities in violation
of Section 8(a)(l) and (3) of the Act. Respondent denies it
violated the Act and contends the refusal to rehire Aandal
was based on lawful considerations. All parties were given
full opportunity to appear, to introduce evidence, examine
and cross-examine witnesses, to argue orally and to file
briefs. Respondent and the Gener al Counsel filed post-
hearing briefs, both of which have been carefully consid-
ered.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I JURISDICTION
Delta Electric, a California corporation with its principal
office and place of business located in Saticoy, California,
is engaged in business as an electrical contractor. Respon-
dent annually sells and ships goods or services valued in
excess of $50,000 directly to customers located outside the
State of California and annually derives gross revenues in
excess of $500,000. On these facts, it is found that Respon-
dent is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11 TIHE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that Local 413, Interna-
tional Brotherhood of Electrical Workers, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is engaged as an electrical contractor in per-
forming service work for various companies in the Santa
Barbara channel. In the latter part of October 1976, Re-
spondent was hired by Atlantic Richfield Company, herein
Arco, to perform certain electrical work on an offshore oil
platform, herein called platform Holly, located approxi-
mately 3 miles from Elwood, California. The job com-
menced on October 28, 1976, and ended on November 10,
1976, when Respondent was terminated because Arco per-
sonnel had concluded Respondent's work progress was too
slow. Respondent and the Union have been parties to a
series of collective-bargaining agreements, the most recent
being effective from June 1, 1976, until May 31, 1978. Dar-
rell Blair, Respondent's president, has been a union mem-
ber for 31 years, and Donald Richling, one of the foremen
on the platform Holly job, has been a union member for 34
years. Joe Tighe is the Union's business manager. The col-
lective-bargaining agreement provides that the Union is the
sole and exclusive source of applicants for employment,
and the employer has the unrestricted right to reject any
applicant. All employees employed by Respondent on plat-
form Holly were obtained through the union referral sys-
tem. Roy K. Aandal, the alleged discriminatee, was first
employed on platform Holly on November 4, 1976.1 David
King was the foreman on the job from October 28 through
1 Aandal haid worked for Respondent on three prior ocasslons. twice on
offshore oil platforms He had also worked on offshore platforms on three
other occasiotns
236 NLRB No. 138
1108
DELTA ELECTRIC
November 7 when Richling replaced him.2 Besides Aandal,
the other journeymen electricians employed on platform
Holly were Shop Steward Bob Russell, Ray Hafer, Lyn
Lawson, Mike Pettit, Alan Dilligham, Lou Duckett, Doug
Grant, 3 Gary Bartell, and Al Mickelberg.
B. The Platform Holly Job
From the beginning, Respondent's job performance on
platform Holly was plagued by production problems.
Compared with the newer platforms in the channel, Holly
was small, the decks were slippery because of oil spilled
during earlier drilling and oil production, and the decks
were cluttered with other workers and materials. Further,
work was interrupted several times a day by gas alerts, at
which time all workers were required to go to one of sev-
eral enclosed areas about the deck until notified the alert
was over. The gas alerts lasted from 5 to 15 minutes each.
Other interruptions in production were occasioned by cof-
fee and smoke breaks and a 30-minute lunch break. Break-
times were established by the job steward and varied from
day to day, depending on the time work commenced in the
morning.
Aandal reported for work on platform Holly on Thurs-
day, November 4, and worked each day thereafter through
November 10. On his first day of work, Aandal attended
the reels at the base of the derrick so that the wire being
pulled through conduit up into the derrick wouldn't be-
come tangled. On his second day, November 5, Aandal
was assigned to uncrate, sort, and stack materials so that it
could be inventoried. In addition, King assigned him to
hook up some lights on the derrick, work classified under
the contract as "high time" work, and entitling him to dou-
ble the regular straight time rate of pay.4 Aandal spent a
part of his third day, November 6, uncrating, sorting, and
stacking materials so they could be inventoried. Richling
was present at platform Holly on both November 6 and 7
and was carried on Respondent's payroll as a foreman. but
it does not appear from the record that he replaced King as
the foreman until November 8.5
2 While King was the foreman through November 7, Richling was also at
the jobsite on November 6 and 7. King had asked that he be relieved of the
foreman's job since he didn't feel he was capable of getting the work out of
the crew. According to Blair, King complained the men were "pulling the
book on me on every move." It appears King belonged to another local of
the IBEW.
3 Grant was employed only on November 5, 6, and 7.
4An effort was made to assign premium pay work to the men on an equal
basis. The "high time clause." par 3.7 - C of the collective-bargaining
agreement reads:
On jobs where workmen are required to work from trusses, swinging
scaffolds, open ladders, scaffolds, bosun's chairs, stacks, or the mainte-
nance of towers or open platforms where the workman is subject to a
direct fall or where he has to work from a ladder or other support from
a platform within five (5) feet of any direct fall a distance of fifty (50)
feet from the ground floor or supporting structure, they shall be paid at
double the regular straight time rate of pay for all such work. Safety
nets, if used, will not invalidate any part of this high time clause In the
event workmen are required to work in any of the areas covered by this
high time clause outside of regular working hours, or on Saturdays,
Sundays or recognized holidays then the high time rate shall be three
(3) times the regular straight time of pay.
5 Apprehensive about the possibility of losing the platform Holly job, on
On the morning of November 8, the first of several inci-
dents involving interpretation of the collective-bargaining
agreement occurred. Respondent's employees and Richling
assembled at the pier at Elwood prior to boarding a boat
which would take them out to platform Holly. After Richl-
ing and Aandal proceeded out onto the pier and boarded
the boat, Aandal noted that the other electricians had de-
layed walking down the pier. He concluded at that point
that there must be a question regarding starting time and
resolved to stay with the other men thereafter. Later in the
day, Richling assigned Aandal to go to the top of the plat-
form tower and fix a beacon light. Aandal performed the
work and was paid the "high time" rate without dispute.
On the morning of November 9, the men assembled as
usual prior to going onto the pier. While Richling proceed-
ed onto the pier, none of the employees followed. Upon
noticing this fact, Richling returned and asked Shop Stew-
ard Russell why the men hadn't walked out onto the pier.
Russell responded that they had been informed of their
starting time the night before and that it wasn't yet starting
time. After Richling stated they were being paid an extra
half hour for walking out onto the pier, the men walked out
and boarded the boat. Aandal was later told by Russell
that Richling had been wrong and that the men were not
getting paid for the travel time from the pier to platform
Holly. 6 Later in the day Richling assigned Aandal and Bar-
tell to perform work on the top deck at the base of the
derrick which required standing on a 12-foot ladder. Aan-
dal thought the job was "high time" work and asked Shop
Steward Russell to look at it. Russell agreed and so advised
Richling, who characterized Russell's interpretation as "ri-
diculous." A discussion over "high time" took place. Aan-
dal explained the basis for his interpretation and stated
that since the job steward agreed with him that the work
was "high time," he would expect to be paid the "high
time" rate if he did the work, but that if Richling didn't
think it was "high time" work, that he should have some-
one else do it and that Aandal wouldn't report it. Accord-
ingly, someone else was assigned to do the job. Whether he
was paid the "high time" rate is not revealed.7
On November 10, while working with Mickelberg, Aan-
dal found it necessary to do some work with a ladder near
a handrail which he again believed was "high time" work.
Aandal advised Richling the work he was about to perform
was "high time" work, and he and Mickelberg proceeded
to do it. Later, upon returning from a break, Aandal found
Richling making some measurements at the worksite.
Richling stated he didn't see how the work could be con-
sidered "high time," and Aandal explained his interpreta-
November 5. Blair asked Richling to go to the platform the following das as
a "trouble shooter."
6 The collective-bargaining agreement provides, in pertinent part. at p. 30:
The point of embarcation for all off-shore facilities shall be considered
jobsite for the purpose of establishing working hours and/or daily tray.v-
el expense
It appears to have been the practice to attempt to resolve questions
regarding "high time" prior to performing the work rather than after the
work has been completed. It is customary for the employee to first request
a decision on the matter from the shop steward, who then takes it up with
the foreman. If an understanding is not reached, the Union's business man-
ager is asked to resolve the issue. If the contractor is dissatisfied with the
business manager's interpretation, the matter is taken before the labor-man-
agement committee pursuant to art I of the contract.
1109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of the contract clause. Richling characterized both the
November 9 and 10 discussions with Aandal as disputes,
and that he considered the two interpretations on "high
time" made by Aandal as "not legitimate." Later in the
afternoon of November 10, Richling advised the men that
the Respondent had been "kicked off" the job, that the
men were to gather up all of their own and the Respon-
dent's materials for transfer to shore, and that he wanted to
know the time they each had worked so that their pay-
checks would be ready when they reached shore. Aandal
testified without contradiction that he reminded Richling
of the "high time" work he had performed that day about
which there had been a dispute.
Blair met the men when thev arrived at the pier about 7
p.m. that evening and gave each his paycheck and a "no-
tice of termination," wherein it was noted that the individ-
ual was not acceptable for rehire. s Blair told the men that
he blamed them for losing the job, that there had been too
much absenteeism, smoking and coffeebreaks were too
long, there were arguments about meal time, too much
hassling about "high time," that there was "just too much
general disruptions of things, and . . . Arco was unhappy
with it." The "pier" incident of November 9 was also men-
tioned, and the fact other employees had been held up on
the boat about 15 minutes because of the dispute over
"start up" time.9 At this time Richling stated he thought
the reason Arco had terminated the services of Respondent
was because there was too much nonproduction due to
smoke breaks and "too much discussion and hassling
about the work agreement." Aandal denied he had a copy
of the collective-bargaining agreement with him during his
employment with Respondent, or that he ceased work at
any time or caused any other employee to cease work to
discuss the agreement, except for the two brief periods on
November 9 and 10 when he talked to Richling and they
disagreed over the interpretation of the "high time" provi-
sion. No probative evidence was elicited to rebut his testi-
mony in these respects.
On the morning of November 11, Tighe, the Union's
business manager, met with Richling, Russell, and Aandal
to find out why Respondent had been "kicked off" the job
by Arco. He hoped he would be able to meet with Arco to
see if the matter could be straightened out. Tighe testified
that he asked all of the employees he could get hold of,
including Richling, to attend, and that Russell and Aandal
showed up. Richling testified he insisted Russell and Aan-
dal be present. In any event, prior to the meeting Richling
made a list of five items he felt were responsible for Arco's
removal of Respondent from the job. Item I was "Ridicu-
8 The General Counsel does not contend the termination of Aandal and
the other electricians was unlawful.
9The record shows that Aandal was not absent from work during his
employment with Respondent. and that he was not identified as having
been involved in the pier "start up time" incident It also shows he doesn't
smoke. a fact acknowledged by Richling, and Aandal testified without con-
tradiction that since he doesn't smoke, he worked through smoke breaks
and was the first one to leave the confined areas following gas alerts because
of the smoke fumes that accumulated because others smoked during the
alerts. The record is void of evidence that Aandal either participated in, or
was reported to have participated in prolonged breaks of any kind. Further-
more, both Blair and Richling admitted the only problems encountered with
Aandal involved a dispute over what constituted "high time."
lous interpretations of high time, overtime, mealtime (for
the most part I found this to be true)." Richling attributed
the "ridiculous interpretations of high time" to the two oc-
casions, November 9 and 10, when he had discussions with
Aandal and Russell over work that had been assigned Aan-
dal. Item 2 reads "Men had smoke breaks every 2 hours,
most men taking 20 minutes or more. Also taking another
smoke break at every gas alarm (of which there were many)
and not going to work after the clear signal was given. (For
the most part this is true also.) On the last day some men
took smoke breaks of over 35 mins. out of 45, even though
the men were told three times 'all clear' was given." As
noted infra, Richling admitted he knew Aandal didn't
smoke, and the undisputed testimony shows Aandal
worked through the smoke breaks and was the first to re-
turn to work following the "all clear" on gas alerts because
of the smoke fumes created by those who smoked during
the gas alerts. Item 3 reads "A good part of every day was
taken by men talking of the agreement, ('The little yellow
book' as Arco calls it) and the men all figuring with their
pencils and notebooks. (This is somewhat exaggerated, al-
though a lot of it did exist.)" Richling testified he saw Aan-
dal standing on a walkway with Duckett and two other
men during worktime on one occasion, and that Aandal
had a copy of the contract. Aandal denied this incident
ever occurred, and Duckett corroborated his testimony.
While Richling testified a gentleman from Arco pointed
out the gathering of men, that individual was not called to
testify, and Richling admitted he didn't overhear any of the
discussion. Accordingly, I credit Aandal's denial such an
incident took place. Richling testified that on another oc-
casion he observed Aandal, Bartell and a couple of other
men grouped together checking the contract during work-
time. Again, Aandal denied such a conversation took
place, and Bartell testified that while he overheard one of
the discussions between Aandal and Richling over what
constituted "high time," the only time he ever discussed the
contract with Aandal was during a conversation that lasted
approximately 10 minutes during which time they were
working, and that they were discussing the differences be-
tween the collective-bargaining agreements of their re-
spective locals.'0 In light of denials by Aandal and Bartell,
I conclude this item relied upon by Richling is "somewhat
exaggerated" as he noted parenthetically. Item 4 reads, "At
times there would be as many as six men waiting turns at
the vice. One man oiled on a 3/4" cond(uit] while one man
ran the die driver. On checking the tools, I found we had
three sets of hand dies within 15 feet, also three pipe vices
and a porta hand saw and two electric oil drivers. Only one
extension cord was used. I found another and was in the
process of getting materials for a multiple outlet or a wye
when we were run off." Aandal was not identified by
Richling as having been involved in any incident or prob-
lem involving the quality or quantity of work he produced.
Further, item 4 tends to support Aandal's contention that
there were inadequate materials on hand, insofar as exten-
sion cords and outlets were concerned. Further, the mate-
rial inventory shows three ladders were brought aboard
platform Holly after Richling became foreman, which fur-
l0 Bartell belonged to IBEW Local 952.
1110
DELTA ELECTRIC
ther tends to corroborate Aandal's testimony that there
were inadequate materials available on the job and that
they were brought on board in response to his request.
Item 5 states, "Aandal and Russell were two greatest fac-
tors in making this happen, because of their constant ha-
ranguing about working conditions etc. Their attitudes
were passed on to the rest of the men through their con-
stant talk." See discussions of items I and 3 infra. It is clear
the only "haranguing about working conditions etc." that
involved Aandal were the November 9 and 10 discussions
with Richling over the interpretations of the "high time"
provisions in the contract.
On November 12, Tighe met with Arco officials and was
advised that Respondent had been removed from the job
because production was going too slowly due to long break
periods, arguing over the contract, including "high time,"
and starting time. None of Respondent's employees was
identified by name by Arco officials.
C. Aandal's Efforts Toward Being Rehired
In early 1977, Respondent was hired to do electrical
work on platform C in the Santa Barbara channel. In late
March, Aandal talked to Tighe regarding the possibility of
working for Respondent on that job, and Tighe said he
would find out from Respondent if Aandal was eligible for
rehire on that job. Aandal, who was working for another
employer at that time, quit his job on April 4 and signed
the Union's out-of-work list. In the meantime, Tighe had
contacted Blair regarding the eligibility of the platform
Holly employees for further employment with Respondent.
Tighe testified without contradiction that Blair said ev-
eryone was eligible for rehire except Russell and Aandal. lI
On April 5, Tighe called Aandal and informed him that he
wasn't eligible for rehire. On April 6, Aandal went to Re-
spondent's office and talked first to Blair and then to
Richling. Blair said he wasn't eligible for rehire since Aan-
dal "had shown no professionalism on [the platform Holly]
job." Aandal and Blair then approached Richling, and
shortly thereafter Blair left. In response to Aandal's querry
as to why he wasn't eligible for rehire, Richling brought up
the fact that Aandal had agreed with the shop steward's
interpretation of "high time," and the fact Aandal had re-
mained on the pier on November 9 when there was a dis-
pute over starting time. The two then approached Blair,
and Richling, who by this time had become exasperated,
told Blair that if he wanted to, to go ahead and hire Aan-
dal. Blair said no, but perhaps at a later time he would
reconsider hiring him.
On April 13, Blair called Tighe and indicated he would
probably need four men in the near future and asked if any
of the men who had worked on platform Holly were regis-
tered on the out-of-work list. When Tighe advised that
both Aandal and Russell were on the list, Blair asked that
they not be dispatched because they weren't eligible for
rehire. Tighe responded that Blair should send him a letter
regarding their noneligibility for rehire but that he would
" Based on the testimony of Tighe, whose version was not materials
different from Blair who testified he told Tighe he would hire some of the
men if it wouldn't hurt Respondent's good will
have to issue the referrals and that it would then be up to
Blair to reject them. Blair then dispatched a letter to Tighe
stating that both Russell and Aandal were not eligible for
rehire.
On April 14, Aandal was dispatched to Respondent for
work on the platform C job. Upon reporting to the pier, he
was informed by Blair that he was being rejected "because
you lost that job for me." Declining to discuss the matter
further with Aandal, Blair left.
D. Analysis
The General Counsel does not question the legality of
the termination of Respondent's employees, including
Aandal, upon Respondent's loss of the platform Holly job
on November 10. At issue, instead, is whether Respon-
dent's refusal to rehire Aandal on April 14, 1977, was un-
lawfully motivated by Aandal's insistence upon the appli-
cability of the "high time" or premium pay provisions of
the collective-bargaining agreement, in that such conduct
on his part constituted protected concerted activity. Also at
issue was whether Aandal was advised by Blair and Richl-
ing on or about April 6, and by Blair on or about April 15,
that he was not being rehired for that reason.
Turning first to complaint paragraphs 6(a) and (c), alleg-
ing that on or about April 6 and 15, 1977, respectively,
Blair told Aandal he was not being rehired because he had
urged the applicability of the "high time" and the premium
pay provisions of the contract, I have carefully examined
the record and find no evidence that the subject of "high
time" and premium pay was mentioned by either Blair or
Aandal during their discussions on either day. With respect
to the April 14 conversation, Shop Steward Closson was
present and his testimony fails to support the complaint
allegation. Accordingly, I recommend dismissal of para-
graphs 6(a) and (c) of the complaint for lack of proof.
Turning next to paragraph 6(b), alleging Richling told
Aandal on April 6 that he was not being rehired because he
had urged the applicability of the "high time" and premi-
um pay provisions of the contract, the record shows that
after talking to Blair on that day, Blair took Aandal to the
back of the shop to talk to Richling. Aandal testified he
asked Richling "why he was doing this to me," and thai
Richling replied:
And he said, he told me again, he said when the
steward said that something was high time, he said
you agreed with the steward.
And I said, I told him I felt that I had a right to
state my position of how I felt. I said that the steward
agreed that it was high time, and I said I felt that it
was high time, and why shouldn't I state what I felt?
And then he brought it up again, and he said, "One
day you didn't walk out on the pier, and you stayed
back there with the steward."
And I said, yes, I did, and I said, "There was a
question of starting time, and I am going to go with
the group until it is resolved. I'm not taking a side one
way or another. That is a point between the foreman
and the steward to resolve, when the proper time is,
starting time is."
And I told him, I said, "It seems to me that you are
1111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the one that has put the finger on me, that you are
putting the blame onto me."
I said, "Because Darrell told me that he got his in-
formation from you," and so I said, "I feel that you
are the fault of this, me being rejected."
And he said, "You act like you are going to hold a
grudge about this."
And I said, "Listen, Don," I said, "if somebody got
into [your] pocket for several thousand dollars, don't
you think you would hold a grudge about it?"
Richling's account of the conversation, which he says last-
ed "for a good 20 minutes." was sketchy, and it is noted he
failed to deny Aandal's testimony that he had mentioned
"high time." Moreover, I am convinced from Richling's
testimony, as will be explained below, that at least one of
the real reasons for the refusal to rehire Aandal was in fact
his insistence on the applicability of the "high time" provi-
sions in the contract. Accordingly, I find that the General
Counsel has proven by a preponderence of the evidence
the allegation contained in section 6(b) of the complaint.
Paragraphs 7 and 8 allege the refusal to rehire Aandal
because he joined or assisted the Union or engaged in pro-
tected concerted activity. There can be no doubt under
Board law that Aandal's conduct in asserting a claim that
certain work constituted "high time" entitling him to pre-
mium pay under the collective-bargaining agreement con-
stituted protected concerted activity under the Act, even if
he was acting solely on his own behalf. As stated by Ad-
ministrative Law Judge Leff in Ernst Construction Division
of Ernst Steel Corporation, 212 NLRB 78, 83 84 (1974),
"The Board has long held that complaints made or griev-
ances filed for the purpose of requiring compliance with
the provisions of a collective-bargaining agreement, even if
by a single employee acting alone, fall within the category
of concerted activity which is protected by Section 7 of the
Act. See, e.g., Interboro Contractors, Inc., 157 NLRB 1295,
1298, enfd. 388 F.2d 495 (C.A. 2, 1967)." Further, the
Board had held that the merit of an employee's claim is
irrelevant to the issue of whether the employee is engaged
in protected concerted activity. ARO Inc., 227 NLRB 243
(1976). Thus, the remaining question is whether or not Re-
spondent refused to rehire Aandal for asserting that certain
work constituted "high time" under the contract and enti-
tling him to premium pay. It is clear from the record that
neither Blair nor Richling had any complaint against Aan-
dal, except in the instances where Aandal either asserted a
contractual right individually, as when he claimed "high
time" for certain work, and when in concert with the other
employees he hesitated walking onto the pier because of a
contractual dispute over starting time. The complaints Re-
spondent entertained against some of the other employees
were not applicable to Aandal. He didn't smoke, a fact
known by Richling, and hadn't been guilty of taking ex-
tended smoking breaks as others allegedly had. The credi-
ble evidence establishes he exited from the "gas alert"
chambers because of the smoke fumes as soon as the alerts
were over, whereas others remained and were, at least in
one instance, threatened with discharge if they didn't get
back to work. There was no complaint against the quantity
or quality of Aandal's work. Thus, while Respondent had
reason to deny reemployment to other of the platform Hol-
ly employees for a variety of reasons, the only reason for
denying reemployment to Aandal was because he had in-
sisted on the applicability of the "high time" provision in
the contract. In this regard, Blair admitted that neither
King, Richling, nor Arco representatives ever identified
Aandal with having been remiss with respect to any type of
breaktime. In fact Blair admitted the only problem with
which he identified Aandal was the discussion of "high
time." If therefore, as Blair acknowledged, and as he ad-
vised Tighe, he was willing to rehire some of the platform
Holly employees, and since the record shows his only com-
plaint against Aandal was over his assertion of the "high
time" provision in the contract, it becomes all too obvious
that his refusal to rehire Aandal on April 14 was for that
reason. Blair's testimony convinces me that the sole trans-
gression for which Aandal was denied reemployment, was
his assertion of the "high time" provision in the contract;
and that but for his protected concerted activity in at-
tempting to enforce the "high time" pay provision, Aandal
would not have been declared ineligible for reemployment
by Respondent. I find, therefore, that Respondent refused
to reemploy Aandal because he insisted on the applicabili-
ty of the "high time" provision in the contract in violation
of Section 8(a)(l) of the Act.'2
IV' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II1,
above, occurring in connection with the operations of Re-
spondent as described in section 1, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
v THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(l) of the Act, I
shall recommend that Respondent cease and desist there-
from and in any other manner infringing upon its employ-
ees' Section 7 rights, and take certain affirmative action. I
shall recommend that Respondent make Aandal whole for
any loss of pay he may have suffered as a result of the
unlawful refusal to reemploy him, by payment to him of a
sum of money equal to that which he would have earned as
wages from the date of the unlawful refusal to reemploy
him to the date the job was completed or the date he would
have been terminated for reasons unrelated to his protect-
ed concerted activities. The backpay shall be computed on
a quarterly basis in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest thereon
as set forth in Florida Steel Corporation, 231 NLRB 651
(197 7)." In addition, I shall recommend that Respondent
notify Aandal, in writing, that he will be considered eligible
:! I find it unnecessary to decide whether Respondent's conduct also vio-
lated Section 8(a1)(
3
) of the Act, as alleged in the complaint, inasmuch as the
remedy necessary to effectuate the policies of the Act would be identical in
either case. American Art (la (Companv. Inc. 142 NLRB 624, fn. 1 (1963).
1 See, ge nera ll., Isi Plurmbing & Heating (vo., 138 NLRB 716 (1962).
1112
DELTA ELECTRIC
for employment in the future at any of Respondent's pro-
jects if he should choose to apply for employment at any of
them or be referred to them by the Union.
CONCLUSIONS OF LAW
1. Delta Electric, the Respondent, is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 413, International Brotherhood of Electrical
Workers, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By telling Roy K. Aandal, on or about April 6, 1977,
that he was not being rehired because he had urged the
applicability of the "high time" and premium pay provi-
sions of the collective-bargaining agreement, the Respon-
dent has engaged in an unfair labor practice within the
meaning of Section 8(a)1) of the Act.
4. By refusing to rehire Roy K. Aandal, on or about
April 14, 1977, because of his protected concerted activi-
ties, Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commeice within the meaning of Sec-
tion 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 issue the following:
ORDER 1'4
The Respondent, Delta Electric, Saticoy, California, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Telling employees that they are not being rehired be-
14in the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findnmg.
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and heconle
its findings, conclusions. and Order. and all objections thereto shall be
deemed waived for all purposes.
cause they engaged in protected concerted activities on a
prior job.
(b) Refusing to recall or rehire employees for engaging
in protected concerted activities.
(c) In any) other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make Roy K. Aandal whole for any loss of pay he
may have suffered by reason of the failure to rehire him,
and assure him of his future eligibility for employment by
Respondent in the manner and to the extent set forth in the
section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records and reports and all other records necessary or
useful to determine the amount of backpay due under the
terms of this Order.
(c) Post at its facilities in Saticoy, California. copies of
the attached notice marked "Appendix." I Copies of said
notice, on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent im-
mediately 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 custom-
aril) posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
11 Is Ft RTHER ORDERED that the complaint be, and it
hereby is. dismissed insofar as it alleges that Respondent
violated the Act otherwise then found herein,
| In the ecent that this Order is enforced hs a Judgment of a U!nited
States I Court .of Appeals. the words in the notice reading "Posted bh Order
of the National L abor Relations Board" shall read "Posted Pursuant to a
Judgment of the t nited S;tiles C ourt o:f Appeals nfonrcing an Order of the
National Labor Relations Boa.rd "
I 1 13