Humes Electric, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1982

263 N.L.R.B. 1238 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Humes Electric, Inc. and International Brotherhood
of Electrical Workers, Local Union No. 428.
Case 31-CA-10354
September 20, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On February 17, 1982, Administrative Law
Judge Richard J. Boyce issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and also re-
submitted its trial brief. The General Counsel then
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 has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order, as modified herein.
Although we agree with the Administrative Law
Judge that Respondent violated Section 8(a)(l) and
(3) of the Act by discharging James Devers, we do
so for the reasons set out below.
Respondent has excepted to certain credibility
findings made by the Administrative Law Judge. It
is well settled that the Board will not displace an
administrative law judge's credibility resolutions
which are based on his observation of demeanor
unless a clear preponderance of all the relevant evi-
dence convinces us that they are incorrect.' When
a clear preponderance of all the relevant evidence
leads to a contrary conclusion, however, the factor
of demeanor is diminished significantly. 2 And, as
we have had occasion to point out, in any event
the ultimate choice between conflicting testimony
rests not only on the witnesses' demeanor, but also
on the weight of the evidence, established or ad-
mitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole. 3
In the instant case, although the Administrative
Law Judge referred generally to the demeanor
factor, certain credibility resolutions do not appear
to have been based on his observations of the wit-
nesses' testimonial demeanor. Furthermore, the
i Standard Dry u'all Products. Inc.. 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951)
2 El Rancho Market, 235 NLRB 468, 470 (1978). enfd. 603 F.2d 223
(9th Cir. 1979).
s Northridge Knitting Milh. Inc., 223 NLRB 230 (1976); Warren L. Rose
C'asoligs. Inc. dh/ba V & W Castings, 231 NLRB 912 (1977). enfd 587
F 2d 1005 (tih Cir. 1978).
263 NLRB No. 159
record sustains Respondent's contention that the
Administrative Law Judge may have misstated or
confused certain of the relevant record evidence
and testimony presented in this case.4 Given such
circumstances, we find it necessary to examine the
record de novo and to make credibility findings,
when appropriate, that comport with the record
evidence as a whole and with the inferences fairly
drawn therefrom.6 As noted, however, we agree
with the Administrative Law Judge that Devers'
discharge violated the Act.
Devers was dispatched by the Union on July 14,
1980,' along with two other union members, to
compose a crew of linemen upgrading the U.S.
Navy's electrification system at the Elk Hills Naval
Petroleum Reserve (Elk Hills). The crew's job en-
tailed primarily setting poles and stringing wire.
Devers was his crew's nominal foreman until
4 Thus, in adopting the Administrative Law Judge's Decision, we do
not rely on a number of factors he discussed. First, we do not rely on the
Administrative Law Judge's finding of a contradiction between Respond-
ent Vice President Geissel's testimony that he had received daily com-
plaints from General Foreman Ingram starting con July 21 and Ingram's
testimony that he did not begin to register complaints with Geissel about
employee James Devers until "toward the end of July." In the context of
this case, we are satisfied that the dates qloted are not so distant as to
constitute a contradiction.
Second, the Administrative Law Judge found that Geissel's statement
that he had not admonished Devers or his crew when he caught them
standing around idly on the job on or about July 29 was inconsistent with
Geissel's assertion that he spoke to Devers' crew about the necessity of
"cooperation on the job" on the same occasion We do not rely on the
Adnministrative Law Judge's finding because, to the contrary, we do not
find that Geissel's statement about "cooperation on the job" necessarily
constituted an admonition.
Third, we disavow reliance on the Administrative Law Judge's finding
that Geissel's statement that Devers' crew "most likely" saw him observ-
ing their malingering on July 29 was inconsistent with his testimony that
he asked them if there were any problems. The Administrative Law
Judge concluded that these statements exemplify the "ltell-tale inconsis-
tency" in Geissel's testimony. To the contrary, we find that Geissel's as-
sertion that Devers and his crew "most likely" sasw him was in reference
to his observation of their conduct from a distance. riot in reference to his
subsequent conversation with Devers at the worksite in question Hence,
we do not find that Geissel's statements reflect an inconsistency
s For example, with respect to the topography at the Elk Hills project,
the Administrative Law Judge concluded that "Ingram's insistence that
'all the terrain is on flat land' until after Devers swas discharged was so at
odds with the weight of evidence as to reveal an intent to mislead."
Ingram had testified that "[p]rior to [Devers'] discharge, all the terrain is
on flatland." After an examination of the record testimony. we conclude
that Ingram's testimony was in large part consistent with, or corroborat-
ed by, another witness' testimony. Because Respondent's estimator, Par-
rent, also testified that as of the August II meeting [the day before
Devers' discharge], "we weren't working in any bad terrain," we find
that Ingram should not have been discredited on this point. Thus, we do
not credit Devers' testimony on the topography over that of the other
witnesses to the extent that the Administrative Law Judge may have
relied on it to describe the topography befoic Deveis' discharge. Never-
theless, we note that even though the Administratise Law Judge discred-
ited Ingram's testimony erroneously on this matter, his overall analysis of
the nature of the terrain was correct, as exemplified in his statement that
"substantial portions of the work were to be done in difficult terrain [em-
phasis supplied]." Contrary to Respondent's assertions, the Administrative
Law Judge's conclusions clearly addressed the difficulty of the terrain to
be encountered by Devers' crew, not the terrain already worked by
them. (See fn. 3, first sentence of the Admlinistrative Law Judge's Deci-
sion in that regard.)
6 All dates are in 1980 unless tindicated otherwise
1238
HUMES ELECTRIC, INC.
August II, when he became simply a journeyman
lineman. Because he had worked as the Union's
business manager for the preceding 3 years, Devers
admittedly was "three years soft" at the time of his
dispatch to Elk Hills.
Upon first viewing the worksite, Devers (who
also was the union steward) informed Haskell
Ingram, the general foreman, that Respondent was
"going to have to heavy up the crews" (i.e., in-
crease the crew size) because of the rough terrain
and the large poles involved. As work progressed
on the project, Devers continued to express his
concern about crew size to Ingram. Ingram's usual
response was that he would "take care of it."
Devers also informed Al Fitts, the Union's business
representative, of his concern regarding the crew
size, but, because of the assurances Ingram had
given him, he added that the problem was "taken
care of."
On August 6, Ingram talked to Devers about Re-
spondent's and the Navy's concern about Devers'
alleged unsatisfactory production level. Devers al-
legedly responded, "Fuck those people." Ingram
then informed William Geissel, Respondent's vice
president, of Devers' response and the two alleged-
ly decided to discharge him after work on August
7. Although Respondent allegedly has a strong
policy of discharging unacceptable employees on
paydays (the next payday being August 12), it con-
tended that it was willing to make an exception
and terminate Devers before payday because it
characterized his response as outrageous. However,
Devers was not discharged on August 7. Respond-
ent claimed that the preplanned discharge was not
effectuated on August 7 because Devers was absent
from work on August 7 and 8 due to illness.
Devers was not told of the impending discharge
when he called in sick on August 7.
When the crew size had not been increased by
August 8, Devers, though absent from work due to
illness, told Fitts that the terrain was "unreal" and
the work "unsafe." Fitts then phoned Geissel and,
without naming the complainant, informed him that
the workers were griping about the shorthanded
crews. A meeting was set for Monday, August 11,
at Respondent's suggestion, to resolve the problem.
Devers reported for work on August 11, still not
having been told of his alleged impending dis-
charge. He and Fitts met with Respondent officials
at the worksite that morning. Devers participated
actively in the discussion as a proponent for larger
work crews, and requested that Respondent "un-
foreman" him to allay any suspicion that his advo-
cacy of larger crew sizes reflected a desire to
"stand around." The only reasons proffered for the
larger crew size were the rough terrain and the
large size of the poles. The participants agreed
upon the formation of one crew of up to 10 line-
men under one nonworking foreman. The agree-
ment was implemented immediately and Devers re-
turned to rank-and-file status that day.7
The next day, August 12, a payday, Geissel in-
formed the Union's business manager that Re-
spondent was going "to let Jim go" for the follow-
ing reasons: Devers had "a negative effect on the
people on the job"; Respondent had "no control
over the job" because of Devers' "influence over
the people"; and Devers' crew production level
"was not there." When asked if Devers had been
confronted about these matters, Geissel responded
that he had not. Additionally, no final check had
been prepared before August 12. Devers received
his termination slip at the end of his shift on
August 12; the slip gave no reason for the dis-
charge, but stated that a letter was to follow. Sur-
prised at having been terminated, Devers asked
Ingram if it had to do with his work and was in-
formed that his work had been "all right" and that
the decision had emanated "from the office."
When the linemen protested the discharge on
August 13 by refusing to work, a meeting was held
between union and management officials, at which
time "lack of production" and "attitude" were
given as the reasons for Devers' discharge. Devers
never was offered rehire at the site.
As noted, Respondent asserts that it had a legiti-
mate business reason for discharging Devers-
namely, his lack of productivity. Unlike the Ad-
ministrative Law Judge, we find that Respondent
presented sufficient evidence that it had legitimate
concerns about Devers' productivity on the Elk
Hills project.8 Although it is uncontroverted that
Devers' productivity was acceptable during the
first week of his employment as foreman at the Elk
Hills worksite, Respondent quickly became disen-
chanted with Devers' work. Thus, Respondent pre-
sented credible evidence that it complained to
I Respondent had intended to increase the number of its employees,
but the increase on August 11 (as a result of the worksite meeting) admit-
tedly came earlier than planned and hence increased Respondent's pay-
roll earlier.
'Respondent excepted to the Administrative Law Judge's crediting of
Union Business Manager Croxton's version of his telephone conversation
of late July with Respondent's president and owner, Reed, over that of
Reed, and to the Administrative Law Judge's conclusion that Reed de-
clined to tell Croxton that the "particular problem" Respondent was
having with Devers concerned his lack of productivity. According to
Reed, Croxton suggested that he approach General Foreman Pence, a
close friend of Devers', to request that Pence speak with Devers about
his lack of productivity. To the contrary, Croxton testified that, although
Reed disclosed that he "had a problem with" Devers, he never discloaed
the nature of such problem. Nevertheless, because Croxton testified that
he "very well could have" suggested that Reed ask Pence to approach
Devers, we find that the aforementioned testimony exemplifies that Re-
spondent did apprise a union official of its concern about Devers' produc-
tivity in late July.
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Devers about his productivity on August 6. Indeed,
Devers' recognition that his productivity was in
question is apparent from his response to his notice
of termination. When Ingram presented him with
the termination slip, Devers inquired, "Is it my
work?" When Ingram responded in the negative,
Devers inquired once again, "Are you sure it is not
my work?"
Nevertheless, as did the Administrative Law
Judge, we find that the decision to terminate
Devers on August 12 was not grounded in Re-
spondent's concern for his alleged lack of produc-
tion, but rather in his participation in the joint
meeting of union and management officials on the
subject of crew size on August 11, and, more par-
ticularly, in his pursuit, as job steward, of larger
crews. Despite Devers' request at that meeting that
his foreman status be removed, so as to allay any
suspicions that his advocacy of an enlarged crew
size reflected a desire to attain a nonworking fore-
man status, Respondent's vice president character-
ized his efforts as "featherbedding."
Further, like the Administrative Law Judge, we
find it incredible that Respondent planned to termi-
nate Devers on August 7, but deferred the dis-
charge until August 12 because of Devers' illness
on August 7 and 8, and that it then terminated him
on August 12 because of its computerized payroll
system and longstanding custom of discharging em-
ployees on a payday. Geissel contended that he did
not inform Devers of the impending discharge
when Devers spoke to Geissel personally upon
calling in ill on August 7 because that was consid-
ered to be the foreman's task. Likewise, Geissel did
not instruct Ingram to phone Devers at home to
relay the discharge decision because of Respond-
ent's alleged practice of discharging employees on
the job only. Furthermore, Respondent did not dis-
charge Devers on Monday, August 11, when he re-
turned to work nor the morning of August 12 be-
cause of the alleged administrative hassle. Respond-
ent alleged that it decided, upon Devers' return on
August 11, that he could be tolerated "one more
day"9 in order to prevent the women in the office
from having to write up a specific check (rather
than using the computer payroll) and to ensure that
the termination was effectuated on a payday.
In sum, we find that the General Counsel has
made out a prima facie case and that Respondent
has not established that Devers' discharge would
9 Respondent ostensibly characterized this as "one more day" rather
than 2 more days (Respondent allowed Devers to work on both Monday
and Tuesday before his discharge) because, in any event, it was obligated
to pay Devers for a partial workday on Monday. The relevant contract
provided that any person reporting for work and laid off who had not
been notified of the layoff on the previous day would receive not less
than 4 hours wages for the day.
have occurred absent his participation in the
August 11 worksite meeting.' 0 Had Respondent
been resolute in its alleged August 6 decision to
discharge Devers on August 7, it clearly would
have implemented the discharge prior to August
12. Although Respondent had legitimate concerns
with Devers' work output, we find that his lack of
productivity was blown up out of proportion by
Respondent to veil the solution which Respondent
desired: namely, Devers' discharge because of his
participation in the August 11 meeting and his ad-
vocacy of change contrary to Respondent's eco-
nomic interests." Contrary to Respondent's asser-
tions, we find that the timing of Devers' discharge
right after the worksite meeting was less than "co-
incidental."
Accordingly, for the reasons noted above, we
find that Respondent's discharge of James Devers
violated Section 8(a)(l) and (3) of the Act. 12
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that Respondent,
Humes Electric, Inc., Taft, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recomended Order, as so modi-
fied:
1. Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs accordingly:
"(b) Expunge from its files any reference to the
discharge of James Devers and notify him in writ-
ing that this has been done and that evidence of
this unlawful discharge will not be used as a basis
for future personnel actions against him."
2. Substitute the attached notice for that of the
Administrative Law Judge.
'O See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083,
1089 (1980), enfd. 662 F.2d 899 (Ist Cir. 1981).
' See fn. 7, supra, and accompanying test
12 The Administrative Law Judge found, and we agree, that Respond-
ent discharged James Devers unlawfully on August 12, 1980 In accord-
ance with our decision in Sterling Sugars. Inc., 261 NLRB 472 (1982), we
shall order the expunction of any reference to this discharge from Re-
spondent's files.
APPENDIX
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 opportu-
nity to present evidence and state their positions,
1240
HUMES ELECTRIC, INC.
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, 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 repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or otherwise dis-
criminate against employees because of their
union or concerted activities protected by the
Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their rights under the Act.
WE WILL offer to James Devers immediate
and full reinstatement to his former job or, if
that job no longer exists, to a substantially
equivalent job, without prejudice to his senior-
ity and other rights and privileges previously
enjoyed, and WE WILL make him whole for
any loss of earnings or benefits suffered by
reason of his unlawful discharge, with interest
on lost earnings.
WE WILL expunge from our files any refer-
ence to the discharge of James Devers and
notify him in writing that this has been done
and that evidence of this unlawful discharge
will not be used as a basis for future personnel
actions against him.
HUMES ELECTRIC, INC.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Bakersfield, California, on
May 21 and 22, 1981. The charge was filed on August
27, 1980, by International Brotherhood of Electrical
Workers, Local Union No. 428 (herein the Union). The
complaint issued on October 30, was amended during the
hearing, and alleges that Humes Electric, Inc. (herein
Respondent) violated Section 8(aXl) and (3) of the Na-
tional Labor Relations Act, as amended, when it dis-
charged James Devers on August 12, 1980.
I. JURISDICTION
Respondent, a California corporation headquartered in
the city of Taft, is an electrical contractor in the con-
struction industry. It belongs to the Kern County Chap-
ter, National Electrical Contractors Association (herein
NECA), which represents its members in negotiating col-
lective-bargaining contracts with labor organizations, in-
cluding the Union. Those members, in the aggregate, an-
nually take delivery of goods and materials valued in
excess of $50,000 either directly from outside California
or from sources within California which obtained them
directly from outside the State.
Respondent, as a member of NECA, is an employer
engaged in and affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE ALLEGED VIOLATION
A. Evidence
In July 1980, Respondent began to perform under a
contract with the U.S. Navy to upgrade the electrifica-
tion system of the Elk Hills Naval Petroleum Reserve,
near Bakersfield. The project was to entail the setting of
2,000 poles and the stringing of 2 million feet of wire.
The first linemen on the job were Devers and two
others, Dunsworth and Paynter. They were dispatched
by the Union on July 14 and, until crew makeup was al-
tered on August 11, comprised one crew. Devers was
the crew's nominal foreman until August 11, after which
he was simply a journeyman lineman until discharged on
August 12. He was the Union's steward as well, although
communication of that fact to Respondent was left to
chance. Devers had not worked in the field the 3 years
preceding, having been the Union's business manager
from July 1977 to July 1980. He was, as he put it, "three
years soft."
Another three linemen were dispatched about a week
after Devers, Dunsworth, and Paynter, making up a
second crew. Its nominal foreman was a man named
Orloff. Haskell (Hack) Ingram, general foreman, was
over both crews.2
Respondent and the Union were party to two labor contracts at rele-
vant times, one covering line construction work and one covering oilfield
electrical construction work. It apparently had not determined, at the
outset of the project, which contract would govern. Both contracts gave
the Union "the right to appoint a steward," and provided: "Notification
of the steward's appointment shall be made, in writing, to the Employer
by the Union." The Union ignored this procedure as concerns Devers'
appointment, which, according to Al Fitts, its business representative, is
not unusual.
a Respondent contends that Devers, while a foreman, was A statutory
supervisor. Both labor contracts required, in the circumstances here ob-
taining, that one crew member be designated foreman and that "workers
are not to take directions or orders . from anyone except the proper
foreman." Ingram testified that Devers, "the elder man." was deemed
foreman of his crew although Ingram "may not have come right out and
said, 'You are foreman."'
Devers' realization that he was foreman came on the first payday,
when his check disclosed that he was receiving foreman's scale of $18.76
per hour rather than the journeyman rate $17.05. For the first 10 days or
so, Ingram admittedly "showed the crew that work had to be per-
formed" and spent much of the workday "in the near vicinity of the
crew," giving "specific orders" to the linemen. He continued to "line the
work out" after that, and to situate himself so the crews (Devers' and
Orloffs) "were all visible" to him, but apparently left it to the foremen to
Continued
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the first several days did not hold forth the
prospect of any particular difficulty, Devers told Ingram
upon first seeing the site that Respondent was "going to
have to heavy up the crews"--i.e., get more men-be-
cause of the troubles bound to derive from the rough ter-
rain and the large size of the poles to be used. s Devers,
explaining the need for larger crews in such circum-
stances, testified:
[W]hen you are in rough terrain like that, and it is a
heavy pole, one man is on the truck, one man is
trying to give signals, and one man is trying to
wrestle that pole in[to] the ground. Because a lot of
times, the way the trucks was set, the man could
not see, the operator that was operating the boom
could not see, unless there was a man giving sig-
nals. ... [W]hen you are trying to set a pole hang-
ing off a hill, and you have got one man wrestling a
big-butted pole, and one man operating the truck,
and one man trying to give signals, it is hazardous
. . . [to] the man that is hanging onto the butt of
the pole. .... IH]e is the one that could get slapped
up against the pole or up against the truck, caught
betweten he truck and the-
Devers conttinued to express the need for larger crews
"as time went on," conveying not only his concern, but
also that related to him by the others on his crew and by
Orloff. Ingram's usual response was to the effect that he
would "take care of it."4
Early in the job, Devers also mentioned to Al Fitts,
the Union's business representative, that there would be
a need to "heavy up" the crews. Because of Ingram's as-
surances that he would take care of it, however, Devers
added that the problem was "taken care of."
On Friday, August 8, nothing having changed as con-
cerning the crews, Devers reported to Fitts that the ter-
rain was "unreal" and the work "unsafe"; and that it
consequently was essential to "heavy up the crews."
Fitts thereupon had a telephone conversation with Wil-
convey directives to the crews. There is no convincing evidence, howev-
er, that Devers (or Orloff) was other than a conduit in this regard. or
that he otherwise exercised any significant degree of independent judg-
ment in his role as foreman.
It is concluded, therefore, that Respondent has not met its burden of
proving Devers, as foreman, to be a supervisor. Payne d Keller, Inc., 258
NLRB 802 (1981), Commrercial Movers Inc., 240 NLRB 288, 290 (1979).
3 The weight of evidence leaves no doubt that substantial portions of
the work were to be done in difficult terrain. Devers described the ter-
rain as "very mountainy," insisting that the photographs in evidence are
"very deceiving"-"lt looks flat [in the photos], but, believe me, it is
not." Ron Parrent, Respondent's estimator, testified that some areas were
"very rough," and that there was "a lot of flat land, as well." Edward
Cosgrove, and one of Orlof's crew, described one small area of the job
as "flat" and "nice," with "the rest of the job [being] awful hilly."
Ingram testified that, "prior to [Devers'] discharge, all the terrain is on
flat land." As it later developed, Ingram's credibility was not impressive.
4 Devers is credited that he voiced the need for larger crews to
Ingram from time to time, and that Ingram responded as here set forth.
Ingram testified at one point that Devers "complained to me about need-
ing bigger crews, but not necessarily safety," only to admit, "We talked
about it being unsafe." He testified at another point that he and Devers
had "talked about" crew size, but that Devers had not complained; at
still another that "somebody mentioned not being enough met to set the
poles," but that he did not know who, "possibly" Devers; and, finally,
that he could not recall if anyone ever asked for large. crews.
liam Geissel, Respondent's vice president, telling him
"there had been guys coming into the hall and complain-
ing that they were working shorthanded." Fitts did not
identify the complainants by name. They agreed to meet
at the site the next Monday morning, August 11, to
"straighten out" the problem.
Early on the morning of August 11, Fitts and Devers
met at the site with Ingram and Ron Parrent, Respond-
ent's estimator. Parrent substituted for Geissel, who had
been summoned elsewhere on short notice to deal with a
jurisdictional dispute. Devers was an active participant,
espousing larger crews and asking that Respondent "un-
foreman" him to allay any suspicion that his purpose in
pressing that position was "so I could stand around."
Despite that, and although neither Devers nor Fitts oth-
erwise indicated that the Union's position was based on
anything but the terrain and "the big poles," Parrent told
Geissel that evening that Devers and Orloff wanted
larger crews so they could be nonworking foremen. 5
The meeting lasted over an hour, resulting in an agree-
ment that there would be 1 crew of up to 10 linemen,
under I nonworking foreman. The foreman was to be
Ivan Reit, Devers and Orloff reverting to rank-and-file
status. The agreement became effective that same day.
Parrent and Ingram both proffessed ignorance of
Devers' being steward. Neither, however, challenged his
standing to participate in the meeting. Parrent explained:
"I had seen Jim at so many meetings in the past that I
just never thought anything about it."
Geissel visited the site that afternoon, learning of the
new arrangement from Devers. He testified at one point
that he spoke about it with Devers because "he was the
first man I came across"; and, at another, because "Jim
knows about everything"-"he talked to everybody."
Geissel, like Parrent and Ingram, denied knowledge that
Devers was the steward.s
Geissel testified that he was not "really surprised" at
the outcome of the August 11 meeting, and would have
agreed to it himself had he been present. He conceded,
however, that while Respondent had intended to enlarge
the complement, this accelerated that development, per-
force increasing payroll overhead earlier than planned.
Further regarding the increased complement, Geissel tes-
tified, "To me it is featherbedding," later explaining that
he had in mind his perception that Devers (and Orloff)
wanted the larger crews so he could be a nonworking
foreman.
The next day, August 12, Geissel told Ronald Crox-
ton, Devers' successor as the Union's business manager,
5 The contract covering line construction work stated that a foreman
"shall not perform any work with the tools if more than two (2) linemen
are at work on his crew . . ."; that covering oilfield construction work
stated: "A foreman may work with the tools until five (5) journeymen,
not including himself, are employed on the job."
6 Edward Cosgrove, a member of Orlofrs crew, testified that he heard
Devers declare himself to be steward, in Ingram's presence, on Cos
grove's second day on the job. Cosgrove said he was "not positive" that
Ingram heard Devers, adding, "if he was deaf, I guess he couldn't hear."
Ingram, at pains to support his assertion that he did not know, testified
that Devers was "not necessarily" the employees' most vocal spokesman
and that he, Ingram, was "not saying anyone was vocal." Ingram finally
conceded, however, that "possibly [Devers] did [have the most to say],
yeah."
1242
HUMES ELECTRIC, INC.
that Respondent was going "to let Jim go." Geissel testi-
fied that Respondent has a "policy" of sometimes in-
forming the Union of pending discharges, "depending
upon who it is." He elaborated that it was done in this
instance because Devers "was a local member and . . .
an ex-business administrator"; that "he held high esteem
with the local"; and that Respondent was "trying to
avoid some of the problems that could be involved with
it." Geissel continued that Respondent tries to tell the
Union "at least a little bit before" any member of the
local is to be discharged, so the Union will "be prepared
when he comes in."
Regardless, Geissel explained to Croxton that the rea-
sons for the action were that Devers had "a negative
effect on the people on the job"; that Respondent had
"no control over the job" because of Devers' "influence
over the people"; and that production from Devers'
crew "was not there." Croxton asked if Geissel had
"confronted" Devers about these matters, saying that he
"is a reasonable person if he knows that this is a prob-
lem." Geissel answered that he had not. Croxton re-
marked on the "poor timing" of the discharge-presum-
ably an allusion to the just-settled dispute over crew size;
and Geissel countered that it was "just a necessity."
Devers himself received word at the end of his shift
on August 12. Ingram gave him a termination slip along
with his regular weekly paycheck. August 12, being a
Tuesday, was payday. The termination slip gave no
reason, instead saying "letter will follow" in the space
for that purpose. Devers, "very surprised," asked Ingram
if it had to do with his work. Ingram replied that
Devers' work had been "all right," then expanded that
the decision had come "from the office" and that he was
"not going to get involved in a fight between [Devers]
and the office." 7
The next day, August 13, the linemen refused to go to
work, protesting, if not the discharge itself, the manner
in which it had been effected. Fitts and Croxton met
with Geissel and Ingram at the site, in hopes of getting
the employees back to work. Fitts asked why the dis-
charge. Geissel cited "lack of production" and "Jim's at-
titude." Geissel then tendered the letter to follow men-
tioned in the termination slip, acknowledging that this
was "a very poor way" to handle the situation. The
letter stated:
Jim Devers has been on the job for approximate-
ly one month and has been given ample time to pro-
duce some leadership which we feel is important on
this or any other job.
This is Devers' credited version of Ingram's remarks. What Ingram
said was that it was a front office decision, and that it was indeed is sug-
gested not only by Devers' credible testimony, but also by Geissel's testi-
monial reference to an August 13 meeting as being "the day after I fired
Jim"; by an August 14 Geissel letter to the Union stating, "I have dis-
charged Jim Devers"; and by Geissel's August 14 disclosure to the
Union's Fitts that Charles Reed, Respondent's president and owner, had
Mid he would fire Geissel should Geissel rehire Devers.
Ingram, denying that he told Devers that performance had nothing to
do with the discharge, testified that, when Devers asked for a reason, he
answered, alluding to Devers' poor production, "What have we been
talking about?" Ingram's testimony in this regard. as in others noted else-
where, was not convincing.
We have observed Jim and feel that we are re-
ceiving poor production from his crew We would
not want him on this job or any other job for
Humes Electric, Inc. We have discharged him on
the 12th day of August, and he is not eligible for
rehire. We would like your careful attention to this
problem.
Fitts proposed, since the lctter-to-follo,: procedure
concededly was a poor one, that "let's just tear this letter
up." Geissel complied, after which they discussed
Devers' being rehired. Geissel expressed Respondent's
willingness to hire him for other jobs-"if it wSould help
the [Elk Hills] job along and [get the men to] go back to
work." But, regarding the Elk Hills job, Ingram was
adamant in his opposition, saying "time and time again,"
as Fitts recalled, that "it just wouldn't work." Ingram ex-
plained, according to Croxton, that Devers' influence
over the crew was "a negative factor"; that "the job was
actually being run by Jim Devers"; and that "production
on the crew wasn't up to what . . it should be." Geis-
sel, more conciliatory, concluded the meeting by saying
he would discuss the matter with Charles Reed. Re-
spondent's owner and president, and "get back to" Fitts.
In the aftermath of the meeting. and despite Fitts'
urging, only two of the linemen returned to work.
The next day, August 14, Geissel told Fitts he had
spoken with Reed, and that Reed had said he would fire
Geissel if Geissel were to rehire Devers at Elk Hills.
Also on August 14, Geissel sent this letter to the Ur.non.
less far-reaching on the issue of rehire, in lieu of the one
torn up by Geissel:
I have discharged Jim Devers for non-produc-
tion.
We feel that we have given him a fail chance to
improve with no results.
We would not want Jim back on this job.
Fitts, Croxton, Geissel, and Ingram met again a few
days later. Croxton testified that this meeting "went very
much as the previous one did." De ers nevet was of-
fered rehire.
Ingram and Geissel testified in largely parallel terms
that they conversed in Respondent's Taft office after the
workday on Tuesday, August 5, about the need to do
something about Devers' poor production. According to
Ingram, Geissel said Respondent would "just have to let
him go if he can't cut it," but then agreed with Ingram's
suggestion that Ingram "talk to (Devers] . . [ad] . ..
give him a chance." Geissel told it somewhat differently,
testifying that, when Ingram raised the issue, he asked if
Ingram had spoken to Devers about it; that Ingram re-
plied that he had, "more or less"; and that he, Geissel,
counseled that that "wasn't sufficient" forewarning if dis-
charge was contemplated. James Pence, a general fore-
man, testified more consistently with Ingram than Geis-
sel, relating that he overheard Geissel say to "tie a can
to" Devers. Pence, however, stated that this happened
during the last week in July.
Ingram testified that he spoke with Des ers about pro-
duction the next day, August 6, when Des ers "happened
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be in" the job trailer "close to quitting time." Ingram
assertedly stated:
The Navy is getting concerned, I am getting con-
cerned, Humes Electric is getting concerned about
this [production]. They are bugging me, wondering
when we are going to go on the contract. 8
Devers' response, according to Ingram, was, "F- those
people."
Devers, while unable to fix the date, concedes that
Ingram once told him that he did not think he was "pro-
ducing." Devers testified that, getting "mad right quick,"
he protested, "Goddamn it, I have set four poles
today"-"a hell of a good day's work."
After work the afternoon of the 6th, according to both
Ingram and Geissel, Ingram told Geissel of his exchange
with Devers, observing that Devers' "attitude" was
"pretty bad" and recommending discharge. Their recitals
continued that they then decided to discharge Devers
after work the next day, August 7. Geissel testified that
Respondent has a strong policy of effecting discharges,
even for cause, on paydays, making exceptions only for
"misconduct, thievery, drinking on the job, just outra-
geous conduct." He further testified that Devers' ob-
sence reaction- "f- those people"-was sufficiently
"outrageous" to come within the exception. He ex-
plained:
After you have been admonished about your work
and you have been told that you are not doing pro-
duction . . . [you] usually don't come across that
way, no. Usually you take your lumps and you like
them.
As previously stated, the discharge in fact did not take
place on August 7, but on the next payday, Tuesday,
August 12. Nor was the Union informed of an impending
discharge or a final check prepared before August 12.
Ingram and Geissel both testified that the timing was
upset by Devers' missing work on August 7 and again on
August 8 because of illness. Explaining why he was not
discharged on Monday, August 11, Ingram testified:
"Normally, when you terminate someone, we try to do it
on a regular payday if it goes into the next week like
that . . . to simplify the bookwork." Similarly, Geissel
testified that, by Monday, it was "felt we could live with
it for one more day" in view of the "burden on the
women in the office to have to stop everything they are
doing and write a specific check."
Asked why the plan was to discharge Devers after
rather than before work on August 7, Geissel testified
that, although "a lot of" Devers' work had to be redone,
it "possibly" would have been more economical to get
another day's work from him rather than pay him the re-
quired showup time for doing no work.9
' Ingram testified the first several days on the job were taken up with
"extra work"--i.e., necessary "odds and ends" not specified in and pre-
liminary to work expressly covered by the job contract.
9 Both labor contracts provided: "Any person reporting for work and
being laid off, not having been notified the previous day of such layoff
. . shall receive not less than four (4) hours' wages for that day."
Asked, then, why he did not tell Devers he was fired
when Devers called him in the early morning of August
7 to say he was sick,1° Geissel testified: "I try to leave
that up to the foreman." Explaining why, in that event,
he did not instruct Ingram to convey the word to
Devers at home, Geissel testified that "it is usually our
practice" to wait until an employee is on the job before
telling him-even though it means "either paying
showup time . . or paying him for another day of labor
when his labor isn't appreciated." Geissel hastened to
add, when it was suggested that this practice is "a little
bit puzzling": "You have to stop and consider who we
are talking about, also." He elaborated:
We are talking about Jim [Devers]. He holds a high
esteem over there, you know. He is an ex-B.A. He
is fairly well liked over the area and, consequently,
it is pretty hard to fire somebody without giving
them a chance, which I thought we did. When they
are your friends, also, it is pretty hard to just out-
right can them. I have fired a lot of people, and
some of them I could[n't] care less about. Jim I
cared about.
Seeking to demonstrate the poor productivity of
Devers and his crew, Ingram testified at considerable
length about their work-when, where, and how. While
so doing, he replied on two diagrams of the site he had
prepared the day before. He conceded that "things went
smooth" the first workweek July 14 to 18. He asserted
that he first raised the issue of production with Devers
"possibly" on July 22, while telling him and "possibly"
Dunsworth and Paynter that they had not "framed" a
pole properly." t Ingram later admitted, however, that he
could not recall "exactly for sure" if he mentioned pro-
duction at that time; and that the first time he com-
plained to Devers about production "for sure" was
during the exchange previously described, assertedly on
August 6.
Ingram testified that he first spoke to Geissel and Par-
rent about Devers' poor production "toward the end of
July," at which time he had "probably" two or three
conversations with them. He stated that he could not
separately recount those conversations, but that he re-
membered reporting that production "was down" and
that the Navy was getting "a little itchy about getting
the contract job started." Asked if any decision was
made regarding Devers in those conversations, Ingram
replied, "Probably nothing definite"-"you have to give
everybody a chance."
Asked how, in preparing the diagrams, he was able to
indicate which poles had been set by which crew,
Ingram stated that, because he was present when the
work was done, "I know in my head who did what."
Next asked if job blueprints indicated which crew had
'0 Devers spoke with Geissel about 6 a.m. on August 7, Geissel having
an office telephone in his home, to report that he was ill.
' By informal count, Ingram used the qualifying "possibly" no less
than 10 times in his testimony-a propensity contributing to his generally
poor credibility.
Framing consists of attaching cross-arms to a pole and affixing hard-
ware to them.
1244
HUMES ELECTRIC, INC.
done what work, Ingram answered: "No. They might
have a checkmark on them, yeah." Asked if he had ex-
amined the blueprints "to see if there was a check . .. to
indicate" whether a certain pole had been set by Devers'
crew, Ingram replied: "I can't recall. Like I said, I know
who set who." He added, "I don't recall looking at the
checkmarks, but I know in my own mind who set what
pole, because I was present."
Asked then if he had used the blueprints to prepare the
diagrams, Ingram testified variously that he "might
have," that he could not recall "whether I looked at it or
not," and that "I looked at it to draw this diagram."
Ingram also testified that the employees timecards re-
flected "how long it took to put in each particular pole."
Asked how, he replied, "They don't show exactly how
long," but that he "just remember[ed] it." He then ad-
mitted that he could not say "offhand" how long
Devers' crew worked at Pole 1; that he could not re-
member if Dunsworth and Paynter ever returned after
leaving the job in protest of Devers' discharge; and that
he could not recall if larger crews ever were asked for.
As against Ingram's testimony that "things were
smooth" the first workweek, and that he first spoke to
Geissel about Devers' production "toward the end of
July," Geissel testified that Ingram first complained to
him about Devers on July 21-the first day of the
second workweek--and that Ingram blamed "Devers
himself," not the crew, because the foreman "is the one
that determines how much [the] crew does." Geissel
averred that, after Ingram's first complaint, he "received
a daily complaint from Hack" that Devers "wasn't doing
his part of the job."
Geissel testified that he visited the site "on nearly a
daily basis"; and that he consequently observed Devers'
performance "probably 10 to 12 times," concluding that
Devers and his crew "were spending entirely too much
time talking, standing around." Geissel elaborated that,
on or about July 29, he saw Devers and his crew idly
"standing around" for 20 to 25 miniutes. Challenged
whether they would loaf so egregiously within his view,
Geissel conceded that they "most likely" did see him and
that he could not explain their being so brazen.
Geissel testified that he did not admonish them at the
time-"that is not my job." Elsewhere, far from specu-
lating that they "most likely" saw him, Geissel testified
that he asked them if there were any problems; and, far
from disclaiming that he admonished them, he testified
that he lectured Devers about "needing some coopera-
tion on the job; that it was a long job and we needed
everybody's help to complete it."
Owner/President Reed testified that he happened to
mention, during a meeting of fringe-benefit trustees on
July 21 or 22, that he had heard that Devers "wasn't
performing" after being inactive for 3 years. Reed testi-
fied that his information came from Geissel, who had
told him sometime previously that Devers was "not
doing too well." Geissel said nothing about this in his
testimony, although he did testify, as above noted, that
Ingram first complained to him on July 21. Ingram, it
again will be recalled, testified that "things went
smooth" the workweek of July 14 to 18, and that he first
complained to Geissel "toward the end of July."
Sometime in the last half of July, Reed telephoned the
Union's Croxton about Devers. According to Reed, it
happened on July 26, 27, or 28, and he asked if Croxton
had "any ideas" how to get Devers "to come around and
be productive." Reed testified that Croxton, noting that
Reed and James Pence were "real close," suggested that
Reed ask Pence to have a talk with Devers. Croxton re-
counted that the conversation was in the "second week
of July," and that Reed began by saying he "had a prob-
lem with" Devers and wondered if Croxton had "a
rabbit to pull out of the hat." But then, according to
Croxton, when he asked what the "particular problem"
was, Reed offered nothing. Croxton went on that he
asked Reed if he had "confronted" Devers about it;
Reed said he had not; and Croxton said that would be
"the best way to handle the problem." Croxton was the
more convincing of the two, and is credited.
Reed testified that, a day or so later, Pence agreed to
speak with Devers. Asked if he followed up with Pence,
or if Pence reported back to him, Reed testified various-
ly: "I think I did"; "I do know that I was told that
[Pence] did talk to Devers"; "I think [Pence] told me";
that he "just knew that [Pence] talked to [Devers], al-
though he had no recall of a "follow-up conversation"
with Pence; and, finally, "I feel that [Pence] did talk to
Devers; he did not report right directly to me, but it
came back to me that he had talked to him."
Pence testified that Reed spoke to him on or about
August 1, saying he had heard that Devers was not pro-
ducing and asking if Pence "would talk to him and see if
[he] could . . . perk him up." Pence's story continued
that, about a week after Reed's request, he had a passing
conversation with Devers at the union hall, but that he
"decided not to" discuss Devers' job performance. Pence
concluded:
I probably went back to [Reed] and told him that I
talked to Jim, but I decided not to say anything
about his status as far as being nonproductive.
As mentioned earlier, Pence, who professes to be a
"personal friend" of Devers', testified that he overheard
a conversation between Ingram and Geissel in late
July-i.e., before Reed's request-in which Geissel had
said to "tie a can to" Devers.
Reed testified, finally, that he had no part in the dis-
charge decision, but learned about it "before [Devers]
became sick"-i.e., before August 7-when Geissel dis-
closed that he was "going to finally have to let Jim go."
Reed added that, although he "hated it, naturally, be-
cause Jim and I-good lord, you live and know some-
body 30 years-," he said "nothing specific" in response
to Geissel's disclosure. It will be remembered that Geis-
sel reported to Fitts on August 14 that he had spoken to
Reed about Devers' possible rehire, and that Reed had
said he would fire Geissel if Geissel were to rehire
Devers at Elk Hills.
Parrent testified that he learned of the discharge deci-
sion "the Thursday before" its implementation-i.e.,
August 7. He elaborated that he "happened" to be at a
meeting that day with Geissel and Ingram during which
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"it was brought up" that Devers was to be discharged
"due to non-productivity."
B. Conclusion
It is concluded that Devers' discharge violated Section
8(a)(1) and (3) as alleged. The bases for this conclusion
are these:
1. Speaking for himself and his coworkers, Devers
complained to Respondent several times, directly and
through the Union, of the need to "heavy up" the crews.
This activity plainly was protected by the Act, because
of both its concerted and its union character.
2. The day before the discharge, as an outgrowth of
Devers' protected complaints, a meeting was held be-
tween representatives of Respondent and the Union, in-
cluding Devers, in which Respondent agreed to enlarge
its complement, thereby increasing payroll overhead.
The assertions of Geissel and Ingram that the dis-
charge decision was made several days before-on
August 6, to be implemented August 7-are rejected. As
is elsewhere indicated, both were given to self-serving
fabrication, especially Ingram, on points large and small.
Beyond that, objective corroborating evidence that the
decision was reached on the August 6 is totally lacking,
and their testimony concerning the delay in implementa-
tion until August 12-because of Devers' absence, then
to avoid a "burden on the women in the office"-was
singularly unconvincing.
That the decision was made on August 6 also is sub-
verted by Pence's admission that he mentioned nothing
of the sort to Devers, a proclaimed "personal friend,"
when they conversed on or about August 8, even though
Pence supposedly had heard Geissel tell Ingram to "tie a
can to" Devers sometime before, and supposedly was
under instruction from Reed to speak to Devers about
his performance.
Furthermore, Ingram's testimony that he spoke to
Devers about production on August 6, when Devers
"happened to be in" the job trailer "close to quitting
time" rather than by prearrangement, in combination
with Geissel's disclosure to Croxton on August 12 that
Devers had not been "confronted" about his alleged in-
adequacies, undermines Geissel and Ingram that they de-
cided on August 5 that Ingram should "talk to" Devers
and "give him a chance" before resorting to discharge.
3. Apart from the inference to be drawn from the in-
crease in overhead, resentment of Devers' agitation for
longer crews is implicit in Geissel's perception-based in
part upon Parrent's unsubstantiated remark to him the
evening before the discharge-that Devers sought to en-
large the crews so he could be a nonworking foreman;
and by Geissel's depiction of this as "featherbedding."
4. Respondent has failed to make out a convincing
case that Devers would have been discharged on August
12 regardless of his protected activities. More specifical-
ly, Respondent's contention that poor production and a
bad attitude unrelated to protected activities were the
reasons is discredited by:
(a) Ingram's comments, upon telling Devers he was
fired, that his work had been "all right" and that the de-
cision had come "from the office."
(b) Geissel's statement to Croxton, when telling him of
the pending discharge, that Respondent had, "no control
over the job" because of Devers' "influence over the
people"-likely an allusion to the impact of Devers' pro-
tected activities.
(c) Ingram's stated opposition to Devers' rehire during
the August 13 meeting on the grounds not only that pro-
duction from Devers' crew "wasn't up to what . . . it
should be," but because "the job was actually being run
by Jim Devers"-another seeming allusion to the effect
of Devers' protected activities.
5. Respondent's citation to poor production as the
reason for the discharge is additionally discredited by the
weakness of its several witnesses in their efforts to
impugn Devers' productivity. Thus:
(a) Ingram's recurrent use of the qualifying "possibly"
betrayed most eloquently a proclivity to evade; and his
testimony with regard to the site diagrams was so pot-
holed with contradictions, evasions, and selective recall
as to be a moonscape of self-impeachment.
(b) Geissel's testimony that, from about July 21 on, he
"received a daily complaint" from Ingram about Devers
was both devoid of corroboration from the obvious
source, Ingram, and effectively contradicted by Ingram's
testimony that "things went smooth" in the workweek of
July 14 to 18 and that he did not complain to Geissel
about Devers until "toward the end of July."
(c) Geissel's recital about seeing Devers and his crew
"standing around" for 20 to 25 minutes on or about July
29 was flawed by tell-tale inconsistency--first that they
"most likely" saw him and that he did not admonish that
because "that is not my job," then that he asked them if
there were any problems occasioning their idleness and
lectured Devers about "cooperation on the job."
(d) Reed's testimony that he had heard from Geissel
sometime before July 21 or 22 that Devers "wasn't per-
forming" was without corroboration from Geissel; and,
while not at odds with Geissel's testimony that he re-
ceived daily complaints from Ingram starting about July
21, flies in the face of Ingram's testimony that "things
went smooth" the first workweek, and that he did not
complain to Geissel about Devers until "toward the end
of July."' 2
(e) Reed's and Pence's testimony that Reed enlisted
Pence to talk to Devers about his performance was ren-
dered unbelievable by the vague and contradictory
nature of Reed's responses when asked if he had a fol-
lowup conversation with Pence; by Pence's assertion
that, while he did have "a passing conversation" with
Devers, he "decided not to" discuss Devers' job per-
formance; and by the vagueness of Pence's testimony
that he "probably went back to [Reed] and told him that
I talked to Jim ... ."
6. Respondent's witnesses discredited themselves and
Respondent's defense in other ways, as well:
(a) Ingram's insistence that "all the terrain is on flat
land" until after Devers was discharged was so at odds
Is That Reed called Croxton about Devers in July is no less consistent
with displeasure over Dever's early comments about crew size than with
concerns about production, especially since Reed declined to tell Croxton
the nature of the "particular problem."
1246
HUMES ELECTRIC, INC.
with the weight of evidence as to reveal an intent to mis-
lead;t 3 and his testimony whether Devers spoke to him
about crew sizes, with its contradictions and evasions,
was another moment of self-impeachment. 14
(b) Reed's professed sentiment as concerns the dis-
charge-that he "hated it, naturally, because Jim and I-
good lord, you live and know somebody 30 years"-was
so drippingly overstated as to be blatantly contrived,
particularly in light of his threat, as reported by Geissel
to Fitts, to discharge Geissel should Geissel rehire
Devers.
In summary, the temporal proximity of the discharge
to Devers' protected activities, coupled with Respond-
ent's evident resentment of those activities, warrants the
inference that they were a motivating factor in the dis-
charge decision; and Respondent's efforts to demonstrate
that the same action would have been taken even in the
absence of the protected activities, far from overcoming
the inference of improper motive, reinforced it immea-
surably.
CONCLU.SIONS OF LAW
By discharging James Devers on August 12, 1980, as
found herein, Respondent violated Section 8(a)(1) and (3)
of the Act
ORDER'
The Respondent, Humes Electric, Inc., Taft, Califor-
nia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against its
employees because of their union or concerted activities
protected by the Act.
Is Evidence regarding the terrain is detailed above in fn. 3.
14 Ingram's testimony in this regard is detailed above in fns. 4 and 6.
"s In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
(b) In any like or related manner interfering with, re-
straining, or coercing employees in their exercise of
rights under the Act.
2. Take this affirmative action:
(a) Offer to James Devers immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent job, without prejudice to his
seniority and other rights and privileges; and make him
whole for any loss of earnings or benefits suffered by
reason of his unlawful discharge, with interest on lost
earnings. I s
(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
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Taft, California, and
at its jobsite at the Elk Hills Naval Petroleum Reserve if
it continues to perform at that jobsite, the attached
notice marked "Appendix."'7 Copies of said notice, on
forms provided by the Regional Director for Region 31,
after being duly signed by Respondent's representative,
shall be posted by Respondent immediately 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. Rea-
sonable steps shall be taken by Respondent to ensure that
said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
is Backpay shall be computed in accordance with F W Woolworth
Company, 90 NLRB 289 (1950). Interest shall be computed as prescribed
in Flordia Steel Corporation, 231 NLRI 651 (1977). See, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
t1 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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