Glenroy Construction Co., Inc.

National Labor Relations Board - Board Decisions

Dec 27, 1974

215 N.L.R.B. 866 (N.L.R.B. 1974)

866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glenroy Construction Co., Inc . and William Dean
O'Bannon . Case 25-CA-5472
December 27, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On June 17, 1974, Administrative Law Judge Phil
Saunders issued the attached Decision in this proceed-
ing, concluding that Respondent had not engaged in
the unfair labor practices in issue and recommending
dismissal of the complaint. Thereafter, General Coun-
sel filed exceptions and a supporting brief, and Re-
spondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and for the reasons hereinafter set forth has decided to
reverse the Decision of the Administrative Law Judge,
affirming his rulings, findings, and conclusions only to
the extent consistent herewith.
The essence of the unfair labor practice charged by
William O'Bannon, a journeyman ironworker, is a vio-
lation of Section 8(a)(3), (4), and (1) arising out of
Respondent's refusal to reemploy him because he filed
a complaint with the National Labor Relations Board.
Respondent, a general contractor, began construc-
tion in early March 1973, of an addition to the Bell
Telephone Company building in Bloomington, In-
diana. Ironworkers compnsed one of the trades on the
job and Alfred Hanks was the ironworker foreman.
Walter Jackson, as project superintendent, supervised
the Bloomington job.
O'Bannon was hired by Jackson for the Bloomington
jobsite and commenced work March 14. On March 19,
O'Bannon and two other ironworkers were laid off by
Jackson for nondiscriminatory reasons and subse-
quently an ironworker trainee was put on the job. On
March 21, O'Bannon complained about his dismissal to
Jack Muir, business agent in Indianapolis of Local No.
27, Bridge, Structural and Ornamental Iron Workers,
AFL-CIO. Thereafter, on the same day, O'Bannon
filed, with the National Labor Relations Board, an un-
fair labor practice charge based on his layoff. This was
received by Respondent on March 22.
In the afternoon of March 21, Muir complained to
Jackson, Respondent's project superintendent, about
O'Bannon's layoff and Jackson agreed to put O'Ban-
non back to work. Muir said he would telephone 0'-
Bannon that evening and requested Jackson to call
O'Bannon later to confirm that O'Bannon could return
to work. That evening Muir did call O'Bannon and
advised him of Jackson's agreement to put him back to
work and that Jackson would call him later to confirm
this. O'Bannon, however, never received this confirma-
tion since Jackson was unsuccessful in reaching him.
On the morning of March 22, Hanks, Respondent's
foreman, at the request of Jackson, telephoned Muir
and asked him to send O'Bannon back to work. When
O'Bannon visited the union hall that morning Muir
advised him of his conversation with Hanks. A heated
dispute then arose between Muir and O'Bannon over
the layoff and the proper rehiring procedure and 0'-
Bannon left the union hall on Muir's order.
O'Bannon had never been notified directly by Re-
spondent to return to work and did not report to the
jobsite that day. That evening he telephoned Hanks to
find out when he could go back to work. Hanks told
O'Bannon that he (Hanks) did not want O'Bannon
back on the job because of O'Bannon's "filing them
charges." O'Bannon protested that he had filed unfair
labor practice charges against the Respondent, not
against Hanks. Hanks nevertheless said that he had his
opinion "of a guy that would go around trying to cause
trouble" and again said he did not want him on the job.
Hanks then invited O'Bannon to go to the jobsite in the
morning to talk it over. When O'Bannon asked if that
meant there, was a possibility of returning to work,
Hanks answered, "No, I don't want you back on the
job." After this conversation O'Bannon did not return
to the jobsite nor was he asked by Respondent to return
to work.
The Administrative Law Judge found no violation of
the Act in the failure to reemploy O'Bannon upon the
ground that if O'Bannon had simply gone to the jobsite
and reported for work as instructed by his union repre-
sentative, he would have been reemployed. He further
found that Hanks' statement to O'Bannon that he
didn't want O'Bannon back on the job reflected Hanks'
personal view and not that of Respondent since Jack-
son, Hanks' superior, had already made the decision
that O'Bannon would be reinstated if he reported for
work. We do not agree.
We find it unnecessary to resolve the dispute as to
whether Respondent actually offered to reemploy 0'-
Bannon as of the morning of March 22. We may as-
sume, arguendo, that on the morning Respondent was
willing to have reemployed O'Bannon. The fact re-
mains that, after Respondent received notice of the
unfair labor charge, when O'Bannon telephoned Hanks
that evening to ask if he could return to work, at a time
when Respondent had not notified him directly of any
willingness to reinstate him and he was still uncertain
that such willingness existed, Hanks said he did not
want O'Bannon back on the job because O'Bannon had
215 NLRB No. 161
GLENROY CONSTRUCTION CO., INC. 867
been "causing trouble" by filing charges with the
Board.
As previously noted, Hanks was the ironworker fore-
man. As such, he had the authority to hire, fire, direct
the daily work force of ironworker employees, and as-
sign and supervise their work. Clearly, Hanks was a
supervisor in Respondent's employment structure. Bir-
mingham Fabricating Co., 140 NLRB 640 (1963); Elli-
ott Williams Co., 143 NLRB 811 (1963); U S. Gypsum
Co., 120 NLRB 906 (1958).
(Since employers must generally accept "responsibil-
ity for the conduct of foremen having supervisory
status" (GACProperties, Inc., 205 NLRB 1150 (1973)),
Respondent is bound by Hanks' statement to O'Ban-
non which had the effect of denying him reemployment
because he had resorted to the Board's processes.
Daugherty Company, Inc., 147 NLRB 1295 (1964);
Keco Industries, Inc., 118 NLRB 317 (1957). We find
that Respondent thereby violated Section 8(a)(3), (4),
and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. By discharging and refusing to reemploy William
Dean O'Bannon for filing charges under the Act, Re-
spondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3), (4), and (1) of the Act.
3. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1),
(3), and (4) of the Act, we will order it to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
It having been found that the Respondent un-
lawfully discharged William Dean O'Bannon, we
will order that he be offered immediate and full re-
instatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent
position at the Bloomington job if such job has not
been completed or, if completed, to a position on
any other job of Respondent's that he would have
had but for Respondent's unlawful conduct, with-
out prejudice to his seniority and other rights and
privileges. Backpay shall be computed on a quar-
terly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co.,
138 NLRB 716 (1962), from March 22, 1974; to
the date reinstatement is offered. In the event that
there is no work available at all because of eco-
nomic reasons, backpay shall be computed from
March 22, 1974, to the date discriminatee would
have been laid off absent the discrimination against
him.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Glenroy Con-
struction Co., Inc., Indianapolis, Indiana, its officers,
agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against employees in regard to
hire or tenure of employment or any term or condition
of employment to encourage or discourage membership
in any labor organization.
(b) Discharging or otherwise discriminating against
employees because they have filed charges under the
Act.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Offer William Dean O'Bannon immediate and
full reinstatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent posi-
tion at the Bloomington job if such job has not been
completed or, if completed, to a position on any other
job of Respondent's that he would have had but for
Respondent's unlawful conduct, without prejudice to
his seniority and other rights and privileges, and make
him whole for any loss of earnings he may have suffered
in the manner set forth in "The Remedy" section of this
Decision.
(b) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports , and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Indianapolis, In-
diana , copies of the attached notice marked
"Appendix."' Copies of said notice, on forms pro-
vided by the Regional Director for Region 25, after
being duly signed by Respondent's duly authorized rep-
resentative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
In the event that 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 "
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent to insure that said notices are not al-
tered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate against employees in
regard to hire or tenure of employment or any
term or condition of employment to encourage or
discourage membership in any labor organization.
WE WILL NOT discharge or otherwise discriminate
against employees because they have filed charges
or given testimony under the Act.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce employees in the ex-
ercise of rights guaranteed in Section 7 of the Act.
WE WILL offer to William Dean O'Bannon im-
mediate and full reinstatement to his former posi-
tion or, if that position no longer exists, to a sub-
stantially equivalent position at the Bloomington
job if such job has not been completed or, if com-
pleted, to a position on any other job of ours he
would have had but for our unlawful conduct,
without prejudice to his seniority and other rights
and privileges, and make him whole in the manner
provided in the Board's Decision for any loss of
pay he may have suffered as a result of our dis-
crimination against him.
GLENROY CONSTRUCTION CO, INC
DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS, Administrative Law Judge: Based on an
original charge filed by William O'Bannon on March 21,
1973,' a complaint against Glenroy Construction Co.,
herein the Respondent or Company, was issued on February
1, 1974, alleging violation of Section 8(a)(1), (3), and (4) of
the National Labor Relations Act, as amended. Respondent
filed an answer to the complaint denying it had engaged in
the alleged unfair labor practices. A hearing in this proceed-
ing was held before me, and on May 23, 1974, both the
General Counsel and Respondnet filed briefs.
Upon the entire record in this case, and from my observa-
tion of the witnesses and their demeanor, I make the
following.'
i All dates are 1973 unless stated otherwise
2 All credibility resolutions made herein are based on a composite evalua-
tion of the demeanor of the witnesses and the probabilities of the evidence
as a whole
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Respondent is an Indiana corporation , and has maintained
its principal office and place of business at Indianapolis and
a jobsite at Bloomington , Indiana, and various other jobsites
within the State of Indiana , and has been engaged at such
jobsites in the construction industry as a general contractor
engaged in the construction of industrial , commercial, and
other types of buildings.
During the past year the Respondent , in the course and
conduct of its business operations , purchased , transferred,
and delivered to its Indiana jobsites goods and materials
valued in excess of $50,000 which were transported to said
jobsites directly from States other than the State of Indiana.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
Local Union No. 22, of the Bridge, Structural and Orna-
mental Iron Workers , AFL-CIO, herein referred to as the
Union of Local 22, is a labor organization within the meaning
of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICE
The complaint alleges that Respondent discharged and
thereafter failed and refused to reinstate employee William
O'Bannon on March 22, because he joined and assisted the
Union, filed complaints with the Union, sought assistance
from the Union, or gave testimony, and engaged in other
union activity and concerted activities for the purpose of
collective bargaining and mutual aid and protection.
In early March the Respondent began construction of a
building addition to the Bell Telephone Company in Bloom-
ington, Indiana. One of the construction trades employed on
this job was a group of ironworkers. The Company employs
only union labor on all its projects, and O'Bannon is a jour-
neyman ironworker and a member of the Union'
The Respondent's construction at Bloomington is super-
vised by Project Superintendent Walter Jackson; the assistant
superintendent is Red Carpenter and the Ironworker fore-
man on this job is Alfred Hanks.
It appears that O'Bannon made his initial contact with the
Respondent in Indianapolis during February, and at the time
O'Bannon had a conversation with Superintendent Jackson
concerning future employment. Jackson advised O'Bannon to
check on the Bloomington job as soon as he saw the Respon-
dent's trailer at the site O'Bannon went to the Bloomington
site on March 8 and 9 but could not locate anyone there, but
on March 12 returned and this time Jackson told him he was
3 The Respondent, as a member of the Construction League of Indianapo-
lis, Inc , is signatory to a collective bargaining agreement with the Union,
but there are no provisions or clauses in the contract placing any require-
ments on an employer to actively seek out an employee for recall or rein-
statement once he is laid off Members of the Union have the option of going
out to construction sites and seeking employment on their own initiative,
or of going to the union hall in Indianapolis and waiting for an employer to
call in
GLENROY CONSTRUCTION CO., INC. 869
expecting steel in the middle of the week and when it arrived Later on during the afternoon of March 21, Business Agent
O'Bannon could start work. Jackson also told O'Bannon that Muir called Jackson and in their conversation Muir took the
Alfred Hanks was to be foreman O'Bannon reported to work position that it was a violation of the contract to lay off
at the Bloomington job on March 14 along with fellow iron- O'Bannon since he was steward, and, therefore, should have
workers Yeary and Arnette. Later in the week the ironwork- stayed until the last man Jackson replied that he did not
ers reported for work, but because of the absence of G-locks know O'Bannon was a steward and he was uncertain whether
(material used in their work), they were paid their 2 hours O'Bannon could immediately resume his job, but after Muir
report-in pay and sent home. On March 16, Jackson called indicated his displeasure of working the project without a
Jack Muir, business representative of the Union in Indianapo- o steward (the contract called for one), Jackson then informed
lis, and told him that due to lack of materials, it would be Muir that the materials had arrived and agreed to put O'Ban-
necessary to lay off all the ironworkers. non back to work the next morning. Muir said he would call
Immediately after starting on the Bloomington project, O'Bannon about 7 that evening and that Jackson should call
O'Bannon took on the job of being steward, and among his O'Bannon about 7:30 and confirm that he could return to
first actions was to have all members of Local 22 sign their work the next morning. That same afternoon, O'Bannon tele-
names and paid-up book numbers on his note pad. All of the phoned Muir and told Muir that he was at the National
ironworkers including Foreman Hanks signed the pad on Labor Relations Board filing discrimination charges against
March 14. On Friday, March 16, O'Bannon received a call Respondent and needed the name of the black trainee who
from Business Agent Jack Muir with the request that as had replaced him. At about 7 p.m. Muir telephoned O'Ban-
steward O'Bannon attempt to get a job for another iron- non at his home and reported his prior conversation with
worker. Jackson, but O'Bannon did not receive any call that evening
On Monday morning, March 19, the ironworkers reported from Jackson. Jackson said he attempted to reach O' Bannon
for work, and the G-locks were picked up at a local freight by telephone at home that evening but received no answer,
office by O'Bannon and Red Carpenter, but the shipment was and it appears that Jackson also called the hospital, number
incomplete as certain connecting devices were not included. of O'Bannon's wife and left word, but never received a return
That afternoon Superintendent Jackson approached em- call.
ployees ^Yeary and Arnette and told them they were laid off, On the morning of March 22, Jackson telephoned Foreman
and a short while later Jackson came up to O'Bannon and Hanks and told him he had been talking to Jack Muir about
told him "he was going to give him a little vacation" as he O'Bannon and Hanks should call the union hall in Indianapo-
had another man he was transferring to the job. lis and leave word for O'Bannon to report to the Bloomington
On Tuesday, March 20, O'Bannon and another iron- job for work. Hanks then called Muir and told him he had
worker, John Popp, went to the jobsite as O'Bannon wanted been unable to reach O'Bannon, but asked Muir to send him
to see who the other ironworker being brought in was, but it down to go to work. A short while later O'Bannon appeared
rained that day and no employees appeared on the job. at the union hall and told Muir that Jackson had not called
On March 21, O'Bannon and Popp again returned to the him on the previous evening, but Muir informed O'Bannon
Bloomington jobsite, and this time they observed a black that Hanks had tried to call him a short while ago and if he
ironworker trainee working on the job.4 O'Bannon then had stayed home would have received the message . Muir then
went to Assistant Superintendent Carpenter and left the told O'Bannon that Hanks had left word that he was to go
phone number of the hospital where his wife worked with a to work at Bloomington , but from there on the conversation
request that Respondent contact his wife and leave a message between the two of them became rather heated. O'Bannon
with her on returning to work if O'Bannon could not be accused Muir of not doing his job or he never would have
reached at home. O'Bannon also saw Hanks and complained been laid off in the first place, and Muir accused O'Bannon
that a black trainee was working while he, a white journey- of being to blame for his being laid off because he had never
man, was on layoff.' O'Bannon also complained that it was told anyone at the Bloomington job that he was steward. The
wrong to lay him off because he had been the steward. parties came close to blows and Muir finally ordered O'Ban-
After leaving the jobsite in Bloomington on March 21, non to leave the union hall or he would file intraunion
O'Bannon drove to the union hall in Indianapolis and talked charges against him as a disorderly person. O'Bannon then
to Business Representative Jack Muir about what had hap- left by stating , "If you want to look nice in Court, buy your-
pened, complaining that he had been improperly laid off and self a new suit because that is where you are going." Muir
replaced by a trainee. Muir then discussed with O'Bannon then contacted Jackson and complained because Jackson had
certain courses of action that could be taken including the not reached O'Bannon the night before, told him that O'Ban-
filing of charges against Foreman Hanks, but O'Bannon re- non was threatening to go to the NLRB and file charges
jected this suggestion. Muir then informed O'Bannon that against him (Muir), or take him to court, but he still wanted
Local 22 would contact the Respondent about the matter, but O'Bannon to go to work. Jackson then replied, "Get him
O'Bannon told Muir he was going to the National Labor down here and he can go to work " Muir made no further
Relations Board and immediately left the union hall. effort to contact O'Bannon. Muir said he had expected to see
O'Bannon down at the union hall the next day but that
It appears that the Respondent , the Union, and the Federal Government O'Bannon did not come.
are parties to the so-called " Indianapolis Plan" which requires contractors After leaving the union hall (March 22), O'Bannon picked
to employ a certain number of black and minority employees on each up a friend of his, Ralph Jacobs, and drove to the vicinity of
construction job.
' On April 11, 1973, O'Bannon filed charges of racial discrimination the jobsite in Bloomington, and using binoculars attempted
against Respondent with the Indiana Civil Rights Commission to ascertain from his truck who was working on the job. After
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trying two vantage points Ralph Jacobs suggested that they
walk over to the job, but O'Bannon refused saying, "No,.
Ralph, I don't want to do that because if I do go up there on
that deck and go on the jobsite, then anything that they say,
well, they could say anything that they wanted to."
That evening (March 22) O'Bannon telephoned Foreman
Hanks at home on two occasions. Hanks could not recall or
remember the conversations in any great detail because he
was tired after working all day, and had also consumed a few
drinks. On the first call O'Bannon asked Hanks when he
could go back to work, and testified that Hanks told him he
did not want him on the job, and that he (Hanks) had his own
opinion of a person going around "causing trouble," and that
after asking Hanks what he meant by that statement he re-
plied, "Well, for one thing, filing them charges." O'Bannon
said he then told Hanks he had never filed any charges
against him, but Hanks insisted he had and stated that Muir
had so informed him. O'Bannon then told Hanks to call
another business agent named Curt Wooten and to call him
back. After waiting 30 minutes or so and not receiving any
call, O'Bannon phoned Hanks once again . Hanks informed
O'Bannon he had talked to Wooten and in doing so had been
instructed to run the Bloomington job suit himself. O'Bannon
again informed Hanks he had not filed charges against him,
but had gone to the NLRB and filed charges against the
Company. Hanks repeated his prior opinion about people
running around "causing trouble," and again said he did not
want him on the job, but then told O'Bannon, "Well, at any
rate, why don't you just come by the job in the morning and
we will talk about it." O'Bannon testified he then inquired if
this meant there was a possibility of returning to work, and
after a brief hesitation Hanks replied, "No, I don't want you
back on the job."
O'Bannon did not go to the jobsite the following morning
(March 23) or thereafter, nor did he make any further effort
to contact either Jackson, Hanks, or Muir concerning a job
with Respondent.
Jackson testified that if O' Bannon had reported to the
jobsite on March 22, he would have returned him to work.
Jackson further testified that if O'Bannon had requested
work at any time after March 23, and work was available,
that he would have been put to work.
Loren Hannum stated that in August, Foreman Hanks had
told him during a conversation in the union hall, that he had
fired O'Bannon, and also on this occasion Hanks had referred
to O'Bannon as that "big son-of-a-bitch." Hannum testified
that Hanks then explained to him that O'Bannon had filed
charges against him and the Company. Hannum said that
when he specifically inquired as to why Hanks had fired
O'Bannon, Hanks replied, "Because he wouldn't work."6
ironworker employees, and on frequent occasion exercise
such authority. It was also established that Hanks has au-
thority to effectively make recommendations on the hiring
and firing of employees. I find that Hanks is a supervisor
within the meaning of the Act.
The General Counsel argues that up until O 'Bannon
sought the aid of Local 22 and the NLRB, the Respondent
showed a willingness to recall him but then refused to rein-
1state a "troublemaker" who had complained to his Union and
who had filed charges. The parties stipulated that the layoff
itself, on March 19, was nondiscriminatory, and there is no
contention that O'Bannon was initially discriminated against
because of his status as a steward . In fact , Business Agent
Muir testified that the Union has never had any major prob-
lems with Respondent and considers Respondent to be one of
the best employers in the Construction Association and also
said that as far as he was concerned the Respondent's "best
superintendent" was running the Bloomington job.
At the time of his layoff on March 19, O'Bannon was told
by Jackson that work would probably be available in about
a week and for O'Bannon to drop by and keep in touch if he
was interested. As pointed out, there was no contractual
obligation on the part of the Company to recall a laid-off
employee, nor was there any obligation on the part of the
Respondent to return O 'Bannon to the Bloomington' job. It
appears to have been the general practice for employees to
either check back with the employer on their own initiative
if they were interested in returning to work on a specific job,
or to notify the Union as to their availability.
After O'Bannon had complained to Muir at the union hall
on March 21 about his lay-off, the business agent contacted
the Company and registered his objections, as aforestated.
Superintendent Jackson then agreed that O'Bannon could
return to work the following day. The only thing remaining
was to communicate this fact , and that evening Business
Agent Muir called O'Bannon and reported his favorable con-
versation with Jackson.
On the morning of March 22, Jackson instructed Hanks to
contact the Union and leave word for O'Bannon to report for
work. Hanks carried out these instructions and when O'Ban-
non showed up at the union hall Muir gave him the
message.' As pointed out, there is no doubt that the Union's
efforts to secure his immediate recall from layoff had been
successful, and this fact had also been communicated to
O'Bannon, but yet he did not report to the job. Instead, he
merely returned to Bloomington and drove around the area
with a friend while occasionally viewing the construction
project through his binoculars. The Respondent's analysis of
this particular circumstance is well stated:
Final Conclusions
There is a threshold question in this case bearing on the
supervisory status of Foreman Hanks. The evidence in this
record clearly reveals that Hanks has the authority to assign
duties, lay out jobs, and direct the daily activities of the
' Considering the undisputed fact that O'Bannon knew
he had a job and that Respondent wanted him to return
to work, O'Bannon's response affect his entire credibility
and motivation. Had O'Bannon simply gone to the job
site and reported for work as instructed by his Union
representative, this case would never have been.
6 On the basis of the above incident O'Bannon filed intraunion charges
against Hanks for depraving a brother by use of vulgar language Hanks was ' On cross-examination O'Bannon admitted that in their conversation on
tried by the union executive committee , found guilty, and required to apolo- March 22, Muir told him, "Well, you have a job , go on down there and go
gize to O'Bannon for his use of the vulgar language to work "
GLENROY CONSTRUCTION CO, INC. 871
After Muir talked to O'Bannon on the morning of March
22, he called Jackson and reported the fact that he had told
O'Bannon to return to work , and in so doing also informed
Jackson that O'Bannon had or was threatening to file charges
against him with the Board , but the Union still wanted
O'Bannon on the job and Jackson again told Muir to send
him down 8 Therefore, the Respondent 's explicit offer to
recall O' Bannon was made after Jackson had knowledge
that at least a . charge of some nature had been filed by
O'Bannon with the Board.
On two occasions during the evening of March 22 , O'Ban-
non talked to Foreman Hanks, as previously detailed, but at
no time did Hanks tell O 'Bannon he was fired or would not
be recalled . Hanks' statements , most favorable to General
Counsel 's case, were simply , "I don 't want you back on the
job." As pointed out, the fact that Hanks personally may not
have wanted O'Bannon on the job is not the equivalent of a
refusal to recall O' 'Bannon . Jackson-Hanks' superior- had
made the decision that O 'Bannon would be reinstated if he
reported for work . The remarks by Hanks must also be
viewed in light of his statement during the second phone call,
when he told O'Bannon he should come by the job in the
morning and "we will talk about it." From the testimony in
this record it is obvious that Hanks had the mistaken belief
that O'Bannon had initially filed some kind of intraunion
charges against him and which had been thrown out or dis-
missed by Muir, but at no time within the dates material to
this inquiry had O'Bannon filed any charges against Hanks.
Undoubtedly, this mistaken belief by Hanks prompted his
remarks to O'Bannon that he did not want him on the job,
which were then qualified with a reservation for discussions
at the site on the next morning.
The Respondent was ready and willing to recall O'Bannon
on March 22 if he had reported for work as instructed by
Muir , and Respondent was ready to recall O'Bannon on
March 23 if he had reported to the jobsite in accordance with
Hanks' request . There is also testimony in this record that
Respondent was willing to put O'Bannon to work at any time
thereafter-assuming work was available-if O'Bannon had
requested employment.
In the final analysis , through the Union and by direct
communications , the Respondent made adequate efforts to
recall or reinstate O'Bannon , and in accordance therewith I
find that the General Counsel had failed to establish by a
preponderance of the evidence that the Respondent violated
the Act.
CONCLUSIONS OF LAW
8 It is not clear whether at this time Muir specifically mentioned to
Jackson that O'Bannon was filing charges against the Company, but O'Ban-
non filed the original charge against the Company with the Board on March
21, which was admittedly received by the Respondent on Thursday, March
22
The evidence does not establish that Respondent engaged
in the unfair labor practices alleged in the complaint.
[Recommended Order omitted from publication.]
,r,