James T Hughes Sheet Metal, Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1976

224 N.L.R.B. 835 (N.L.R.B. 1976)

JAMES T HUGHES SHEET METAL 835
James T Hughes Sheet Metal, Inc and Dwight D
Silvia Case 1-CA-10629
June 15, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On January 2, 1976, Administrative Law Judge
Maurice S Bush issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief and counsel for the General
Counsel resubmitted the brief which she had previ-
ously filed with the Administrative Law Judge
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, findings,[ and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order
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 and hereby
orders that the Respondent, James T Hughes Sheet
Metal, Inc, Fall River, Massachusetts, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order
was employed by the above-named Respondent for a peri-
od of about 6 months until March 21, 1975, when he was
terminated Dwight Silvia is the son of Business Agent
Manuel Silvia of Local 501 of the Sheet Metal Workers'
International Association Local 501 has a master labor
contract with a number of contractors of which Respon-
dent Employer is one
The principal issue in the case is whether Dwight D
Silvia was terminated in violation of Section 8(a)(1) and (3)
for, in the words of the complaint, voicing complaints
concerning the Respondent's failure to adhere to certain
provisions of its collective-bargaining agreement with the
Union "I Respondent's principal defense is that Silvia was
hired along with about five other sheet metal workers as
temporary employees to reduce the Company's backlog of
new work orders accumulated during a 6-week industry-
wide strike and that, with the completion of the work on
the backlog, Silvia was discharged because of lack of work
Respondents secondary defense is that the Respondent's
president, Harold Hughes, had no knowledge of Silvia's
complaints that the Company was not complying with cer-
tain provisions of the collective-bargaining agreement and
that accordingly, due to lack of any personal knowledge of
these complaints, they played no part in his discharge of
Silvia
The complaint herein was issued on June 26, 1975, pur-
suant to a charge filed and served on the Respondent on
April 25, 1975 The answer denies all unfair labor practices
The case was heard on September 8 and 9, 1975, at Bos-
ton, Massachusetts The briefs received from counsel in
mid-October 1975 have been carefully reviewed and con-
sidered
For reasons hereinafter indicated, I find Respondent in
violation of the Act as alleged in the complaint
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board s established policy not to over
rule an Administrative Law Judge s resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950) enfd 188 F 2d 362 (CA 3 1951) We have carefully
examined the record and find no basis for reversing his findings
2 We find it unnecessary to rely on the small plant doctrine embodied in
Wiese Plow Welding Co Inc 123 NLRB 616 (1959) since we agree with the
Administrative Law Judge s findings that knowledge of Dwight Silvia s pro
tected and concerted activities may properly be imputed to the Respondent
by reason of the fact that Supervisor B Parent and Assistant Manager
Nadick were fully cognizant of Silvia s activities in seeking to enforce rele
vant provisions of the labor agreement e g see Woody Pontiac Sales Inc
175 NLRB 218 221 (1969)
DECISION
STATEMENT OF THE CASE
MAURICE S BUSH, Administrative Law Judge Charging
Party Dwight D Silvia, a young sheet metal journeyman,
I JURISDICTIONAL FINDINGS
Respondent James T Hughes Sheet Metal, Inc, a Mas-
sachusetts corporation with its principal office, place of
business, and plant, at Fall River, Massachusetts, is en-
gaged in the fabrication and installation of sheet metal
components and related products for heating and air-con-
ditioning systems In the course and conduct of its busi-
ness, Respondent causes large quantities of materials used
by it in the manufacture of sheet metal to be purchased
and transported in interstate commerce from and through
various States of the United States other than the Com
i Although evidence was also adduced tending to show that Silvia s dis
charge was in part motivated by his complaints about the working condi
tions at the shop as they related to the virtually undisputed unsanitary con
dition of the toilets at the shop no findings thereon will be made herein
because the complaint does not allege that Silvia s discharge was in any part
motivated by his complaints about the toilet facilities at the shop and be
cause counsel for Respondent made timely and valid objections on that
ground to the receipt of any evidence relating to Silvia s complaints about
the shop s toilet facilities
224 NLRB No 111
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
monwealth of Massachusetts , and also causes substantial
quantities of sheet metal to be transported and installed
from its plant at Fall River in interstate commerce to
States of the United States other than the Commonwealth
of Massachusetts In the course and conduct of its busi-
ness, the Company receives materials in excess of $50,000
directly from points outside the Commonwealth of Massa-
chusetts The Respondent, as it admits, is engaged in com-
merce within the meaning of the Act
II THE LABOR ORGANIZATION INVOLVED
The Union, Local 501, Sheet Metal Workers' Interna-
tional Association, is a labor organization within the mean-
ing of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
Charging Party's Background and Sequence of Events
Charging Party Dwight D Silvia, age 24, is a journey-
man sheet metal worker and a member in good standing of
Local 501 , Sheet Metal Workers' International Associa-
tion Reared in a family where the common table talk was
union labor talk because his father Manuel Silvia is and
has been the union representative of Local 501 for many
years, young Silvia is more union labor rights conscious
than the average union employee
Silvia was hired by the Respondent on September 23,
1974, as a sheet metal worker, on the recommendation of
Respondent 's foreman, Russell Malone Respondent main-
tains a permanent crew of about 10 to 13 sheet metal jour-
neymen and apprentices under a master collective -bargain-
ing agreement with Local 501 to which Respondent is a
signatory among other sheet metal employer contractors
Respondent 's business was inoperative for a period of
about 6 weeks during the summer of 1974 due to an indus-
trywide strike by members of Local 501 against Respon-
dent and other local sheet metal contractors in the area of
New Bedford and Fall River, Massachusetts Shortly after
the strike was over Respondent hired about five or six
sheet metal workers, including Silvia, to work on both new
orders that had accumulated during the strike and on old
work on hand when the strike started Depending upon the
work flow, Respondent keeps two to five workers in its
shop fabricating sheet metal, and the remaining crew out-
side of the shop installing fabricated sheet metal on con-
struction sites
After working for the Company for about 6 months, Sil-
via was laid off or discharged on March 21, 1975, by a
foreman on the order of Harold Hughes, president of Re-
spondent At the hearing, Respondent's defense was that
Silvia was laid off because of lack of work Although
Silvia's work record was admittedly considered good, the
record shows Silvia was given to ferreting out and com-
plaining about any deviations by Respondent from the
terms and conditions of the collective-bargaining agree-
ment and accepted trade practices
Silvia noted the first such nonadherence to the terms and
conditions of the collective-bargaining agreement in about
mid-February 1975 At that time Respondent had a con-
tract to repair and reinstall a small sheet metal dome which
had fallen from the top of an exhaust fan of a 200-foot
tower Respondent President Hughes decided that the best
way to do the job would be to repair the dome, cut it in
half, and then assemble the two halves of the dome on top
of the tower Hughes assigned the job to Rene Parent, Jr ,
one of the Company's apprentices because he had related
experience in an automobile body repair shop Hughes tes-
timony shows that Rene had volunteered, with Hughes'
consent, to use his own personal hydraulic power tool on
the company dome job
Shortly thereafter, Silvia observed that Rene had
brought his personal power tool with him to the company
shop He thereupon spoke to Rene and told him that it was
a violation of the Union's labor contract to supply such a
power tool for use on a company job Article IX, section 1,
of the collective-bargaining agreement (Joint Exh 1) reads,
"Journeyman and apprentice sheet metal workers covered
by this Agreement shall provide for themselves all neces-
sary hand tools " The joint testimony of Silvia and his fa-
ther, Manuel Silvia, the business representative of the sheet
metal union, Local 501, shows that the Union interprets
this provision of the contract to mean that a sheet metal
worker can bring to a company job only handtools, such as
hammers and shears, and that the article prohibits employ-
ers from allowing their employees from using their own
power tools on a companyjob The rationale for the prohi-
bition is perhaps best stated in the words of Silvia, the
Charging Party, as follows, `Because power tools are some-
thing that the employer should supply If I supply my
own power tools, I'm going to take the job from the guy
next to me who doesn t have power tools So, when it
comes time to get laid off, if I have a drill or a porta-power,
I say, because the guy next to me doesn't have these power
tools, and he doesn't stay He gets laid off So it gets to be
a battle of who has the most power tools That's why the
union doesn't want you using your own "
I find and infer from President Hughes' long experience
in the sheet metal fabrication business which was originat-
ed by his grandfather that he was well aware of the Union's
position and the tradition in the trade which prohibits
sheet metal workers from supplying their own personal
power tools for use on company jobs and that the purpose
of the tradition was to counter the natural inclination of
employers to hire sheet metal workers who could supply
power tools as against workers who had no such tools and
to favor, in the order of the layoffs, workers, who had pow-
er tools against those who had no power tools
Silvia saw Rene again at the end of the same workday in
which he had earlier warned him that it would be a viola-
tion of the labor contract for him to use his own personal
power tool on a company job He asked him what he had
decided to do about the use of his power tool on the dome
job and received assurance from Rene that there "wasn t
going to be any trouble about it,' as he had decided not to
use the tool on the job That night when Rene left the shop
he took his power tool home with him Silvia did not file a
grievance against the Company for allowing Rene to use
his own power tool on a company job in alleged violation
of the labor contract Likewise, Silvia did not mention the
JAMES T HUGHES SHEET METAL 837
incident to President Hughes or to any of the Company's
managers or foremer 2
But the evidence shows that Rene himself reported
Silvia's warning about using his own personal power tool
on a company job to his uncle, Bertram Parent,
Respondent's inside shop foreman, as is reflected in his
uncle's testimony herein (Rene Parent, Jr, and his father,
Rene Parent, Sr, also an employee of the Respondent in
the capacity of an outside foreman, did not testify in this
proceeding) The uncle, however, denied that he reported
the incident to President Hughes or to either of Hughes'
two top aides, Fred Dixon, manager, or Fred Nadick, assis-
tant manager I discredit this denial because Shop Fore-
man Parent's demeanor was not convincing, and also be-
cause his alleged failure to report an incident to
management which affects the work progress of the em-
ployer is contrary to the normal and expected duty of a
shop foreman Moreover, there was nothing in the incident
which would have drawn the wrath of management on
Foreman Parent's nephew Rene as he was merely the vic
tim of Silvia's threat to cause trouble if he persisted in
using his personal power tool on company work Accord-
ingly, I infer and find that Foreman Parent was not de-
terred from reporting the incident because of any fear that
it might cause his nephew any harm
It is undisputed that after Silvia's warning Rene did not
use his power tool on his assigned dome job When
Hughes, according to his testimony, asked Rene why he
had not started on the job, Rene told him it was because
his tool was broken I find that Hughes knew that this was
not the real reason why Rene did not use his power tool on
the job I infer and find from the entire record, and more
particularly from the fact that Shop Foreman Bertram Par-
ent knew that his nephew Rene had been stopped from
using his power tool by Silvia's threat of trouble, that
Hughes gained knowledge of the incident from Bertram
Parent and other of his supervisory personnel It is also
inferred and found that young Rene also told his father,
Respondent's outside foreman, Rene Parent, Sr, about the
incident, and that his father in turn reported the incident to
either Hughes or his two top aides, Manager Dixon or
Nadick, in order to deflect management displeasure over
the work stoppage on the dome from his son to Silvia
Under all of these circumstances, I find that President
Hughes had knowledge of Silvia's interference with Rene's
use of his own personal power tool on the company dome
job almost immediately after the incident occurred and
that the incident was one of the reasons for Silvia s subse-
quent discharge or layoff on the order of Hughes I accord-
ingly discredit Hughes' denial that he had knowledge of
Silvia's interference with the arrangement he had with
Rene to use his own personal power tool on the dome job
But even if it is assumed that President Hughes had no
actual knowledge, at the time he directed Silvia's discharge
or layoff, of Silvia's previous interference with the compa-
ny arrangement to have apprentice Rene use his personal
power tool on the company dome job, the admitted knowl-
edge of the apprentice's uncle, Respondent Shop Foreman
2 The findings in the above paragraph are based on the undisputed and
fully credited testimony of Silvia
Bertram Parent, about the incident is imputable to Hughes,
as it is well established that it is unnecessary for the record
to reflect a direct connection between an alleged
discriminatee's union activity and the knowledge thereof
by the discharging management representative, especially
in a small plant such as is here involved Wiese Plow Weld
ing Co Inc 123 NLRB 616 (1959) Under that imputable
knowledge, I likewise find that the incident of Silvia's inter-
ference with Rene's plan to use his power tool on the com-
pany dome job played a part in the Hughes' order that
Silvia be discharged or laid off
The final incident indicative of Silvia's proclivity to look
for and ferret out deviations by Respondent from the terms
and conditions of the collective-bargaining agreement as
supplemented by other agreements occurred only days be-
fore his discharge Silvia was laid off on Friday, March 21,
1975 On Monday of that same week he found out that the
Company was about to start a duct work job installation
on the Chamber of Commerce building in Newport, Rhode
Island Silvia sought to become foreman of that job but
was told by the aforementioned shop foreman, Bertram
Parent, that Outside Foreman Joe Redman had already
been named foreman of that job Silvia then asked Parent
who was to work with Redman on the Chamber of Com-
merce job, but Parent said he did not know He also asked
another shop employee who was working with Redman on
the construction site but he also replied that he did not
know The next day, Tuesday, Silvia asked the truckdriver
who had made deliveries of the fabricated ducts to the
Newport Chamber of Commerce jobsite who was working
on the job with Foreman Redman The driver informed
him he had seen George Amaral, an apprentice, on the job
with Redman Silvia immediately recognized that the use
of Amaral as an apprentice on the Newport Chamber of
Commerce job was a violation of the collective-bargaining
agreement and associated agreements, because the job was
a commercial job outside the territorial jurisdiction of Lo-
cal 501 and on such commercial jobs Respondent, under
pertinent agreements, could use only journeyman mechan-
ics, and not apprentices The record shows that Respon-
dent recognizes that, under the involved labor agreements,
it had no right to use an apprentice on the Newport Cham-
ber of Commerce commercial job although the record also
shows that it did have the right to use apprentices on resi-
dential jobs in the same complex of buildings of which the
Chamber of Commerce building was a part The record
further shows that the Company's president, Hughes, fa-
vors the use of apprentices whenever possible because of a
saving of 25 percent in wages over that paid journeymen
When Silvia learned from the company truckdriver that
he had seen apprentice Amaral on the Newport Chamber
of Commerce job, he told the driver, "there's going to be
trouble The apprentices don't belong there " The
driver begged not to be involved in any such trouble
Later on that same Tuesday, Nadick, Respondent's as-
sistant manager, made an unusual request by telephone to
Foreman Redman at the Chamber of Commerce jobsite to
stop in at the shop the next morning to see him instead of
going directly to the Chamber of Commerce jobsite as was
his custom Redman s testimony shows that when he ar
rived at the shop the next morning Nadick told him that
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silvia was complaining about Amaral working on the New-
port Chamber of Commerce job because of his apprentice
status, and instructed him to tell Amaral to work in the
shop that day and to take another journeyman, Richard
Dumas, with him to finish up the Chamber of Commerce
Job
Redman, as he was walking out of the shop, encountered
Amaral and instructed him to work in the shop that day
and also notified him that he was getting journeyman Du-
mas to assist him in finishing up the Newport Chamber of
Commerce Job
Silvia was also scheduled to work in the shop that
Wednesday morning Silvia's testimony shows that when
he got to the shop and saw Amaral there he asked him if he
had been working on the Newport Chamber of Commerce
Job After some hesitation, Amaral admitted that he had
been working on that job Silvia then told Amaral that
there would be "trouble" over that and that he would
"made a stink" at the forthcoming union meeting over
Respondent's use of an unauthorized apprentice on the
commercial Chamber of Commerce Job
In his own testimony, Amaral admitted that he had
worked on the Chamber of Commerce job as an apprentice
mechanic without clearance therefor between the Respon-
dent and Local 501 and that he had been taken off that job
on the complaint of Silvia that the Company had no right
to use an apprentice on that job
On the following Thursday morning, President Hughes
called Local 50l's business agent, Manuel Silvia, the afore-
mentioned father of Charging Party Dwight Silvia, to noti
fy him that he was laying off his son Dwight and journey-
man LeFrance as of the next day, Friday, March 21, 1975
Business Agent Silvia's credited testimony shows that
Hughes in his telephone call also told him, "I hate to lose
Dwight but you know I always lay the men off in the order
in which I hire them " Under direct examination by his
own counsel, Hughes admitted that "looking back, it's very
possible I might have told him [Dwight's father] that we're
laying him [Dwight Silvia] off as he's the last guy to be
hired Or something like this " I find that Hughes actually
made some such statement to Manuel Silva
Although Respondent is not required by the collective-
bargaining agreement to lay off employees on the basis of
their seniority with the Company, the record shows that
Respondent in actual practice does lay off employees in
accordance with their seniority standing with exceptions
not here applicable to members of Local 501, such as
Dwight Silvia 3
3 The above finding is based on the credited testimony of Business Agent
Silvia Based on his experience as a business agent for Local 501 in dealing
with Respondent over the past 7 years Manuel Silvia s credited testimony
shows that Respondent always makes its layoffs in accordance with senior
ity with exceptions not here applicable and that Respondent generally no
tifies the Local s business agent in advance of the layoffs The record further
shows that the Local s business agent announces such layoffs at the regular
monthly union meetings of its membership See also above described con
versation between Hughes and Manuel Silvia in which Hughes at the time
he notified Manuel Silvia of his son s impending layoff told Manuel that he
always lay the men off in the order in which I hire them See also Hughes
above described admission that he in all probability made such a statement
to Manuel Silvia Hughes later contradictory testimony that he does not
follow seniority in his layoffs did not stand up to cross examination and I
The undisputed record in fact shows that Dwight Silvia
was not laid off on the basis of seniority as Hughes had
told his father because Silvia, who was hired on September
23, 1974, was laid off on March 21, 1975, whereas journey
man Richard Dumas, who was hired December 16, 1974,
was retained in Respondent's employment beyond the date
of Silvia's layoff Thus, if Respondent had followed its usu-
al policy of laying off employees in accordance with se-
mority, Dumas should have been laid off before Dwight
Silvia was
Hughes in his testimony sought to justify retaining Du-
mas over Silvia despite Silvia's seniority, on the ground
that he needed Dumas to finish up a duct Job the Company
had at the Veterans Hospital at Brocton, Massachusetts,
because of the special experience and familiarity with the
work he had gained on that job I do not credit that alibi
because Dumas' credited testimony shows that the hospital
job had been finished in mid-March 1975 prior to the gen-
eral layoffs, including Silvia's layoff of March 21, 1975
Dumas further testified that at the time of Silvia's layoff he
(Dumas) was no longer working on the hospital job but
had been working on a job at the Portsmouth police station
along with Silvia His testimony also shows that the reno-
vation job at the Veterans Hospital was one that every
journeyman sheet metal worker was competent to handle
After both the Veterans Hospital and police station jobs
were finished, Dumas worked on a number of other jobs
Based on the general unreliability of Hughes' testimony,
I discredit all his other alibis for selecting Silvia for layoff
on March 21, 1975, over the less senior Dumas
To return to the detail of Silvia's layoff, the record shows
the following Silvia first heard of his impending layoff at
the Local's regular monthly union meeting held on the
Thursday night before his layoff of the next day The an-
nouncement of his layoff, together with that of employee
LeFrance, by Respondent, was announced by his father as
business agent of the Local pursuant to advice received
earlier that day from President Hughes Such union an-
nouncements of forthcoming layoffs through prior advice
by employers are routine at all union meetings Actually
the elder Silvia had heard from other employees of Re-
spondent about his son's complaining about the
Company's use of an unauthorized apprentice on the com-
mercial Newport Chamber of Commerce job even prior to
the time Hughes called to let him know that he was going
to lay off his son, and he had expected that his son might
be getting in trouble with Hughes over the matter
The next day, Friday, March 21, 1975, young Silvia
along with Dumas, was working on a duct installation job
at the Portsmouth Police Station under Foreman Russel
Malone, the man who had recommended his hiring by the
Company Just prior to the noon hour that day, Malone
dropped into the Company's office at Fall River, Massa-
chusetts, on some business While there, Assistant Manager
Nadick handed him young Silvia's last paycheck and in-
structed him to tell Silvia that he was being laid off as of
the end of that day As Malone had not been at the union
meeting the night before and had no advance notice that
accordingly discredit such testimony I also discredit Hughes testimony
because it is obvious from any inspection of his testimony that he was a
wholly unreliable witness
JAMES T HUGHES SHEET METAL 839
Silvia was to be laid off, he asked Nadick in astonishment,
"Why9 How come Dwight [Silvia]9" Nadick's only answer
was "That's the way the office wants it " When Malone
returned to the jobsite of the Portsmouth police station, he
handed Silvia his paycheck and told him that he was laid
off as of the end of that day This did not surprise Silvia, as
he had heard about his layoff at the union meeting the
previous night
Although Hughes admits that the use of an apprentice
on the aforementioned Newport Chamber of Commerce
duct installation job was improper under the collective-
bargaining and associated agreements, he denies that he
had any knowledge of Foreman Joseph Redman's use of
apprentice Amaral on that job at the time he ordered
Silvia's layoff and for that reason he denies that the inci-
dent played any part in Silvia s layoff
The record, however, compels the conclusion that
Hughes did have actual knowledge of the incident prior to
the time he ordered Silvia's layoff and, accordingly, I dis-
credit his denial of such prior knowledge Next to Hughes
and General Manager Dixon, the evidence shows that the
two most important men in Respondent's shop and office
are Nadick, the Company's assistant manager, and Ber-
tram Parent, the shop foreman As shown above, on the
Tuesday before his layoff, Silvia closely questioned Shop
Foreman Parent as to who was assisting Outside Foreman
Redman on the commercial Newport Chamber of Com-
merce Job Under cross-examination, Parent admitted that
he knew that Silvia's questioning "had the appearance of
some sort of violation of the rules " The next day,
Tuesday, Silvia learned from one of the Company's truck-
drivers that he had seen apprentice Amaral on the Cham-
ber of Commerce job with Foreman Redman Later that
same Tuesday, Assistant Manager Nadick by telephone
asked Redman to see him the next morning at the shop
before he drove to the Chamber of Commerce jobsite
Wednesday morning, when Redman reported to the shop
pursuant to order, Nadick instructed him to take appren-
tice Amaral off the Chamber of Commerce Job because he
"shouldn't be working' on that job Under this undisputed
evidence, I infer and find that Nadick, as the Company's
assistant manager, informed President Hughes that Silvia
had complained about the use of apprentice Amaral on the
Chamber of Commerce job and that Hughes accordingly
had this information prior to the time he ordered Silvia's
discharge I accordingly discredit Hughes' testimony that
he had no actual knowledge of the incident when he or-
dered Silvia s layoff or discharge I also discredit his testi-
mony because his examination showed him to be an eva-
sive and untrustworthy witness
However, even if it is assumed that Hughes had no actu-
al knowledge of Silvia s complaint that the Company was
using an unauthorized apprentice on the Chamber of Com-
merce job at the time he ordered Silvia's layoff, I impute,
under all the circumstances of this case, the knowledge of
the Respondent's assistant manager, Nadick, of the inci-
dent to President Hughes As heretofore shown, under
Wiese Plow Welding Co, Inc, supra it is unnecessary for
the record to reflect a direct connection between an alleged
discrimmatee's union activity and the knowledge thereof
by the discharging management representative, especially
in a small plant such as is here involved
Under all the circumstances of this case, I find and con-
clude that President Hughes not only had knowledge of
Silvia's complaint about the use of an apprentice on the
Chamber of Commerce job but also find and conclude that
Hughes ordered Silvia's layoff because he interfered with
Respondent's use of an apprentice on the Chamber of
Commerce Job
On the basis of the entire record, I further find and con-
clude that Respondent, contrary to its claim, did not dis-
charge or layoff Silvia because of lack of work, but, on the
contrary, discharged him for his concerted activity in ef-
forts to enforce the terms of the involved collective bar
gaining agreement
Finally, as the evidence shows that Respondent's Presi
dent Hughes, Assistant Manager Nadick, and Foremen
Bertram Parent, Joseph Redman, and Russell Malone have
the authority to assign work to other employees of Respon-
dent, I find and conclude that each of these named individ
uals were at all times here material agents of the Respon
dent and supervisors within the meaning of Section 2(11)
of the Act 4
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 James T Hughes Sheet Metal, Inc, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 Local Union 501, Sheet Metal Workers' International
Association, is a labor organization within the meaning of
Section 2(5) of the Act
3 By discharging Dwight D Silvia, Respondent en-
gaged in an unfair labor practice within the meaning of
Section 8(a)(1) and (3) of the Act
4 The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act
Discussion and Conclusions
Summarized, the above findings show that Respondent
discharged Silvia because of his proclivity to cause the
Company trouble for its slightest deviations from the terms
and conditions of the collective-bargaining agreement
This proclivity first came to Respondent's attention about
a month before Silvia's layoff in connection with Silvia's
warning to employee Rene Parent, Jr, that the use of his
personal power tool on an assigned company job would be
a violation of the collective-bargaining agreement The
warning effectively stopped young Rene from using his
own power tool on the company job and interfered with
President Hughes' prior arrangement with Rene to use his
power tool on the job As found above, President Hughes
quickly learned that Silvia had interfered with his plan to
have Rene use his power tool on the job
The next and final incident of Silvia's proclivity to cause
the Company trouble for not complying with the collec-
4 Respondent s amended answer denies that the above named persons are
agents and supervisors within the meaning of the Act
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rive-bargaining agreement occurred just days before
Silvia's layoff on March 21, 1975, when Silvia complained
of Respondent's use of Amaral, an apprentice, on the
Company's Newport Chamber of Commerce job on the
ground that the collective-bargaining agreement required
the exclusive use of journeymen on that job The day after
Silvia's complaint, Respondent removed Amaral from the
Chamber of Commerce job and 2 days later "laid" Silvia
off As found above, Respondent's president, Hughes,
knew of Silvia's complaint about the use of an apprentice
on the Chamber of Commerce job at the time he ordered
his "layoff "
Under the above findings, the ultimate issue for decision
herein is whether Respondent's "layoff" of Silvia for mak-
ing complaints about its noncompliance with the terms and
conditions of the collective-bargaining agreement was un-
lawful
Although no other employee joined Silvia in his com-
plaints against the Respondent for allowing an employee to
use his own power tool on company work and for using an
apprentice on a job that required journeymen, it is now
well established that such solo complaints constitute "pro-
tected activity since they were made in an attempt to en-
force provisions of the existing collective-bargaining agree-
ment" and "that complaints made for such purposes are
grievances within the framework of the contract that affect
the rights of all employees in the unit, and thus constitute
concerted activity which is protected by Section 7 of the
Act " Interboro Contractors, Inc, 157 NLRB 1295, 1298
(1966), and citations in footnote 7 thereto
Accordingly, I find that Respondent's discharge of Silvia
because of his protected activity in attempts to enforce the
provisions of the existing collective-bargaining agreement
was and is in violation of Section 8(a)(1) and (3) of the Act
THE REMEDY
It having been found that the Respondent committed
certain unfair labor practices, it must be ordered to cease
and desist from further such conduct and to take remedial
action designed to effectuate the policies of the Act
It having been found that the Respondent unlawfully
discriminated against an employee by discharging and re-
fusing to reinstate him, it must be ordered to make him
whole for any loss of earnings he has suffered in conse-
quence of the unlawful discrimination in the manner pre-
scribed by the Board in F W Woolworth Company 90
NLRB 289 (1950), and Isis Plumbing & Heating Co, 138
NLRB 716 (1962), and to offer him reinstatement
Upon the foregoing findings of fact and the entire record
in this proceeding, I make the following recommended
ORDER5
The Respondent , James T Hughes Sheet Metal, Inc,
Fall River, Massachusetts , its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees because of their union activities or because of their
protected concerted activities
(b) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their rights guar-
anteed under Section 7 of the Act
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act
(a) Offer Dwight D Silvia immediate and full reinstate-
ment to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to seniority or other rights and privileges
(b) Make Dwight D Silvia whole for any loss of earn-
ings suffered by reason of the discrimination against him,
in the manner set forth in the section herein entitled "The
Remedy "
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due and the right of
reinstatement under the terms of this Order
(d) Post at its place of business at Fall River, Massachu-
setts, copies of the attached notice marked "Appendix " 6
Copies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by
Respondent's representative, shall be posted by Respon
dent 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 Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered, de-
faced, or covered by any other material
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
5 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
6 In the event that the Board s 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we, James T Hughes Sheet Metal, Inc,
have violated the law and has ordered us to post this no-
tice
The National Labor Relations Act gives all employees
these rights
To engage in self-organization
JAMES T HUGHES SHEET METAL
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things except
to the extent that membership in a union may be
required pursuant to a lawful union-security clause
WE WILL NOT do anything that restrains or coerces
employees with respect to these rights
WE WILL NOT discharge or otherwise discriminate
against you because you complain to either the Com
pany or Local 501, Sheet Metal Workers' Internation-
al Association, about what you believe is a violation of
841
the terms of the collective-bargaining contract which
we have with Local 501, Sheet Metal Workers' Inter-
national Association
WE WILL NOT in any other way punish you for exer-
cising the rights guaranteed you by Section 7 of the
National Labor Relations Act
Since the National Labor Relations Board has
found that we violated the law by discharging employ
ee Dwight D Silvia, WE WILL offer him his job back
and WE WILL reimburse him for any loss of pay he may
have suffered because we discharged him, together
with interest as provided by the Board's Order
JAMES T HUGHES SHEET METAL, INC