Ferguson Enterprises, Inc.

National Labor Relations Board - Board Decisions

Sep 22, 2010

355 N.L.R.B. 1121 (N.L.R.B. 2010)

FERGUSON ENTERPRISES
355 NLRB No. 189
1121
Ferguson Enterprises, Inc. and Joseph Lapham. Case
7–CA–52306
September 22, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On March 3, 2010, Administrative Law Judge Mark
Carissimi issued the attached decision. The Respondent
filed exceptions1 and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated 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,2 and conclusions3
and to adopt the recommended Order.

1 The Respondent did not except to the judge’s finding that employ-
ees Joseph Lapham and David Hall were engaged in protected activity
under Sec. 7 of the Act when they filed prevailing wage claims.
2 The Respondent excepts to some of the judge’s credibility findings.
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.
The Respondent also argues that Lapham’s testimony regarding
Miles Reynolds Sr.’s statement that the Lapham/Hall crew suspensions
were motivated by the filing of the prevailing wage claims, was uncor-
roborated, and that “[]the uncorroborated testimony of an interested
party does not amount to substantial evidence of an unfair labor prac-
tice,” quoting NLRB v. Container Corp. of America, 649 F.2d 1213,
1216 (6th Cir. 1981). As the Sixth Circuit has itself explained, “Taken
out of context, this language suggests that the uncorroborated testimony
of an interested charging party may never amount to substantial evi-
dence. . . . [H]owever, our case law makes it clear that the uncorrobo-
rated and self-serving statements of a party who stands to benefit from
an award of back pay may, standing alone, constitute substantial evi-
dence where such testimony is reasonably deemed to be credible and
trustworthy, and where it is not undermined by evidence to the con-
trary.” Sam’s Club v. NLRB, 141 F.3d 653, 658 (6th Cir. 1998). We
find that Lapham’s testimony met this standard.
We also reject the Respondent’s argument that Lapham’s testimony
was inadmissible as hearsay. Reynolds Sr.’s statements to Lapham
were admissions by an admitted supervisor against a party-opponent,
and thus, were not hearsay under Rule 801(d)(2) of the Fed.R.Evid.
See U.S. Ecology Corp., 331 NLRB 223, 225 (2000), enfd. mem. 26
Fed.Appx. 435 (6th Cir. 2001).
Finally, we find no merit in the Respondent’s allegation of prejudice
on the part of the judge. On review of the entire record, we perceive no
evidence that the judge prejudged the case, made prejudicial rulings, or
otherwise demonstrated prejudice against the Respondent in his analy-
sis or discussion of the evidence, findings and conclusions. Similarly,
there is no basis for finding that bias and prejudice exist merely because
the judge resolved important factual conflicts in favor of the General
Counsel’s witnesses. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656,
659 (1949).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Ferguson Enterprises, Inc.,
Detroit, Michigan, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Darlene Haas Awada, Esq., for the General Counsel.
Stanley C. Moore III and Gary W. Francis, Esqs. (Plunkett
Cooney), of Bloomfield Hills, Michigan, for the Respon-
dent.
DECISION
STATEMENT OF THE CASE
MARK CARISSIMI, Administrative Law Judge. This case was
tried in Detroit, Michigan, on December 7–10, 2009. The
charge was filed on August 10, 2009,1 an amended charge was
filed on September 29, 2009, and the complaint was issued
September 30, 2009.
The complaint alleges that the Respondent on May 26, 2009,
suspended employees Joseph Lapham, David Hall, William
Lewis, George Cook, and Miles Reynolds Jr. and on June 5,
2009, indefinitely laid off the above-named employees in viola-
tion of Section 8(a)(1) of the National Labor Relations Board
Act (the Act).
On the entire record, including my observation of the de-
meanor of the witnesses,2 and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Detroit, Michigan, has been engaged in providing
nonresidential building and construction services, including
demolition services and replacement of underground water and
sewer lines for commercial and governmental entities. Annu-
ally, the Respondent derives gross revenues in excess of
$100,000 and provides services valued in excess of $50,000 for
the city of Detroit, Michigan, an enterprise directly engaged in
interstate commerce. The Respondent admits and I find that it
is an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.

3 In affirming the judge’s application of Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), approved in NLRB v. Transportation Management. Corp.,
462 U.S. 393 (1983), to these facts, we do not rely on Benjamin Frank-
lin Plumbing, 352 NLRB 525 (2008), which was cited by the judge.
1 All dates are in 2009, unless otherwise indicated.
2 In making my findings regarding the credibility of witnesses, I
have considered their demeanor, the content of their testimony and the
inherent probabilities, based on the record as a whole. In certain in-
stances, I have credited some, but not all, of what a witness said. I
note, in this regard, that “[N]othing is more common in all kinds of
judicial decisions then [sic] to believe some and not all” of a witness’
testimony. Jerry Ryce Builders, 352 NLRB 1262, 1262 fn. 2 (2008),
citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950), revd. on other grounds 340 U.S. 474 (1951).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent performs underground utility work, demoli-
tion work, and provides water meter reading services. Its larg-
est customer is the city of Detroit. This case involves employ-
ees who worked in the underground utility division. The record
establishes that the Respondent, when repairing or replacing
water lines or other underground utilities in the city of Detroit,
often has to excavate a portion of the roadway, replace or repair
water pipes, and restore the road to its original condition.
When performing work on public roadways, the Respondent is
responsible for controlling traffic. In May 2009, the Respon-
dent employed a total of approximately 100 employees in all of
its divisions.
At the times material to this case, Bobby Ferguson was Re-
spondent’s president and Al White was the project executive,
reporting directly to the president. The field superintendents
were Miles Reynolds Sr., Fred Erdman, and Cara Woods.
Sherrie Kay Bonds was the Respondent’s accounting/office
manager and Gwendolyn Young was the human resources di-
rector.3
The Respondent performs its underground utility work
through the use of crews numbering approximately five to six
employees. The field superintendents assign and responsibly
direct the work of the various crews. A nonsupervisory fore-
man is a conduit between the field superintendent and the re-
maining members of the crew. The foreman also has responsi-
bility for preparing production reports on a daily basis reflect-
ing the type of work a crew performed and what was accom-
plished. While the record establishes that several of the Re-
spondent’s employees are members of various unions, there is
no evidence that the employees involved in this case performed
their work under the terms of a collective-bargaining agreement
between the Respondent and a union.
B. The Prevailing Wage Claim
Charging Party Lapham testified that he began working for
the Respondent in January 2007, as an operating engineer in the
underground utilities division repairing and replacing water
mains. After approximately 3 weeks, Lapham was assigned to
the crew of Foreman Miles Reynolds Jr. The other members of
this crew in May 2009 were William Lewis, David Hall, and
George Cook.4 Hall became a member of this crew in ap-
proximately May 2008, and Cook joined the crew in December
2008.
When Lapham was first hired his pay stubs reflected that he
was being paid vacation and holiday pay. After being em-
ployed approximately 3 months, Lapham received a phone call

3 I find that all of the individuals named above are supervisors of the
Respondent within the meaning of Sec. 2(11) of the Act and agents of
the Respondent within the meaning of Sec. 2(13) of the Act. The com-
plaint alleges, and the answer admits, that Ferguson, White, Reynolds
Sr., Erdman, and Young are supervisors and agents of the Respondent
within the meaning of the Act. The record establishes the supervisory
authority of Woods and Bonds.
4 Miles Reynolds Sr. is the father of Miles Reynolds Jr. and the step-
father of David Hall.
from Reynolds Senior who told him that because he was not in
a union, holiday and vacation pay would no longer be reflected
in his check. Thereafter, Lapham’s checks no longer reflected
that he was receiving vacation or holiday pay. According to
Lapham, before these payments stopped, his paychecks re-
flected approximately $1700 in such payments.
While the record does not indicate Lapham ever worked un-
der the provisions of a collective-bargaining agreement while
he was working for the Respondent, the Respondent apparently
paid holiday, vacation pay, and health insurance and pension
benefits to employees who were members of a union. Lapham
testified he was not a member of a union. Hall was also a non-
union employee, while Reynolds Junior, Lewis, and Cook were
union members.
Lapham testified that since 2007, he had discussed on nu-
merous occasions whether he was being paid correctly and the
fact that he was not receiving payments for fringe benefits with
other employees of the Respondent, including Reynolds Junior,
Lewis, and Hall.5
At the end of February 2009, Lapham undertook a Google
search regarding whether there was a prevailing wage for work
performed for the Detroit water department. On the depart-
ment’s website he saw information that appeared to him to
indicate that work performed under contracts with the city of
Detroit was to be paid in accordance with the Davis-Bacon Act
prevailing wage provisions. Lapham called the Detroit water
department and was directed to the contracts and grants de-
partment. Lapham was informed that employees working on
jobs performed for the Detroit water department were to be
paid the prevailing wage by their employer.
After obtaining this information, Lapham spoke to Hall.
Lapham knew from previous discussions with Hall that he was
also not a union member and was also not being paid wages
and benefits that employees who were union members were
receiving. Lapham asked Hall if he was interested in filing a
prevailing wage claim against the Respondent and Hall indi-
cated that he was. Lapham and Hall then called the Detroit
water department and were told that in order to start an investi-
gation they needed to come to the office with pay stubs and the
names of the streets that they had worked on. The individual
they spoke to indicated that after obtaining this information, the
water department would then start an investigation.
That same day, Lapham had a phone conversation with Rey-
nolds Senior and informed him of “my intentions to pursue
prevailing wage claims” (Tr. 26). Reynolds Senior asked him
to hold off filing a claim. Reynolds Senior told Lapham that he
wanted to see if there was a way a representative of the water
department could independently come to a jobsite and investi-
gate how employees were being paid so that “no one would

5 Lapham’s testimony on this point is corroborated by Lewis. Lewis
testified that he is a member of a laborers union and that the Respon-
dent paid him fringe benefits, including health insurance and pension
benefits through the Union’s plan. Lewis testified that in late 2007 or
early 2008, Lapham began to have numerous conversations with him,
Hall, and Reynolds Junior regarding the fact that Lapham felt that
nonunion employees like himself should be receiving a specified wage
rate (Tr. 100–103).
FERGUSON ENTERPRISES 1123
have to stick their necks [sic] out to start a claim” (Tr. 25).
Lapham did not accede to this request.6
On March 2, 2009, Lapham and Hall met with Daniel Ed-
wards, the construction contracts manager for the Detroit water
and sewage department, and Gerald Moore, an analyst in
charge of construction contracts. Lapham and Hall brought
paycheck stubs and the name of the streets that they had
worked on for the Respondent.7
At the hearing, Edwards testified that he handles all prevail-
ing wage claims for the Detroit water and sewage department.
He indicated that Detroit has a prevailing wage ordinance cov-
ering all public projects. He explained that the prevailing wage
ordinance requires that an employer working on a public pro-
ject must pay both a specified hourly rate and fringe benefit
payments established by the State of Michigan. There is a
schedule prepared by the State indicating the wage rate for
numerous job classifications. The employer must pay the
specified rates regardless of whether the employees are repre-
sented by a union. Edwards indicated that as part of the pre-
vailing wage the employer must pay a specified amount of
money attributable to fringe benefits such as retirement, health
insurance, and vacation pay. While the employer does not have
to provide a retirement plan or health benefits, it must pay the
specified amounts for fringe benefit payments to the employ-
ees. Edwards indicated that the underlying premise behind
such a program is that an employee can then purchase such
benefits as an individual.
Edwards testified that when he met with Lapham and Hall on
March 2, 2009, they had the pay stubs that they had been re-
quested to bring. He explained to them that he would obtain
certified payroll records from the Respondent and undertake an
investigation to determine whether they had been properly paid.
He indicated that after the investigation was complete, letters
would be sent to Lapham, Hall, and the Respondent notifying
them of the results of the investigation. Lapham and Hall ex-
pressed concern about their jobs being jeopardized because
they were filing a claim. Edwards indicated to them that their
identity would not be disclosed to the Respondent until a letter
was issued to explain the results of the investigation.
After meeting with Lapham and Hall, Edwards obtained cer-
tified payroll records from the Respondent in late March. A
review of the payroll records established that both Lapham and
Hall were underpaid pursuant to the provisions of the prevailing
wage ordinance.
Lapham testified that on May 15, 2009, he received a phone
call from an individual at the Detroit water and sewer depart-
ment. Lapham was informed that the director of the water and
sewer department had signed a letter regarding his prevailing
wage claim and that he could come to pick it up. Lapham met
Hall at the water and sewer department office. A former em-
ployee of the Respondent, John Laginess, who independently

6 Lapham’s testimony regarding this conversation is uncontroverted
as Reynolds Senior was not called as a witness by the Respondent.
7 I credit the uncontradicted testimony of Lapham with respect to his
discussions with other employees about the issue of prevailing wages
and the filing of the prevailing wage claim. His demeanor and the
record as a whole convince me he was truthful. David Hall was not
called as a witness by the General Counsel.
filed a prevailing wage claim was also present. At the meeting,
Lapham was given a letter dated May 13, 2009, signed by the
interim director of the Detroit water and sewage department,
regarding the investigation into his claim. The letter indicated
that the investigation revealed that, using the correct prevailing
wage rate for 2007 and 2008, Lapham was owed $71,490.28
(GC Exh. 4). On the same date Hall was also given a similar
letter dated May 13, 2009, informing him that using the correct
prevailing wage rates for 2005, 2006, 2007, and 2008, he was
owed $56,235.93 (GC Exh. 5). The individual that Lapham
and Hall met with informed them that the Respondent would be
called on Monday, May 18, to pick up its letter.
On May 14, 2009, the interim director of the Detroit water
and sewer department signed a letter addressed to Bobby Fer-
guson, the Respondent’s president, and Nafa Khalaf, Detroit
program management JV team, LLC.8 The letter indicated in
relevant part:

The Detroit Water and Sewerage Department (DWSD) has
completed an investigation into claims that Ferguson Enter-
prises, Inc. (FEI) is not paying three (3) employees prevailing
wage rates as required in the above mentioned construction
contracts. DWSD has determined that the assertion is correct
based on the information submitted with the claims. A copy
of the prevailing wage breakdown spreadsheets and pay stubs
in question for David Hall, John Laginess, and Joseph Lap-
ham, employees for FEI, are attached for your information
and review.

The attached spread sheets reconcile the paystub hours for
regular and overtime (time and a half). Using the correct pre-
vailing wage rate for 2005, 2006 2007 and 2008 yields a total
prior to deductions and taxes of $56,235.93 for David Hall.
Using the correct prevailing wage rate for 2006, 2007 and
2008 yields a total amount owed prior to deductions and taxes
of $ 33,607.80 for John Laginess. Last, utilizing the correct
prevailing wage rate for 2007 and 2008 yields a total amount
owed prior to deduction and taxes of $71,490.28 for Joseph
Lapham.

DWSD will be withholding further payments on all of the
above-mentioned contracts until FEI and DPM come into
compliance with the terms and conditions of the contract by
paying the employees in question, all other laborers, and all
other classifications of laborers the correct prevailing wage
rates and retroactive pay for previous years when FEI and
DPM and/or its subcontractors did not fulfill its obligations.

DWSD anticipates that all wages paid from this date forward
will be the Prevailing Wage Rates. Please provide DWSD
with a signed waiver and copies of checks and related check
stubs issued to all affected employees demonstrating payment
of previous (retroactive) prevailing rates of, and copies of cur-
rent checks and related check stubs with the correct hourly
wage rate shall. When this document is received and verified,
payments(s) will be released. [Jt. Exh. 1.]

8 The record does not indicate Khalaf’s role with the Respondent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124
Edwards testified that the Respondent received this letter on
May 18, 2009, when it was picked up from him by Bernard
Parker, the Respondent’s business development person.9
C. The Accident on May 15, 2009
On May 15, 2009, a crew composed of Foreman Miles Rey-
nolds Jr., Lapham, Hall, Lewis, and Cook (the Reynolds Jun-
ior’s crew) was working at a jobsite on Livernois Avenue in
Detroit. According to Lapham’s credible testimony, the Rey-
nolds Junior’s crew had been working on that site for approxi-
mately 2 weeks. On May 15, there was also a concrete crew
assigned to this project whose foreman was James Lauderdale.
According to the production sheet signed by Lauderdale on that
date, the other members of his crew were J. Herrod, W. Chas-
tang, A. Robinson, and David Robinson (GC Exh. 17).
Livernois Avenue runs in a north and south direction. In the
area where the work was being performed, there are three lanes
in each direction with a middle turning lane (Jt. Exh. 14). Prior
to May 15, the Respondent’s employees had dug three trenches
(sometimes referred to as cuts) across Livernois Avenue, re-
placed water pipes and placed backfill into the cut so that traffic
flow could be restored. The cuts were approximately 10 inches
deep and 5 to 6 feet wide. The length of the cuts varied.
The work that was to be performed on May 15 involved first
removing backfill from the three cuts that had previously been
dug across Livernois Avenue. Steel rebar was then to be in-
serted into the trenches to give the cement the necessary
strength and the trenches would then be filled with concrete.
Finally, metal plates would be placed over the trenches. The
metal plates allow traffic flow to be restored and protect the
concrete until it cures.
At approximately 7 a.m. on the morning of May 15, Superin-
tendent Fred Erdman met with Foremen Reynolds Junior and
Lauderdale to discuss how traffic control was to be set up that
day. According to the credited testimony of Reynolds Junior,
Erdman was sitting in his truck and Reynolds and Lauderdale
were standing next to it. Erdman directed Reynolds Junior and
Lauderdale as to how he wanted the traffic barrels set up.
Erdman directed them to place directional signs at each end of
the approximately 2000 foot-long project. He indicated that the
traffic barrels were to be placed in such a way as to “taper” the
traffic into the lane closest to the curb in each direction. In this
way the two crews could work on the middle section of the
road first.10

9 Lapham testified that he received a phone call from the water de-
partment on May 18 informing him that a representative from Ferguson
had picked up the “paperwork” on the prevailing wage claims.
10 I do not credit Erdman’s testimony that he gave directions only to
Reynolds Junior on the morning of May 15. I find Reynolds Junior’s
version of this conversation to be the more credible one. The testimony
of Reynolds Junior that Erdman gave directions regarding the traffic
control to both himself and Lauderdale is corroborated by the testimony
of William Lewis and George Cook. Both Lewis (Tr. 112) and Cook
(Tr. 146) testified that they saw Erdman speaking to both Reynolds
Junior and Lauderdale early in the morning before the job started.
Lauderdale did not testify at the trial. I note that throughout his testi-
mony, Erdman appeared to overstate the involvement of Reynolds
Junior and his crew and diminish the involvement of Lauderdale and
his crew in the accident that occurred on May 15. In addition,
Reynolds Junior testified that he told Erdman that there were
not enough barrels to set up the traffic flow. Erdman replied
that there were enough and this is how he wanted to do it (Tr.
233). Reynolds Junior then gave directions to the crews as to
how the barrels were to be placed. Lapham, Reynolds Junior,
and Lewis all testified without contradiction that the concrete
crew worked together with their crew in setting up the barrels.
Respondent’s safety representative, Boyer, testified that he
was involved in setting up the traffic control on May 15 at the
Livernois jobsite. He testified that Andre Robinson and David
Robinson were the two “flaggers”11 assigned to the jobsite that
day. Boyer testified that he placed David Robinson at an inter-
section of Livernois and a side street where a substantial
amount of truck traffic was located. The other flagger, Andre
Robinson, was not given a specific assignment by him.
After the barrels were set up both crews started working at
the north end of the jobsite. They finished filling in the two
cuts in the middle of the road. It is undisputed that later in the
morning Erdman and Boyer returned to the jobsite. After re-
viewing the traffic flow set up, Erdman told Reynolds Junior
that it looked good.
After lunch, the third cut had been partially filled in but one
more cement pour was necessary in order to complete the work
in filling up the cut. While waiting for the cement truck to
arrive to pour the remainder of the cement in the cut on the
south side of the project, Lauderdale and Reynolds Junior de-
cided that the barrels should be moved in a manner to allow
work on the project to continue. They decided that the Rey-
nolds Junior’s crew should move to the middle cut of the pro-
ject and began to excavate the backfill in the far western lane.
(Traveling south this was the far right-hand lane by the curb.)
According to Reynolds Junior, he and Lauderdale decided to
move the barrels in the following manner in order to keep both
crews working. As traffic entered the construction zone from
the north an arrow board directed it into the center lanes. This
was necessary because the Reynolds Junior’s crew was going to
be preparing the portion of the middle cut in the western most
lane for concrete. Before traffic reached the southern most cut
where Lauderdale’s crew was working, the barrels were placed
to direct traffic back over to the right-hand curb lane to go past
the area where Lauderdale’s crew was working.12
According to Reynolds, he called Erdman to tell him that the
barrels were being moved but did not reach him and left a mes-
sage (Tr. 239–241). Reynolds Junior indicated that when he
was not able to reach his superintendent on a previous job on 8
Mile Road in Detroit to notify him that he wanted to rearrange
the barrels, he used his discretion to determine the placement.
Lapham testified that later in the day on May 15, the cement
work had not been completed in the southern most cut. He was

Erdman’s claim that he gave a sketch of the traffic control pattern he
wished to establish that day to Reynolds Junior is contrary to the testi-
mony of Isaac Boyer, the Respondent’s safety representative. Boyer
testified that he was present when Erdman met with the crews and that
Erdman did not give a sketch to them (Tr. 579).
11 As the title denotes, flaggers are employees whose primary duty is
to direct traffic.
12 Reynolds Junior’s testimony regarding his discussion with
Lauderdale is uncontroverted and I credit it.
FERGUSON ENTERPRISES 1125
told by one of the foreman that the concrete crew had run out of
cement. Reynolds Junior instructed Lapham to block traffic
with his front-end loader at the north end of the jobsite. From
there Lapham observed Reynolds Junior direct members of his
crew and the cement crew to move some barrels so that the
traffic was shifted in a manner that would allow the Reynolds
Junior’s crew to begin excavating the right curb lane (heading
south) of the middle cut in the project.13
After the barrels had been rearranged, a car drove into the
unfilled portion of the southern most cut. The driver was head-
ing south when the accident occurred. The mutually corrobora-
tive testimony of Reynolds Junior, Lapham, Cook, and Lewis
establishes that at the time of the accident the Reynolds Jun-
ior’s crew was working in the right curb lane of the middle cut
in the project, north of the accident.14
Cook first observed that a car had driven into the southern
most cut. Both he and Reynolds Junior called Erdman and
informed him of the accident. Consistent with the Respon-
dent’s policy, as a foreman on the job, Reynolds Junior took
pictures of the accident scene with a company issued camera
(Jt. Exhs. 7–14). After taking the photographs, Reynolds Junior
testified he was securing his machine off the road when one of
the employees informed him that White wanted to see him at
the accident scene. According to Reynolds Junior, by the time
he arrived at the accident scene, White had left. Reynolds Jun-
ior testified he spoke to Erdman. Erdman stated that he had
never seen anything like this “and somebody is going to get
fired for it.” Erdman said there were cars parked in the middle
of the road confusing people as to which way to go (Tr. 254).
Erdman asked Reynolds Junior what happened. Reynolds Jun-
ior responded that the car drove into the cut where employees
were working. Erdman stated that “somebody is going to go
down for this.” Reynolds Junior testified he felt Erdman was
being accusatory and responded that, “We’re down here, work-
ing. I ain’t down there, so I don’t know what’s going on down
there and can’t control what’s going on down there. It’s an-
other crew down there.” Erdman responded, “[W]ell, some-
body is going down for this. Somebody is going to get fired for
this.” (Tr. 250–252.)15 The record establishes that two of the
vehicles parked by the accident scene belonged to Lauderdale’s
crew and none belong to the Reynolds Junior’s crew (Tr. 256–
257).
Erdman testified that he approached the accident scene on
May 15 traveling south on Livernois. In his view, the lane
closure was established in a way in which drivers could not be

13 The testimony of Lewis corroborates this fact.
14 There is a discrepancy in the estimated distance between the two
cuts. Lewis estimated the distance to be about 200 yards (Tr. 111).
Reynolds estimated the distance to be approximately 250 to 300 feet
(Tr. 246). It appears that the accident occurred 100 to 200 yards away
from where the Reynolds Junior’s crew was working.
15 I credit Reynolds Junior’s version of this conversation over that of
Erdman. Reynolds Junior’s testimony was consistent on both direct
and cross-examination (Tr. 374–375). Erdman testified that he spoke to
Reynolds on his cell phone. He did not relay any details about the
conversation. (Tr. 447.) Because of its detailed nature and its consis-
tency, I find Reynolds Junior’s version of the conversation to be more
credible.
certain where to go (Tr. 450). Erdman testified that “30 sec-
onds” after arriving on the jobsite he determined that Reynolds
Junior and his crew had engaged in unsafe working practices.
He testified he placed Reynolds Junior in charge of traffic con-
trol and he did not follow his instructions. Erdman indicated he
held the remainder of the crew responsible because they par-
ticipated in setting up a negligent and unsafe situation. He
testified he did not hold Lauderdale or his crew responsible
because they were working in the area that they should have
been. Erdman testified that he told White at the accident scene
that he had not seen such negligence in all his years in the busi-
ness and “as far as I’m concerned, if I had my way, I’d fire
them all right now” (Tr. 480). Erdman testified that White told
him to calm down and that they would talk about it after the
weekend (Tr. 547–548).
Boyer testified that he received a phone call from White tell-
ing him there had been an accident on the Livernois Avenue job
and he returned to the site. When he arrived, he observed that
the accident was at the southern most cut on the jobsite. Boyer
spoke to employee Andre Robinson and asked him what had
happened. Robinson indicated that the car had come between
the barrels that had been set up and was coming toward him.
Robinson said he moved out of the way after almost being hit
and the car then went into the cut. Robinson had been trying to
stop the car from coming through the barrels by waving his
hands and yelling. (Tr. 566–567.) Boyer took a series of pho-
tographs of the scene after the accident. (R. Exhs. 1–4.) Be-
fore leaving the accident scene Boyer spoke briefly to Don
Spencer, a project manager for the Respondent, who was pre-
sent at the accident scene and reminded him to get witness
statements.
D. The Investigation into the Accident
Consistent with Respondent’s policy that foremen write a re-
port of an accident, Reynolds Junior prepared a report regard-
ing the accident of May 15 over the weekend. The following
Monday, May 18, he submitted his statement to Tanisha Gibbs,
a project assistant for the Respondent. Because he wrote his
report on an older form, Gibbs rewrote it on the current “Em-
ployee Report of Incident” form which Reynolds then signed.
(GC Exh. 3.) Reynolds Junior’s report indicates:

Traffic was running in the far right lane, and the car went out
of lane around the line of barrels and into the construction
area where we were working, car drove into the trench. The
driver was not paying attention when he drove around the bar-
rels into the area where we were working. He could have in-
jured worker or aorse [sic].

Paragraph 4 of the form asked “How could the incident been
avoided? What could you have done differently? Reynolds
Junior’s report indicated “Put more barrels out, that’s it. Could
have put caution tape from barrel to barrel. But that’s not a
requirement.”
Safety representative Boyer16 submitted the photographs he
took at the accident scene and an “Employee Report of Inci-

16 Boyer testified at the hearing that he is the only person at the Re-
spondent who is responsible for conducting investigations of accidents
that occur on a jobsite. In his approximately 10-year career he has
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126
dent” dated May 18 to Gwen Young, the human resources di-
rector. His report noted the time of the incident as 2:40 p.m.
and indicated:

Ferguson concrete crew were pouring road cut on Livernois,
the crew had the road barricade [sic] from north to south one
lane each way, a driver in a car Road [sic] between the barrels
[sic] going south and ran in an open hole that were [sic] barri-
caded off. Ferguson concret [sic] crew had a traffic control
person posted by the barricans [sic] he tried to stop the car.

With respect to the questions asked in paragraph 4 as noted
above, Boyer responded, “Add more barries [sic] and one more
flag person.” (GC Exh. 8.)17
Young directed Boyer to obtain a statement from Lauderdale
and his crew regarding the accident. At the hearing, Boyer
identified (GC Exh. 9) as the statement he took from Lauder-
dale’s crew. This document is dated May 18, 2009, and indi-
cates “concrete crew” next to “witness name.” Under the pro-
vision that asks the witness to fully explain how the accident
occurred, it merely states “same.” Boyer explained that the
reference to “same” referred to the report that Boyer had writ-
ten (GC Exh. 8).
Young testified that Project Manager Donald Spencer sub-
mitted statements to her from two nonemployee witnesses (Tr.
634). These statements are titled “Witness Statement of Inci-
dent.” The first one is an unsigned statement from Angel Ortiz
dated May 15, stating in relevant part:

Mr. Ortiz seen [sic] the car in the trench after (unintelligible)
the accident. Witness stated that the driver drove the car in-
side the construction barrels. There were 2 trucks parked on
the inside of the barrels one was brown and the other white
Somat truck. [Sic.]

Paragraph 4 in the statement asks, “How could the incident
been avoided? [sic] What could have done differently? [sic]
The statement indicated “FEI could have added more barrels
and additional flag person.” Under additional comments or
observations the report indicated “He stated the incident look
[sic] like it was driver’s fault.” (GC Exh. 6.)
The second statement is also an unsigned statement taken
from Bob Allor which indicates, in relevant part:

I was on site to test the concrete for DWSD while I was wait-
ing for the load of concrete to arrive on site. I was sitting in
my vehicle inside the construction barrels half between the
light and end of the construction zone with my hazard lights
on my truck. When I noticed a car driving from the far right
lane (which was the detour lane) in between the barrels disre-

investigated 12 or 13 accidents. Boyer indicated that if he finds a
safety violation resulted in an accident, he writes a safety violation
report to Respondent’s human resources department, which would then
decide if discipline was warranted. Boyer did not report a safety viola-
tion regarding the accident on May 15. (Tr. 579–580.) He also indi-
cated that individuals at the foreman level or above can also report
safety violations (Tr. 584–585).
17 Boyer testified at the hearing that he answered in that fashion be-
cause that is what the crew on the site indicated to him. In his opinion,
there were a sufficient number of barrels present at the jobsite (Tr.
581).
garding the lane closure and drive [sic] into the trench. He
was clearly in the wrong for his action by drive [sic] between
the barrels. [GC Exh.13.]

Erdman testified that he had a meeting with White on May
19 or 20 in White’s office regarding the accident. At that meet-
ing Erdman again recommended that Reynolds and his crew be
fired. According to Erdman, White replied that he did not
really know what had gone on and that he did not know what
would be done regarding discipline. White told Erdman that
they were going to investigate the matter. (Tr. 547–548.)
Erdman testified that when he left the meeting he did not know
what decision was going to be made with respect to discipline.
After the meeting, Erdman read the incident reports that had
been filed by Respondent’s employees but did not see the third-
party witness reports. He did not give White a summary of the
incident reports.
After being contacted by a representative of the insurance
company of the driver who had been involved in the May 15
accident, Young asked Lauderdale to complete a witness state-
ment. In a report dated October 9, 2009, Lauderdale’s state-
ment indicates that he had David Robinson “flagging” and all
cars went into the right lane as ordered. The statement further
indicated that one car went left into the barrels for no reason
and drove into the hole where his crew was working. (GC Exh.
12.)
Young testified that she maintained the incident reports and
witness statements and file (Tr. 634). She had no personal
knowledge as to whether White or Bobby Ferguson ever re-
viewed the file. There is also no evidence that anyone in Re-
spondent’s management ever reviewed the photographs taken
by Reynolds Junior and Boyer.
E. The Meeting of May 26
White assigned the Reynolds Junior’s crew to work on a job
on Nevada Street in Detroit the entire week of May 18 to 22.
By the end of the week the crew had not completed its work on
that job. Over the weekend of May 23 to 25 (Memorial Day
weekend), White called Reynolds Junior and told him to con-
tact his crew and have them come to the office on Tuesday,
May 26. White informed Reynolds Junior that his crew was
being suspended because of the accident. Reynolds Junior con-
tacted his crew, with the exception of George Cook, who was
on vacation and informed them they were being suspended
because of the accident and were to report to a meeting at Re-
spondent’s office on May 26.
Lapham testified that he met with Lewis Hall and Reynolds
Junior at the office at approximately 1 p.m. The employees
were directed to a conference room. Reynolds Senior and
Young were present in the conference room. Lapham testified
that Reynolds Senior commented, “You guys know this has
nothing to do with a safety violation. This has to do with you
guys filing prevailing wage against Ferguson.” (Tr. 51–52, 85.)
The employees expressed agreement with that statement. Rey-
nolds Senior then stated that “stick to your story, you know,
you guys didn’t do anything wrong out there that day.” Young
was present but did not say anything during this exchange.
FERGUSON ENTERPRISES 1127
Young then showed that the employees who were present in-
dividual identical forms. (Jt. Exhs. 3, A, C, D, and E.)18 The
form was entitled “Notice of Safety Violation” and indicated:

On May 15, 2009, the driver drove his vehicle into an unat-
tended open trench thal [sic] was not sufficiently barricaded.
Reasonable precautions were not made to eliminate any rec-
ognized safety hazards that existed as a result of leaving the
open trench unattended and protect the open trench from ac-
cidental entry. This is a violation of the company’s safety
policies and procedures.

The form indicated that the named employee was suspended
until further notice. Young indicated that the employees did
not have to sign them if they chose not to.
After Young showed the employees the form, Erdman and
Boyer walked in and Reynolds Senior left the conference room.
When Erdman walked in he said he just found out about the
meeting that morning from Young. He said that a big mistake
had been made the day of the accident. He stated that he told
the two foremen that morning how to set up the job and could
not understand why the barrels had been set up differently.
Reynolds Junior responded by saying that he had told Erdman
there were not enough barrels to set up in the proper way.
Erdman responded to Reynolds but Lapham did not recall the
response. Erdman stated he had not seen anything so bad dur-
ing his entire career as superintendent. Lapham indicated that
if the meeting was about the accident, why wasn’t Lauderdale’s
crew present. Boyer indicated that they were calling them in the
next day. (Tr. 55–57.)19 The safety violations were then pre-
sented to the four employees. They were all signed by Erdman
and Young, but the employees refused to sign them.
Before the end of the meeting, Erdman drew a diagram for
the employees and said he specifically had indicated to set traf-
fic control in that way, but that it was switched and set up an-
other way. Erdman repeated that the two foremen were at fault.
Reynolds Junior asked how long they were suspended for.
Erdman replied that it was up to White. Reynolds asked
Erdman if they could speak to White. Erdman said he would
see if White would speak to them. When White arrived, Rey-
nolds asked him how long the suspension was for. White re-
plied indefinitely and then told the employees to get off the
property.
Lewis testified differently from Lapham with respect to por-
tions of the meeting. On direct examination, Lewis testified
that when the employees arrived at the conference room, Rey-
nolds Senior and Young were present. On direct examination,
Lewis testified that he asked, “Why are we here over this acci-
dent when we know it’s not. It’s over the prevailing wage that
Joe and David Hall signed up for. According to Lewis, Rey-
nolds Senior said that he knew that and Young also stated that
she understood that but “they had to do this under the safety
violation” (Tr. 118).
Lewis testified that after Reynolds Senior left the room,
Erdman and Boyer entered. Lewis told Erdman that “[t]his

18 Cook was mailed his suspension notice. (Jt. Exh. 3B.)
19 There is no evidence in the record indicating that anyone from
Lauderdale’s crew was disciplined for the accident.
isn’t about the safety incident. It’s over prevailing wage and
two guys signing up for the union” (Tr. 119).20 Erdman re-
sponded that we have to record this as a safety violation.
Erdman then indicated that the safety violation was that he told
both of the foremen to set up the barrels in a specified manner
and they did not follow his directions.
On cross-examination, Lewis testified that, in responding to
the statement that Lewis made about the prevailing wage claim,
Reynolds Senior stated, “[Y]ou have to go through it as a safety
violation” (Tr. 133). Lewis testified on cross-examination that
Young merely responded by saying that White wanted her to
proceed with this is as a safety violation. When I questioned
Lewis about what Reynolds Senior said, he responded that
Reynolds Senior stated, “[Y]ou guys got to go through with this
way. Just follow the channels.” (Tr. 138.) Finally, on recross-
examination Lewis testified as follows:

Q. BY MR. MOORE: Did Miles Reynolds Senior say
“You’re right” or, “That’s exactly what this is” I mean
again as best you can recall of his words.
A. Yeah, I don’t recall him making any comment other
than “Follow this is the way it’s going.” [Tr.139.]

Reynolds Junior testified that after he and the other employ-
ees were in the conference room, Reynolds Senior came into
the room. He did not recall anything specific about what Rey-
nolds Senior said, but he did indicate that Reynolds Senior did
not say anything about the reason they were there. (Tr. 299–
300.)
To the extent that the testimony of the three General Counsel
witnesses conflicts, particularly with respect to the portion of
the meeting involving Reynolds Senior, I credit the testimony
of Lapham. In addition to his forthright demeanor, he testified
consistently on both direct and cross-examination. He also
recalled with specificity details of the meeting such as exactly
where individuals were seated.
On the other hand, the testimony of Lewis substantially var-
ied between direct and cross-examination. As noted above, on
direct examination Lewis testified that both Reynolds Senior
and Young indicated assent with the statement that Lewis testi-
fied he made regarding the underlying purpose of the meeting
being the prevailing wage claim. On cross-examination, a fair
reading of his testimony does not indicate anything that would
establish that Reynolds Senior specifically agreed with his al-
leged statement. The testimony of Lewis, however, is consis-
tent with that of Lapham with regard to the participants who
were present and the order in which topics were discussed. I
credit his testimony only to that extent.
As noted above, Reynolds Junior did not recall any details of
the discussion when Miles Reynolds Senior was present. He
also did not recall Boyer being present at the meeting or meet-
ing with White at the end. Because of the lack of detail in his
testimony regarding this meeting, I do not credit it. In this
portion of his testimony, he appeared to testify in a way that
would limit the involvement of Reynolds Senior in this matter.
In sum, I credit Lapham’s testimony with respect to what hap-

20 Lewis testified that Lapham and Hall told him that they had signed
up for the union the week of May 15.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128
pened at this meeting, including the portion attended by
Erdman and Boyer as I consider it to be the most reliable ver-
sion.21
Young testified that White instructed her to prepare the sus-
pension notices on May 22. (Tr. 637–638.)22 White gave
Young a description of what occurred but the actual language
on the notice was written by her. Young testified that she met
with Boyer before drafting the notice, but she did not indicate
what input he had regarding the language. Finally, Young testi-
fied that she was not present when the decision to discipline the
Reynolds Junior’s crew was made (Tr. 639).
Erdman testified on direct examination that the purpose of
the meeting on May 26 was to suspend the Reynolds Junior’s
crew because of unsafe working practices (Tr. 467). As noted
above, he indicated he made the decision that they had engaged
in unsafe working conditions “30 seconds” after he arrived on
the scene on May 15. With respect to the meeting on May 26,
he testified he spoke only to Young and Reynolds Junior at the
meeting and that he had very little to say.23 Erdman testified
that at this time he did not know that any of the crew members
had filed a prevailing wage claim with the city of Detroit.24
On cross-examination, Erdman testified that he was not in-
volved in the preparation of the suspension notices dated May
22, and did not know specifically who had made the decision
regarding the suspensions. He was told by Young on the morn-
ing of May 26 that he was to give the suspension notices to the
Reynolds crew (Tr. 491).
F. The Layoffs of June 4
On June 4, 2009, identical letters signed by Young were sent
to Reynolds Junior, Lapham, Hall, Lewis, and Cook stating:

Because of lack of work, it will be necessary for the Under-
ground Earth Work, Underground Utilities Division to reduce
the number of its employees. Therefore, this is to notify you
that you were laid off effective June 5, 2009. [Jt. Exhs. 5A–
E.]

Sherry K. Bonds, the Respondent’s accounting man-
ager/office manager, testified that the Respondent employed a
total of approximately 100 employees in May 2009, but by

21 In determining what occurred at this meeting, I note that Reynolds
Senior was not called as a witness by the Respondent. While Young
testified in the Respondent’s case-in-chief, she was not asked any ques-
tions about the specific statements that were made at this meeting.
22 White was not called as a witness by the Respondent.
23 To the extent that Lapham’s testimony conflicts with Erdman’s, I
credit Lapham. As noted above, his testimony was both detailed and
consistent. Erdman’s testimony regarding the meeting was very brief
and lacking in detail.
24 Erdman testified inconsistently with respect to his knowledge of
the filing of a prevailing wage claim. On direct examination, Erdman
testified that he had no knowledge of any employees of the Respondent
filing a claim for prevailing wages (Tr. 472). On cross-examination, he
admitted that he knew of the prevailing wage claims that Lapham, Hall,
and former employee Laginess had filed but claimed he did not know
about their existence until approximately November 2009 (Tr. 494).
Because of his inconsistent testimony on this critical matter, I do not
credit his denial that he was unaware of the filing of the prevailing
wage claims of Hall and Lapham at the time of the May 26 meeting.
December 2009, this number had been reduced to approxi-
mately 50 through layoffs. In May 2009, the Respondent had
approximately three contracts with the city of Detroit, its larg-
est customer, but by December 2009, this had been reduced to
one contract. Bonds testified that she was not involved in any
of the layoff decisions.
Erdman was the only witness called by the Respondent to
testify regarding the reasons for the layoff of the Reynolds
Junior’s crew Erdman testified that the Reynolds Junior’s crew
was laid off due to a lack of work. The decision to lay them off
was made by a group composed of White, Erdman, Reynolds
Senior, and Cara Woods, but that White made the final deci-
sion. Erdman indicated that this group meets every Wednesday
to discuss projects. He further testified that the decision to lay
off the Reynolds Junior’s crew was made at one of the weekly
meetings a couple of days before the layoff notices were is-
sued.25 Because of a shortage of work, a decision was made to
lay off an entire crew. At the time of the layoff decision there
were eight different utility crews. The group knew that they
would be cutting a utility crew because 95 percent of the work
was utility work. According to Erdman, the group reviewed
production records in determining which crew to lay off. The
Reynolds Junior’s crew was the only entire crew to be laid off
at that time. While five other employees were laid off at the
same time, Erdman indicated that the group looked at the “work
ethic” of the other individuals in determining who to lay off.
Erdman testified that the May 15 accident was not discussed at
the time of the layoff of the Reynolds Junior’s crew. He further
indicated that there was no discussion of their prevailing wage
claim at that time and that he was not even aware of the filing
of such a claim.
Erdman’s testimony was inconsistent regarding the time-
frame that was considered when selecting Reynolds Junior’s
crew for layoff. He first testified that their productivity was
considered since approximately June 15, 2008 (Tr. 532–533).
Thereafter, he testified that production records were considered
from the beginning of 2009, “or even farther than that” (Tr.
540–541). Finally, Erdman indicated that the only production
records actually reviewed at the meeting where the layoff deci-
sion was made were those for the preceding week. He admitted
that the Reynolds Junior’s crew was suspended during this
period and did no work (Tr. 543). Erdman claimed, however,
that the group knew what the production rates were from their
previous meetings.
Erdman testified that, depending on the work assigned, the
weekly production records measured the amount of footage of
pipe installed, or the linear footage of trenches that were dug or
the square footage of concrete poured. (Tr. 523–525.) These
records are compiled by the Respondent’s project assistant
from the daily timesheets of utility crew foremen. The record
indicates, however, that foremen do not always enter complete
information on the timesheets. Erdman testified that Respon-
dent can obtain such information from reports prepared by an
inspector from the Detroit water department. The records from
the water department are obtained only when requested by the

25 The two Wednesdays preceding the layoff notices were June 3 and
May 27, 2009.
FERGUSON ENTERPRISES 1129
Respondent and Erdman did not know how often they were
requested. Importantly, the Respondent did not introduce any
weekly production records to support Erdman’s testimony.
Respondent did introduce letters establishing that it laid off
seven utility employees on May 26, 2009, for lack of work. On
June 4, 2009, in addition to Reynolds Junior’s crew, the Re-
spondent laid off another five utility crew employees for lack of
work. On September 28, 2009, another five utility crew em-
ployees were sent layoff notices indicating they were laid off
for lack of work. (R. Exh. 5.)
The record also indicates, however that after the Reynolds
Junior’s crew was laid off, some utility crews worked some
overtime. (GC Exhs. 20, 21, 27, 29, 31–45.) One utility em-
ployee, T. Levi was recalled from layoff after May 2009.
G. The Resolution of Lapham’s Prevailing Wage Claim
On June 9, White called Lapham and said that he would like
to meet with him to try and resolve the prevailing wage claim.
Lapham met with White who offered $15,000 to resolve the
claim. Lapham rejected the offer. There was no discussion of
Lapham’s layoff for suspension at this meeting. On June 11,
Lapham and White again spoke by phone. White said that the
Respondent needed to get the case resolved that day. Lapham
said he was willing to settle for $68,000. White called back
later and agreed to pay that amount. Lapham met White at
Respondent’s office and received a check in that amount.
Again, there was no discussion of Lapham’s suspension or
layoff. The record does not indicate the resolution of Hall’s
prevailing wage claim.
III. ANALYSIS AND CONCLUSIONS
A. The May 22 Suspensions
Section 8(a)(1) of the Act indicates that it is an unfair labor
practice for an employer to interfere with, restrain, or coerce
employees in the exercise of rights guaranteed in Section 7 of
the Act. Rights guaranteed by Section 7 of the Act include the
right to engage in concerted activities for the purpose of mutual
aid or protection.
In Benjamin Franklin Plumbing, 352 NLRB 525, 536–537
(2008), the Board approved the use of a Wright Line analysis
for 8(a)(1) allegations that turn on motive, in finding the dis-
charge of two employees violated Section 8(a)(1) of the Act.
See also TLT-Babcock, Inc., 293 NLRB 163, 167 (1989). In
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in
NLRB v. Transportation Management Corp., 462 U.S. 393, 395
(1983), the Board established a framework for deciding cases
turning on employer motivation. To prove an employer’s ac-
tion is discriminatorily motivated and violative of the Act, the
General Counsel must first establish, by preponderance of the
evidence, and employee’s protected conduct was a motivating
factor in the employer’s decision. The elements commonly
required to support such showing are union activity by the em-
ployee, employer knowledge of the activity, and, at times, anti-
union animus on the part of the employer. If the General Coun-
sel is able to establish a prima facie case of discriminatory mo-
tivation, the burden of persuasion shifts “to the employer to
demonstrate the same action would have taken place even in
the absence of the protected conduct.” Wright Line, supra at
1089. Accord: Cibao Meat Products, 338 NLRB 934 (2003).
In the instant case, the General Counsel contends that the
Respondent violated Section 8(a)(1) of the Act by first suspend-
ing, and then laying off, Lapham, Hall, Cook, Lewis, and Rey-
nolds Junior (the Reynolds Junior’s crew) because of the pro-
tected concerted activity of Lapham and Hall in filing a prevail-
ing wage claim against the Respondent.
The Respondent contends, in essence, that (1) the evidence
does not establish that Lapham and Hall were engaged in pro-
tected concerted activity and (2) even if the conduct of Lapham
and Hall was concerted, there was no knowledge of the con-
certed nature of their conduct in filing prevailing wage claims.
The Respondent also argues that if I should find that the Gen-
eral Counsel has established a prima facie case, the Respondent
has established a valid Wright Line defense. In this regard, the
Respondent contends that it would have suspended and laid off
the Reynolds Junior’s crew regardless of any protected con-
certed activity that Lapham and Hall may have engaged in.
The Board’s present definition of protected concerted activi-
ties is set forth in Meyers Industries, 268 NLRB 493, 497
(1984) (Myers I), remanded sub. nom. Prill v. NLRB, 755 F.2d
941 (D.C. Cir. 1985), reaffirmed on remand 281 NLRB 862
(1986) (Myers II), affirmed sub. nom. Prill v. NLRB, 835 F.2d
1481 (D.C. Circuit. 1987). Accord: NLRB v. City Disposal
Systems, 465 U.S. 822, 835 (1984). In Myers I, the Board
stated that concerted actions of employees are protected under
Section 7 if they might reasonably be expected to affect terms
or conditions of employment. The Board further indicated that
concerted activities encompassed those activities that are “en-
gaged in with or on the authority of other employees, and not
solely by and on behalf of the employee himself.” Myers I,
supra at 497. In addition, in Benjamin Franklin Plumbing,
supra at 538, the Board noted that employee conversations
about wages are at the core of activity protected by Section 7 of
the Act.
As set forth above, an employee acting solely on his own be-
half is not engaged in concerted activity. However, “[i]t is well
settled that the activity of a single employee in enlisting the
support of his fellow employees for their mutual aid and protec-
tion is as much concerted activity as is ordinary group activity.
Such individual action is concerted as long as it engaged him
with the object of initiating or inducing . . . group action.”
Benjamin Franklin Plumbing, supra at 538, and cases cited
therein.
It is clear that discussion between employees regarding
whether they are receiving prevailing wages as required by law
amounts to mutual aid and protection. See Walter Bruckner &
Co., 273 NLRB 1306, 1306 fn. 6 (1984). The Board has also
held that the protection of the Act extends to employees who, in
a concerted fashion, seek to improve working conditions by
enlisting the efforts of other administrative bodies. Francis
House, Inc., 322 NLRB 516, 522 (1996); Delta Health Center,
310 NLRB 26, 43 (1993).
Applying these principles to the instant case, it is clear that
Lapham and Hall engaged in protected concerted activities as
defined by the Board. Lapham’s discussions with the other
employees, including Hall regarding what wages and benefits
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130
other employees received and whether he was being paid cor-
rectly was clearly within the ambit of Section 7 protection.
Lapham’s concern regarding whether he was being paid the
proper wage rate may have started out as an individual concern,
but thereafter he had numerous conversations with his fellow
employees about the wages being paid by the Respondent to
nonunion employees.
As indicated above, seeking to enlist the assistance of the
Detroit water department is a protected activity as long as it
was engaged in a concerted manner. The uncontroverted
evidence establishes that Lapham first contacted the Detroit
water department and found out that prevailing wage law did,
in fact, apply to Respondent’s employees when they were
working on jobs for the city of Detroit. After obtaining this
information, Lapham spoke to Hall as he knew from their pre-
vious conversations that Hall was not a union member and, like
Lapham, was not receiving the same wages and benefits as the
employees who were members of a union. When Lapham
asked Hall if he was interested in filing a prevailing wage claim
against the Respondent, Hall indicated that he was. To that
end, Lapham and Hall called the water department together and
were told what information was needed in order to start an in-
vestigation into whether they were being properly paid under
the prevailing wage ordinance.
The credited and uncontroverted testimony of Lapham estab-
lishes that he and Hall were acting in concert in their phone
conversation with a representative of the water department with
respect to the information necessary to begin an investigation
under the prevailing wage ordinance. On March 2, 2009, Lap-
ham and Hall jointly met with Edwards and Moore from the
water department and formally initiated an investigation into
whether the Respondent was paying them appropriately under
the prevailing wage ordinance. I therefore find that the evi-
dence establishes that Hall and Lapham acted in concert in
pursuing their prevailing wage claim against the Respondent.
Under the circumstances, I do not agree with the Respon-
dent’s contention that the fact that Hall did not testify is a criti-
cal detriment to finding that Lapham and Hall engaged in con-
certed activity. The testimony of Lewis corroborates Lapham’s
regarding the many discussions that Lapham had with fellow
employees, including Hall, regarding the issue of wages. The
testimony of Edwards corroborates that of Lapham in establish-
ing that the pursuit of the prevailing wage claim was done in a
concerted manner. I note that the Board has held that where
allegations are sustained by the record, the testimony of an
alleged discriminatee is not a necessary requirement. Southern
Maryland Hospital, 276 NLRB 1349, 1359 fn. 9 (1985). Ac-
cordingly, I do not draw an adverse inference from Hall’s fail-
ure to testify at the hearing.
The record establishes that the Respondent was notified of
the results of the prevailing wage claim investigation regarding
Lapham and Hall by the Detroit water department on May 18.
Since it is clear that such a claim is protected activity, the only
question is whether the Respondent knew of the concerted na-
ture of the action of Lapham and Hall.
The water department letter notified the Respondent of its
obligation to make whole Hall, Lapham, and John Laginess. In
May 2009, Laginess was no longer working for the Respon-
dent. Lapham and Hall worked side-by-side as the only nonun-
ion employees on the Reynolds Junior’s crew. After calling the
water department, Lapham informed Reynolds Senior of his
intention to pursue “prevailing wage claims” against Respon-
dent. In addition, on May 26, when the Reynolds Junior’s crew
was assembled at the Respondent’s facility to receive their
suspension notices for the accident, Reynolds Senior admitted
that the suspensions had “nothing to do with a safety violation”
but rather it had to do with “you guys filing prevailing wage
against Ferguson.”
When these facts are viewed collectively, I conclude that the
Respondent knew of the concerted nature of the prevailing
wage claims of Lapham and Hall before the suspension notices
were prepared on May 22. Lapham informed Reynolds Senior
that he was going to file prevailing wage claims. Thereafter, he
filed such a claim in concert with Hall. Thus, when Respon-
dent was notified by letter that both Hall and Lapham had filed
prevailing wage claims it was clear that the filing of Hall’s
claim arose from Lapham’s announced efforts to initiate such
conduct. To find otherwise, would strain credulity in my view.
I would have to find that Hall and Lapham, even though simi-
larly situated as the only nonunion employees working daily on
the same crew, independently filed prevailing wage claims at
the same time. In reaching my conclusion, I note that there is
no evidence whatsoever to controvert the testimony of Lapham
regarding what he stated to Reynolds Senior regarding his in-
tention to file prevailing wage claims and Reynolds Senior’s
admissions that the suspensions were motivated because “you
guys” filed prevailing wage claims. As I have noted previ-
ously, Reynolds Senior did not testify at the hearing. Young,
who was present at the May 26 meeting, testified but did not
say anything to controvert Lapham’s testimony regarding that
meeting. Moreover, there is no credible evidence to controvert
the facts regarding the Respondent’s knowledge of the con-
certed nature of the filing of the prevailing wage claims. As
noted previously, I do not credit Erdman’s denials that he did
not know anything about the filing of prevailing wage claims
until a month before the hearing and neither White nor Fergu-
son testified at the hearing.
I do not agree with Respondent’s argument that the required
element of knowledge of the concerted nature of the activity of
Lapham and Hall was not proven and therefore the General
Counsel has not established a prima facie case. In support of its
argument, the Respondent relies on the Board’s decision in
Reynolds Electric, Inc., 342 NLRB 156 (2004).
In Reynolds Electric, the critical issue in the case was
whether the employer knew when it laid off employee Gabriel
Rice, that his individual efforts to secure the State-required
prevailing wage was an outgrowth of concerted activity involv-
ing other employees. In that case, employee Rice had ap-
proximately 12 conversations with Edward Whitcher, one of
the employer’s supervisors. Price told Whitcher that the other
subcontractor’s employees told him that the project they were
working on was a prevailing wage job. Whitcher told Rice that
the job was not a prevailing wage job. After talking to the gen-
eral contractor’s superintendent, Price told Whitcher that the
superintendent said the job was a prevailing wage job. Richard
told Rice that he would get back to him but did not. Thereafter,
FERGUSON ENTERPRISES 1131
Rice was laid off, allegedly for lack of work. The General
Counsel alleged, inter alia, that Rice’s layoff was a violation of
Section 8(a)(1) of the Act. A Board panel majority (then Mem-
ber Liebman dissenting) dismissed the complaint regarding
Rice, finding that there was no evidence that Whitcher knew
that Rice, in raising the prevailing wage issue, was acting for
others as well as himself. Accordingly, the Board found that
the General Counsel did not establish that the employer knew
of the concerted nature of Rice’s discussion with other employ-
ees before he was laid off.
As noted above, in the instant case the evidence establishes
that before the date of the suspension notices (May 22), Lap-
ham told Reynolds Senior that he was filing prevailing wage
claims and the Respondent was formally served with the notice
of the wage delinquency from the Detroit water and sewer de-
partment naming both Lapham and Hall. Finally, on May 26,
Reynolds Senior acknowledged that the suspensions were be-
cause “you guys” filed prevailing wage claims. Because the
evidence establishes that the Respondent knew that the filing of
the claims of Hall and Lapham were due to Lapham’s initiation
of those claims, I find the Reynolds Electric case distinguish-
able.
In considering the evidence that supports the protected con-
certed nature of Lapham and Hall’s filing of prevailing wage
claims as a motivating factor in the decision to suspend the
Reynolds Junior’s crew, I rely on the credited testimony of
Lapham that Reynolds Senior acknowledged on May 26 that
the suspension of the Reynolds Junior’s crew was in retaliation
for the filing of the prevailing wage claims.
There is obviously an issue as to whether, if the protected
concerted activity of Lapham and Hall is found to be the reason
for their suspensions, are Lewis, Cook, and Reynolds Junior,
alleged as discriminatees in the complaint, also entitled to a
remedy. Neither Lewis, Cook, nor Reynolds Junior were in-
volved in the filing of the prevailing wage claims by Lapham
and Hall. The Board has held, however, with court approval,
that when an employer discharges an employee as part of a plan
to establish a defense to the discharge of a known union activ-
ist, the discharge of the other employee also violates the Act.
Jack August Enterprises, Inc., 232 NLRB 881, 900 (1977),
enfd. 583 F.2d 575 (1st Cir. 1978); Greenfield Die & Mfg.
Corp., 327 NLRB 237, 247 (1998). Accordingly, Board law
supports the proposition that, if Cook, Lewis, and Reynolds
Junior were suspended to mask a discriminatory motive for the
suspensions of Lapham and Hall, their suspensions also violate
Section 8(a)(1) of the Act.
Based on the foregoing, I find that the General Counsel has
met the initial burden of persuasion as required under Wright
Line with regard to the suspensions of Lapham, Hall, Lewis
Cook, and Reynolds Junior. I now turn to consider whether the
Respondent has met its burden to establish that it would have
taken the same action in the absence of protected concerted
activity.
The Respondent contends that the accident of May 15 was
the reason for the suspension of Reynolds Junior and his entire
crew. It argues that the actions of Reynolds Junior and his crew
in deviating from Erdman’s instructions as to how traffic con-
trol was to be conducted that day resulted in an egregious safety
violation warranting suspension.
I find that the timing of the suspensions coupled with the
lack of an investigation into the underlying accident, cast sub-
stantial doubt on the validity of Respondent’s argument. It is
clear that Erdman was upset by the accident that occurred on
May 15, and attributed it to the manner in which the traffic
barrels had been moved during the day. On the day of the acci-
dent he told Reynolds Junior that someone would be fired for
the accident. He testified that he made his decision “30 sec-
onds” after arriving on the scene that day that Reynolds Junior
and his crew were at fault. I credit Erdman’s testimony that he
recommended to White on May 15, that the entire Reynolds
crew be fired, but that White told Erdman to calm down and
they would talk about it after the weekend.26
On Monday, May 18, when it received the letter from the
Detroit water and sewer department, the Respondent was made
aware of the prevailing wage claims filed by Lapham and Hall
and that it owed a substantial amount of backpay to each of
them. Importantly, the letter also indicated that the Respondent
would not receive further payments from the city until the mat-
ter was rectified. On May 19 or 20, Erdman met with White
and again recommended that Reynolds Junior and his crew be
fired. White told Erdman that he did not really know what had
gone on and that “they were going to investigate the matter.”
Abruptly, however, on May 22, White told Young to prepare
suspension notices for all the members of the Reynolds Junior’s
crew.
It is unclear who actually made the decision to suspend the
Reynolds Junior’s crew. While Erdman made a recommenda-
tion regarding discipline, he admitted that he did not know who
made the decision to suspend the crew. Young prepared the
suspension notices pursuant to White’s direction, but she had
no role in the decision. Erdman was instructed by Young to
give the suspension notices to the crew on the morning of May
26, but that was the first time that he learned of the decision.
As noted earlier, White did not testify. Thus, no Respondent
witnesses testified that they were responsible for making the
suspension decision and to explain why they made it. In addi-
tion, no one who did testify could even identify with specificity
the management personnel who made the decision. The Board
has noted that the lack of such evidence casts doubt on the ve-
racity of a respondent’s explanation for disciplinary action. See
Louis A. Weiss Memorial Hospital, 324 NLRB 946, 957 (1997),
enf. denied in relevant part 172 F.3d 432 (7th Cir. (1999).
The record does not contain any indication as to what oc-
curred from May 19 or 20 to 22 to give Respondent a legitimate
reason to suspend the entire Reynolds Junior’s crew. Certainly,
the record does not show any investigation into the facts of
what occurred on May 15. In this regard, as described earlier,
there was, in fact, a substantial amount of evidence available to
the Respondent, including the photographs of Boyer and Rey-
nolds, employee incident reports of the accident and third-party
witness statements. I note in particular that safety representa-

26 Erdman appeared to me to have a somewhat volatile personality
and it seems likely that he would react emotionally and prematurely to
the occurrence of an accident on a job that he was responsible for.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1132
tive Boyer, the individual Respondent has designated to inves-
tigate accidents, wrote a report that apparently nobody bothered
to read before suspending the Reynolds Junior’s crew. In addi-
tion, Boyer interviewed Lauderdale’s crew, who confirmed
Boyer’s description of what had occurred. While Young gath-
ered the results of the investigation into a file, neither White
nor Ferguson ever reviewed the evidence.27 Other than
Erdman’s angry brief questions of Reynolds Junior at the acci-
dent scene, Reynolds Junior and his crew were never given an
opportunity to explain what happened on May 15 before they
were suspended. There is no evidence that Erdman ever spoke
to Lauderdale about his role in the events of May 15. After the
Respondent received notice of the meritorious prevailing wage
claims on May 18, and without any further investigation into
the events surrounding the accident, Young was ordered to
prepare suspension notices by White on May 22. In my view
the timing of the suspensions, coming shortly after the Respon-
dent learned of the results of the prevailing wage claims filed
by Lapham and Hall, is highly suspect. My suspicion is height-
ened by the fact that the Respondent made no effort to deter-
mine what happened on the day of the accident before it sus-
pended the entire Reynolds Junior’s crew. The Board has held
that suspicious timing coupled with the lack of an investigation
into an incident supports a finding of discriminatory motiva-
tion. La Gloria Oil & Gas Co., 337 NLRB 1120 (2002). See
also Washington Nursing Home, 321 NLRB 366, 375 (1996),
regarding the lack of an adequate investigation as supporting a
discriminatory motivation.
Since there was no real investigation into the events of May
15, there was no consideration of the role of Foreman Lauder-
dale and his crew regarding the circumstances of the accident on
that date. The credible testimony of Reynolds Junior establishes
that he and Lauderdale decided to move the barrels from their
original location that day. It is clear that Lauderdale and his crew
were the employees working around the cut that the car went
into. The record reveals that Lauderdale and one of his crew
members had parked their vehicles near the cut, an issue that
Erdman appeared to consider important in his discussion with
Reynolds Junior at the scene. According to credited testimony of
safety representative of Boyer, flagger Andre Robinson, a mem-
ber of Lauderdale’s crew, was stationed by the cut and observed
a car come between the barrels. Robinson tried to stop the car
but the driver failed to follow its directions and went to the cut.
Surely, finding out what happened from the employees closest to
the incident would have been warranted if the Respondent was
attempting to determine how to legitimately apply its safety pol-
icy.
Respondent’s safety disciplinary program is contained within
its safety program policy statement dated November 21, 2007.
(Jt. Exh. 6.) It provides for progressive disciplinary policy, how-
ever, it indicates the severity of the violation will determine the
level of disciplinary action administered. The policy emphasizes
however that the enforcement of the rules should be done in a fair
and consistent manner. Importantly, the Respondent did not

27 Erdman testified that he read the employee incident report forms
after his meeting with White on May 19 or 20, but did not inform him
of the content of those reports.
introduce any evidence regarding discipline imposed on any
employees for safety violations prior to May 15, 2009. The re-
cord does indicate however that in November 2008, Reynolds
Junior, while operating his excavator, accidentally struck a light
pole next to a car dealership. The pole fell and caused approxi-
mately $1500 in damages to a car on a lot. Reynolds Junior im-
mediately informed his superintendent of the accident and was
never disciplined for it. There is no indication in the record as to
what financial liability, if any, was imposed upon the Respondent
by virtue of the accident of May 15. The Respondent’s unprece-
dented and sweeping suspension of the entire Reynolds Junior’s
crew was an extraordinary event since there is no evidence that it
ever disciplined employees previously for a safety violation.
In my view, to suspend the entire Reynolds Junior’s crew,
when only Reynolds Junior was involved in the decision to move
the traffic barrels, establishes clearly that Respondent’s action
was a pretext and designed to disguise the fact that the motivation
behind its action was the protected concerted activity of Lapham
and Hall. Accordingly, I find that Respondent has not rebutted
the General Counsel’s prima facie case and I therefore find that
its suspension of Lapham, Hall, Lewis, Reynolds Junior, and
Cook to be in violation of Section 8 (a)(1) of the Act.
B. The Layoffs of June 4
As set forth in the previous section, I find that the General
Counsel has established a prima facie case with respect to the
suspension of the Reynolds Junior’s crew. The same facts sup-
port the existence of a prima facie case regarding the layoffs.
Accordingly I will examine the Respondent’s defense to the alle-
gation that the layoffs of Reynolds Junior, Lapham, Hall, Lewis,
and Cook are violative of Section 8(a)(1) of the Act to determine
if the prima facie case is rebutted. To rebut a prima facie case
under Wright Line, the Board has held that “[a]n employer cannot
simply present a legitimate reason for its action but must per-
suade by a preponderance of the evidence that the same action
would have taken place even in the absence of the protected ac-
tivity.” W. F. Bolin Co., 311 NLRB 1118, 1119 (1993), enfd. 99
F.3d 1139 (6th Cir. 1996). Accord: Coastal Insulation Corp.,
354 NLRB No. 70, slip op. at 20 (2009).
The Respondent argues that the discriminatees were laid off
for legitimate business due to a lack of work. In support of this
argument it relies on the fact that the Respondent had three jobs
with the city of Detroit in May 2009, but by December 2009, was
only one such job. Respondent also notes that from May to De-
cember 2009, it reduced its entire work force, encompassing all
its divisions, from approximately 100 employees to approximate
50. In particular the Respondent relies on the layoff of 23 under-
ground utility employees from May to September 2009, includ-
ing the five members of the Reynolds Junior’s crew, as support-
ing its legitimate business reasons for their layoff. Finally, Re-
spondent contends the decision to lay off the Reynolds Junior’s
crew was based on their relative lack of productivity.
Counsel for the General Counsel argues that the Respondent’s
contention regarding the reasons for the layoff of the Reynolds
Junior’s crew is pretextual. She bases this argument on what she
claims is Erdman’s inconsistent testimony regarding the reasons
for the layoff and the lack of any productivity records to support
his testimony. In addition, counsel for the General Counsel relies
FERGUSON ENTERPRISES 1133
on the fact that there were some overtime hours worked by utility
crews after the layoff and one employee was recalled to work.
I find that the evidence supports a finding that the Respondent
may have had legitimate business reasons to lay off some em-
ployees on June 4, 2009, but that the Respondent chose to layoff
Lapham, Hall, Lewis, Reynolds Junior, and Cook for discrimina-
tory reasons and that the layoffs violated Section 8(a)(1) of the
Act. The Board has held that even if there may be legitimate
reasons for a layoff generally, if the selection of employees for
layoff is based on a discriminatory motive, those layoffs are vio-
lative of the Act. W. F. Bolin Co., supra; Knoxville Distribution
Co., 298 NLRB 688 (1990).
The evidence establishes that the Respondent began to experi-
ence a decline in business in May 2009. Specifically with regard
to the underground utilities division, on May 26, the Respondent
laid off seven utility employees for lack of work. On June 4, in
addition to the Reynolds Junior’s crew to another five utility
employees were laid off, another employee was laid off on June
11, and five more on September 28. It is true that some overtime
hours were worked by underground utility crews after June 4,
and that one employee was recalled, but I find that such evidence
is insufficient to establish that the Respondent had no basis to
layoff any employees in June 2009. However, I find that the
Respondent had a discriminatory motive in selecting the Rey-
nolds Junior’s crew for layoff for the following reasons.
As indicated above, Erdman was the only witness who testi-
fied for Respondent regarding the reasons for the layoff of the
Reynolds Junior’s crew. He testified that the decision was made
by a group composed of himself, White, Reynolds Senior, and
Woods, but that the final decision was made by White. He fur-
ther testified that this decision was made at a regular weekly
Wednesday production meeting shortly before the layoff notices
were issued. According to Erdman, because of a shortage of
work, a decision was made to layoff an entire utility crew. At the
time there were eight different utility crews. Erdman indicated
that the decision to layoff the Reynolds Junior’s crew was based
on their productivity and that production records were reviewed
in determining which crew to layoff. He testified inconsistently,
however, regarding the timeframe that was considered when
selecting the Reynolds Junior’s crew for layoff. He first testified
that their productivity had been considered since approximately
June 15, 2008. Later he testified that production records were
considered from the beginning of 2009, “or even farther than
that.” Finally, he admitted that the only production records actu-
ally reviewed at the meeting where the layoff decision was made
were those for the week preceding the meeting. This was during
the period of time that the Reynolds Junior’s crew was laid off.
Erdman tried to explain, however that the group making the lay-
off decision knew what the production rates were from their pre-
vious weekly meetings.
Erdman described the weekly production records as being
compiled by Respondent’s project assistant from the daily time-
sheets of utility crew foremen. These records reflect productivity
depending upon the work assigned. The record demonstrates,
however, that foremen do not always fill in the time sheets ap-
propriately. When foremen do not indicate complete information
on the timesheet, the Respondent can obtain such information,
upon request, from reports prepared by a Detroit water depart-
ment inspector. Erdman could not state, however, how often to
his Respondent seeks such information from the city.
I find that Erdman’s vague testimony regarding the alleged
lack of production by the Reynolds Junior’s crew relative to other
crews to be unpersuasive. He did not explain what particular
circumstances dictated that an entire crew be laid off. He offered
no comparison between the productivity of the Reynolds Junior’s
crew and other crews. Importantly, the Respondent introduced
no production records in support of Erdman’s testimony. These
records are clearly within the Respondent’s control and the fail-
ure to produce them causes me to draw the inference that they
would not have supported Respondent’s position regarding the
reasons for the layoff of the Reynolds Junior’s crew. See Ther-
mal Masters, Inc., 318 NLRB 43 (1995); Bay Metal Cabinets,
302 NLRB 152, 178, 179 (1991). In addition, the Respondent
did not call any witnesses to corroborate the testimony of
Erdman. I noted in particular that White, who made the final
decision, did not testify at the hearing.
I find that Erdman’s unsupported testimony does not establish
by a preponderance of the evidence a legitimate reason for the
selection for layoff of the entire Reynolds Junior’s crew. I thus
conclude that the Respondent has not rebutted the prima facie
case by establishing it would have selected the Reynolds Junior’s
crew for layoff in the absence of the protected concerted activity
engaged in by Lapham and Hall. I therefore conclude that the
layoff of Lapham, Hall, Lewis, Reynolds Junior, and Cook vio-
lated Section 8(a)(1) of the Act.28
CONCLUSIONS OF LAW
1. By suspending Joseph Lapham, David Hall, Miles Reynolds
Jr., William Lewis, and George Cook on May 26, 2009, and
laying off the above-named employees on June 4, 2009, because
Lapham and Hall engaged in protected concerted activities the
Respondent violated Section 8(a)(1) of the Act.
2. By engaging in such conduct the Respondent has engaged in
unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectuate
the policies of the Act.
The Respondent having discriminatorily first suspending and
then laying off Joseph Lapham, David Hall, Miles Reynolds Jr.,
William Lewis, and George Cook, it must offer them reinstate-
ment and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge to
date of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).29

28 Since the record establishes unlawful discrimination with respect
to Hall’s layoff, it was not necessary for him to testify at the hearing in
order to be entitled to a remedy. Southern Maryland Hospital, supra.
29 The General Counsel seeks compound interest computed on a
quarterly basis for any backpay. I deny this request. The Board has
recently indicated that it is not prepared at this time to deviate from its
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1134
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended30
ORDER
The Respondent, Ferguson Enterprises Inc., Detroit, Michigan,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending, laying off, or otherwise discriminating against
any employee for filing a concerted prevailing wage claim, or
otherwise engaging in protected concerted activity.
(b) In any like or related manner, interfering with, restraining,
or coercing employees in the exercise of their rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Joseph Lapham, David Hall, Miles Reynolds Jr., William Lewis,
and George Cook full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Joseph Lapham, David Hall, Miles Reynolds Jr.,
William Lewis, and George Cook whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, remove
from its files any reference to the unlawful suspensions and lay-
offs and within 3 days thereafter notify the employees in writing
that this has been done and that the suspensions and layoffs will
not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facil-
ity in Detroit, Michigan, copies of the attached notice marked
“Appendix.”31 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous

current practice of assessing simple interest. Atlas Refinery, Inc., 354
NLRB No. 120 fn. 9 (2010).
30 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
31 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the
Respondent at any time since May 26, 2009.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT suspend, lay off, or otherwise discriminate
against any of you for filing a concerted prevailing wage claim,
or otherwise engaging in protected concerted activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, offer Jo-
seph Lapham, David Hall, Miles Reynolds Jr., William Lewis,
and George Cook full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make whole Joseph Lapham, David Hall, Miles
Reynolds Jr., William Lewis, and George Cook for any loss of
earnings and other benefits resulting from their discharge, less
any net interim earnings, plus interest.
WE WILL, within 14 days from the date of this Order, remove
from our files any reference to the unlawful suspensions and
layoffs of Joseph Lapham, David Hall, Miles Reynolds Jr.,
William Lewis, and George Cook and WE WILL, within 3 days
thereafter, notify each of them in writing that this has been
done and that the suspensions and layoffs will not be used
against them in any way.

FERGUSON ENTERPRISES, INC.