Elling Halvorson, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1976

222 N.L.R.B. 534 (N.L.R.B. 1976)

534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Elling Halvorson, Inc. and New Mexico District
Council of Carpenters, AFL-CIO. Case
28-CA-3411-2
January 23, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
On September 23, 1975, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, Respondent and the Act-
ing General Counsel, hereafter called General Coun-
sel, filed exceptions and supporting briefs.
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, as modified herein.
The Administrative Law Judge found that the dis-
charges of the six carpenters involved herein violated
Section 8(a)(3) and (1) of the Act. Respondent ex-
cepts only to the award of backpay to the discrimina-
tees. The General Counsel excepts to the Administra-
tive Law Judge's failure to recommend a bargaining
order. We find merit to both exceptions.
Respondent began constructing a particleboard
plant on the Navajo Indian Reservation in New
Mexico, in late July 1974. Wilson M. Benally, Wilson
Pinto, Albert Lee, Kee Shay, Larry Jim, and Haskie
K. Tsosie, the six dischargees, were hired as carpen-
ters during the months of September, October, and
November, 1974. Between December 3 and 4, all six
carpenters signed cards authorizing the Charging
Party'to represent them for the purpose of bargaining
collectively with the Respondent.
After work started on January 23, 1975, Union
Representative Lang began picketing Respondent's
jobsite. The sign Lang carried read "Elling Halvor-
son, Inc.-No Agreement-Carpenters Local 1319."
Sometime later that day, Lang spoke to Grams, the
Respondent's project superintendent, and showed
him the authorization cards.
The carpenters, having already started work before
the picketing began, decided to stay at work for the
remainder of the day. However, the next day, a Fri-
day, all six refused to cross the picket line. The pick-
eting resumed the following Monday, January 27,
and again the six carpenters refused to work. Tues-
day, the jobsite was closed because of bad weather.
Respondent discharged the carpenters that Wednes-
day, January 29, and Thursday, January 30. The rec-
ord establishes the carpenters were discharged for
striking.
The General Counsel contends N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969), is applicable
here and a bargaining order should issue. We agree.
According to the Administrative Law Judge,- the
discharges were lawful, but not motivated by an in-
tent to destroy the Union's majority. The Adminis-
trative Law Judge also noted that the discharges were
the only violations the Respondent had committed.
Emphasizing these two points, the Administrative
Law Judge concluded that "ordinarily prudent em-
ployees would not be inhibited during pre-election or
voting booth phases by Respondent's simple error of
Law...."
We reject the Administrative Law Judge's logic.
He seems to be saying that absent any independent
8(a)(1) violations that demonstrate explicit animus a
bargaining order cannot issue. This is clearly not the
law. Whether a bargaining order should issue is de-
termined by whether the employer's unlawful con-
duct has had a "tendency to undermine majority
strength and impede the election process." I This is
an objective test, The Administrative Law Judge ap-
pears to have decided to decline to recommend a
bargaining order because the discharges had not
been motivated by an intent to undermine the
Union's majority. The test, however, is whether the
Employer's unlawful conduct had a "tendency" to
undermine the Union's majority. Certainly, the dis-
charge for the reasons here of all or clearly the ma-
jority of the employees who would have been includ-
ed within the unit appropriate for collective
bargaining 2 had this effect.' Contrary to the Admin-
istrative Judge, we also find that the coercive effects
of the unlawful discharges would not have been elim-
inated by the application of the traditional remedies
and, therefore, a fair election could not have been
held. Accordingly, we find the 8(a)(3) violations here
warrant a Gissel remedy 4
i N L R B v. G,ssel Packing Co, Inc, supra, 614.
2 The Administrative Law Judge found that Respondent had employed
no more than 1 I carpenters during the week ending December 6, 1974 The
record indicates that the six dischargees were the only carpenters employed
by Respondent on January 23, 1975
3 Accord , Federated Publications, Inc d/b/a The State Journal, 218 NLRB
No 20 (1975)
4 As the complaint did not allege that Respondent had violated Sec
8(a)(5) by refusing to bargain when the Charging Party demanded recogni-
tion , we do not reach that issue As Respondent 's unlawful conduct began
with the discharges of January 29, 1975, after the Charging Party had de-
manded recognition , Respondent will be required to recognize and bargain
with the Union as of that date Trading Port, Inc, 219 NLRB No 76 (1975).
Member Fanning continues to adhere to the position stated in his dissenting
opinion in Steel Fab, Inc, 212 NLRB 363 (1974 ) Member Fanning also
would find Respondent had an obligation to bargain as of the date of de-
mand , here January 23, 1975
222 NLRB No. 70
ELLING HALVORSON, INC. 535
Respondent contends that the Administrative Law
Judge should not have awarded backpay to the dis-
criminatees . We agree.'
At the hearing, the parties stipulated that Respon-
dent, by individual letters dated February 13, 1975,
had offered reinstatement to all the carpenters who
would report to work by February 20, 1975. None of
them, however, reported by February 20. The Gener-
al Counsel apparently considered the offers of rein-
statement valid, and the Administrative Law Judge
agreed .6 As the last opportunity to accept
Respondent's offer was February 20, any backpay
liability would have tolled as of that date.? Since em-
ployees are not entitled to backpay while striking,'
and the six discriminatees were striking between the
date of discharge and February 20, none of them is
entitled to backpay.9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge , as modified
below, and hereby orders that Respondent , Elling
Halvorson, Inc., Navajo Indian Reservation, New
Mexico, its officers, agents , successors , and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraphs 1(a) and
(b):
"(a) Discouraging membership in New Mexico
District Council of Carpenters , AFL-CIO, or in any
other labor organization , by discharging or in any
other manner discriminating against strikers in re-
gard to hire or tenure of employment or any term or
condition of employment.
"(b) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights under Section 7 of the Act."
2. Delete paragraphs 2(a) and (b), substituting the
following therefor and relettering the remaining
paragraphs accordingly:
"(a) Upon request, recognize and bargain with
New Mexico District Council of Carpenters, AFL-
CIO, as the exclusive collective -bargaining represen-
tative of its employees in a unit herein found appro-
priate, respecting , rates of pay , wages, hours and
other terms and conditions of employment and, if an
understanding is reached , embody such under-
standing in a signed agreement."
3. Substitute the attached notice for the Adminis-
trative Law Judge 's notice.
strike herein was a sympathy strike . We agree with Respondent and find
that the strike was for recognition
6 Since there was no exception filed to the finding that the offers of rein-
statement were valid , we adopt this finding pro forma and do not reach the
question of the validity of the offers.
7 Eastern Die Company, 142 NLRB 601, 604 (1963).
8 Astro Electronics, Inc, 188 NLRB 572, 573 ( 1971) Member Jenkins ad-
heres to his dissent in that case
' Id
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, after a hearing
in which all parties were permitted to introduce evi-
dence, has found we have violated the National La-
bor Relations Act and has ordered us to post this
notice.
WE WILL NOT discourage membership in New
Mexico District Council of Carpenters, AFL-
CIO, or any other labor organization, by dis-
charging or in any other manner discriminating
against strikers in regard to hire or tenure of em-
ployment or any term or condition of employ-
ment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights protected by the National La-
bor Relations Act.
WE WILL, upon request, recognize and bargain
with New Mexico District Council of Carpen-
ters, AFL-CIO, as the exclusive bargaining rep-
resentative of our employees in the unit found
appropriate respecting rates of pay, wages, or
other terms and conditions of employment and,
if an understanding is reached, embody such un-
derstanding in a signed agreement.
All our employees are free to remain or refrain
from becoming or remaining members of a labor or-
ganization.
ELLING HALVORSON, INC.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN , Administrative Law Judge: This
case was heard at Gallup, New Mexico, on I July 1 based
5 Respondent excepted to the Administrative Law Judge's finding that the
1 All dates and named months hereafter are in 1975, unless indicated
otherwise
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a charge filed January 28 and complaint issued May 8,
alleging that Elling Halvorson , Inc., called Respondent,
violated Section 8(a)(1) and (3) of the Act.
Upon the entire record in this case, including my obser-
vation of the witnesses, and upon consideration of briefs
filed by General Counsel and Respondent, I make the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
Respondent, a corporation with principal office and
place of business in Seattle , Washington , is a general con-
struction contractor . It annually furnishes services valued
in excess of $50 ,000 in States other than Washington and
annually purchases goods valued in excess of $50,000
which are directly delivered to its operations in Washing-
ton from points outside that State. I find , as Respondent
admits, that it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. New Mexi-
co District Council of Carpenters , AFL-CIO, called the
Union, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is constructing a particleboard plant in New
Mexico under contract with Navajo Forest Products In-
dustries (NFPI). The project commenced July 1974 and
was in progress at the time of hearing. On December 3 and
4, 1974, a majority of carpenters employed on the job
signed authorization cards for the Union.' Those who
signed were Wilson M. Benally, Wilson Pinto, Albert Lee,
Kee Shay, Larry Jim, and Haskie K. Tsosie. Benally had
obtained the cards from Union Representative George
Blacksher, solicited his five Navajo coworkers, and re-
turned all signed cards 3 to Blacksher at the jobsite on De-
cember 4, 1974. Blacksher spoke immediately with Grams
to advise that his organization represented a majority of
carpenters on the job and desired recognition. Grams de-
clined an offer to examine the cards upon which Blacksher
based his claim and stated he was without authority "to
sign a contract."'
2 Job Superintendent Donald Grams testified that daily construction proj-
ect reports showed 8 journeymen carpenters and I carpentry foreman were
employed on December 3 , 1974, and 10 journeymen plus I foreman ap-
peared on payroll the following day Testifying from memory the various
card-signing employees recalled a carpentry work force of eight persons on
those days with either one or two foremen. All probative evidence on the
point establishes that for each workday during week ending December 6,
1974, the number of individuals employed in this specific construction trade
was never higher than 11. A bargaining unit of all carpenters employed on
the project , but excluding all other employees , is presumptively appropriate.
Cf. The First Church of Christ, Scientist, in Boston Massachusetts 194 NLRB
1006 (1972); Lewis & Bowman, Inc, 109 NLRB 796 (1954).
3 Each card was verified by its signer as to authenticity of signature and
date of execution . The showing of majority arises from six valid cards ex-
isting in a unit of no more than II employees
' This response was consistent with Grams ' ccnduct since July 1974 when
he first appeared at the Union's office to inquire about locality wage scale
and the customary fringe benefits. Thereafter , Blacksher spoke with Grams
On January 23 Union Representative William Lang
commenced picketing the job. One or more persons partici-
pated with Lang in this activity. The picket sign'read, "Ell-
ing Halvorson, Inc.-No Agreement-Carpenters Local
1319" (the Gallup local for United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO). Picketing contin-
ued on January 24 and 27, was suspended January 28 and
29 as inclement winter weather delayed the project 5 and
resumed January 30. Early in the course of picketing,
Grams approached Lang and a discussion ensued.6 Lang
tendered the six signed cards to Grams who examined
them briefly and remarked "you've got 100 percent of
them." I
On January 24 five of the named card-signing employees
appeared at the jobsite in the morning but would not com-
mence work because of the picketing.8 Grams' daily report
for January 24 states:
Seven carpenters left job at 8 a.m. due to pickets. They
stated they were informed by the pickets they would
be fined if they worked.
None of the six card-signing employees attempted to work
on January 27 or 28 and following several telephone con-
versations between Grams and Vice President Richard
Potter a decision was reached to terminate them "for not
showing up for work." Grams caused final paychecks to be
prepared and delivered to five of the carpenters on January
29 and to Tsosie on January 30. The statement accompa-
nying each check noted a termination for "absenteeism." 9
The merits of this case are readily expressed. Respon-
dent violated Section 8(a)(3) by "tramp[ing] " the involved
employees in the context of "pickets [being] up" leading to
the "open secret that they couldn't work" and Grams' be-
lief that "they [wouldn't] return to work when the picket
was there." No contention was advanced that the with-
holding of services in this manner gave rise to vital busi-
ness justification for the ensuing terminations. The em-
ployees' refusal to cross a picket line established by the
labor organization in which they had traditionally main-
tained membership, as well as contemporaneously author-
ized as bargaining representative for the particular course
of employment, was a protected activity. Suspension of
picketing on January 28 and 29 was a mere fortuity , associ-
several times seeking to have a contract signed, however Grams repeatedly
referred Blacksher to Respondent's officials in Seattle
5 On January 28 only three tradesmen appeared for work, including one
carpenter who received 4 hours' pay The daily report recorded shutdown of
the job that day due to high winds
6 Lang testified this occurred January 23; Grams recalled it as "early in
the following week " I credit Lang' s version of the incident respecting its
time of occurrence and substance.
r The daily report for January 23 showed five journeymen carpenters and
two foremen On this date Benally missed work due to a funeral
8 Tsosie similarly refused to cross the picket line upon arrival on January
27; however he testified to not traveling to the Job on January 24 because of
the "picket line." Benally is in apparent error by testifying that he saw
Tsosie on January 24, however, I credit his recollection of seeing Shay at the
job that day as this employee "[does not] remember" his actions that morn-
ing.
After termination in this manner Pinto and Jim traveled to the Tribal
Labor Relations office, received referrals respecting Respondent's then-
pending request for carpenters, and reappeared at the jobsite the same day
to present these Following discussion with Grams neither commenced work
"because the pickets were there."
ELLING HALVORSON, INC. 537
ated to weather conditions at the time and vicissitudes in-
herent in maintaining such small scale activity. This hiatus
did not diminish the doctrinal influence on employees
choosing to suspend work during what they perceived as a
labor dispute in which they aligned themselves with the
Union. Cf. Congoleum Industries, Inc., 197 NLRB 534
(1972); Southern Greyhound Lines, Division of Greyhound
Lines, Inc., 169 NLRB 627 (1968).
CONCLUSION OF LAw
Respondent, by discharging Wilson M. Benally, Wilson
Pinto, Albert Lee, Kee Shay, Larry Jim, and Haskie K.
Tsosie because they collectively assisted the Union and en-
gaged in other concerted activities for the purpose of mutu-
al aid and protection, has engaged in unfair labor practices
affecting commerce within the meaning of Sections 8(a)(1)
and (3) and 2(6) and (7) of the Act.
REMEDY
Each party argued that whether to recommend a bar-
gaining order is the critical issue of this litigation. Addi-
tionally disagreement exists on whether backpay is war-
ranted.
Respecting the first point, I conclude that Respondent's
conduct did not amount to "less pervasive practices which
nonetheless still have the tendency to undermine majority
strength and impede the election processes" within the in-
tendment of N.L.R.B. v. Gissel Packing Co., 395 U.S. 575
(1969) and related cases.10 Although business justification
for the discharge of these employees is lacking, this does
not necessarily give rise to a showing of animus.I I Respon-
dent absorbed its original knowledge of card signing with
equanimity and displayed perfect avoidance of ancillary
conduct typically present in bargaining order cases.12 Fur-
ther, Respondent's principal reaction to initial recogni-
tional demands was to encourage use of Board election
processes." The question then is whether mass (relatively
so, given the size of this work force) discharging is itself
action that manifests antiunion motivation. Contrary to
1 ° Linden Lumber Division, Summer & Co v N L.R.B , 419 U.S. 301
(1974); Steel-Fab, Inc., 212 NLRB 363 ( 1974); E. S. Merriman & Sons, 219
NLRB No. 114 (1975),
11 But cf. N. LR B. v. Fleetwood Trailer Co ., Inc., 389 U .S. 375 ( 1967), and
cases there cited.
12 Cf Zim Textile Corp, 218 NLRB No 46 (1975); Vernon Devices, Inc.,
215 NLRB No. 62 (1974). See also Linden Lumber, supra and Trading Port,
Inc., 219 NLRB No. 76 ( 1975). In Linden, significantly , the Court found "no
charge ... tendered to [it]" that the employer had "engaged in an unfair
labor practice apart from its refusal to bargain", notwithstanding back-
ground circumstances of a remedied refusal to reinstate two employees in
what the Board had found "to be an unfair labor practice " In Trading Port
the Board noted the employer's "[U]nfair labor practices commenced as
soon as it learned of union activity [with such ] unlawful course of conduct
[beginning] on the heels of the Union 's recognition demand and continued
unabated throughout the strike and up to the time of the election."
13 Potter testified to receiving long distance telephone contacts in late
1974 from persons representing themselves as union spokesmen seeking to
obtain a signed contract for the project . On both occasions Potter proposed
proceedings be initiated as to which Respondent would "comply with the
NLRB rulings." This testimony harmonizes with that of Blacksher who
tends to recall simply talking "to Mr. Halvorson first" (in relation to the
probability of also talking with Potter)
what General Counsel contends, the decision here, albeit
violative of the Act, keyed solely to a desire to have car-
pentry trade employees available for work on the continu-
ing project. Even the gambit of Pinto and Jim returning to
the jobsite on the day of their discharge with Navajo refer-
rals showed Grams extending the prospect of work, condi-
tioned only on their willingness to actively resume tasks.14
For these reasons Hilltop Van and Storage Company, 182
NLRB 1004 (1970), cited by General Counsel, is inapposite
as there it was concluded from the evidence that an
employer's "real motive" in effecting a group discharge
was "to discourage protected concerted activities and
membership in a labor organization." In Merriman, supra,
the Board recently treated the precipitate discharge of four
employees under Gissel as one of two relevant theories.
This action occurred on the day a union's recognition de-
mand was received, left only one employee of the appropri-
ate unit unaffected and was followed by reinstatements af-
ter the passage of 2 business days. The employer's
"intensive and extensive" threats and interrogation, occur-
ring over merely a 6-day period, were found "coercive [in]
nature" and likely to leave "enthusiasm for unions or other
concerted protected activities . . . considerably damp-
ened." Merriman provides valuable contrast to the instant
case since rationale there, sub silentio, sought to guard the
purity of election processes by direct application of the
"undermin[ing]" and "imped[ing]" strictures in Gissel.
Here, no hostility to institutional unionism is shown and
the opportunity for representation proceedings under Sec-
tion 9 was as much existent during the January 24-Febru-
ary 13 period as had no employment disruption happened.
On the core question of whether actual happenings so dis-
jointed this prospect as to make fair and free secret ballot-
ing unlikely , then or in the immediate future, it is more
reasonable to say that ordinarily prudent employees would
not be inhibited during preelection or voting booth phases
by Respondent's simple error of law in dealing with picket-
ing of its project. In sum, the situation lacks those factors
upon which a Steel-Fab remedy, as Gissel's progeny, may
legitimately he. I decline to so recommend.
The issue of whether to award backpay requires precise
characterization of the terminated employees ' status imme-
diately prior to Respondent's unlawful action. This is ne-
cessitated by the distinctions involved in shaping this as-
pect of remedial orders when those who benefit are
discharged strikers as opposed to persons labeled "sympa-
thy strikers" or who were impermissibly discharged for
honoring a picket line. In the former instance an uncondi-
tional request for reinstatement (subsequent to termination
of the strike) is required, while the latter situations do not
burden the discriminatee(s) with this obligation. See Red-
wing Carriers, Inc., 137 NLRB 1545 (1962); Southern Grey-
hound Lines, supra; Difco Laboratories, Inc., 172 NLRB
2149 (1968); Nuodex Division of Tenneco Chemicals, Inc.,
176 NLRB 611 (1969); Valley Oil Co., Inc., 210 NLRB 370
(1974). Benally and Jim each termed themselves "on
strike", Pinto was equivocal and Lee disclaimed such a
14 Respecting this episode , I credit Grams ' recollection of his conversation
with Pinto in Jim's presence This is a more probable version, is obliquely
corroborated by Jim and is not effectively contradicted by Pinto whose
testimony on the point I reject as unreliable
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
role. However, retrospective assertions of this type are sub-
ordinate to objective facts bearing on conduct by the card-
signing group as a whole. For reasons known only to its
representatives, the Union deferred any significant use of
the fresh authorization cards for an extended period of
time. During this span there is no indication of contact or
communication between Blacksher or Lang on the one
hand and Benally or any of the card-signing carpenters on
the other. The cards apparently remained within union
auspices while inconclusive recognition requests were
made via long distance telephone and it is surmisable that
the holiday season coupled with geographic and cultural
factors simply led to delay. The hiatus, whatever its cause,
was abruptly broken by the commencement of picketing
on January 23. A salient aspect of this event is lack of any
contemporary advice to the carpenters immediately prior
to the activity. This configuration of facts negates any con-
tention that the involved employees were on strike. They
did not meet with union representatives prior to the picket-
ing (in fact remained at work during that portion of Janu-
ary 23 when picketing existed), are not shown to have been
confided in respecting the further course of picketing and
the entire circumstances are devoid of an ordinary frame-
work in which strike activity is deliberately commenced
by employees. Thus Sea-Way Distributing, Roosevelt Roof-
ing, Royal Typewriter, Valley,Oil, and Burroughs,15 cited by
Respondent, are distinguishable as these cases each in-
volved a classic strike context. Here the employees non-
plussedly reacted to picketing rather than purposefully act-
ing to start a strike; and they did so by essentially
individual choice.16 Most importantly, the employees had
no particular objective for a strike on or about January 23.
As employees, nothing was shown to be of then-festering
concern to them with respect to conditions of employment.
The originating event, that of card signing, was generated
from above and operative chronology shows the Union's
desire for an executed collective-bargaining agreement to
have been the real moving force.17 Overall, the evidence
compellingly establishes that the employees were not there-
after on strike, were in truth merely honoring a picket line
which, oddly enough," was operated by the particular la-
bor organization to which they were pledged and that they
were not obliged to communicate reinstatement requests in
order for backpay entitlement to exist.19 The fact of contin-
ued picketing (beyond February 13) is immaterial, as the
employment relationship of each employee was unlawfully
15 Sea-Way Distributing, Inc, 143 NLRB 460 (1963), Roosevelt Roofing &
Sheet Metal Works, Inc, 204 NLRB 671 (1973), Royal Typewriter Company,
209 NLRB 1006 (1974), Valley Oil Co, Inc, supray and Burroughs Corpora-
tion, 214 NLRB No. 88 (1974), respectively
16 Realistically, a Navajo Indian affinity syndrome is present, based on
residential patterns , fluency in common tribal language and natural forces
of heritage Overtones to this effect are present, however the analysis of
basic legal issues remains squarely a matter of applying employment law
principles
17 Blacksher described having known Benally "before the job started" and
to giving him authorization cards with "instructions that we would like
[him] to talk to the fellows and get these authorization cards signed by the
emcloyees " Benally's testimony is consistent with this description
1 This oddity would have dissolved had the situation been transformed
by time and tactics into 8(b)(7)(C) proceedings
19 Concededly valid offers of reinstatement were made by Respondent on
February 13
terminated at an earlier point in time. This, in turn, obvi-
ates consideration of those principles relating to backpay
entitlement vis-a-vis the cessation of strike activity. Royal
Typewriter, supra; Southern Greyhound, supra. Accordingly,
I shall recommend that Respondent cease and desist from
its unfair labor practices, that it compensate Wilson M.
Benally, Wilson Pinto, Albert Lee, Kee Shay, Larry Jim,
and Haskie K. Tsosie with backpay as provided in F. W.
Woolworth Co., 90 NLRB 289 (1950) and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), and post an appropri-
ate notice.
Disposition
Upon the foregoing findings of fact , conclusion of law,
and the entire record and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 20
Respondent, Elling Halvorson, Inc., Navaho Indian Res-
ervation, New Mexico, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee because such employee has assisted a labor orga-
nization by refusing to cross a lawful picket line at the
employee's place of work.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Make Wilson M. Benally, Wilson Pinto, Albert Lee,
Kee Shay, Larry Jim, and Haskie K. Tsosie whole for any
loss of earnings incurred by reason of their discharges.
(b) Preserve and, upon 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 neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Post at Respondent's jobsite on the Navajo Indian
Reservation in New Mexico, including all places where no-
tices to employees are customarily posted, copies of the
attached notice marked "Appendix." 21 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 28, after being duly signed by Respondent's represen-
tative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes
21 In'the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
ELLING HALVORSON, INC. 539
where notices to employees are customarily posted. Rea- (d) Notify the Regional Director for Region 28, in writ-
sonable steps shall be taken by Respondent to insure that ing, within 20 days from the date of this Order, what steps
said notices are not altered, defaced, or covered by any Respondent has taken to comply herewith.
other material.