Flynn Steel Buildings Co.

National Labor Relations Board - Board Decisions

Nov 24, 1972

200 N.L.R.B. 458 (N.L.R.B. 1972)

458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flynn Steel Buildings Co. and David Lynn Moriarty
and Jack Demby. Cases 28-CA-2498 and
28-CA-2523
November 24, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On August 14, 1972, Administrative Law Judge i
Herman Marx issued the attached Decision in this
consolidated proceeding. Thereafter, the Respondent
filed exceptions and a supporting brief, and the
General Counsel filed a brief in answer to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified herein and hereby orders that Respondent,
Flynn Steel Buildings Co., Phoenix, Arizona, its
officers, agents, successors, and assigns, shall take the
action set forth in said recommended Order, as
modified herein:
Add the following as paragraph 2(d) and reletter
the subsequent paragraphs accordingly:
"(d) Notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces,
in accordance with the Selective Service Act and the
Universal Military Training and Service Act."
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner: The complaint alleges
that an employer, Flynn Steel Buildings Co.' (herein the
Company or Respondent), has violated Section 8(a)(1) and
(3) of the National Labor Relations Act2 (herein the Act)
by discriminatorily laying off 22 employees3 "on or about"
October 18, 1971, and by failing and refusing to reinstate
some of them, because they joined or assisted a labor
organization, International Association of Bridge, Struc-
tural & Ornamental Iron Workers, Local Union #75
(herein the Union) and engaged in other activities
protected by Section 7 of the Act.
The Respondent has filed an answer which admits that
the 22 named employees were laid off, but, in substance,
denies that the layoffs were unlawful.4
Pursuant to notice duly served by the General Counsel of
the National Labor Relations Board (herein the Board)
upon all other parties, a hearing on the issues was held
before me, as duly designated Trial Examiner, on April 11,
1972, at Phoenix, Arizona. The General Counsel and
Respondent appeared through respective counsel, and all
parties were afforded a full opportunity to adduce
evidence, examine, and cross-examine witnesses, and
submit oral argument and bnefs.5
At the hearing, the evidence having established, and the
General Counsel having conceded, that three of the alleged
discriminatees, Bob Mason, Tommy Gaskill, and John
Claxton, were at the time of the alleged layoffs, and for
some time prior thereto, supervisors within the meaning of
Section 2(11) of the Act (and thus not employees within the
purview of the statute), upon the Respondent's motion,
allegations in the complaint that Mason, Gaskill, and
Claxton were unlawfully laid off were dismissed.
Upon the entire record, and my observation of the
demeanor of the witnesses, and having read and consid-
ered the briefs filed with me, I make the following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY 'S BUSINESS;
JURISDICTION OF THE BOARD
Flynn Steel Buildings Co. is an Arizona corporation;
maintains its principal office and place of business in
i The Employer's name appears as amended at the heanng in this
proceeding
2 29 U S C 158(a)(1) and (3)
3 The 22 alleged discriminatees named in the complaint are
Donald Aubel
Kenneth R Burrell
Raymond L Crowell
John Claxton
Paul Eldridge
Richard Hiser
Bob Mason
Andrew McGraw
David Moriarty
Gary Melvin
Walter Padilla
Jim Flynn
Tommy Gaskill
Verbal D Garner
Daniel Hargreaves
Jimmy L Hines
Elijah H Porter, II
Raymond L Smith
John C Stiefer, Jr
Roger A. Wakefield
L W Wooten
Jack Demby
4 The complaint was issued on February 8, 1972, and is based upon a
charge filed in Case 28-CA-2498 on December 16, 1971, and one filed in
Case 28-CA-2523 on January 26, 1972 Copies of the charges and the
complaint have been duly served on the Respondent
5 The General Counsel has submitted with his brief a motion to amend
the transcript of the hearing, together with proof of service of the motion on
all other parties on April 21, 1972 No opposition to the motion has been
received it is hereby granted and the transcript is amended in the
particulars requested I note, in addition, that at 1 12 of p 159 of the
transcript, the name "Claxton" should be "Gaskill", but as that is inferable
from the general context of the relevant record, I see no need, in the absence
of a motion by any of the parties, to amend the transcript at the point in
question
200 NLRB No. 76
FLYNN STEEL BUILDINGS CO. 459
Phoenix, Arizona, where it is engaged in the business of
selling and assembling prefabricated steel buildings;
employs individuals in its operations; and is, and has been
at all material times, an employer within the meaning of
Section 2(2) of the Act.
In the course and conduct of its business during the 12
months immediately preceding the issuance of the com-
plaint, the Company has purchased and received goods or
services valued in excess of $50,000 directly from sources
located outside the State of Arizona. By reason of such
transactions, the Company is, and has been at all material
times, engaged in interstate commerce, and in operations
affecting such commerce, within the meaning of Section
2(6) and (7) of the Act. Accordingly, the Board has
jurisdiction of the subject matter of this proceeding.
iI. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all material times, a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company's labor force is used, in the main, to
assemble and erect prefabricated buildings; expands or
contracts, as the case may be, with the volume of work
available; and is usually divided into crews, each headed
by a foreman. As of October 18, 1971, the date of the
layoffs alleged in the complaint, the Company's superviso-
ry staff included three crew foremen, Bob Mason, Tommy
Gaskill, and John Claxton, each of whom, as previously
stated, was then a supervisor within the meaning of Section
2(11) of the Act.
The crew foremen are subordinate to a superintendent,
Billy Joe Edens, who exercises general supervision over the
Company's operations, and is subject, in turn, to direction
by its corporate president, Jack R. Flynn, Sr. (referred to
herein at times as the elder or senior Flynn) who has
overall responsibility for management of the Company's
of f airs.6
B. The Layoffs
In or about the early part of October 1971, about 2 weeks
before a Board-conducted election on the question of
representation by the Union of a unit of the Company's
employees , the elder Flynn, in the course of a meeting of
the Company's supervisory personnel , produced a "notice"
that was to be posted in connection with the pending
election , and told his supervisory subordinates that "if it
comes to this, I'll shut the damn doors" (or, in other words,
as I infer , that if the employees chose union representation,
the Company would shut down operations).
The election was held at the Company 's premises on the
morning of October 18, 1971,7 in a bargaining unit defined
6 Edens and the senior Flynn are, and have been at all material times,
supervisors within the meaning of Sec 2(11) of the Act
I Unless otherwise indicated, all dates mentioned herein occurred in
1971
8 So far as appears, there were no challenged ballots, nor any objections
to the conduct or results of the election On the basis of the results, the
as "[a]ll employees [of the Company] engaged in steel
fabrication and/or erection of structural, ornamental and
re-enforcing steel work; excluding all other employees .. .
guards, watchmen and supervisors as defined in the Act."
The voting "eligibility list" used for the election contained
22 names of individuals on the Company's payroll "as of
[the] week ending September 24, 1971," and notwithstand-
ing the express exclusion of supervisors from the unit,
included Superintendent Edens and the three crew fore-
men, Gaskill, Claxton, and Mason. At least two of the
supervisors [Gaskill and Claxton] voted, and some of the
individuals listed did not vote, but, in any case, a majority
of the ballots were cast for the Union.8
On the morning of the election, about 10 minutes after
the ballot count was completed, the senior Flynn appeared
in a room on the Company's premises, where Superintend-
ent Edens, Foremen Gaskill and Mason, and a number of
the employees were congregated; he asked Edens or the
group in general how the election had gone, and was told
that the Union had won by "a large majority." As Flynn
testified, he "immediately" thereafter directed Edens to lay
off "the entire crew," stating, too, that their paychecks
would be ready in about 2 hours, and that they would be
recalled for work as needed.
One employee, Jack Demby, arriving on the premises
shortly after the ballots were counted, and "as everybody
was leaving," asked Edens how the vote had gone and
where "everybody [was] running off to," and Edens told
him that the Union had won and that Flynn "got mad"
and "laid everybody off."
There is no dispute that various of the employees were
laid off that day in accordance with Flynn's announce-
ment, but as will appear later in more detail, a number of
the 22 alleged discriminatees listed in the complaint had, in
fact, been laid off earlier. In any event, whatever the scope
of the layoff action of October 18-a matter that will be
resolved later-the elder Flynn testified, in substance, that
lack of work was the reason for it.
The evidence as to the work available for the Company's
labor force on October 18 is somewhat general. According
to Flynn, the project or projects available for work were
"99 percent completed" and Edens testified that as of
Friday, October 15, the last workday preceding the
October 18 layoffs "[m]ost of our work . . . was winding
up"; that "[w]e had finished about all of our buildings .. .
and work on the ground . . . it was leading up to a small
crew and a possible layoff '; and that "[w]e were just about
caught up."
The record identifies only one specific work project after
the October 18 layoffs, and that was one in Flagstaff,
Arizona, scheduled to start on October 20. The job was
begun on that date, with Edens as project superintendent,
and three men who had been included in the October 18
layoff-Gary Melvin, Jimmy L. Hines, and Foreman
Mason .9 Melvin, at least, had voted in the election, and, it
may be noted, prior thereto, during the Union's organiza-
Board, through the Regional Director for its Region 28, certified the Union
as the bargaining representative of the employees in the unit on October 27,
1971
9 There is some intimation in Mason's testimony that he worked at the
Flagstaffjob in a nonsupervisory capacity
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tional campaign, had signed "a card" for the Union
(presumably an authorization card designating the Union
as bargaining representative) and had expressed support
for it in discussions he had with other employees, but it
does not appear whether his prounion attitude came to the
attention of the management. Another employee, Walter
Padilla, an ironworker, who had been laid off on October
18 was recalled for metal installation work at the Flagstaff
project on November 8. He had voted in the election, and,
during the organizational campaign, had signed "a card"
for the Union, and had expressed support for the
organization to various employees and Foreman Mason.
The Flagstaff job, which was delayed by inclement
weather, lasted several weeks, and during its course, Edens
hired some local laborers who performed work which is
regularly done by members of the Company's work force.
According to Flynn, two of the laborers were hired through
the local state employment office, and two upon recom-
mendation of the project customer.
While the record contains no specifics of work available
on October 18 and 19, nor of any project thereafter, with
the exception of the Flagstaff job, it is evident that some
work was both available and performed on October 18 and
19 and thereafter, in addition to the Flagstaff project, for
two employees, Daniel Hargreaves and Jim Flynn (the
senior Flynn's nephew) were not in fact laid off on October
18, and worked on that date and subsequently. The record
contains no explanation of the retention of Hargreaves and
Jim Flynn contrary to the elder Flynn's direction that "the
entire crew" be laid off.
Of the remaining 17 nonsupervisory employees named in
the complaint as discriminatees, 9 (including Melvin,
Hines, and Padilla) have been recalled for work since the
October 18 layoff action-3 on October 20, 1 on October
26, 4 on November 4, and 1 on November 8. These, as well
as those not recalled, will be identified at later points in
this decision.
One of those recalled, Jack Demby, had previously
worked in Foreman Claxton's crew, and he was informed
by Claxton of his recall shortly before November 4,
Claxton coming to Demby's home for that purpose. On
that occasion, as Demby testified, he asked Claxton
whether the senior Flynn's enterprise had been unionized,
and Claxton replied that Demby would not "be working
for Mr. Flynn," but for him, "and that a lot of guys wasn't
working that used to work for him." Demby then asked for
the reason, and Claxton responded that "Mr. Flynn has a
blackball, an eightball list of guys he wanted to get rid of"
because of their union activities.10
C. Discussion of the Issues, Concluding Findings
The ultimate issue here is whether the Company laid off
employees on October 18, and subsequently withheld work
from some of them, because of antiunion considerations,
10 Demby's account of his conversation with Claxton is uncontradicted,
although Claxton testified, having been called by the Respondent
ii The fact that Hargreaves and Jim Flynn were not laid off, and the
respective layoff dates for Porter, Wooten, and Stiefer, set out above, were
stipulated at the hearing and are thus not in dispute As for Crowell, the
senior Flynn testified, without contradiction, that Crowell was discharged
by one of the foremen In the absence of contradiction, I see no reason to
reject that testimony, albeit Flynn placed the date of discharge at about a
or whether lack of work was the reason for the Company's
course.
As a preface to resolution of the issue, it is necessary to
identify those laid off on October 18. Generalizations by
the senior Flynn, whether in his testimony or in a pretrial
affidavit, to the effect that he laid off the "whole" or
"entire crew" on October 18 still leave the problem of
identifying those affected. The evidentiary record contains
no payroll or other work records of the Company either for
October 15 (a Friday), the last workday preceding
Monday, October 18, or for the latter date, nor, indeed, for
any other period. (The only payroll evidence, drawn from
the Company's records, consists substantially of the voting
eligibility list, and of stipulated data dealing with the work
status of two employees on October 15, that of Hargreaves
and Jim Flynn on October 18 and thereafter, some prior
layoffs, and dates of recall for work of various laid off
employees.) And the voting eligibility list is both an
inadequate and unreliable guide to the employment status
of employees as of October 18. It is based on the payroll as
of the week ending September 24, almost a month prior to
the election, and thus does not reflect changes in the labor
force (a discharge, for example) between that date and
October 18; and includes the names of Superintendent
Edens and foremen who were not in fact members of the
bargaining unit and were thus ineligible to vote.
The pleadings on the other hand offer some guidance to
identification of those laid off. Paragraph 8 of the
complaint names 19 nonsupervisory employees (22 individ-
uals in all, including 3 foremen) as laid off "on or about"
October 18, 1971, and the answer expressly admits the
allegations of paragraph 8. However, the disjunctive
allegation that the 19 were laid off "about" October 18
dilutes the admission of its force as evidence that they were
laid off "on" that date. And more to the point, if the
admission be taken as a concession that all 19 were laid off
"on" October 18, both the General Counsel's theory and
the admission run counter to evidence, on the basis of
which I find, that two of the alleged discnminatees,
Hargreaves and Jim Flynn, were not laid off, both working
on October 18 and thereafter; that three others, Elijah H.
Porter II, L. W. Wooten, and John C. Stiefer, Jr., were laid
off prior to October 18 (Porter and Wooten on October 8,
and Stiefer on September 28), and did not work for the
Company after their respective layoff dates; and that
another, Raymond L. Crowell, was discharged on October
4, 1971, and did not work for the Company thereafter.ii
But the answer's admission of paragraph 8 of the
complaint is evidence in the case, notwithstanding the
imprecision it borrows from the complaint, and its conflict
with other evidence, and it appears to me appropriate to
measure its effect in the light of the whole record. The
parties are in accord that a general layoff occurred on
October 18, although in conflict as to the scope and reason
month or 6 weeks before the election, whereas Crowell worked until
October 4, some 2 weeks before the election The date of the discharge is
inferable from his last day of work, October 4 The fact that Crowell's name
appears on the voting eligibility list does not negate the testimony that
Crowell was discharged, for the list, as previously stated, was prepared on
the basis of the payroll for the week ending September 24 There is no
indication, by the way, that Crowell either voted in the election or was on
the Company's premises at any time on October 18
FLYNN STEEL BUILDINGS CO 461
for the action. With that in mind, the proper course to
follow, in myjudgment, is to give effect to the admission as
evidence that the employees named in paragraph 8 of the
complaint were laid off on October 18, except to the extent
that other evidence requires a different result
Pursuing such a course, it is clear that Hargreaves and
Jim Flynn were not included in the October 18 layoff, as
the General Counsel in effect conceded at the hearing.
Thus I shall recommend dismissal of the complaint as it
pertains to them 12
I shall similarly recommend dismissal of the complaint
with respect to Crowell, Porter, Wooten, and Stiefer.
Taking into account the facts that Crowell was discharged
on October 4 and did not work for the Company
thereafter; that Porter, Wooten, and Stiefer were laid off
well before October 18, and have not worked for the
Company since their respective dates of layoff; and that
there is no evidence that Crowell, Porter, Wooten, and
Stiefer were on the Company's premises on October 18,
whether to vote or for any other purpose, I find the record
insufficient to support a finding that they were included in
the October 18 layoff action, or that the omission to recall
them was rooted in an unlawful purpose.
With respect to the remaining 13 nonsupervisory
employees named in paragraph 8 of the complaint, the
admission in the answer is ample warrant for a finding that
all 13 were laid off on October 18, but some added
comment is appropriate in the case of two, Donald Aubel,
who has never been recalled for work, and Jack Demby,
who, as previously noted, was recalled. Notwithstanding
the admission, Foreman Mason, who was Aubel's supervi-
sor, and was called by the Respondent, testified that Aubel
"was never laid off," and ceased working about 2 months
before the election because of illness The elder Flynn
testified that Aubel became ill in September and has not
been recalled because of illness. The fact is, however, that
the Company's own records show that Aubel worked on
Friday, October 15, the workday immediately preceding
October 18. Moreover, the record is barren of any evidence
as to the nature of the alleged illness, nor is there any
evidence that the Company has been in touch with Aubel
since October 18.
In view of the Respondent's business records, I find,
contrary to Mason's testimony, that Aubel worked for the
Company on the last workday preceding the October 18
layoffs. That being the case, whether or not Aubel was on
the Company's premises on October 18, I see no reason to
deny efficacy to the admission in the answer regarding
Aubel's layoff. Indeed, the context of the senior Flynn's
examination by the Respondent's counsel, and of Flynn's
testimony at one point, conveys an intimation of acquies-
12 The General Counsel announced at the hearing after the close of the
evidence that he was withdrawing the allegations of discrimination
pertaining to Hargreaves and Jim Flynn , but made no motion in that
regard
13 Flynn 's testimony
Q (By Mr D 'Angelo) And what do you know of Mr Aubel's
physical condition)
A He's been very sickly for some time
Q And was he at or near the time he was laid off? [ Emphasis
supplied ]
A In September he became ill
14 Evidence of the presence or absence of any alleged discnminatee on
cence in the idea that Aubel was included in the October
18layoffs.13 I find that he was.
As for Demby, although his last workday prior to
October 18 was on October 4, the record does not establish
that he was laid off on October 4 or the reason he did not
work between that date and October 18. In the absence of
such evidence, the admission of the allegations of para-
graph 8 of the complaint warrants a finding that he was
laid off on October 18. Moreover, his testimony intimates
that he was laid off on that date. After describing the
episode in which Edens told him that Flynn had "laid
everybody off," Demby gave the following testimony:
Q (By Mr. Slaff) Now did you get your check that
day [October 181?
A. Yes. I did
Q. You were laid off?
A. Yes, I was.
In the light of what has been said, I find that the
remaining 13 nonsupervisory employees listed in para-
graph 8 of the complaint were laid off on October 18.14
The Company has recalled nine of these for work. The
following lists the 13 laid off, identifies those not recalled,
and specifies the date of resumption of work in the case of
each one recalled:
Gary Melvin
Verbal Garner -
Jimmy L. Hines
Paul Eldridge
Richard Hiser -
Jack Demby -
Raymond L. Smith
Roger A. Wakefield
Walter Padilla -
Donald Aubel -
Kenneth R . Burrell
Resumed work on October
20, 1971
Resumed work on October
20, 1971
- Resumed work on
October 20, 1971
Resumed work on October
26, 1971
Resumed work on Novem-
ber 4, 1971
Resumed work on November
4, 1971
Resumed work on
November 4, 1971
Resumed work on
November 4, 1971
Resumed work on Novem-
ber 8, 1971
Has not been recalled
- Has not been recalled
David Monarty Has not been recalled
Andrew McGraw Has not been recalled
Turning to the question of the reason for the layoff
action, there is no hard evidence such as the Company's
regular business records to support the senior Flynn's
claim that its job projects available for performance on the
morning of October 18 were 99 percent completed. But
the Company's premises on October 18 is not a decisive factor in
determining whether he was included in the layoff action , but may properly
be taken into account Thus in reaching the conclusion that Porter, Wooten,
and Stiefer were not included in the October 18 layoff, I gave consideration
not only to their prior layoff but to the lack of any evidence that they
reported to the premises on October 18 Comparably , testimony identifying
Walter Padilla, Kenneth R Burrell , Andrew McGraw , David Monarty,
Gary Melvin , Jimmy L Hines, and Paul Eldridge as on the premises at or
about the time of the layoff announcement supports a conclusion that they
were included in the laid off "crew " In any case , I am satisfied on the basis
of the admission in the answer that these seven and six others, to be
identified below, were laid off on October 18
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even if one accepts that figure, it is by no means decisive of
the issue presented, for the estimate leaves one in the dark
as to the project or projects reflected in the remaining one
percent, the amount of available work involved, which
individuals performed it, and when. Moreover, Flynn
made his layoff announcement early on a Monday
morning, shortly after the inception of the workday, and of
a new workweek, and it is fairly inferable from Edens'
testimony that there was work available at that time for
some employees, for although stating that as of the last
preceding workday, Friday, October 15, "[w]e were just
about caught up with our work," he also testified that as of
that date, the Company's work project status "was leading
up to a small crew and a possible layoff." (Emphasis
supplied.) Significantly, too, the Respondent does not
explain why it hired four laborers on the Flagstaff project
to perform work of a type normally done by regular
members of its labor force. Certainly, Flynn's testimony
that two of the four were recommended by the project
customer will hardly suffice as an explanation for the other
two who were supplied by the state employment service.
The nub of the matter is that even the Respondent's case
indicates that there was work available on and after
October 18 for at least some encompassed in the layoff
action who did not receive it; that the Respondent's case
falls short of explaining the reason for such a course; and
that, in contrast, there is much in the record to persuade
one that the election result on October 18 was at least a
materially contributing factor in the layoff action of that
date.
That the senior Flynn was hostile to the idea of union
representation, and disposed to punish employees for
turning to it, is established by undisputed evidence. He
expressed such a disposition about 2 weeks before the
election when he told the supervisory staff, in substance,
that if the Union won the then pending election, he would
"shut the damn doors." And that he was angered by the
election result is beyond cavil. His resentment is not only
evidenced by the fact that the layoff announcement came
at the inception of a workweek "immediately" after he
learned the outcome of the election, but by Superintendent
Edens' statement to Demby, shortly after the layoff
announcement, that the Union had won the election and
that Flynn "got mad" and "laid everybody off." This was
as much as to say that the election result had angered
Flynn and had led him to lay off "everybody" in reprisal
for the employees' choice of the Union in the election.
Flynn's anger may be perceived, too, in a remark he made
to Foreman Mason on the afternoon of October 18,
following the layoff action, that the employees had "voted,
yes [for the Union]," and he "wouldn't have a union " 15
What is more, there is good reason to conclude that the
elder Flynn has blacklisted various employees whom he
holds responsible for unionization of the Company's labor
force. Foreman Claxton, in the process of recalling Demby
for work, told Demby as much, stating that "a lot of guys"
15 I base no findings or conclusions here on a signed written statement
(G C Exh 3) given by Mason to a representative of the Union on
November 6, 1971, to the effect that he had heard the senior Flynn say that
he would not reemploy any men who had voted for the Union In his
testimony, Mason denied hearing Flynn make the remark in question The
writing was received not as affirmative evidence that Flynn did so, but for
no longer worked for Flynn because he has "a blackball
... list of guys he wanted to get nd of" because of their
union activities In the circumstances presented, Claxton's
statement is imputable to the Company, but one may put it
aside, and there is still compelling evidence of the existence
of a blacklist. Indeed, in his testimony, the senior Flynn in
effect admitted that he has blacklisted Kenneth R. Burrell,
testifying, in substance, that he has not recalled, and would
not reemploy, Burrell because the latter is a "union
agitator" and "union spy." It may be noted, in that regard,
that pnor to the election Burrell advocated support of the
Union among employees and foremen, and that he served
as the Union's observer at the election.
It is fairly inferable, too, that two others who have not
been recalled, Monarty and McGraw, have been similarly
blacklisted. Both advocated support for the Union among
the employees before the election ; both expressed proun-
ion positions to their respective foremen and Superintend-
ent Edens; both voted in the election, were present at the
time of Flynn's layoff announcement, and were laid off
that day; both sought work, without success, from the
Company after the layoffs, Moriarty speaking to the senior
Flynn about the matter once and to secretarial personnel at
the Company's office several times, and McGraw asking
Flynn's son for work by telephone; and both have never
been recalled, although both are experienced ironworkers,
McGraw, who entered the Company's employ about 5
months before the layoff, having been an ironworker for
about 20 years; and Monarty having entered the Compa-
ny's employ in 1965, before any other nonsupervisory
employee, and having worked for it since then in several
periods a combined total of some 2 to 3 years.
The Company has had substantial labor needs in the
period since the October 18 layoffs, as is evident from the
fact that it has recalled most of those laid off; yet it offers
no explanation for its failure to recall Moriarty and
McGraw, and, in the absence of one, I am convinced that
both, like Burrell, have not been recalled because of their
union activities.
The record as a whole leads me to conclude, and I find,
that the October 18 layoffs were rooted in a purpose by
Flynn to punish "the entire crew," supervisors (excepting
Edens) and employees alike, then in the Company's
employ, for the electoral choice of the Union as bargaining
representative; i6 that by thus laying off the 13 employees
affected, the Company violated Section 8(a)(3) of the Act,
and interfered with, restrained, and coerced employees in
the exercise of rights guaranteed them by Section 7 of the
Act, thereby violating Section 8(a)(1) of the Act; and that
by blacklisting and not recalling Moriarty, McGraw, and
Burrell, the Company additionally violated Section 8(a)(3)
of the Act, and abridged Section 7 rights of employees,
thus violating Section 8(a)(1) of the Act.
It may be that at some point after the October 18
election, the Respondent would have laid off some or all of
the 13 employees in question for lack of work, and that
the bearing it may have , as a prior self-contradictory statement , on Mason's
credibility
16 The retention of Hargreaves and Jim Flynn does not alter the fact that
the elder Flynn , as he admits, directed the layoff of "the entire crew," with
the exception of Edens As previously indicated, the Respondent does not
say why Hargreaves and Jim Flynn were excepted.
FLYNN STEEL BUILDINGS CO. 463
Aubel would not have been available for work because of
illness had work been offered him on or after October 18,
but the timing of the layoffs is so interlocked with an
unlawful discriminatory motive as to preclude a determina-
tion on this record how much work any of the 13 would
have had but for the discriminatory layoffs in the period
since they took place. To paraphrase Judge Learned Hand,
it rests with the Respondent "to disentangle the conse-
quences for which it [is] chargeable from those from which
it [is] immune," 17 and, in order to effectuate the policies of
the Act, such disentanglement now requires an order that
includes provisions, as set forth in the remedy recommend-
ed below, that the Respondent offer Moriarty, McGraw,
Burrell, and Aubel immediate reinstatement to their
respective former or substantially equivalent jobs; make
each of the four men whole for his wage losses, together
with interest, between his layoff and a proper offer of
reinstatement; and make each of the other nine discnmina-
tees whole for his wage losses, with interest, between his
layoff and the date he resumed work as found above.18
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening or obstructing commerce and the
free flow of commerce.
V CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following
conclusions of law:
1. The Company is, and has been at all material times,
an employer within the meaning of Section 2(2) of the Act.
2. The Union is, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminatorily laying off 13 employees, and
discriminatorily blacklisting and failing to recall 3 of them,
as found above, the Company has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, the Company has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
17 N L R B v Remington Rand, Inc, 94 F 2d 862, 872
18 The General Counsel makes no claim that there was any discrimina-
tion against any of the nine employees recalled after the dates on which they
respectively resumed work In any case, each of the nine, I find, was
reinstated to his former, or a substantially equivalent,job as of the date he
resumed work, and that date tolls the period of discrimination against him
19 " a discriminatory discharge of an employee because of his union
affiliation goes to the very heart of the Act " N L R B v Entwistle
Manufacturing Co, 120 F 2d 532, 536 (C A 4) See, also, May Department
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act, I shall recommend below that it cease and desist from
such practices, and take certain affirmative actions
designed to effectuate the policies of the Act.
In view of the nature and extent of the unfair labor
practices committed, and in order to make effective the
interdependent guarantees of Section 7 of the Act, I shall
recommend an order below which will in effect require the
Respondent to refrain in the future from abridging any of
the rights guaranteed employees by the said Section 7.19
Having found that the 13 individuals named in Appen-
dix A, attached hereto and made part hereof, were
discriminatonly laid off on October 18, 1971, in violation
of Section 8(a)(1) and (3) of the Act, and that all but
Donald Aubel, Andrew McGraw, Kenneth R. Burrell, and
David Moriarty were subsequently recalled for work, I
shall recommend that the Company make each of the nine
recalled, as found above, whole for any loss of pay he has
suffered, or will suffer, by reason of the discrimination
against him, between the time he was laid off on October
18, 1971, and the date on which he resumed work, as found
above, together with interest as provided below; that the
Company offer each of the four not recalled, Donald
Aubel, Andrew McGraw, Kenneth R. Burrell, and David
Moriarty, immediate and full reinstatement to his former
job or, if such job no longer exists, to a substantially
equivalent job, without prejudice to his seniority and other
rights and privileges, and make each of the four whole for
any loss of pay he has suffered, or will suffer, by reason of
the discrimination against him, between the time he was
laid off on October 18, 1971, and the date of a proper offer
of reinstatement to him, as aforesaid, together with interest
as provided below; and that the loss of pay for each of the
13 employees discriminatorily laid off, as found above, be
computed in accordance with the formula and method
prescribed by the Board in F. W Woolworth Company, 90
NLRB 289, and include interest at the rate of 6 percent per
annum, as provided in Isis Plumbing & Heating Co., 138
NLRB 716.
RECOMMENDED ORDER20
Upon the basis of the foregoing findings of fact and
conclusions of law, and the entire record in this proceed-
ing, and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended Order:
Flynn Steel Buildings Co., its officers, agents, successors,
and assigns, shall:
Stores v N L R B, 326 U S 376, Bethlehem Steel Company v N L.R B, 120
F2d641(CADC)
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , recommendations and recommended Order herein shall, as
provided in Sec 102 48 of the Rules and Regulations be adopted by the said
Board and become its findings, conclusions and Order , and all objections
thereto shall be deemed waived for all purposes
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discouraging membership of any of its employees in
International Association of Bridge, Structural & Orna-
mental Iron Workers, Local Union #75, or any other
labor organization, by laying off, blacklisting, or discharg-
ing any employee, or in any other manner discriminating
against any employee with respect to such employee's hire,
tenure of employment, or any term or condition of
employment.
(b) In any other manner, interfering with, restraining, or
coercing any employee in the exercise of rights guaranteed
by Section 7 of the Act.
2. Take the following affirmative actions, which, I find,
will effectuate the policies of the Act-
(a) Offer Donald Aubel, Kenneth R. Burrell, Andrew
McGraw, and David Moriarty immediate and full reins-
tatement to their respective former jobs or, if those no
longer exist, to substantially equivalent jobs, without
prejudice to their respective seniority or other rights and
privileges, and make each of them, and each of the other
nine individuals listed in Appendix A, attached hereto,
whole as provided in Section VI, above, entitled "The
Remedy."
(b) Preserve until compliance with any order for
reinstatement and backpay made by the National Labor
Relations Board in this proceeding is effectuated, and,
upon request, make available to the said Board and its
agents, for examination and copying, all payroll records,
social security records, timecards, and any other records
that are relevant to a determination of any right of
reinstatement, and of the amount of back pay due, under
such order.
(c) Post in conspicuous places at the Company's place of
business in Phoenix, Arizona, including all places there
where notices to employees are customarily posted, copies
of the notice attached hereto and marked "Appendix B."
Copies of the said notice to be furnished by the Regional
Director for Region 28 of the National Labor Relations
Board, shall, after being duly signed by an authorized
representative of the Company, be posted by it immediate-
ly upon receipt thereof and maintained by it for 60
consecutive days thereafter in such conspicuous places.
Reasonable steps shall be taken by the said Company to
insure that said notice is not covered, altered, or defaced
by any other material.27
(d) Notify the said Regional Director, in writing, within
20 days from the date of receipt of this Decision what steps
the Respondent has taken to comply therewith.22
It is also recommended the complaint be dismissed to the
extent that it alleges that the Company laid off and failed
to recall L. W. Wooten, Raymond L. Crowell, John C.
Stiefer, Jr., Elijah H. Porter, II, Daniel Hargreaves, and
Jim Flynn in violation of Section 8(a)(1) and (3) of the Act
21 In the event that the Board's Order is enforced by a Judgment of the
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 "
22 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, Sec 2 (d) of such recommended Order shall
be modified to read "Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX A
Richard Hiser
Donald Aubel
Walter Padilla
David Moriarty
Gary Melvin
Roger A. Wakefield
Andrew
Verbal D. Garner
Paul Eldridge
Jimmy L. Hines
Raymond L. Smith
Kenneth R. Burrell
Jack Demby
McGraw
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board has found that we have violated the
National Labor Relations Act, and has ordered us to post
this notice.
The Act gives employees the following rights:
To engage in self -organization
To form, join or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any such
activities.
WE WILL NOT lay off, discharge, blacklist, or
otherwise discriminate against any employee because
such employee exercises any of such rights.
WE WILL NOT in any other manner interfere with,
restrain , or coerce employees in the exercise of any of
the said rights given them by the National Labor
Relations Act.
The National Labor Relations Board has found that we
discriminated against Richard Hiser , Donald Aubel,
Walter Padilla, David Moriarty, Gary Melvin, Roger A.
Wakefield, Verbal D. Garner, Paul Eldridge, Jimmy L.
Hines, Raymond L . Smith, Kenneth R . Burrell, Jack
Demby, and Andrew McGraw by laying them off, and that
we have reinstated all but Donald Aubel, Kenneth R.
Burrell , Andrew McGraw, and David Moriarty; and has
ordered us to offer immediate reinstatement to Donald
Aubel, Kenneth R. Burrell , Andrew McGraw and David
Moriarty, and to reimburse each of them and Richard
Hiser , Walter Padilla, Jimmy L. Hines, Roger A. Wake-
field, Gary Melvin, Jack Demby, Verbal D. Garner, Paul
Eldridge, and Raymond L. Smith, for the losses of pay that
they respectively may have suffered by reason of such
discrimination , together with interest as provided in the
Board's order.
WE WILL comply with the Board's order.
FLYNN STEEL BUILDINGS
Co.
(Employer)
FLYNN STEEL BUILDINGS CO. 465
Dated By This is an official notice and must not be defaced by
(Representative ) (Title)
We will notify immediately the said Donald Aubel,
Kenneth R Burrell, Andrew McGraw, and David Moriar-
ty, if presently serving in the Armed Forces of the United
States, of the right to full reinstatement, upon application,
after discharge from the Armed Forces, in accordance with
the Selective Service Act and the Universal Military
Training and Service Act.
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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 7011 Federal Building
-U.S. Courthouse, 500 Gold Avenue, SW, Albuquerque,
New Mexico 87101, Telephone 505-843--2555.