John Wyke, Inc.

National Labor Relations Board - Board Decisions

Dec 18, 1980

253 N.L.R.B. 856 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Wyke, Inc.; Comanco, Inc.; and Joba Con-
struction, Inc. and Samuel Ourlian. Case 7-
CA-16815
December 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELII.O ANI) ZIMMERMAN
On August 20, 1980, Administrative Law Judge
David L. Evans issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting 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
brief' and has decided to affirm the rulings, find-
ings,2 and conclusions 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, John Wyke,
Inc.; Comanco, Inc.; and Joba Construction, Inc.,
Brownstown Township, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
Respondlent has requested oral argument. This requcst is hereby
denied a, the record. the exceptions, and lhe brief adequate;ly presenl the
issues am lie ph3silOtIs of ihe parties
Repo ldcnli ha excepted itA certain credibiliy findings maiade h he
Adniisiralive l al Juldge It is the lBoard's tablished policy not to
overrule an .rdminisrailse lia judge' r-,ilitiins with respect tl) credi-
hilit) ilnless the clear preponderance of all o, tilt relcs ant es,Idence con-
'inLes iia that e resilu ltins are ilnc rrec .Standard Dr,' Whi'l Prliuts.
Inc. 9I NRIt 544 ( 195)), enid 188 I 2d (2 ( ld ('ir 1) SI) We have
carefully eanmined the record and find no basis for reversing h liindlllg
DECISION
SIATEMEN'I O THE CASE
DAVII) L. EVANS, Administrative Law Judge: The
charge in this case was filed on September 14, 19 7 9 , by
Samuel A. Ourlian, an individual, herein called Ourlian,
against John Wyke, Inc.; the charge was later amended
to include Comanco, Inc., and Joba Construction Co.,
and the three corporations are herein collectively called
Respondent. The complaint, issued on October 30., al-
leges, inter alia, that on or about August 29 Respondent
transferred Ourlian from one construction site to an-
other, and on September 5 laid off Ourlian and since that
I All dates hereill are il 1t 7' ult'ss oltherwise specified
253 NLRB No. 118
date has refused to recall him all because of efforts on
his behalf to obtain the rate of pay specified in a collec-
tive-bargaining agreement between Associated General
Contractors of America, Detroit Chapter, Inc., Builders
Association of Southwestern Michigan (herein called the
AGC), and Laborers, Local No. 465, Laborers' Interna-
tional Union of North America, AFL-CIO (herein called
the Union).
Respondent duly filed an answer admitting certain of
the allegations but denying the commission of any unfair
labor practices. This matter was heard before me in De-
troit, Michigan, on April 1, 1980.
Upon the entire record in this case, and from my ob-
servation of the demeanor of the witnesses and the inher-
ent probabilities and improbabilities of their testimony. I
make the following conclusions:
I. TrH BUSINESS OF RESPONDI)NT
John Wyke, Incorporated, according to Mr. Wyke, is
a construction equipment concern which leases equip-
ment to various construction companies. Joba is Wyke's
principal construction company which gets larger jobs
and takes some from start to finish. According to Wyke,
"Comanco company is a construction management com-
pany originally and also does small work, has some em-
ployees from time to time for other kinds of work." John
Wyke, Inc., was formed in 1955, Joba in 1969, and Co-
manco in 1973. Each of these corporations has recog-
nized various locals of the Laborers' International Union
since they were formed. Wyke and his wife own all of
the shares of the three corporate Respondents; the cor-
porations have the same office and office personnel; the
same supervisors; and the employees are regularly trans-
ferred among the three corporations. The complaint al-
leges and I find that the three Respondents are joint em-
ployers.
It was stipulated that during the year 1979, Respond-
ent Joba in the course and conduct of its business oper-
ations performed services for Palmer Smith Construction
Management Company (hereafter called Palmer Smith),
and the value of those services were in excess of $50,000.
It was further stipulated that Palmer Smith purchased
from outside the State of Michigan, goods and products
valued in excess of $50,000 which were used on various
construction sites within the State of Michigan. Respond-
ents admit that Respondent Joba is an employer within
the meaning of Section 2(2). (6), and (7) of the Act, and
I further find and conclude that its joint employers, John
Wyke, Inc., and Comanco, Inc., are likewise joint em-
ployers within said section of the Act.
II. HI lABOR ORGANIZATION INVOI.VEI)
The complaint alleges, Respondent stipulates to the
fact, and I find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
1l. IlF Al I.-GI.) UNIFAIR I ABOR l'RA(CTICES
Ourlian is a laborer who was first employed by Re-
spondent in November 1978. He worked steadily from
that month until February 18, 1979, when he was laid off
for a period of 2-1/2 months. He was recalled in late
856
JOHN WYKE, INC.
April and worked continuously at various jobsites until
Respondent's pay period ending September 2. Before the
events of this case, Ourlian had been transferred some 15
times among Respondent's jobs in the Detroit area
during his 9 months employment. At the time the events
of this case arose, Ourlian was working on Respondent's
Monroe County Adult County Detention Center jobsite
to which he was first assigned during the week of June
24 and to which he was last assigned during the week of
July 22. He continued working at the "Monroe jail job"
(as it was called) until the week ending August 26.
Palmer Smith was the general contractor on the
Monroe jail job. Palmer Smith employee Jerry McKart
was the Union's steward on the site. About July 16, ac-
cording to the testimony of Ourlian and McKart,
McKart approached Ourlian who was, according to this
record, the only laborer on the job employed by Re-
spondent. McKart asked Ourlian to produce his last pay
stub which Ourlian did. McKart noted that Ourlian was
receiving $9.6()0 an hour, not $11.87 as called for by the
area AGC contract which, it is undisputed, the Union
contended was applicable to that job. According to
McKart, he first asked John Hacker, who was described
by Wyke as Respondent's foreman on the job, about the
matter and Hlacker referred him to Dave Childres, super-
intendent for Palmer Smith. McKart testified that he ap-
proached Childres and Childres said that he would get
the matter straightened out. Neither Childres nor Hacker
testified. McKart examined Ourlian's next two weekly
paychecks and saw that they also had not been comput-
ed at the AGC rate. Upon examination of the second
paycheck, about July 27, McKart called Richard Turner,
business manager of the Union, and reported the matter.
According to McKart and Turner, Turner came to the
jobsite and confronted Childres about the matter. ur-
ther, according to McKart and Turner, Childres then
made a telephone call, ostensibly to Wyke's office, and
told someone there to get Ourlian's pay straightened out.
Turner also called Wyke that day and complained that
Ourlian was not being paid the AGC rate. Wyke disput-
ed that the AGC rate was applicable to the job, stating
that the lower rate of the Union's contract with the As-
sociated Underground Contractors' Association applied.
After arguing back and forth for a while Wyke agreed to
"make Sam whole" (as Turner testified) and sign the cur-
rent AGC contract. Turner said he would mail two
copies to Wyke, one to be returned. In a letter dated
August 5, Turner stated:
Enclosed you will find two copies of our AGC
contract. Please execute and return to this local
Union.
In regards to Sam Orleans [sic], who is working
on the Monroe County jail, he should have hecn
paid at the rate of the Building Trade Agreement to
[sic] the rate they have been paying him. Please
correct the difference in pay, and place on Mr. Or-
leans [sic] forthcoming check.
The contracts, if they were enclosed, were not re-
turned immediately. Although the letter of August 5 re-
cites that they were therein enclosed, Wyke testified that
he assumed that the contracts were beinq sent by sepa-
rate cover and it is undisputed that Wyke made no at-
tempt to inform Turner that he had not received them.
Turner testified credibly that he repeatedly called
Wyke's office to get the contract signed and returned,
but was unsuccessful until August 24. On or about that
day, according to Turner, he approached Childres and
asked him to set up a separate date for Wyke because he
was going to strike the job over Wyke's failure to sign
the AGC contract. Turner told Childres to have Wyke
call him immediately. As acknowledged by Wyke, this
strike threat was conveyed to him by Childres. On
Sunday night, August 26, Wyke called Turner at home.
Wyke indicated that the contracts had, in fact, been
signed and Turner could have someone come over and
pick them up. During the conversation, as Turner testi-
fied. John Wyke said he was going to remove Ourlian
from the job. According to Turner, "I told him I would
like to have Sam stay there; I made him steward."
Turner testified that Wyke responded that day Childres
was complaining about Ourlian and "we dropped it at
that."
On August 29, Wyke passed out the weekly paychecks
on the job, as was his usual practice. According to the
testimnony of Ourlian:
He asked me how things were going, and I said
they' were going pretty good, and he said since you
are crying about your extra pay, I'm going to put it
on your next week's paycheck. I said John I ain't
crying about my extra pay. The Union, McKart,
raised all the fuss about it. Mr. Wyke then turned
around and walked away and then went to his car a
few minutes and came back to me and handed me
my paycheck and said starting Monday I want you
to report to the Detroit sewage plant to work, arid I
said, yes. sir, I will. He immediately went back to
tihe car and left the site . . .
Rather than report to the Detroit sewage plant con-
struction site on the fiollowing Monday, Ourlian again re-
ported to the Monroe jail jobsite. Ourlian's reasons for
not following the instructions of Wyke are not entirely
clear, although it appears that Turner had told him that
he was going to be a steward. At any rate, at no point in
the testimony of Wyke or any other supervisor of Re-
spondent was it contended that a part of the reason for
laying off Ourlian subsequently was his failure to report
to the Detroit sewage plant on that Monday, as instruct-
ed. Moreover, Ourlian was permitted to work 3 or 4
more days at the Monroe County jail site before again
being instructed by Foreman Hacker to report to the De-
troit sewage plant the next Monday. This second time
Ourlian was instructed to go he went.
Ourlian worked at the Detroit sewage plant for about
3 hours and was then instructed by job foreman Larry
Blair to go to another job of Respondent being operated
by Wyke's brother, Walter. He worked 2 days with
Walter Wyke: then he was instructed by Respondent's
office personnel to report to Respondent's Grosse lie
sewage plant jobsite, where he worked for I day. Our-
lian testified that at the Gross lie job Andrew Smith,
857
DECISIONS OF NATIONAL LABOR RELA'IIONS HOARD
foreman on the job, told him to go to the office to pick
up a paycheck. Ourlian testified that he asked what the
check was for and Smith replied that "it was about the
pay I had been crying about .. . ."
Ourlian testified that he then went to the office where
he asked for Respondent's vice president, William J.
Drozdowski. When Drozdowski appeared, Ourlian asked
where he would be working next and, according to Our-
lian, Drozdowski replied, "Sammy, I have got nothing
for you, I am going to have to lay you off." At that
point the office secretary approached Ourlian and gave
him a paycheck which purported to be all of the back-
pay Ourlian had coming. After receiving the paycheck,
Ourlian asked Drozdowski if he could be sent to Re-
spondent's Bedford job. According to Ourlian, Droz-
dowski replied, "They don't need anybody down there."
The backpay check handed to Ourlian by the secretary
did not include all of the moneys that Ourlian figured he
was owed by Respondent as backpay at the AGC rate.
When Ourlian questioned this, the secretary replied that
Wyke had only signed the contract 2 weeks ago; there-
fore that was the only period for which Ourlian would
be paid the AGC rate. Drozdowski testified, but none of
the testimony of this paragraph is denied.
It is undisputed that, since receiving his backpay
check, Ourlian has not been recalled to any work on any
job of Respondent's. It is further undisputed that other
laborers had been hired for or transferred to various of
Respondent's jobs. including specifically the Monroe
County jail jobsite.
In its defense, Respondent called Smith, Drozdcwski,
Wyke, Lewis lannetta, a longtime employee of Wyke,
and Charles Donald King, a job foreman employed by
Wyke.
Wyke testified that he originally intended not to recall
Ourlian from the 2-1/2-month layoff from February to
April because it had been reported to him that Ourlian
had been an unsatisfactory laborer on the jobs he had
previously worked. The last job Ourlian worked before
the February layoff was Respondent's E & L job" (as it
was called), "and Ourlian was laid off before it was fin-
ished. According to Wyke there is no seniority in the in-
dustry; the worst employees are laid off first, "and Sam
was one of those laid off."
Wyke testified that, although he had not intended to
recall Ourlian at all, he did recall Ourlian in April be-
cause Ourlian had frequently called the office asking for
a job and complaining that his family was hard up. On
the jail job, Ourlian was Respondent's only laborer, and
Wyke testified that he agreed with Turner to sign the
AGC contract "because I didn't think it was worth shut-
ting that whole job down over one man, and although
the pay was ridiculous in my eyes, I agreed to go ahead
and sign the contract for that project and not have the
fight, although I did under protest."
At the beginning )f the hearing Wyke was called as an
adverse witness by General Counsel and was asked if he
had personally ordered the transfer of Ourlian from the
jail jobsite to the Detroit sewage disposal plant. Wyke
testified, "I don't remember making that switch myself."
When asked who did, Wyke replied, "One of my vice
presidents usually sets the crews up for the different
jobs." He identified the vice president as Bill Droz-
dowski. Wyke testified that he did not recall Drozdows-
ki's discussing the transfer with him, although Droz-
dowski "might have had a discussion with the different
foremen and he makes his plans usually that way."
When called in Respondent's case, Wyke testified that
"at least six times he (meaning Childres, the job superin-
tendent) requested me to take Sam off that job, and I
asked him why and he said because of his poor work-
manship, and the grade he was running on the footings
was costing him extra money and that he was talking
with Palmer Smith people a lot, delaying them, interfer-
ing with his work and one time he complained that he
was bothering the girls when they went by on the job-
site." (The jobsite was in downtown Monroe, Michigan.)
Wyke was asked what the reason for removing Ourlian
from the Monroe jail job was and he replied. "Because
of the request of Mr. David Childres and from John
Hacker, my foreman."
When asked why Ourlian was laid off in September
1979, Wyke replied: "Because of the complaints of six or
seven of my foremen about his work, and that they
didn't only complain, they didn't want him there any-
more, and also because we were catching up in our work
and didn't need as many people as we had through the
summer." Wyke acknowledged that he knew he would
later need more laborers on the Monroe jail job when he
transferred Ourlian from it.
Wyke testified that he did recall telling Ourlian that he
would be getting a check for the difference in backpay
owed him, but he could not recall when he did so, nor
could he recall ever giving Ourlian a check, then walk-
ing to his car, and then coming back to tell him that he
was to be transfeirred the following Monday from the jail
job to the Detroit sewage plant, as Ourlian described.
Wyke testified that he recalled informing Ourlian of the
transfer, but did not recall when it was.
Wyke specifically denied ever telling Ourlian that he
was to receive a backpay check for the wages he had
been "crying about."
Respondent Vice President Drozdowski was called in
its defense and testified that, although he had no direct
knowledge of ()urlian's work record, "more than ten
times I get the response I do not want Sam Ourlian on
the job" from different supervisors employed by Wyke.
Drozdowski testified that he had no knowledge of why
Ourlian was transferred from the jail site to the sewage
plant and he did not know why Ourlian was laid off in
September.
Andrew Smith testified that he has been a job foreman
for Wyke for about 14 years. He gave testimony about
working with Ourlian on a "Grange Road sewer job"
and Respondent's E & L and Grosse Ile job previously
mentioned. When asked about Ourlian's performance on
the Grange Road job, Smith testified, "He was in a daze
all the time, it seems like. You would tell him to do
something, he would never remember. You had to be oi
him all the time. He never remembere[d] nothing." On
the E & L job, according to Smith, Ourlian mishandled a
heating torch resulting in the burning of ()urlian's
clothes and on another occasion Ourlian worked without
R858
JOHN WYKE, INC.
safety glasses when he was cutting a pipe. When asked if
he relayed these complaints to Wyke, Smith testified,
"Yes, I did, I complained to John all the time about his
working habits, and I told John I wouldn't even want
him on the job because he was not performing like he
should, you would have to be on him all the time and
sort of lead him around." When asked if he observed
Ourlian on the Grosse le job, which Ourlian worked
one day, Smith testified, "I watched him on the job and
they [Ourlian and an unnamed worker] were just leaning
up against the building talking." There is no indication
that Smith said anything to Ourlian or the other worker
then, or to Wyke later, about Ourlian's performance that
day on the Grosse le job.
When asked about sending Ourlian to the office to get
his paycheck, Smith testified that he was told to do so,
but was not given the reason for the paycheck. He testi-
fied that Ourlain asked what the paycheck was for "and
I said I knew nothing about it." Smith denied saying
anything to Ourlian about "crying about his pay sched-
ule."
On cross-examination Smith acknowledged that he
never disciplined Ourlian. Although he said he com-
plained to Wyke about Ourlian's performance, there is
no indication from his testimony that he told Wyke or
Drozdowski that Ourlian should be fired, not recalled, or
otherwise disciplined. When asked, in reference to Our-
lian's burning his clothing with a torch, if Respondent
usually keeps employees whom it considers dangerous as
much as a year, Smith replied, "Not really."
Respondent called Lewis annetta in its defense. Ian-
netta was asked what he did for Respondent Joba and he
replied, "I am a qualified pipe layer, cement man, man-
hole builder, utility, all the way around and safety engi-
neer." Although he described himself as being in man-
agement, he acknowledged that at all times while in the
employment of Respondent he has been paid only at the
laborers' journeyman rate, and there is no evidence that
he has ever possessed any of the indicia of supervisory
status enumerated in Section 2(11) of the Act. Iannetta
testified that he worked on the E & L job with Ourlian
during the winter and Ourlian "couldn't remember one
thing from another, and I was trying to teach him. Var-
ious times he just did register." lannetta also referred to
an occasion where Ourlian failed to use safety glasses in
cutting a pipe and also testified that Ourlian refused to
wear a hardhat when he was supposed to. lannetta fur-
ther testified that, although Ourlian had indicated that he
was qualified to lay pipes, he was incompetent to do so
and he recommended to Smith that Ourlian be taken off
of a pipe laying job. Smith did not mention the pipe
laying problems with Ourlian at the E & L job, but
Wyke testified that Ourlian had misrepresented his abili-
ties at pipe laying and this was among the complaints
Respondent had with Ourlian.
Charles Donald King has been employed by Respond-
ent Joba for 22 years and is presently a job foreman.
King testified for Respondent that he first met Ourlian
on Respondent's Bedford job where, accordinq to Re-
spondent's records, Ourlian worked for 3 days during the
pay period ending November 3, 1978, and 1 day during
the pay period ending February 18, 1979. King testified
that Ourlian was supposed to have been a pipe layer
when he was hired, but "I let him lay one pipe and it
was in very bad condition . . . he couldn't do it and I
told him to get out of the hole." When asked if he knew
what Ourlian did thereafter, King replied, "probably just
a laborer." King testified that he observed Ourlian on the
E & L job where he was tried as a "tailman," the func-
tion of which was "gettinq the rubber clean, pipes clean,
making sure the pipe is clean coming into the hole
.... " King testified that Ourlian was "slow on catching
things and he was argumentative quite a bit." King testi-
fied that he warned Ourlian about being late and arguing
with the men. Neither Wyke nor any other supervisor
mentioned these two factors as problems with Ourlian,
and Ourlian denied that he was tardy. If Respondent
maintains records which would reflect Ourlian's propen-
sities for tardiness, they were not offered. When asked
on direct examination what Ourlian's safety practices
while on the job were, King replied, "I can't answer that
because I wasn't observing him as to safety."
On cross-examination King testified that it was he who
laid Ourlian off from the E & L job. King was asked on
cross-examination and testified:
Q. Isn't it a fact when you laid him off the job
that was because it was the middle of the winter?
A. Yes. Work was getting slack.
Q. Pardon?
A. Work was getting slack.
Q. Isn't it a fact Mr. Wyke put him back on the
job in the spring.
A. Yes, one reason because I asked him.
When asked if he had ever relayed any of his complaints
about Ourlian to Wyke, King testified that he had. When
asked if he knew when that was, King replied, "Not off
hand, but I would say the middle-just at the end or be-
ginning of spring." As noted above, Ourlian worked on
the E & L job from January 1 through the pay period
ending February 18 when he was laid off for 2-1/2
months and recalled to the E & L job during the week
of April 29.
IV. ANALYSIS AND CONCLUDING FINDINGS
Respondent contends that the various criticisms ad-
vanced by Wyke and the other supervisors about Our-
lian's work performance and conduct throughout the em-
ployee's tenure of employment with Respondent, along
with lack of need, is the basis for Respondent's refusal to
recall him since he worked on the Grosse Ile sewage
plant job in September. Additionally, Respondent asserts
that Ourlian's transfer from the Monroe County jail site
to the Detroit sewage plant was caused by criticisms ad-
vanced by Respondent's foreman, Hacker, and Palmer
Smith's superintendent, Childres.
Drozdowski testified that he had received complaints
"more than 10 times" from supervisors that they did not
want Ourlian on their jobs. Drozdowski did not venture
to name any of the supervisors and admitted that he did
not know why Ourlian was ultimately laid off perma-
nently. I do not believe Drozdowski's testimony that
other supervisors had indicated that they did not want
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ourlian on their jobs. However, assuming it was true,
Drozdowski's ignorance of the alleged reasons for Our-
lian's termination clearly indicates that such complaints
had nothing to do with it. Although King and Smith in-
sisted that their complaints with Ourlian's early employ-
ment were conveyed to Wyke, it is undisputed that
Wyke did nothing about them. Wyke testified that Our-
lian was laid off earlier than other employees from the E
& L job because Ourlian was an inferior worker. This
was squarely contradicted by the testimony of foreman
King who testified that the layoff was part of a weather-
induced shutdown of the job and that he, in fact, re-
quested that Wyke recall Ourlian when the E & L job
resumed as warmer weather returned. Whatever dissatis-
factions (expressed or not) Wyke had with Ourlian, it
was not enough to prevent Ourlian from being recalled
in April after the 2-month layoff. Not only was he re-
called but he was recalled to the very same jobsite at
which he allegedly had accumulated so many demerits
among Respondent's supervisors, the E & L job. Al-
though Wyke testified that he gave Ourlian a job after
the winter layoff solely because Ourlian had said his
family needed the money, I do not believe that Wyke (or
any other reasonably intelligent entrepreneur) would
reemploy such a supposedly nadir worker, transfer2 him
to other jobsites, and keep him employed steadily for an-
other 4 months, as Respondent's records and the testimo-
ny indicate that Respondent did. In summary, I discredit
the entirety of the testimony of Respondent that before
he was assigned to the Monroe County jail jobsite in
July, Ourlian had shown himself to be an inferior worker
or engaged in misconduct which constituted a part of the
basis for his later transfer and permanent layoff.
When first asked about the transfer of Ourlian to the
sewage plant, Wyke responded that such transfers were
the function of Drozdoski. This answer was clearly an
exercise in evasiveness as Drozdowski testified that he
had nothing to do with the transfer. Indeed, Wyke
changed his story when recalled by Respondent; he then
testified that he personally ordered the transfer because
of complaints from Hacker and Childres.
If Hacker and Childres had actually voiced criticisms
which had precipitated this specific allegation of the
complaint, Respondent presumably would have called
them to testify and I draw an adverse inference for its
failure to present them or explain why it did not. I infer
that, had they been called, their testimony would not
have been favorable to Respondent. But even without
such inference, it is clear from this record that Wyke
never conveyed to Ourlian complaints by Hacker or
Childres, although Wyke saw Ourlian on the job four or
five times when Wyke was passing out paychecks. The
only plausible reason for Wyke's not mentioning the sup-
posed complaints to Ourlian is that the "complaints"
were never made or, if they were, they were not consid-
ered significant and are now advanced as a basis for the
2 Although Wyke denied that t)urlian was transferred from the E & L
obh to the Monroe jail job, Responldent's records clearly indicate hat.
during the w cek of July 22, urlian worked three full days at " & Lt
Transprt" arid 2 days at "Monroe Jail," clearly idicating a transfer di-
rectly between the johbs as Ourliall testified lldeed, King testified that
Wyke himself transferred Ourlian between the johs
transfer only as an after-thought. Therefore, I find the
reasons assigned for the transfer totally false.
Respondent defends the layoff of Ourlian on Septem-
ber 5 and the subsequent refusal to recall him on lack of
further need for him and the employee's general unsuita-
bility. In contending there was no need for Ourlian, Re-
spondent is asserting an economic defense. However, it
presented no payroll or other records to substantiate this
assertion. This failure, along with the undisputed fact
that other workers have since been hired and transferred
to and among Respondent's jobs compells me to con-
clude that the "lack of need" defense is false. Fabricut.
Inc., 238 NLRB 768 (1978).
Finally, the defense of Ourlian's general unsuitability
for the refusal to recall him is false. It is composed of
nothing more than unsubstantiated criticisms of conduct
which, assuming it occurred, was condoned by Respond-
ent's subsequent recalling and transferring of Ourlian to
and among jobs. Accordingly, I find the defense in this
regard is totally without basis.
The next inquiry becomes: Was the transfer and subse-
quent permanent layoff for prohibited reasons?
Following immediately, as it did, upon the claim for
the AGC rate, it is properly inferable that the protected
claim precipitated the transfer and the permanent layoff.
Union Camp Corporation, Building Products Div., 194
NLRB 933 (1972).
It is also properly inferable that, since only false rea-
sons for the transfer and layoff were advanced, the real
reason is that which is statutorily prohibited. Shattuck
Denn Mining Corporation (Iron King Branch) v. .. L.R.B.,
362 F.2d 466 (9th Cir. 1966).
However, the Board need indulge in neither of these
inferences. Although John Wyke had signed contracts
with unions for years he had escaped paying the AGC
rates in Monroe County, Michigan, until a claim was as-
serted on Ourlian's behalf by McKart and Turner. Then,
even though he considered the rate called for "ridicul-
cus," he signed the agreement, but only after a 2-week
delay, and then only after Turner's strike threat was con-
veyed to him. Then, taking advantage of his own delay,
he paid Ourlian only from the date of his signing, al-
though he had promised Turner to make Ourlian
"whole." All of this bespeaks of hostility towards signing
and implementing the contract and hostility toward the
single employee who had caused it. I would find this
hostility was the real cause for the transfer and perma-
nent layoff of Ourlian even were I not to find that Wyke
and Smith accused Ourlian of "crying" about his wages
to the Union. However, I do find, because of Ourlian's
clearly superior credibility, 3 that Wyke and Smith did
: Particularly detracting front Wyke's credibility is his claimed inabil-
itt to recall ellinig (urlian that he was to receitv additional pay, going
to his automobile, and returning ith the ailnnouncement that oni the fol-
loswing Mondas Ourlian ras to repor to the l)etroit sewage plant site
The "crying" renmark aside. (lirlian's testimony of this dramatic sequence
would have assuredly been unequivocally denied had Wyke been told to
do so I believe, and find. that the claimed iability to remember such
sequtice As i at ;tilltempt t avoid cmlceding to t e evidri.ce which dem-
orltrates the inllldiate relationship hetwueen ()urlianl's payl raise t the
AGC(, rate arid the employee's transfer to the Detroit sewage plant bh-
site
860
JOHIN WYKE. INC
make such statements to Ourlian, and further I find those
remarks constitute further evidence of Respondent's hos-
tility toward Ourlian because of his complaint (whether
voiced by him personally or not), regarding a claim
under the AGC contract to which Respondent was, or
had become, bound.
Since, under the Act, the employee indisputedly had
the right to assert, or have asserted, such a claim under
the contract, the transfer and permanent layoff therefor
constituted violations of Section 8(a)(l) and (3) of the
Act, and I so find and conclude.
CONCI.USIONS OF LAW
1. Respondent John Wyke, Inc., Comanco, Inc.. and
Joba Construction, Inc., constitute a joint employer
within the meaning of Section 2(2) of the Act, and is en-
gaged in commerce or in an industry affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By transferring and thereafter laying off permanent-
ly employee Samuel Ourlian because of contractual
claims made by Ourlian, or on his hehalf by the Union,
Respondent has violated Section 8(a)(l) and (3) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REME)DY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to remove the effects thereof and to effectuate
the policies of the Act.
Having found that Respondent transferred and thereaf-
ter unlawfully laid off permanently employee Samuel
Ourlian, I shall recommend that Respondent be ordered
to reinstate said employee and make him whole for any
loss of earnings he may have suffered as a result of the
discrimination against him. The amount of backpay shall
be computed in the manner set forth in F. 4: Woolworth
Company, 90 NLRB 289 (1950), with interest thereon to
be computed in the manner prescribed in Florida Ste'el
Corporation, 231 NLRB 651 (1977). See, generally, Isiv
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this proceeding, I hereby
issue the following recommended:
ORDER 4
The Respondent, John Wyke, Inc., Comanco. Inc.,
and Joba Construction, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Transferring or laying off permanently employees
because they have asserted claims under collecrivc-bar-
In the (acnl rio exceptlrliln arc filed as pro.ls il hy See 102 46h rf the
Rules arid Regulationrs of the Nal.riial Laboh r R lI.tillns Board. h find-
ings, cOinTlusii.s, aid recornlmelldcl ()'Oder crri li, hil As prorildcd in
Sec 1(2 4 ofI the Rules and Rgulalions, he adoptd hby the Board arid
become is findings, conclusins, and Order, arid all hlcctiolns thereto
shall be deemed aived for all purposes
gaining agreements or such claims have been asserted on
their behalf.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Samuel Ourlian immediate reinstatement to
his former job or, if such job no longer exists, to a sub-
stantially equivalent position of employment. without
prejudice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of
earnings he may have suffered as a result of his transfer
and layoff in the manner set forth in "he Remedy" sec-
tion of this I)ecision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timc-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its office in Brownstowin Township. Michi-
gan, and at its Detroit area jobsites copies of the at-
tached notice marked "Appendix." 5 Copies of said
notice, on forms provided by the Regionil Director for
Region 7. after being duly signed by Respondent's au-
thorized 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. Reasonahle steps sha:ll be taken
by Respondent to insure that said notices are not altered,
defaced, or covered h any other material
(d) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order. WIha:
steps Respondent has taken to compl, herewith.
In Ihe ¢.2cTt Ihl Ihls ()Trill Is rlnt ,rcl h a flidiirCltrr r W . I 1iid
SIalcs fl.rt Ap peal,. ih, Ivords I ilh Ilo t-c reading 'Tslte' h
()rder il the Natioml I abor Reltitnilos lioirI iIl r,d I ,.til tlri-
ali to a Jllidgl ri of t tlltld Slate (olril If Appialx t iilrllg :i
Order oit th Nailownl I ihor Rlali.,m ,ard-
AP'PENDIX
No i (- To Eot or IlS
PoSI It) RB ()RI)IR OF TH
NA TIONAI LBOR RI .\IIONS H().\RI)
An Agency of the United States Gocrnment
Wi wi .ir Noi transfer, lay off. or otherwisC dis-
criminate against employees because they hase as-
serted claims under collectie-bargaining agree-
ments, or because such claims have beten asserted on
their behalf by Laborers' Local No. 45, I.aborers'
International Union of North America, AFL- CI()O,
or any other labor organization.
Wi wii. t No-r in anv like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WIl. offer Samuel Ourlian immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position
of employment, without prejudice to his seniority
or other rights and privileges previously enjoyed.
WE WI1L make Samuel Ourlian whole, with in-
terest, for any loss of pay he may have suffered as a
result of our discrimination against him.
JOHN WYKE, INC.; COMANCO, INC.; AND
JOBA CONSTRUCTION, INC.
862