Ferguson Enterprises, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 12, 2010

07-CA-052306 (N.L.R.B. Mar. 12, 2010)

JD-12-10
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
FERGUSON ENTERPRISES, INC.
and Case 7-CA-52306
JOSEPH LAPHAM, An Individual
Darlene Haas Awada, Esq.
for the General Counsel
Stanley C. Moore III and
Gary W. Francis Esqs.
(Plunkett Cooney)
of Bloomfield Hills, MI for the Respondent
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 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 violation of Section 8 (a)(1) of the Act.
On the entire record, including my observation of the demeanor of the witnesses2, 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 non-residential building and construction services, including
demolition services and replacement of underground water and sewer lines for commercial and
governmental entities. Annually, 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

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 instances, 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 to believe
some and not all" of a witness' testimony. Jerry Ryce Builders, 352 NLRB 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).
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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.
II. Alleged Unfair Labor Practices
A. Background
The Respondent performs underground utility work, demolition work and provides water
meter reading services. Its largest customer is the city of Detroit. This case involves employees
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 Respondent employed a total of approximately 100
employees in all of its divisions.
At the times material to this case, Bobby Ferguson was Respondent’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
director.3
The Respondent performs its underground utility work through the use of crews
numbering approximately 5 to 6 employees. The field superintendents assign and responsibly
direct the work of the various crews. A nonsupervisory foreman is a conduit between the field
superintendent and the remaining members of the crew. The foreman also has responsibility for
preparing production reports on a daily basis reflecting the type of work a crew performed and
what was accomplished. While the record establishes that several of the Respondent'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 approximately 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 employed approximately 3 months, Lapham received a phone call
from Reynolds Senior who told him that because he was not in a union, holiday and vacation

3 I find that all of the individuals named above are supervisors of the Respondent within the
meaning of Section 2 (11) of the Act and agents of Respondent within the meaning of Section
2(13) of the Act. The complaint 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 stepfather of David Hall.
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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 reflected approximately $1700 in such payments.
While the record does not indicate Lapham ever worked under 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 nonunion employee, while Reynolds Junior, Lewis and Cook were union members.
Lapham testified that since 2007 he had discussed on numerous 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
department’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 department. 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 indicated that
he was. Lapham and Hall then called the Detroit water department and were told that in order to
start an investigation 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 Reynolds 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 investigate
how employees were being paid so that "no one would 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 Edwards, the construction
contracts manager for the Detroit water and sewage department, and Gerald Moore, an analyst

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 Respondent 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).
6 Lapham's testimony regarding this conversation is uncontroverted as Reynolds Senior was
not called as a witness by the Respondent.
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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 prevailing wage claims for the
Detroit water and sewage department. He indicated that Detroit has a prevailing wage
ordinance covering all public projects. He explained that the prevailing wage ordinance requires
that an employer working on a public project 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 represented by a union. Edwards
indicated that as part of the prevailing 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 employees. 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 requested 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 expressed concerned 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 obtain certified 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 department. 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
employee of the Respondent, John Laginess, who independently 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 a letter
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 Ferguson, the Respondent's president, and Nafa Khalaf, Detroit

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.
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Program Management JV Team, LLC. 8The letter indicated in relevant part:
The Detroit Water and Sewerage Department (DWSD) has completed an
investigation into claims that Ferguson Enterprises, 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 Lapham, 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 prevailing 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
current 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)
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 Reynolds Jr, Lapham, Hall, Lewis
and Cook (herein referred to as the Reynolds Junior crew) was working at a jobsite on Livernois
Avenue in Detroit. According to Lapham's credible testimony, the Reynolds Junior crew had
been working on that site for approximately 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.
Chastang, A. Robinson and David Robinson (GC Exh. 17).

8 The record does not indicate Khalaf’s role with the Respondent.
9 Lapham testified that he received a phone call from the water department on May 18
informing him that a representative from Ferguson had picked up the "paperwork" on the
prevailing wage claims.
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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, replaced 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 3
cuts that had previously been dug across Livernois Avenue. Steel rebar was then to be inserted
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 7:00 a.m. on the morning of May 15, Superintendent 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, Erdmann 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
first10
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 intersection 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.

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 testimony, 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, 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 testimony 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.
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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 reviewing the traffic flow set up,
Erdmann 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 decided that the barrels should be moved in a manner to allow
work on the project to continue. They decided that the Reynolds Junior crew should move to the
middle cut of the project 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 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 message (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 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 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 heading south when the accident occurred. The mutually
corroborative testimony of Reynolds Junior, Lapham, Cook and Lewis establishes that at the
time of the accident the Reynolds Junior 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
Respondent's policy, as a foreman on the job, Reynolds Junior took pictures of the accident

12 Reynolds Junior's testimony regarding his discussion with Lauderdale is uncontroverted
and I credit it.
13 The testimony of Lewis corroborates this fact.
14There 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 Jr. crew was working.
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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 Junior 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 Junior
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, working. 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 another crew
down there.” Erdman responded "well, somebody 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 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
certain where to go (Tr. 450) Erdman testified that "30 seconds" after arriving on the jobsite he
determined that Reynolds Jr. and his crew had engaged in unsafe working practices. He
testified he placed Reynolds Jr. in charge of traffic control and he did not follow his instructions.
Erdman indicated he held the remainder of the crew responsible because they participated 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 business 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 telling 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 photographs of the scene after the accident. (R. Exhs. 1-4) Before
leaving the accident scene Boyer spoke briefly to Don Spencer, a project manager for the
Respondent, who was present 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 report of an accident, Reynolds
Junior prepared a report regarding the accident of May 15 over the weekend. The following

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 consistency, I find Reynolds
Junior's version of the conversation to be more credible.
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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
"Employee 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
barrels into the area where we were working. He could have injured worker or
aorse.
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 Incident" dated May 18 to Gwen Young, the human resources
director. 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) barricaded 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 Ex. 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 Lauderdale's
crew. This document is dated May 18, 2009, and indicates "concrete crew" next to “witness
name.” Under the provision 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 written (GC Exh. 8).
Young testified that project manager Donald Spencer submitted statements to her from
two nonemployee witnesses (Tr. 634). These statements are titled "Witness Statement of
Incident". The first one is an unsigned statement from Angel Ortiz dated May 15, stating in
relevant part:

16 Boyer testified at the hearing that he is the only person at the Respondent who is
responsible for conducting investigations of accidents that occur on a job site. In his
approximately 10-year career he has 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 violation regarding the accident on May 15. (Tr. 579-
580) He also indicated 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 because 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).
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Mr. Ortiz seen (sic) the car in the trench after (unintelligible) the accident.
Witness stated that the driver drove the car inside 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 waiting 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 disregarding 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 May 20 in White's office
regarding the accident. At that meeting Erdmann 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, Erdmann 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 May15 accident, Young asked Lauderdale to complete a witness
statement. In a report dated October 9, 2009, Lauderdale’s statement 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
reviewed the file. There is also no evidence that anyone in Respondent's management ever
reviewed the photographs taken by Reynolds Junior and Boyer.
E. The Meeting of May 26
White assigned the Reynolds Junior crew to work on a job on Nevada Street in Detroit
the entire week of May 18 to May 22. By the end of the week the crew had not completed its
work on that job. Over the weekend of May 23 to May 25 (Memorial Day weekend), White called
Reynolds Jr. and told him to contact 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 contacted his crew, with the exception of George Cook, who was on
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vacation and informed them they were being suspended because of the accident and were to
report to a meeting at Respondent's office on May 26.
Lapham testified that he met with Lewis Hall and Reynolds Junior at the office at
approximately 1:00 PM. 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. Reynolds 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.
Young then showed that the employees who were present individual 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 unattended open
trench thal was not sufficiently barricaded. Reasonable precautions were not
made to eliminate any recognized safety hazards that existed as a result of
leaving the open trench unattended and protect the open trench from accidental
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, Erdmann and Boyer walked in and
Reynolds Senior left the conference room. When Erdman walked in he said he just found out
about the meeting at 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 during 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 presented to the 4 employees. They were all signed by Erdman and Young, but the
employees refused to sign them.
Before the end of the meeting, Erdmann drew a diagram for the employees and said he
specifically had indicated to set traffic control in that way, but that it was switched and set up
another 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, Reynolds asked him how long the suspension was for. White replied indefinitely
and then told the employees to get off the property.
Lewis testified differently than Lapham with respect to portions of the meeting. On direct
examination, Lewis testified that when the employees arrived at the conference room, Reynolds

18 Cook was mailed his suspension notice. (Jt. Exhibit 3B)
19 There is no evidence in the record indicating that anyone from Lauderdale’s crew was
disciplined for the accident.
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Senior and Young were present. On direct examination, Lewis testified that he asked “Why are
we here over this accident when we know it's not. It's over the prevailing wage that Joe and
David Hall signed up for. According to Lewis, Reynolds 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, Erdmann and Boyer entered.
Lewis told Erdman that "This isn't about the safety incident. It's over prevailing wage and two
guys signing up for the union" (Tr. 119).20 Erdman responded 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 "you 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 "you 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 employees were in the conference
room, Reynolds Senior came into the room. He did not recall anything specific about what
Reynolds 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 varied between direct and
cross-examination. As noted above, on direct examination Lewis testified that both Reynolds Sr.
and Young indicated assent with the statement that Lewis testified 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 alleged statement. The testimony of Lewis, however, is consistent
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

20 Lewis testified that Lapham and Hall told him that they had signed up for the union the
week of May 15.
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meeting 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 happened at this meeting, including the portion attended by
Erdman and Boyer as I consider it to be the most reliable version.21
Young testified that White instructed her to prepare the suspension 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 testified that
she was not present when the decision to discipline the Reynolds Jr. 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 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, Erdmann testified that he was not involved 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 morning 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 Jr., Lapham,
Hall, Lewis and Cook stating:
Because of lack of work, it will be necessary for the Underground 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)

21 In determining what occurred at this meeting, I note that Reynolds Sr. was not called as a
witness by the Respondent. While Young testified in the Respondent's case in chief, she was
not asked any questions 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.
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Sherry K. Bonds, the Respondent's accounting manager/office manager, testified that
the Respondent employed a total of approximately 100 employees in May 2009, but by
December 2009, this number had been reduced to approximately 50 through layoffs. In May
2009 the Respondent had approximately three contracts with the city of Detroit, its largest
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 lay off of the Reynolds Junior crew Erdman testified that the Reynolds Junior crew was
laid off due to a lack of work. The decision to lay them off was made by a group composed of
White, Erdmann, Reynolds Sr., and Cara Woods, but that White made the final decision.
Erdman indicated that this group meets every Wednesday to discuss projects. He further
testified that the decision to lay off the Reynolds Junior crew was made at one of the weekly
meetings a couple of days before the layoff notices were issued.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 crew was the only entire crew
to be laid off at that time. While 5 other employees were laid off at the same time, Erdmann
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 crew. He further indicated that there was no discussion of there 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 Jr.'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, Erdmann indicated that the only production records actually reviewed at the
meeting where the layoff decision was made were those for the preceding week. He admitted
that the Reynolds Junior 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 Respondent 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 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
Respondent laid off another five utility crew employees for lack of work. On September 28, 2009

25 The two Wednesdays preceding the layoff notices were June 3, 2009 and May 27, 2009.
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another five utility crew employees 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 crew was laid off,
some utility crews worked some overtime. (GC Exhibits 20, 21, 27, 29, 31-45) One utility
employee, 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 Section 8 (a)(1) allegations that turn on motive, in finding the
discharge 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 NRB 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 action 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 employee,
employer knowledge of the activity, and, at times, antiunion animus on the part of the employer.
If the General Counsel is able to establish a prima facie case of discriminatory motivation, 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 suspending, and then laying off, Lapham, Hall, Cook, Lewis and
Reynolds Junior, (the Reynolds Jr. crew) because of the protected concerted activity of Lapham
and Hall in filing a prevailing wage claim against the Respondent.
The Respondent contends, in essence, that (1) the evidence does not establish that
Lapham and Hall were engaged in protected concerted activity and (2) even if the conduct of
Lapham and Hall was concerted, there was no knowledge of the concerted nature of their
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conduct in filing prevailing wage claims. The Respondent also argues that if I should find that
the General 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 crew regardless of any protected concerted activity
that Lapham and Hall may have engaged in.
The Board’s present definition of protected concerted activities 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,
Inc., 465 U. S. 822, 835 (1984). In Meyers 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 "engaged 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 behalf 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 protection 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 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 other employees received and
whether he was being paid correctly 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 previous 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
investigation into whether they were being properly paid under the prevailing wage ordinance.
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The credited and uncontroverted testimony of Lapham establishes 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 Lapham 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
evidence 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 Respondent's contention that the fact
that Hall did not testify is a critical detriment to finding that Lapham and Hall engaged in
concerted 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 establishing 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).
Accordingly, I do not draw an adverse inference from Hall's failure 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 nature 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 Respondent.
Lapham and Hall worked side-by-side as the only nonunion employees on the Reynolds Junior
crew. After calling the water department, Lapham informed Reynolds Sr. of his intention to
pursue "prevailing wage claims" against Respondent. In addition, on May 26, when the
Reynolds Jr. crew was assembled at the Respondent's facility to receive their suspension
notices for the accident, Reynolds Sr. 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 Sr. but he was going to file
prevailing wage claims. Thereafter, he filed such a claim in concert with Hall. Thus, when
Respondent 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 similarly 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 intention 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 previously, 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 concerted 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 Ferguson testified at the hearing.
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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 16 (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 involving other employees. In that case, employee
Rice had approximately 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 general 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, Rice was laid off, allegedly for lack of work.
The General Counsel alleged, inter alia, the Rice’s layoff was a violation of Section 8 (a)(1) of
the Act. A Board panel majority (then Member 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 employees 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), Lapham told Reynolds Sr. 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 Department naming both Lapham and Hall. Finally, on May 26
Reynolds Sr. acknowledged that the suspensions were because "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 distinguishable.
In considering the evidence that supports the protected concerted nature of Lapham and
Hall's filing of prevailing wage claims as a motivating factor in the decision to suspend the
Reynolds Junior, crew I rely on the credited testimony of Lapham that Reynolds Senior
acknowledged on May 26 that the suspension of the Reynolds Junior 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 involved 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 activist, 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 and 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
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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 Jr. 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 control 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 substantial 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 accident he told
Reynolds Junior that someone would be fired for the accident. He testified that he made his
decision "30 seconds" 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 matter was rectified On May 19 or May 20 Erdman met with White and again recommended
that Reynolds Jr. and his crew be fired. White told Erdman that he (White) 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 crew.
It is unclear who actually made the decision to suspend the Reynolds Junior crew. While
Erdman made a recommendation 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 addition, 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 veracity of a respondent's explanation for disciplinary action. See Louis A. Weiss
Memorial Hospital, 324 NLRB 946, at 957 (1997) enf. denied in relevant part, 172 F. 3d 432 (7th
Cir. (1999).
The record does not contain any indication as to what occurred from May 19 or 20 to
May 22 to give Respondent a legitimate reason to suspend the entire Reynolds Junior 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 Reynolds, employee
incident reports of the accident and third-party witness statements. I note in particular that safety

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.
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representative Boyer, the individual Respondent has designated to investigate accidents, wrote
a report that apparently nobody bothered to read before suspending the Reynolds Junior crew.
In addition, Boyer interviewed Lauderdale's crew, who confirmed Boyer’s description of what
had occurred. While Young gathered 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 Jr. at the accident scene, Reynolds Jr. 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 Respondent learned of the results of the prevailing wage claims filed by
Lapham and Hall, is highly suspect. My suspicion is heightened by the fact that the Respondent
made no effort to determine what happened on the day of the accident before it suspended the
entire Reynolds Junior crew The Board has held that suspicious timing coupled with the lack of
an investigation into an incident supports a finding of discriminatory motivation. La Gloria Oil &
Gas Co., 337 NLRB 1120 (2002). See also Washington Nursing Home Inc., 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 Lauderdale 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 member 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 policy.
Respondent's safety disciplinary program is contained within its safety program policy
statement dated November 21, 2007. Jt. Exhibit 6. It provides for progressive disciplinary policy,
however, 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 introduce any evidence
regarding discipline imposed on any employees for safety violations prior to May 15, 2009. The
record 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
approximately $1500 in damages to a car on a lot. Reynolds Junior immediately 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 unprecedented and sweeping suspension of the entire
Reynolds Junior crew was an extraordinary event since there is no evidence that it ever
disciplined employees previously for a safety violation.

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.
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In my view, to suspend the entire Reynolds Junior 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 crew. The same facts
support the existence of a prima facie case regarding the layoffs. Accordingly I will examine the
Respondent’s defense to the allegation 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 "An employer
cannot simply present a legitimate reason for its action but must persuade by a preponderance
of the evidence that the same action would have taken place even in the absence of the
protected activity." 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, JD sl. 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 of 2009 but by December 2009 was only one such job.
Respondent also notes that from May 2009 to December 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 underground utility employees from May
2009 to September 2009, including the 5 members of the Reynolds Jr.'s crew, as supporting its
legitimate business reasons for their layoff. Finally, Respondent contends the decision to lay off
the Reynolds Jr. 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 Jr. 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 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 employees on June 4, 2009, but that the Respondent chose to
layoff Lapham, Hall, Lewis, Reynolds Junior and Cook for discriminatory 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 violative of the Act. W. F. Bolin Co., supra; Knoxville
Distribution Co., 298 NLRB 688 (1990).
The evidence establishes that the Respondent began to experience a decline in business
in May 2009. Specifically with regard to the underground utilities division, on May 26, the
Respondent laid off 7 utility employees for lack of work. On June 4, in addition to the Reynolds
Jr. crew to another 5 utility employees were laid off another employee was laid off on June 11
and 5 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
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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 Reynolds
Junior crew for layoff for the following reasons.
As indicated above, Erdman was the only witness who testified for Respondent regarding
the reasons for the layoff of the Reynolds Junior 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 further 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 and entire utility crew. At
the time there were eight different utility crews. Erdmann indicated that the decision to layoff the
Reynolds Jr. 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 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 actually 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 Jr. crew was laid off. Erdman tried to explain, however that the
group making the layoff decision knew what the production rates were from their previous
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 appropriately. 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 department 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 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 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 failure 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 crew. See Thermal Masters, Inc., 318 NLRB 43 (1995); Bay
Metal Cabinets Inc., 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 crew. I
thus conclude that the Respondent has not rebutted the prima facie case by establishing it
would have selected the Reynolds Junior 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 violated Section 8 (a)(1) of the Act.28

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
Continued
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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 unfair 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
reinstatement 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 earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).29
On these findings of fact and conclusions of law and on the entire 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 effectuate the policies of the Act.
_________________________
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 current practice of assessing simple interest. Atlas Refinery, Inc., 354 NLRB
No. 120 at 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 recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(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 privileges 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 layoffs 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 additional 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 electronic 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 facility 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 Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent 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.
Dated, Washington, D.C., March 3, 2010.
____________________
Mark Carissimi
Administrative Law Judge

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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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Detroit, MI
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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
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, restrain, 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 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 privileges 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
JD-12-10
Detroit, MI
that this has been done and that the suspensions and layoffs will not be used against them in
any way.
FERGUSON ENTERPRISES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.