Boddy Construction Co.

National Labor Relations Board - Board Decisions

Apr 30, 2003

338 N.L.R.B. 1083 (N.L.R.B. 2003)

BODDY CONSTRUCTION CO. 1083
Boddy Construction Co. and Gerald R. Bowie and
Karl W. Ernest. Cases 7–CA–44065 and 7–CA–
44215
April 30, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On March 6, 2002, Administrative Law Judge John T.
Clark issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
In reviewing the decisions of administrative law
judges, the Board considers the entire record, de novo, in
light of the exceptions and briefs, to determine whether
the judges’ rulings, findings, and conclusions are sup-
ported by the preponderance of the relevant evidence.
We agree with the judge’s finding that the General
Counsel has proven by the preponderance of the relevant
evidence that the Respondent violated Section 8(a)(3)
and (1) of the Act by laying off Karl Ernest and discharg-
ing Gerald Bowie for their union support and activities.
We wish to comment, however, on three aspects of the
judge’s decision with respect to the discharge of Bowie.
The judge found that Dave Boddy, the Respondent’s
president, referred to Bowie as an “instigator” in the
midst of a discussion regarding the Respondent’s attempt
to pack the bargaining unit with truckdrivers who would
vote against the Union in a decertification election.
Given the context in which this characterization was
made and the other record evidence, including Bowie’s
role in the successful 1997 union election, we believe
that the judge reasonably inferred that the Respondent
considered Bowie to be a disruptive influence because of
his union support and activities and that the term “insti-
gator” was a euphemism for Bowie’s prounion senti-
ments. See James Julian Inc. of Delaware, 325 NLRB
1109, 1109 (1998) (holding that employer complaints
about “bad attitude” are often euphemisms for prounion
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
sentiments, particularly when there is no alternative ex-
planation for the perceived “attitude” problem).2
The judge found to be pretextual the Respondent’s ar-
gument that it discharged Bowie because, immediately
before the decertification election, he threatened employ-
ees Keith Glover and Samuel Wilcox with adverse finan-
cial consequences if they did not vote in favor of the Un-
ion. In so finding, the judge speculated that Glover
probably did not fear Bowie’s threat to turn Glover in for
collecting ill-gotten unemployment benefits. We do not
believe that Glover’s fear, or lack thereof, of Bowie is
material. Accordingly, we do not rely on this aspect of
the judge’s rationale.
We also believe the judge failed to properly address
the seriousness of Bowie’s threats to Glover and Wilcox.
In its exceptions, the Respondent contends, inter alia,
that Bowie’s threats constituted serious, unprotected ac-
tivity that interfered with the laboratory conditions nec-
essary for a fair election. We find merit in the Respon-
dent’s exception insofar as we believe that Bowie en-
gaged in coercive, unprotected conduct. Nevertheless, as
set forth above, we agree with the judge that the Respon-
dent failed to prove it relied on this conduct in discharg-
ing Bowie.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Boddy Construction Co.,
Marysville, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.

Patricia A. Fedewa, Esq., for the General Counsel.
Robert A. Day and Gayle L. Landrum, Esqs., of Detroit, Michi-
gan, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOHN T. CLARK, Administrative Law Judge. This case was
tried in Port Huron, Michigan, on November 8, 2001. The
charge in Case 7–CA–44065 was filed May 25, 2001,1 and the
charge in Case 7–CA–44215 was filed July 18. The consoli-
dated complaint was issued August 31. The consolidated com-
plaint alleges that Boddy Construction Company (the Respon-
dent) violated Section 8(a)(1) and (3) of the National Labor
Relations Act (the Act) when it laid off employee Karl W.
Ernest, on or about February 19 and discharged employee Ge-
2 Member Acosta finds it unnecessary to rely on the citation to
James Julian, supra, in agreeing with his colleagues for the reasons
they set out that the Respondent’s use of the term “instigator” on the
facts of this case was a euphemism for Bowie’s prounion sentiments.
3 Member Walsh finds it unnecessary to assess the character of
Bowie’s threats, because he finds, in agreement with his colleagues,
that the Respondent did not discharge Bowie because of his threats.
1 All dates are in 2001 unless otherwise indicated.
338 NLRB No. 165
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1084
rald R. Bowie on April 13. The Respondent denies any unlaw-
ful conduct.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, with an office and place of
business in Marysville, Michigan, is engaged as a building and
road contractor in the building and construction industry. Dur-
ing the calendar year ending December 31, 2000, the Respon-
dent, in conducting its business operations, received at its
Marysville facility materials and supplies valued in excess of
$50,000 directly from suppliers located outside the State of
Michigan. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the International Brother-
hood of Teamsters, Local 339, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Ernest and Bowie were truckdrivers for the Respondent until
Ernest was laid off, on or about February 19, and Bowie was
discharged on April 13. Ernest was hired in June 1995 and
Bowie in June 1997. In 1997, Ernest contacted the Department
of Labor in order to require the Respondent to pay its employ-
ees the prevailing wage rate at certain jobsites. Bowie was also
a part of this action. In November 1997, Ernest was instrumen-
tal in contacting the Union and the subsequent organizing cam-
paign. Ernest and Bowie voted to be represented by the Union
in the certification election, a fact known to the Respondent
because the outcome of the election was 4–0. Ernest was the
union steward and a member of it’s bargaining team (Tr. 21
incorrectly states “unit” see Tr. 42). Bowie also attended some
negotiating sessions.
During the election campaign, Horace Boddy, the Respon-
dent’s owner, and Superintendent Duke Dunn told the employ-
ees that the Respondent would “sell its trucks” and that the
employees “would be picketing for two years,” presumably if
the Union prevailed in the election. The collective-bargaining
agreement between the Union and the Respondent expired on
September 27, 2000. As a result of a decertification election
held on March 28, 2001, the Union was decertified by a vote of
3 for, and 2 against decertification. Ernest and Bowie voted in
the election.
B. Ernest’s Termination
Ernest had back surgery because of a work-related injury in
May 1999. His doctor allowed him to returned to work, with a
20-pound lifting restriction, on September 7, 1999. He contin-
ued to work, with that weight restriction, until his layoff.
On November 22, 2000, the Respondent, allegedly in re-
sponse to poor attendance by all drivers, attached a letter to the
paychecks of all drivers. The letter stressed the importance of
attendance (R. Exh. 2). The parties stipulated that Keith Glover
was hired as a driver on April 2, 2000, and that for the remain-
der of the year his attendance was comparable to that of Ernest
(Tr. 16–17).
Pursuant to a directive from Horace Boddy, Ernest under-
went an independent medical evaluation on February 14, 2001
(GC Exh. 15). The examination was performed by Dr. John
Corbett, an orthopedic surgeon selected by the Respondent.
Based on his examination, Dr. Corbett wrote a detailed report
concluding that Ernest was capable of continuing his current
job, which was within his lifting restriction (R. Exh. 7). Not
satisfied with this report, Dave Boddy, the Respondent’s presi-
dent and son of Horace Boddy, called Ernest and said that he
intended to ask the doctor if getting in a truck would hurt
Ernest’s back. Ernest responded that the lifting restriction had
not changed since he returned to work after his surgery. Dave
Boddy told Ernest to remain on unemployment, claiming that
the Respondent’s insurer wanted Ernest to be able to work,
without a restriction, when he returned.
On February 22, 2001, Ernest received a letter from Horace
Boddy the subject of which was “Fitness for Duty.” Boddy
writes that Dr. Corbett’s report is wrong but it is not the issue,
“the essential problem is your daily attendance” (GC Exh. 15).
He offers Ernest three options: separation, permanent layoff, or
leave of absence. Although Boddy wrote that should Ernest fail
to choose an option, a separation notice would be issued, no
choice was made, and no notice was issued.
The Testimony of Jerry Rose
Jerry Rose is employed by a subcontractor of the Respon-
dent. He testified pursuant to a subpoena from the General
Counsel. Rose testified that during late January or early Febru-
ary 2001 he had an employment interview with Dave Boddy
and Superintendent Duke Dunn. The interview was in the
lunchroom of the Respondent’s facility. Rose testified that
Dave Boddy told him that there were currently four drivers and
he was looking for two additional drivers to vote “no” and can-
cel the two union votes, in order to vote the Union out. Rose
also testified that Boddy referred to Jerry Bowie as an instiga-
tor. As Rose was leaving the interview he heard either Boddy
or Dunn, he was unsure which, say that he did not like Rose.
The other man replied that “we will just get rid of him after the
vote.” A few days later Rose told the Respondent that he
would not participate in “trying to vote the Union out” (Tr. 88–
92). I find Rose to be a totally creditable witness. He had no
apparent interest in the outcome of the case and his demeanor
was that of an honest and impartial individual. Dave Boddy
and Dunn deny making the statements. Neither individual had
the testimonial demeanor of an honest and sincere witness,
either when testifying about the Rose interview or other events
which will be set forth herein. I discredit their testimony.
Analysis
Section 8(a)(3) prohibits employer “discrimination [against
employees] in regard to hire or tenure or any term or condition
of employment to encourage or discourage membership in any
labor organization.” The methodology for determining dis-
criminatory motivation is set forth in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
BODDY CONSTRUCTION CO. 1085
455 U.S. 989 (1982). Under Wright Line, the General Counsel
has the initial burden to persuade that antiunion sentiment was
a substantial or motivating factor in the employer’s action. To
sustain the burden, the General Counsel must show that the
employee was engaged in protected activity, that the employer
was aware of the activity, and that the activity was a substantial
or motivating reason for the employer’s action. Motive may be
demonstrated by circumstantial or direct evidence and is a fac-
tual issue, which the Board’s expertise is peculiarly suited to
determine. Proof of the protected activity, employer knowl-
edge, and animus toward the activity supports an inference that
the employee’s protected conduct was a motivating factor in the
employer’s action. The burden of persuasion then shifts to the
employer to prove that it would have taken the same action
even in the absence of the protected activity. Manno Electric,
321 NLRB 278, 280 fn. 12 (1996); Wright Line, supra at 1089.
The employer may rebut the General Counsel’s case by proving
that animus played no part in its actions or, by establishing as
an affirmative defense, that it would have taken the same action
even in the absence of the employee’s protected conduct. The
employer cannot simply present a legitimate reason for its ac-
tions but must persuade by a preponderance of the evidence
that the same action would have taken place even in the ab-
sence of the protected conduct.
The record contains significant evidence of Ernest’s union
and protected concerted activity. Ernest instituted an action by
the Department of Labor to require the Respondent to pay pre-
vailing wage rates. Ernest was instrumental in contacting the
Union and the subsequent organizing campaign and voted for
the Union. He was the union steward and a member of the
Union’s bargaining committee. Horace Boddy, the Respon-
dent’s owner, admitted to antiunion animus when the Union
initially appeared on the scene. Although the foregoing find-
ings are sufficient to establish the requisite protected activity
and employer knowledge, the strongest evidence of the inten-
sity of the Respondent’s antiunion sentiment is provided by
Jerry Rose. Rose testified that the Respondent’s president, and
its owner’s son, Dave Boddy, along with its superintendent,
Duke Dunn, engaged in an apparent attempt to “pack the unit”
by hiring extra employees into the unit in order to vote against
the Union. See generally Einhorn Enterprises, 279 NLRB 576,
596 (1986). I also find that the Respondent was not satisfied
with merely ridding itself of the Union, but was motivated to
rid itself of its most senior driver because of his protected con-
certed activity and union membership. I conclude that the
counsel for the General Counsel has met the initial burden.
Having found that counsel for the General Counsel has sus-
tained the initial burden, the burden shifts to the Respondent to
establish that its action would have taken place in the absence
of Ernest’s protected activity. The Respondent contends that
Ernest’s employment ended because of his inability to work a
continuous full-time schedule. The Respondent’s letter of No-
vember 22, 2000, indicates that attendance was a problem with
all the drivers and not just Ernest (R. Exh. 2). Only Ernest
however, was singled out. The Respondent bases its attendance
argument on the percentage of time that Ernest did not work a
40-hour week. The Respondent contends that between Febru-
ary 28 and December 16, 2000, Ernest worked less than a 40-
hour week 52 percent of the time. The percentages that the
Respondent used, however, include weeks when Ernest was
sent home because of lack of work or told not to report for
work (GC Exh. 16; Tr. 116–123). Although the Respondent
demonstrated that it has records indicating when employees
called off sick (R. Exh. 6) there is no compilation of the time
Ernest missed from work by his own volition. This may have
been because, as the Respondent stipulated, Ernest and em-
ployee Keith Glover, a driver who was hired on April 2, 2000,
had comparable attendance records for the remainder of the
year. No action was taken against Glover, or any other driver,
because of their attendance. I find this disparate treatment to be
additional evidence of the Respondent’s motivation to termi-
nate Ernest because of his union involvement.
The Respondent also argues that Ernest was terminated be-
cause he was not 100-percent fit for duty because of the 20-
pound lifting restriction placed on him by his attending physi-
cian. I find this contention to be a disingenuous attempt to
disguise the fact that the Respondent’s real reason for terminat-
ing Ernest was his union membership and concerted activities.
The lifting restriction that Ernest had when he returned to work
on September 7, 1999, was identical to that placed on him by
Dr. Corbett after he completed his examination of Ernest on
February 14, 2001. I do not credit Horace Boddy’s testimony
to the extent that it suggests that the Respondent terminated
Ernest because his job performance was not satisfactory (Tr.
123). There is no evidence, disciplinary or otherwise, to sup-
port that contention. Additionally, such a contention is incon-
sistent with the other reason advanced by the Respondent, that
it was his poor attendance which caused it to terminate Ernest,
i.e., if he was unable to perform the job, his attendance on the
job would appear to be irrelevant. Moreover, I doubt that the
Respondent would retain an employee, for over 5 months, if the
employee was not performing satisfactorily. Dr. Corbett’s
initial report indicates that an accommodation was reached that
did not require Ernest to lift weights greater than 20 pounds (R.
Exh. 7, p. 5). I find that the Respondent was satisfied with
Ernest’s job performance until it saw an opportunity to rid itself
of the Union and Ernest, one of the two remaining union advo-
cates.
I also find that the Respondent has not been straightforward
in its explanation of why it sent Ernest to Dr. Corbett for ex-
amination. Ernest testified that Dave Boddy told him that the
Respondent’s insurance carrier required the examination (Tr.
28). Dave Boddy denies this statement but for the reasons set
forth above I discredit his denial. Horace Boddy also testified
that the insurance carrier wanted the examination (Tr. 105). No
satisfactory documentary evidence, however, was produced by
the Respondent indicating that the examination was required by
its insurance carrier, nor does the letter to Ernest from Horace
Boddy sending him for the examination mention any such re-
quirement (GC Exh. 15). The Respondent does not explain
how a finding that Ernest was fit for duty would, in anyway,
alleviate its alleged problem that Ernest did not have a satisfac-
tory attendance record. It does not follow that a certification
for full duty would result in improved attendance. In this re-
gard I find Respondent’s Exhibit 10 enlightening. This docu-
ment was prepared long after the foregoing events transpired
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1086
and only shortly before the trial. The Respondent submitted to
Dr. Corbett additional facts, documents, and statements indicat-
ing that Ernest had been less than truthful during his physical
examination in February 2001 (R. Exhs. 8 and 9). Doctor Cor-
bett concluded, based solely on the information submitted by
the Respondent and without the benefit of another physical
examination, that Ernest was incapable of working a 40-hour
week even with the restriction. Although I give no weight to
the doctor’s opinion as to Ernest’s ability to work a 40-hour
week, I do find this exhibit evidence of how desperate the Re-
spondent was to provide some explanation for its actions. Doc-
tor Corbett’s belated opinion was what the Respondent was
hoping to obtain in February, just before the decertification
election, and thus provide it with official documentation for
terminating Ernest. The fact that the Respondent did not chal-
lenge Ernest’s vote in the decertification election is not persua-
sive evidence, as argued by the Respondent, that it harbored no
antiunion animus towards Ernest. Once the Respondent ascer-
tained that the outcome of the election would be three to one
adding a dissenting vote would not interfere with its plan.
Based on the foregoing I find the Respondent’s explanation
for terminating Ernest incredible and not supported by the re-
cord. I find that the Respondent has not met its burden of prov-
ing that it would have taken the same action even in the ab-
sence of his protected activity. Accordingly, I find that the
Respondent violated Section 8(a)(1) and (3) of the Act when it
unlawfully laid off employee Karl W. Ernest on or about Feb-
ruary 19, 2001.
C. Bowie’s Discharge
Gerald Bowie was never given a reason for his discharge.
He had been a truckdriver for the Respondent since May 1997.
His employment record was unblemished when he was dis-
charged on April 13, 2001.
Notwithstanding his unblemished employment record Super-
intendent Dunn asked Bowie to quit sometime in February
2001. Bowie was the owner of a truck, which he intended to
lease, with a driver, to the Respondent. Dunn told Bowie that if
Bowie quit his employment with the Respondent, and drove his
own truck, the Respondent would lease Bowie’s truck for the
summer (Tr. 75). Had Bowie quit he would have been ineligi-
ble to vote in the March 28 decertification election.
Dunn admits that the conversation occurred, but claims it
was initiated by Bowie. He stated that Bowie asked him if he
should drive his own truck and Dunn assured him that he would
have work all summer if he choose to drive his truck. Dunn
told Bowie that it was Bowie’s choice. I have previously found
that Dunn is not a believable witness. I credit Bowie’s version
not only because his demeanor appeared to be that of a truthful
witness, but also because his testimony is consistent with the
testimony of Jerry Rose. Rose testified that it was in late Janu-
ary or early February 2001 when the Respondent began to im-
plement its scheme to pack the unit. Rose credibly testified that
it was during that same time that Dave Boddy said Bowie was
an instigator. Preventing Bowie from voting in the decertifica-
tion election, for whatever reason, would further the Respon-
dent’s objective of ousting the Union.
Bowie was still employed by the Respondent on March 28,
the date of the decertification election. Bowie was in the park-
ing lot outside the voting area talking with Sam Wilcox and
Tom Pittman. They were the recently hired drivers who filed
the petition to decertify the Union shortly after being employed.
Bowie told Wilcox that if he voted against the Union, he would
report him for not reporting earnings that were paid in cash.
Keith Glover, a driver who had recently had hip replacement
surgery, was also in the group. Bowie poked Glover in the
chest and said he could get turned in for collecting unemploy-
ment insurance, while being off work because of his surgery, if
he did not vote for the Union. Glover denied the accusation,
pushed Bowie away, and threatened to burn down his house.
Glover was restrained by Pittman, and shortly thereafter, they
reported the incident to Superintendent Dunn. Dunn asked
Glover if he wanted to remain in his office but Glover chose to
return to the parking lot. After the election, Dunn called Dave
Boddy, who was vacationing with Horace Boddy in Florida.
Dunn reported the results of the election and told him about the
incident. A few days later, but while the Boddys were still in
Florida, Dunn spoke with Wilcox, as well as again speaking
with Glover and Pittman, regarding the incident. Dunn never
questioned Bowie about what occurred. Dunn again reported
his findings to Dave Boddy, who was still in Florida. The
Boddys returned from Florida during the first week in April
2001. Upon his return Dave Boddy questioned Glover,
Pittman, and Wilcox. Bowie was never questioned by anyone.
On April 13, 2001, Bowie was ordered to leave the jobsite
and report to the Respondent’s facility. Upon his return, Dave
Boddy gave him his check and told him to clean out his truck.
Bowie said nothing. He had previously heard rumors that he
would be discharged. He asked Horace Boddy about the ru-
mors and was told that a decision had not been reached. Dave
Boddy initially stated on direct examination that he told Bowie
that he was being let go because “you guys are bumping
heads.” In response to being asked to give “each and every
reason” that he gave Bowie, he added the parking lot incident.
I have previously found Dave Boddy not to be a credible wit-
ness, I discredit his statements and find that he did not give
Bowie any reason for the discharge.
Analysis
I again apply the Wright Line methodology to determine
whether Bowie was unlawfully discharged. As I have previ-
ously found, shortly after Bowie was employed in 1997, he
joined Ernest in contacting the Department of Labor in order to
require the Respondent to pay the prevailing wage rate at cer-
tain jobsites. In November 1997, Bowie voted to be repre-
sented by the Union in the certification election, a fact known
to the Respondent because the outcome of the election was 4–0.
Bowie also attended negotiating sessions. In addition to
Horace Boddy’s admitted antiunion animus when the Union
initially appeared on the scene, Jerry Rose credibly testified
that Dave Boddy referred to Bowie as an “instigator,” which is
synonymous with troublemaker, a word that has long been
found to be a familiar euphemistic term denoting employees
who are considered disruptive elements because of their union
activities. E.g., Huntington Hospital, Inc., 218 NLRB 51, 57
BODDY CONSTRUCTION CO. 1087
(1975). Dave Boddy’s reference to Bowie as an instigator was
made at the same time the Respondent began implementing its
unit packing scheme. I have found that only about 2 months
earlier the Respondent had unlawfully laid off Ernest, its most
senior driver and union supporter. After Ernest, Bowie was the
most senior driver and remaining union supporter. He also had
an unblemished work record. I find the Respondent’s discharge
of Bowie, without explanation, is also evidence of unlawful
motivation. I conclude that counsel for the General Counsel
has met the initial burden.
Having found that counsel for the General Counsel has sus-
tained the initial burden, the burden shifts to the Respondent to
establish that its action would have taken place even in the
absence of Bowie’s protected activity. In this regard the Re-
spondent contends that Bowie was discharged as a result of
threatening and assaulting his coworkers immediately before
the decertification election. I disagree and find that the Re-
spondent took opportunistic advantage of that incident to mask
its true motive, which was to was to be rid of the one remaining
prounion employee.
The Respondent argues that Bowie was discharged only after
an “extensive investigation.” I do not agree that the investiga-
tion was extensive when Bowie, one of the two protagonists,
was never offered the opportunity to be interviewed. The in-
vestigation seems to have consisted solely of first Dunn, and
then Dave Bowie, asking the same people the same questions.
The testimony of the four individuals regarding the incident
was consistent. Glover did attempt to justify his threat to burn
Bowie’s house by saying that he was frighten by Bowie. No
doubt at some point he was fearful. Bowie is the larger man,
and Glover had recently had hip replacement surgery. I am not
unmindful, however, that it was Glover who had to be re-
strained and who choose to return to the parking lot rather then
stay in Dunn’s office. Nor do I find Bowie’s words to be any-
where near as threatening as Glover’s. Bowie merely implied
that he would report Glover for collecting unemployment com-
pensation when Glover was unable to work. This was an accu-
rate statement and Glover did have to return the money (Tr.
168). Based on my observations of their demeanor as they
testified it was apparent that neither protagonist, nor the other
participants, were even slightly traumatized by either the words
or actions that took place in the parking lot. As Pittman testi-
fied, it was “verbal . . . there was no fights” (Tr. 149).
I find that the Respondent’s failure to afford Bowie an op-
portunity to participate in the investigation, and its disparate
response to the statements made by Bowie, the remaining union
advocate, and Glover, as further evidence of the Respondent’s
unlawful motivation. Tubular Corp., 337 NLRB 99 (2001).
Accordingly, as the Respondent’s explanation for discharg-
ing Bowie is found to be incredible and unsupported by the
record I find that the Respondent has not met its burden of
proving that it would have taken the same action even in the
absence of his union activity or affiliation. I therefore conclude
that the Respondent violated Section 8(a)(1) and (3) of the Act
by discriminatorily discharging Gerald R. Bowie.
CONCLUSIONS OF LAW
1. By unlawfully laying off employee Karl W. Ernest on or
about February 19, 2001, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
2. By unlawfully discharging employee Gerald R. Bowie on
April 13, 2001, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily laid off employee
Karl W. Ernest, and discriminatorily discharging employee
Gerald R. Bowie it must offer them reinstatement and make
them whole for any loss of earnings and other benefits, com-
puted on a quarterly basis from date of layoff2 or discharge to
date of proper offer of reinstatement, less any net interim earn-
ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Boddy Construction Company, Marysville,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off or otherwise discriminating against any em-
ployee for supporting International Brotherhood of Teamsters,
Local 339, AFL–CIO, or any other union.
(b) Discharging or otherwise discriminating against any em-
ployee for supporting International Brotherhood of Teamsters,
Local 339, AFL–CIO, or any other union.
(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer employ-
ees Karl W. Ernest and Gerald R. Bowie full reinstatement to
their former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
(b) Make employees Karl W. Ernest and Gerald R. Bowie
whole for any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the manner set
forth in the remedy section of the decision.

2 The exact date of Ernest’s unlawful layoff is unclear from the re-
cord and is best left to the compliance stage of this proceeding.
3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1088
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful layoff and discharge, and
within 3 days thereafter notify the employees in writing that
this has been done and that the unlawful layoff and discharge
will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Marysville, Michigan, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since February 19, 2001.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

4 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment 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

The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT lay off, discharge, or otherwise discriminate
against any of you for supporting International Brotherhood of
Teamsters, Local 339, AFL–CIO, or any other union, or for
engaging in protected concerted activities.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
offer employees Karl W. Ernest and Gerald R. Bowie full rein-
statement to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed.
WE WILL make employees Karl W. Ernest and Gerald R.
Bowie whole for any loss of earnings and other benefits result-
ing from our unlawful action against them, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful layoff of
Karl W. Ernest and the unlawful discharge of Gerald R. Bowie
and WE WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the unlawful layoff and
unlawful discharge will not be used against them in any way.

BODDY CONSTRUCTION CO.