Dubose Masonry, Inc.

National Labor Relations Board - Board Decisions

May 9, 1986

279 N.L.R.B. 909 (N.L.R.B. 1986)

DUBOSE MASONRY
DuBose Masonry , Inc. and Burton E. Lewis. Case
16-CA-12052
9 May 1986
DECISION AND ORDER
MEMBERS JOHANSEN, BABSON , AND STEPHENS
On 30 December 1985 Administrative Law
Judge Richard H. Beddow Jr. issued the attached
decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering 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 briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, DuBose Masonry, Inc., Crowley, Texas,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following as paragraph 1(b).
"(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed them by Section 7 of
the Act."
2. Delete paragraph 2(b) and reletter the subse-
quent paragraphs accordingly.
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
909
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge or lay off any employ-
ees or otherwise discriminate against them because
of their nonmembership in Bricklayers Local Union
No. 6 or any other Bricklayers Local.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Burton E. Lewis and Devan Hall
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed and WE WILL make them whole for any
loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus
interest.
WE WILL remove from our files any reference to
the discharge of Burton E. Lewis and Devan Hall
on 26 February 1985, and WE WILL notify them in
writing that this has been done and that evidence
of the unlawful discharge will not be used as a
basis for future personnel actions against them.
DUBOSE MASONRY, INC.
Wayne A. Rustin, Esq., and Ruth Small, Esq., for the
General Counsel.
Deborah L. Reddick, Esq., and William N. Wheat, Esq., of
Forth Worth, Texas, for the Respondent.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In his remedy, the judge found it necessary to issue a broad order
requiring the Respondent to cease and desist from infringing "in any
other manner" on rights guaranteed employees by Sec 7 of the Act
However, we have considered this case in light of the standards set forth
in Hickmott Foods, 242 NLRB 1357 (1979), and have decided that the
broad remedial language is not warranted Accordingly, we shall modify
par 1(b) of the recommend Order to use the narrow injunctive language,
"in any like or related manner " Furthermore, in par 2(b) of his Order,
the judge found it necessary to order the Respondent to protect nonunion
employees from on-the-job harassment by other employees Because the
issue of harassment of the discnmmatees was not alleged as a violation in
the complaint, not fully litigated at the hearing, nor found to be a sepa-
rate violation of the Act, we shall modify the recommended Order to
delete par 2(b)
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR ., Administrative Law Judge.
This matter was heard in Forth Worth, Texas, on 17, 18,
19, 26, and 27 July 1985.1 The proceeding is based on a
charge filed on 27 February by Burton E. Lewis, an indi-
vidual. The Regional Director's complaint dated 4 April
alleges that the Respondent, DuBose Masonry, Inc., of
Crowley, Texas, violated Section 8(a)(1) and (3) of the
National Labor Relations Act by discharging employees
Burton E. Lewis and Devan Hall because they were not
members of Bricklayers Local Union No. 6
Subsequent to the hearing, briefs were filed by the
General Counsel and Respondent. On a review of the
i All following dates are in 1985 unless otherwise specified
279 NLRB No. 125
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire record in this case and from my observation of the
witnesses and their demeanor , I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent , a Texas corporation , is engaged in com-
mercial construction and during the past 12 months has
provided services valued in excess of $50,000 within
Texas for other companies each of which has received
goods and materials valued in excess of $50,000 from
points outside Texas. Respondent admits that at all times
material it has been an employer engaged in operations
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act. It also admits that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
Respondent participates in construction activities in
the general Forth Worth-Dallas area and is signatory to
a collective-bargaining agreement with Local No. 6. Pur-
suant to that agreement, Respondent contacts the Union
on a regular basis to obtain 50 percent of its bricklayers
whenever it has a construction project within the
Union's jurisdiction in the Forth Worth geographic area.
Respondent also contacts the Union to obtain additional
bricklayers when it has a project within the jurisdiction
of another bricklayers local. Specifically, Respondent's
foreman, Bob Bowman, called Local 6 Union Business
Agent Robert Ritchie in February and informed him that
Respondent needed bricklayers on its Mesquite, Texas
jobsite. Mesquite is a suburb of Dallas and is within the
jurisdiction of Bricklayers Local Union No. 5. Several
bricklayers from Local 6 were subsequently employed by
Respondent at the Mesquite jobsite.
Charging Party Burton E. Lewis was first hired by
Respondent as an apprentice bricklayer in 1975, and he
subsequently worked for other employers and was a
member of the Union. His membership in Local 6 lapsed
on 31 August 1984 for nonpayment of dues. Lewis al-
lowed his membership to lapse after he had a conflict
with Business Agent Ritchie over internal union prac-
tices. Lewis developed a bitter animosity towards Ritch-
ie, spoke against his character and practices, and opposed
his continuation in office. Both prior to and after drop-
ping Lewis from the rolls of the Union, Ritchie made
several unsuccessful attempts to reinstate Lewis by send-
ing him cards, a letter, and phoning him at his residence.
In November 1984 Lewis was rehired by Respondent's
owner, Carroll DuBose, and went to work at Respond-
ent's Hulen Mall jobsite Shortly thereafter, Ritchie went
to the jobsite, told Lewis that he was too good of a
bricklayer to work for less money, and asked him to re-
instate in the Union Lewis signed a reinstatement form
but only worked for a few more days before quitting be-
cause he did not want to pay union reinstatement fees
and back dues.
In early February, Lewis learned from his friend
Curtis Wade that Respondent needed bricklayers at its
Mesquite jobsite. Both went there and were hired. At
that time Wade 's union membership also had lapsed for
nonpayment of dues. Devan Hall, another friend who
also had let his union membership lapse , was told of the
job opportunity and began working at Mesquite in mid-
February . Thomas Maupin , a laborer mason tender (as
pertinent, laborers are not represented by the Union
herein or any other labor organization ), also began work
at that time and all four rode together in the same car-
pool.
Also in mid-February, Business Agent Ritchie spoke
with Wendell Jones, the business agent for Local 5, and
asked him to go to Respondent's Mesquite project and
attempt to reinstate Lewis and Wade. Jones went to the
jobsite on 25 February and asked for Lewis and Wade.
Jones spoke to Lewis and told him that Ritchie wanted
him to sign some papers to get back in the Union. Lewis
responded by asking why Ritchie did not bring the
papers himself and Jones replied that he was just bring-
ing what Ritchie told him to bring and that he did not
know about anything else.
As noted, Lewis, Wade, Hall, and Maupin rode to the
jobsite together and they worked together as a crew,
along with another laborer. During late February, ap-
proximately 10 other bricklayers worked at the Mesquite
jobsite, and several of them wore clothing with union
identification. On 26 February Lewis and the rest of his
carpool arrived at 7:30 a.m. and began working on a sec-
tion of wall at the top of an electric scaffold. The other
bricklayers, however, did not start work but stood in the
parking lot near the corner of the building where Lewis
was working. Shortly after 9 a.m., Carroll DuBose ar-
rived at the jobsite. He went directly to the electric scaf-
fold and hollered up to Lewis.
The General Counsel presented testimony by three of
the employees regarding what was said . Hall testified
that DuBose said, "Burt, you've got to come down."
Lewis said, "No" and DuBose repeated, "You've to to
come down because they've got me by the balls .. .
there's nothing I can do, or they're going to shut down
my jobs." Hall also said that after getting down, DuBose
told Lewis and himself that "His hands were tied and
there wasn 't nothing he could do in the situation he was
in, that he'd been glad to have us working for him, and
was sorry to see us go."
Lewis testified that DuBose hollered up at him and
told him to come down and that he answered that he
just wanted to work and needed more material . He first
said DuBose's next words were , "They've got me in a
bind" but then admitted that this was a paraphase be-
cause he had not wanted to use DuBose's actual words,
especially at the time he gave a statement before the
Board 's investigator (a female). He then acknowledged
that the actual words used were those stated by Hall.
Lewis continued by testifying that DuBose then said, "If
I don't get you guys off the job, Ritchie's going to shut
down my Fort Worth jobs." After getting down, Lewis
said that he "asked if DuBose had a lawyer and DuBose
replied he did and was looking into the right-of-work
law but didn't know anything about it yet." DuBose then
said , "He regretted having to let us go, but there was
nothing he could do about it."
DUBOSE MASONRY
Maupin testified that DuBose said, "Burt you 're going
to have to get down ," that Lewis replied , "I'm not
coming down," and that DuBose answered , "Please,
they 've got me by the balls . Ritchie is going to shut me
down if I don 't get you off this scaffold ." Maupin said he
then got down and immediately went to the truck with
his tools.
DuBose also was called as a witness by the General
Counsel and testified that on 26 February Foreman
Bowman had called the "office" and asked for certain
layoff checks . DuBose first said he did not speak to
Bowman at the time . DuBose then said , however, that
Bowman "told me the job situation ." DuBose 's answer
then continued as a general discussion of scaffolding
problems with a conclusion that he "had all kinds of
problems on the job."
DuBose said that it was a common practice for him to
deliver layoff checks on jobsites when they are requested
by a foreman and that he went to the Mesquite jobsite
that morning with the checks requested and went
straight to the scaffold where Lewis, Hall, and Wade
were working . When first asked by the General Counsel
if the union bricklayers "were standing around not work-
ing," he indirectly answered , "We have breaks . We have
lunch hours and everything else. I don't know what time
of the day it was." When again asked: "Isn't it true when
you arrived that some union bricklayers weren 't work-
ing? He answered : "That 's one of the reasons I went
over there . We had problems over there ." He then said it
was true the union bricklayers were not working but that
Lewis, Hall, and Wade were . DuBose denied that he
told Lewis that Ritchie had him "by the balls" or that
Ritchie was going to shut down the jobsite if Lewis did
not come down . He did state that Lewis was in "kind of
a frenzy" and that he literally had to force him to come
down . DuBose did not recall if he told them they were
causing problems but admitted that he "could have."
DuBose then testified that Lewis was "hollering and
screaming , he was going to do this and he wasn't going
to do that," and "was not coming off the scaffold," and
that he finally told Lewis to get his butt off the scaffold
after he listened to "about 30 minutes of their problems."
DuBose explained generally that although he runs the
Company , his foreman runs the jobsite , and that the fore-
man (who was not called as a witness by either party)
made the decision to lay off Lewis, Hall, and Wade on
26 February . He testified that the scaffolding problems
affected Respondent 's decision to cut back on the
number of bricklayers and that on the next day, 27 Feb-
ruary , three or four other bricklayers were laid off at the
jobsite He also denied that any conversation occurred
between himself and Ritchie or Jones regarding the
union status of employees Lewis , Hall, and Wade on 26
February or during the period of time prior thereto
Finally , DuBose was asked if Lewis , Hall, and Wade
received their checks later in the day rather than at the
time he got them down , and he replied that he did not
recall and would not dispute the fact that the checks
were given out later in the day.
Hall testified that as they left to go to their trucks, the
other bricklayers began working . Both Hall and Lewis
independently testified that they received their checks
911
from Respondent later during the day on 26 February.
Maupin testified that he received his check between
noon and 2 p.m., and that when the others had requested
their pay earlier that morning , DuBose kind of laughed
and said he did not have them ready and had not expect-
ed he would "have to come out and do this ," and he ex-
plained he had not planned on terminating them until
Ritchie had called him and told him that the bricklayers
were not working.
On 27 February Lewis , Hall, Wade, and Maupin met
at 6 a .m., where they normally got together to carpool.
They had planned to look for another job together but
Wade told them that he and his wife had decided he
should reinstate in the Union and get his job back.
Lewis, Hall, and Maupin visited another construction
project and then went to the home of an attorney,
known to Hall, to obtain legal advice regarding their
layoff. At the suggestion of the attorney , Lewis, Hall,
and Maupin went to the union hall to get a copy of the
collective-bargaining agreement between the Union and
Respondent . They made their request to Ritchie who
told them he would be happy to give them a copy if
they wanted to be members of the Union . Hall testified
he felt they were not getting anywhere and, therefore,
he left without any further conversation with anyone
from the Union about their layoff . They encountered
Wade in the parking lot as they were leaving and said
that he was there to see Ritchie and reinstate in the
Union. Later on that afternoon Lewis , Hall, and Maupin
visited Wade at his residence and got a copy of the
Union's bylaws . Wade confirmed that he had reinstated
in the Union and that he was going back to work for Re-
spondent the next day . Wade did return to the Mesquite
jobsite and is currently employed by Respondent at an-
other jobsite.
About 2 weeks after their discharge , Hall and Lewis
obtained a state court order which allowed them to
return to work on Respondent's Mesquite project. Lewis
made no apparent attempt to return to work at that time.
Hall returned to work at the jobsite and observed that
Wade was already working there . Hall worked for Re-
spondent for about a day and a half and testified that he
experienced harassment from union bricklayers. After
Hall was told by Respondent 's supervisor that he could
expect the harassment to continue , he left the jobsite and
did not return.
Respondent 's counsel called no witnesses but did di-
rectly examine Carroll DuBose after he was called as a
witness by the General Counsel . The General Counsel
attempted to call Curtis Wade as a witness and he was
served at his residence with a subpoena requiring him to
testify at the hearing . Wade , however , informed the
General Counsel on the phone that he had other things
to do and he subsequently did not honor the subpoena.
The General Counsel concluded that it otherwise had
adduced sufficient evidence without questioning Wade
and he decided that it was not necessary that he seek dis-
trict court enforcement of the subpoena . Respondent's
counsel thereupon requested a subpoena and one was
issued calling for Wade's appearance the next day, 19
June , at 1 p .m. The subpoena was not timely served and
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another subpoena was issued calling for Wade's appear-
ance on 26 June. The hearing reconvened on that date
and Respondent's counsel reported that Wade, who was
still in Respondent's employment, still had not been
served with the subpoena. After representations were
made that service was expected by the next morning, the
hearing was recessed until 10 a.m. the next day. Service
was not made the next day and, on motion of the Gener-
al Counsel the record was closed, despite Respondent's
request for a further continuance. It was provided that
an appeal of the ruling to the Board could be made by
11 July, and an interlocutory appeal was made by Re-
spondent on 9 July. The record has not been reopened.
Provision also was made for the introduction of a late-
filed Joint Exhibit pertaining to Respondent's payroll
records. The exhibit was timely filed and I receive Joint
Exhibit 1 into evidence.
III. DISCUSSION
Employees in Texas, a State with so-called nght-to-
work laws , may not be required to maintain union mem-
bership in order to work for a particular employer. Dis-
charge of an employee because he is not a union member
is considered to be discriminatory inasmuch as it has the
natural consequence of encouraging membership in a
particular union and the action by an employer interferes
with an employee's Section 7 rights in violation of Sec-
tion 8(a)(1) and (3) of the Act. In a similar vein, an
action by a union which demands or causes an employ-
ee's discharge for this reason is a violation of Section
8(b)(1)(A) and (2) of the Act. See Laborers Local 135
(Bechtel Corp.), 271 NLRB 777 (1984).
Respondent points out that although a charge was
filed against both the Company and the Union, the Re-
gional Director has neither issued a complaint against
Bricklayers Local No. 6 for the violation of Section
8(b)(2) of the Act nor dismissed such charge. It argues
that because it has been approximately 6 months from
the time the alleged unfair labor practices occurred, and
there has still been no complaint issued against the
Union, it is apparent that the reason for this reluctance
to proceed is because the Board does not believe that it
has a case against the Union. Respondent submits that as
a matter of law there can be no violation by the Employ-
er under these circumstances in the absence of a viola-
tion by the Union; however, no authority is cited in sup-
port of its suggestion . Although complaints arising out of
an apparent common factual background regarding the
alleged causing of an employee's discharge are frequently
issued against both the alleged demanding union and the
complying employer and consolidated for hearing, the
issues involved are not necessarily mutually dependent
and different conclusions can be reached regarding the
legality of the conduct of either the employer or the
union , see Helmsby-Spear, Inc., 275 NLRB 263 (1985).
Here, there is no showing that the Regional Director has
improperly failed to issue a complaint in the pending
charge against the Union or that it has improperly failed
to seek consolidation of these matters for hearing. Under
these circumstances , I conclude that an independent res-
olution of the instant complaint is proper and appropri-
ate.
Here, the General Counsel has presented circumstan-
tial evidence which leads to a conclusion that the Re-
spondent's true motivation for laying off these nonunion
bricklayers was because of their nonunion status. Fur-
ther, he has presented direct testimony which, if cred-
ited, conclusively shows that Respondent's president ad-
mitted removing the three nonunion bricklayers because
he felt that the Union and its business agent would other-
wise shut down the job.
Clearly, the General Counsel has presented a prima
facie case by showing that Respondent was party to a
bargaining agreement with the Union ; that Dallas Busi-
ness Agent Jones, at the request of Fort Worth Business
Agent Ritchie, attempted to obtain the signature of three
nonunion bricklayers on a union reinstatement request;
that the nonunion bricklayer declined; that the next day
the union bricklayers at the jobsite just stood around
rather than beginning work at the usual time; that the
Company's president came directly to the three working
nonunion bricklayers, told them to get down, and laid
them off; that the union bricklayers then started work;
and that one of the nonunion bricklayers regained his job
after he reinstated with the Union on the next day. I
conclude that this evidence is sufficient to support an in-
ference that the employees' lack of union membership
was the motivating factor in the Employer's decision to
terminate. Accordingly, the record will be evaluated in
the light of Respondent's defense. See Wright Line, 251
NLRB 1083 (1980), and NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
As noted above, the General Counsel also presented
the testimony of three witnesses who each asserted that
Respondent's president specifically stated that the
Union's business agent had him "by the balls" and would
shut him down if the nonunion bricklayers did not get
down.
Here, Respondent's defense rests first on an attempt to
discredit the General Counsel's witnesses Hall, Lewis,
and Maupin and, secondly, on the denials by Respond-
ent's president that he made the alleged or similar state-
ments; that he talked to Ritchie on the morning of 26
February, or had any discussion of the union status of
Hall or Lewis; or that Ritchie sought to influence him to
lay off or terminate the nonunion bricklayers. These de-
nials are supplemented by the similar denial of Union
Business Agent Ritchie that he requested (or had Jones
so request) anyone at the Company to lay off or termi-
nate Hall and Lewis or that he had anything to do with
their separation from employment.
Although the Respondent's reading of the transcript
emphasizes certain alleged indications of confusion on
the part of the General Counsel's witnesses, my evalua-
tion of their demeanor and presence while on the stand
convinces me that the confusion asserted by Respondent
was substantially a creation of Respondent's counsel's
style and persistence in conducting his cross -examination.
Despite counsel's insistent and repetitious questioning of
former employees Hall, Lewis, and Maupin, they held to
a recollection of a consistent and credible recitation of
events. Otherwise, Respondent's speculation that they
collectively created a story in order to permit Lewis to
DUBOSE MASONRY
obtain revenge in connection with his admitted animosity
towards Business Agent Ritchie is unsupported by any
persuasive, probative evidence. Moreover, although la-
borer Maupin was an admitted friend of Lewis and Hall,
union membership did not affect the employment of la-
borers, he otherwise has no direct stake in this proceed-
mg,2 and I find his testimony to be otherwise candid and
credible.
The uncontradicted testimony of these witnesses, as
well as Respondent's admissions , clearly establishes that
on 25 February the union bricklayers did not start work
until Hall, Lewis, and Wade were laid off; that DuBose
came to the jobsite shortly before that time and went di-
rectly to the area where the nonunion bricklayers were
working; and that the nonunion bricklayers received
their checks later that day rather than at the time
DuBose first came to the jobsite. Here , DuBose's alleged
remarks, as recalled by Hall, Lewis, and Maupin fit logi-
cally and plausibly into the series of undisputed events
that occurred on the jobsite. On the other hand, I find
that DuBose's overall demeanor and manner of respond-
ing to the General Counsel's questions were frequently
evasive or contradictory and often lacked plausibility.
For example, the General Counsel questioned and
DuBose answered as follows:
Q. Mr DuBose, isn't it correct that on or about
February 25th, you received a phone call from Bob
Bowman. And he told you there was some type of
problem on the Mesquite project?
A. No, he called my office. He requested a
couple of checks or three checks, whatever it was.
Q. Didn't he tell you there were some problems
going on at the Mesquite project?
A. He told me the job situation. We tried out a
new scaffolding It was very expensive, and it was
an electrical scaffolding. And we couldn't move it
around the project because of some plumber not
compacting his ditch, and we couldn't move it. And
we couldn't keep everybody in line working. We
had all kinds of problems on the job.
Q Well, wasn't one of those problems the fact
that the union bricklayers weren't working?
A. The union bricklayers weren't working? I
better not know about it.
Q In fact, didn't you know about it? Didn't
Bowman inform you that they weren't working?
A No, I didn't talk to Mr. Bowman. He called
by office and requested some checks, which is
common. Any foreman working for me, if they
want to lay somebody off, they call the office and
say, "We have to have so-and-so's check."
Significantly, when DuBose then was asked, "Isn't it true
when you arrived that some union bricklayers weren't
working?" he answered, "That's one of the reasons I
went over there. We had problems over there."
A few questions later he said the nonworking bricklay-
ers were his foreman's problems and that he "essentially
2 Maupin apparently made no independent attempt to remain on the
job, but chose to leave because he was dependent on the others for trans-
portation
913
carried the checks over there that he [the foreman] re-
quested." He also said he did not ask the other bricklay-
ers why they were not working or why the foreman
needed the checks. Subsequently, he was asked, "That
morning, you didn't give them their checks at that time,
did you?" and he replied, "I don't recall, if they received
it later on in the day, then they received it later on in the
day. I'm not going to dispute that."
Hall, Lewis, and Maupin each testified that they did
not receive their checks until later during the day and
Respondent makes no attempt to explain why this oc-
curred when Respondent's only asserted reason for
coming to the jobsite in the morning was to deliver the
layoff checks. DuBose's contradictory testimony both
admits and denies that he spoke with his foreman and
that he was aware of a problem with the union bricklay-
ers before he went to the jobsite. Under these circum-
stances, I cannot credit DuBose 's denial of the alleged
remarks made in front of Hall, Lewis, Maupin, and
Wade. I, therefore, find credible the testimony of Hall,
Lewis, and Maupin that at the time they were laid off by
DuBose he told them that Union Business Agent Ritchie
had him "by the balls" and would shut him down if
they, the nonunion bricklayers, did not leave.
Finally, Respondent also asserts as a defense that it
had a valid business reason for the layoff, arguing that
the Mesquite job needed fewer bricklayers on 26 Febru-
ary and that the number of bricklayers on a job fluctu-
ates regularly. The late-filed exhibit of Respondent's pay-
roll records shows labor cost at the Mesquite jobsite for
bricklayer for these pertinent payroll periods:
Ending Pay
2/13 $5,660
2/20 7,307
2/27 3,964
3/06 5,349
3/13 5,815
The combined pay for Hall, Lewis, and Wade for the
peak period ending February 20 was $1836 or about $600
a week. Thus, the decline in pay from pay period Febru-
ary 20 to 27 would be equivalent to five less bricklayers
but would reflect an increase of approximately two more
the following week. Thus, two more bricklayers appar-
ently were on the job after 27 February than the week
before, thereby failing to support Respondent claim that
on 26 February it had a declining need for bricklayers at
the Mesquite jobsite.
Respondent's explanation also is inconsistent with its
treatment of bricklayer Wade, who was laid off on 26
February but put back to work at the same jobsite on 28
February, the day after he reinstated with the Union.
Significantly, Busniess Agent Ritchie admitted that he
called DuBose on 27 February and told him that Wade
had reinstated and was available for work.
Under these circumstances, I find that Respondent's
assertion that Hall, Lewis, and Wade were laid off be-
cause of a decline in work at the Mesquite jobsite is un-
supported. The record otherwise supports the inference
that Ritchie's call to DuBose on 27 February was to
relay the information that Wade could be reemployed
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without fear of the Union 's opposition . This , of course,
further indicated that some event had occurred previous-
ly that had led the Company to believe that the Union
was displeased with Respondent's continued employment
of bricklayers who had declined to reinstate in the
Union.
In summation , I find that the nonunion bricklayers
were laid off under circumstances which are clearly
shown to have been motivated not by a legitimate busi-
ness reason but by Respondent 's desire to accede to a
perceived belief that the Union wanted three particular
nonunion bricklayers to be terminated from their em-
ployment at the Mesquite jobsite. I, therefore , conclude
that the General Counsel has shown by a preponderance
of the credible evidence that by laying off Devan Hall
and Burton E. Lewis on 26 February, Respondent violat-
ed Section 8(a)(1) and (3) of the Act as alleged . See Bet-
chel Corp ., supra , and Laidlaw Waste Systems , 275 NLRB
1025 (1985).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Burton E . Lewis and Devan Hall
because of their nonmembership in the Union , Respond-
ent violated Section 8 (a)(l) and (3) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find it necessary to order it to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Respondent having discriminatorily discharged Burton
E. Lewis and Devan Hall I find it necessary to order it
to offer them reinstatement to their former positions with
compensation for loss of pay and other benefits, in ac-
cordance with F W. Woolworth Co., 90 NLRB 289
(1950), plus interest , as computed in Florida Steel Corp.,
231 NLRB 651 ( 1977). It also shall remove from its files
any reference to their discharge and notify them that it
has been done and that evidence of such unlawful action
will not be used as a basis for further action against
them . See Sterling Sugars, 261 NLRB 472 (1982). Other-
wise , because of the serious nature of the violations and
because it appears that Respondent displayed a general
disregard for the employees ' fundamental rights by sub-
sequently disregarding apparent harassment of nonunion
employees by other employees , I find it necessary to
issue a broad order , requiring Respondent to cease and
desist from infringing in any other manner on rights
guaranteed employees by Section 7 of the Act, Hickmott
Foods , 242 NLRB 1357 ( 1979), and to affirmatively take
any such necessary actions to protect nonunion employ-
ees from on-the-job harassment by other employees.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
eda
ORDER
The Respondent , DuBose Masonry, Inc., Crowley,
Texas, its offices, agents , successors, and assigns, shall
1. Cease and desist from
(a) Discharging or laying off any employees or other-
wise discriminating against them because of their non-
membership in Bricklayers Local Union No. 6 or any
other bricklayers local.
(b) In any other manner interfering with , restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Burton E . Lewis and Devan Hall immediate
and full reinstatement to their former positions and make
them whole for the losses they incurred as a result of the
discrimination against them in the manner specified in
the remedy section and expunge from its files any refer-
ence to their discharge or layoff on 26 February 1985,
and notify them in writing that this has been done and
that evidence of this unlawful discharge or layoff will
not be used as a basis for future personnel actions against
them.
(b) Take such actions as are necessary to protect non-
union employees from on -the-job harassment by other
employees.
(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 Crowley, Texas facility and at its job-
sites in the Dallas-Forth Worth area copies of the at-
tached notice marked "Appendix ."4 Copies of the notice,
on forms provided by the Regional Director for Region
16, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted . Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered , defaced , or covered by any other
material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
I 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
4 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "