F. Mullins Construction, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1016 (N.L.R.B. 1984)

1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Mullins Construction, Inc. and Local Lodge 30,
International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers &
Helpers, AFL-CIO. Cases 11-CA-10124 and
11-CA-10250
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 1 April 1983 Administrative Law Judge
Howard I. Grossman issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed 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 brief and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended Order
as modified.
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
We have examined the judge's findings that the Respondent violated
Sec 8(a)(1) by interrogating employees in light of the Board's decision in
Rossmore House, 269 NLRB 1176 (Apr 25, 1984), and find, in agreement
with the judge, that the interrogations were unlawful
In finding Jones and Brooks to be supervisors, we do not rely on the
judge's finding that welding constituted skilled work
The judge inadvertently concluded that it was Douglas Lee who spoke
to Heath about the Union in the beginning of September It is clear from
Heath's affidavit that the judge was referring to Jones, not Lee Howev-
er, It is not clear whether Jones' questioning of Heath regarding whether
Heath was going to join the Union occurred prior to or after Mullins'
takeover Accordingly, we do not pass on this complaint allegation since,
in any event, it would be cumulative
The judge incorrectly cites Cumberland Farms Dairy, 258 NLRB 900
(1981), as being enforced at 674 F 2d 943 (1st Or 1982) That Board de-
cision has not been addressed by the circuit court of appeals The Board
decision that was enforced in the First Circuit's 1982 decision is reported
at 250 NLRB 1204 (1980)
2 In finding that Welding Foremen Jones and Brooks are supervisors
as defined by the Act, Member Hunter does not rely on the judge's con-
clusion that the Respondent would be responsible for their actions even
in the absence of evidence that they possessed such authority or his refer-
ence to Sambo's Restaurant, 247 NLRB 777, 782 (1980)
Member Hunter agrees with the judge's conclusion at sec III,C,2, par
4, that Jones' telling employee Edwards that he could not talk about the
Union during "working" time violated Sec 8(a)(1) because Jones' admo-
nition was discriminatory, i e, it only prohibited talk about the Union but
did not prohibit conversation about other subjects during the same time
In so concluding, however, Member Hunter does not agree that this one
comment constituted a "rule," as the judge also found The judge's cite
to Pedro's Restaurant, 246 NLRB 567 (1979), in that regard is not apt as
Pedro's involved the posting of a notice on a bulletin board Here, we
have a single unlawful admonition which Member Hunter finds clearly
does not constitute the promulgation of a "rule"
The judge found, inter alia, that the Respondent
violated Section 8(a)(1) by coercively interrogating
employee Rodney Gibbs and thereafter violated
Section 8(a)(3) by laying off Gibbs because he en-
gaged in union activity. In reaching this conclu-
sion, the judge relied on his finding that Robert
McMillan was acting as the Respondent's agent
when he interrogated Gibbs and thus learned that
Gibbs supported the Union. The Respondent ex-
cepts contending that McMillan was not its agent.
We find merit in the Respondent's exception.
The Respondent is a corporation engaged as a
general contractor at the North Carolina Phos-
phate jobsite in Aurora, North Carolina. The
project requires the use of earthmoving equipment
that has to be constructed at the jobsite. North
Carolina Phosphate purchased a large piece of
equipment, called a dragline, from the Marion
Power Shovel Company. The Respondent con-
tracted to install the equipment.
McMillan, an employee of Marion Power Shovel
Company, worked at the site as a field weld spe-
cialist. McMillan's primary reason for being at the
site was to serve as a representative of Marion
Power and to recommend to Marion Power wheth-
er the welds were done in a manner so that Marion
Power could warrant the equipment.
McMillan did make requests to the site superin-
tendent that welds not done in accordance with the
specifications be corrected. Additionally, McMillan
participated in the testing of welders. He signed the
test results on the signature line for "welding engi-
neer, supervisor, or erection engineer." Based on
the test results, McMillan made recommendations
for or against a welder's employment. Most of his
recommendations were followed. The only evi-
dence that McMillan issued direct instructions to
employees consists of McMillan's request to
Rodney Gibbs that he get a union card from his
car. Gibbs ignored the first such request but com-
plied the second time the request was made.
As the judge correctly noted, McMillan's recom-
mendations carried weight with respect to the em-
ployment of welders. While this evidence ordinari-
ly would tend to establish that the Respondent had
made McMillan its agent, we find that it is insuffi-
cient to support such a finding under the circum-
stances of this case. McMillan's role was to ensure
that the Respondent was performing the welding in
accordance with the standards established by his
employer, Marion Power. Thus, in testing and
making recommendations about welders, McMillan
was acting solely on behalf of Marion Power. In
following McMillan's recommendations the Re-
spondent was simply seeking to satisfy him so that
Marion Power would issue a warranty on the
273 NLRB No. 129
F. MULLINS CONSTRUCTION 1017
equipment. In that sense the Respondent was in a
position analogous to that of a provider of services
who hires or fires based partially on the recom-
mendation of an essential customer. In these cir-
cumstances, the Respondent's efforts to comply
with the hiring recommendations McMillan made
were not, without more, sufficient to make McMil-
lan its agent. Moreover, the only evidence that em-
ployees may have thought the Respondent had
given McMillan authority over them was the fact
that, at McMillan's request, Gibbs left work to get
the union card from his car. However, even here
the evidence is weak in that the first such request
was ignored.
Contrary to the judge, we therefore conclude
that McMillan was not an agent of the Respondent.
Accordingly, we find that the Respondent was not
responsible for McMillan's action in questioning
employees as to whether they had received cards,
in asking Gibbs where the card was, and in re-
questing that Gibbs get the card from his car.
Therefore, we shall dismiss this allegation of the
complaint. 3
Additionally, because we have found that Mc-
Millan was not an agent for the Respondent, we
further disagree with the judge's finding that
Gibbs' layoff was discriminatorily motivated.
Absent a finding that McMillan's knowledge is at-
tributed to the Respondent, there is no basis in the
record for concluding that the Respondent was
aware of Gibbs' union activity. Accordingly, we
also dismiss the 8(a)(3) allegation involving Gibbs.
ORDER
The National Labor Relations Board adopts the
recommended Order of the admmistrative law
judge as modified below and orders that the Re-
spondent, F. Mullins Construction, Inc., Aurora,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified.
1. Substitute the following for paragraph 2(a).
"(a) Offer Barry Edwards, Randall' Walker, Jerry
Eisenzimmer, and Douglas Lee immediate and full
reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, discharging if necessary
any employee hired to replace any of them, and
make them and the estate of Leslie Heath whole
for any loss of earnings any of them or the estate
may have suffered by reason of the Respondent's
discrimination against them and Heath, in the
3 Even though we dismiss the 8(a)(1) allegation concerning the inci-
dent between McMillan and Gibbs, the remedy remains unchanged as the
8(a)(1) violation would be cumulative
manner described in the section of this decision en-
titled 'The Remedy."
2. Substitute the attached notice for that of the
administrative law judge.
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 the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT ask employees whether they have
received union cards, whether certain employees
are trying to get other employees to sign union
cards, or to describe the nature of union literature
distributed to employees.
WE WILL NOT ask employees whether they
intend to "carry on" the Union or lead its organi-
zational efforts.
WE WILL NOT ask employees where they ob-
tained union hats or other union paraphernalia,
who gave it to them, or whether they had to sign
union cards to obtain them.
WE WILL NOT direct employees to deliver union
cards to company agents.
WE WILL NOT tell employees that they would
probably lose their jobs if they voted the Union in.
WE WILL NOT tell employees that a supervisor
would not be able to obtain a job with the owner
of a jobsite who has engaged us to perform work
there if the Union comes onto the jobsite.
WE WILL NOT discriminatorily tell employees
after the beginning of a union campaign that they
cannot talk about the Union during working time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Barry Edwards, Randall Walker,
Jerry Eisenzimmer, and Douglas Lee immediate re-
instatement to their former positions or, if the posi-
tions no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority and
other rights and privileges, discharging if necessary
any employee hired to replace any of them.
WE WILL make these employees, and the estate
of Leslie Heath, whole for any loss of earnings
they or the estate may have suffered, with interest,
because we laid them off unlawfully.
WE WILL expunge from our personnel records or
other files of these employees any reference to our
unlawful layoffs of them and notify them in writing
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this action has been taken and that evidence of
these unlawful layoffs will not be used as a basis
for further personnel actions against them.
F. MULLINS CONSTRUCTION, INC.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge.
The charge in Case 11-CA-10124 was filed on Septem-
ber 24, 1981, by Local Lodge 30, International Brother-
hood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL-CIO (the Union). An amended
charge was filed on October 13, and a complaint was
issued on November 6, 1981. Thereafter, on November
16, the Union filed a second amended charge. The
charge in Case 11-CA-10250 was filed by the Union on
December 24, 1981, and a consolidated complaint was
issued on January 28, 1982.
As subsequently amended at the hearing, the complaint
alleges that F. Mullins Construction, Inc. (Respondent),1
in September 1981 and thereafter, interrogated its em-
ployees concerning their union sympathies and the sym-
pathies of fellow employees, created an impression
among its employees that their union activities were
under surveillance, orally promulgated a rule prohibiting
employees from talking about the Union during working
hours, and threatened employees with loss of jobs if they
selected the Union as their collective-bargaining repre-
sentative, all in violation of Section 8(a)(1) of the Nation-
al Labor Relations Act (the Act). The amended com-
plaint also alleges that Respondent laid off employees
Barry Edwards, Randall Walker, and Jerry Eisenzimmer
on September 24, 1981, and employees Leslie Heath,
Rodney Gibbs, and Douglas Lee on December 3, 1981,
because of their union activities, in violation of Section
8(a)(3) and (1) of the Act.
A hearing was held before me on these matters in
Washington, North Carolina, on July 27 and 28, 1982,
and in Raleigh, North Carolina, on October 5, 1982. On
the basis of the entire record, including a brief filed by
Respondent, and my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Florida corporation licensed to do
business in the State of North Carolina, where it has
been engaged as a general contractor at the North Caro-
lina Phosphate jobsite in Aurora, North Carolina. The
complaint alleges that Respondent purchased supplies
and materials for use at the Aurora jobsite valued in
excess of $50,000 directly from sources outside North
Carolina, and that it performs services valued in excess
of that amount for customers located outside the State.
1 Respondent's name appears as stipulated at the heanng
Respondent's answer denies the direct outflow allega-
tion, but appears to admit the direct inflow allegation.2
The answer also admits that Respondent is an employer
engaged in interstate commerce, and that it meets the
Board's indirect inflow jurisdictional standard. 3 At the
hearing Respondent appeared to contest, although not
explicitly, the direct inflow allegation. However, the par-
ties stipulated that Respondent receives materials, sup-
plies, and services from an employer located within the
State of North Carolina which is subject to the Board's
jurisdiction under the "direct standards." I conclude that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act under the
Board's indirect inflow standard.4
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The General Counsel introduced what he called back-
ground evidence tending to show union animus on the
part of Respondent. This principally involved two other
companies, North Carolina Phosphate, a firm engaged in
phosphate extraction at the Aurora jobsite, and Mulberry
Construction Co. of Mulberry, Florida, with whom
North Carolina Phosphate had contracted to install very
large earthmoving equipment, called a dragline, at
Aurora. Mulberry was the original contractor on this
job, and was succeeded by Respondent.
Charles L. Dover, a business manager for the Interna-
tional Union of Fire, Brakemen, and Engineers, associat-
ed with the North Carolina Building and Construction
Trades Council, testified that Mulberry had a contract
with his organization. About mid-June 1981, Dover dis-
covered that Mulberry was in violation of the contract at
a project in Aurora. He met with the president of Mul-
berry, and informed him that Florida unions would shut
down every job that Mulberry had in Florida. The Mul-
berry official replied that he would get back to North
Carolina Phosphate, and was sure that he could arrange
with that company to employ union men at the Aurora
jobsite. If not, Dover was assured, Mulberry would leave
the job.
L. F. Shipman, a coordinator for the North Carolina
Trades Council, testified that Mulberry asked him to
speak to North Carolina Phosphate about the Aurora
job. On July 9, 1981, Shipman had a meeting with the
North Carolina Phosphate president, and was informed
that the company had decided not to use union men on
the job
About the same time in July, Mulberry employed
Barry Edwards at the Aurora jobsite. Edwards indicated
2 G C Exhs 1(o), pars 3 and 4, and 1(q), pars 3 and 4
3 G C Exh 1(q), par 5
' See Siemons Mailing Service, 122 NLRB 81 fn 12 (1958), St Francis
Pie Shop, 172 NLRB 89, 90 (1968) The General Counsel elected not to
litigate the direct outflow allegation
F. MULLINS CONSTRUCTION 1019
his union affiliation on his application form, and began a
campaign on behalf of the Union immediately. He dis-
tributed handbills on the day he was hired and obtained
8 to 10 signed union authorization cards from Mulberry
employees. Mulberry's lead welder at that time was
Terry Jones, who was later promoted to foreman.
During his first week of employment, Edwards told
Jones and other employees that he was attempting to or-
ganize the job, and that he would appreciate any support
they could give.
Respondent protested the introduction of much of this
evidence on the ground that it was irrelevant with re-
spect to the issue of whether it had committed an unfair
labor practice. The Company noted that an unfair labor
practice charge had been filed by the Union against
North Carolina Phosphate, but that it had been with-
drawn. 5 Respondent also observed that the Union had
filed a charge against Mulberry, but that that organiza-
tion had entered into an informal settlement agreement.6
Barry Edwards and Douglas Lee, employees under
both Mulberry and Mullins, testified that Steve Ryder,
Mulberry's superintendent, told a group of Mulberry em-
ployees in July or August that North Carolina Phosphate
would not "tolerate" union men on the job. Employee
Randall Walker averred that Ryder called a meeting in
the latter part of August, and said "they were changing
the name of the company," and that the only difference
would be the fact that Ryder would not be there any
more. Employer Rodney Gibbs asserted that there was
picketing at the jobsite during this meeting, and that
Ryder said they would shut the job down rather than let
the Union come in. Employee Jerry Eisenzimmer testi-
fied that Mulberry Supervisor Terry Seville 7 told union
activist Barry Edwards in mid-August that the "Union
would not be on that job."
Fred G. Mullins testified that he was the president of
the Company bearing his name, Respondent herein, and
that he had been with the Company since July 1, 1981.
He agreed that Mulberry had previously been construct-
ing a dragline for North Carolina Phosphate at Aurora,
and that his company took over the job on September 9,
1981.
Mullins made a speech to employees at the time he
took over the job. Walker averred that Mullins told em-
ployees that he wanted to retain all of them in their ex-
isting jobs, and that the job would last until April or
May 1982. Employee Jerry Eisenzimrner gave similar
testimony Mullins denied telling employees that they
would remain until the completion of the job, but admit-
ted telling them that the job would take until July 1982.
I credit Walker's testimony. Although Mullins may not
have promised explicitly to keep all employees until the
end of the job, his statement that it would last until the
following year, coupled with his stated intention to
retain all of them in their existing jobs, could reasonably
have been interpreted as a promise of continued employ-
ment until the end of the project.
5 R Exh I
6 R Exh 3
7 Seville was an admitted supervisor under Mullins
Employee Jerry Eisenzimmer testified that he had a
conversation with Mulberry Supervisor Terry Seville in
mid-August, in which Seville told him that he could stay
on the job "as long as they had work down there." I
credit this testimony.
Mullins in fact employed all of the Mulberry employ-
ees except Superintendent Ryder, and utilized the same
equipment which Mulberry had used.9
B. The Supervisory and Agency Issues
1. The issues
The pleadings establish that Respondent's president
Mullins was a supervisor within the meaning of Section
2(11) of the Act, and the parties stipulated that Site Su-
perintendent Jeffrey McGuire and Assistant Site Superin-
tendent Terry Seville had the same status. The parties
differ over the status of Terry Jones, John Brooks, and
Robert McMillan.
2. Terry Jones and John Brooks
a. Summary of the evidence
Jones and Brooks were called leadmen by company
witnesses. Brooks was on the day shift and Jones on the
night shift. 9 They assigned work to employees in accord-
ance with a "priority list" of jobs to be done, given to
them by Site Superintendent McGuire or Assistant Site
Superintendent Seville. According to Mullins, this list
was given to Jones and Brooks "each morning."
McGuire, however, testified that he "prepared a priority
list weekly that was handed out Monday . . . to the
leadmen—the work had been assigned to the leadman at
that point, and at that time he had so many people and
so many areas to work, so he distributed his people to
those areas." Seville defined a priority list as a "list of
things . . . to be done either during that week or to
complete a phase of the project." I credit McGuire's and
Seville's testimonies, and conclude that the priority list
assigned work to Jones and Brooks on a weekly or job
basis, but not on a daily basis.
Employee Douglas Lee testified that Jones moved him
"from job to job." Jones said that he moved employees
to a different "department" when they were finished
with a prior "department." He also recorded the employ-
ees' time. Employee Rodney Gibbs gave similar testimo-
ny about Brooks Site Superintendent McGuire stated
that the "leadmen were given great independence in the
distribution of their personnel." Comparing his own
duties with those of Brooks, Seville testified as follows:
I ran quite a few more areas. John was basically
welding, and I did a lot more of the iron-work and
sub-structures which he supervised the welding on
. . I shouldn't say "supervised," you know, but I'd
tell him what to do and then he would just com-
mence to take care of business.
8 I credit the testimony of employee Barry Edwards corroborated by
Walker on this issue
9 Jones said that he changed to the day shift the week before Thanks-
giving 1981
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Barry Edwards averred that Mulberry dis-
tributed a document with the titles of employees in the
"chain of command," followed by their telephone num-
bers. Brooks was listed as welding foreman on the day
shift. According to Edwards, employees who were going
to be absent from work were required to call the appro-
priate person on the list and report the absence. Al-
though Brooks described his position as "leadman" under
Mullins, he did not expressly contradict Edwards' testi-
mony, which I credit.
Edwards was employed on the night shift. He testified
that Jones was promoted to "foreman" in late July or
early August 1981, about 2 or 3 weeks after Edwards
had been hired. Although Jones described himself as the
lead welder, he did not expressly contradict Edwards'
testimony about the promotion. Further, according to
Edwards' uncontradicted testimony, he congratulated
Jones after the promotion, to which the latter replied
that there was no need for congratulations, since he had
"been made foreman. . . to keep an eye on Edwards." I
credit Edwards on the issues of Jones' promotion and his
response to Edwards' congratulations.
Edwards testified that Jones "quit working with his
tools and started passing out work assignments" after the
promotion. There is implicit corroboration from Jones,
who said that he "went back to [his] tools" after his
transfer to the day shift just before Thanksgiving. On
one night, apparently prior to this transfer, Jones did
work with his tools, but was "reprimanded" by an indi-
vidual whom Edwards, relying on Jones, believed to be
associated with North Carolina Phosphate. Asked what
percentage of time he spent in "manual labor," Jones re-
plied: "Well, I'd say 90 percent, because . . . I had to
drag leads, run and get drop lights; first one thing and
then another. And then I would try to weld some, and
go around and help as much as I could." Brooks, asked
how much he worked with his hands, initially answered,
"Some," which he later estimated to be 75 percent of his
time. His description of his duties is similar to that of
Jones.
I conclude that Jones and Brooks, in addition to their
work assignment duties, engaged in some manual labor.
However, this consisted of a variety of jobs, including
help to other employees, unlike the steady "working
with tools" of rank-and-file employees. I also conclude
that Jones spent less time in manual labor after his pro-
motion to foreman than he had previously done as lead
welder.
I find that Jones and Brooks had the title of "foreman"
or "welding foreman" under Mulberry at the time that
Mullins took over the job on September 9, 1981. They
also had the job characteristics outlined above. Inasmuch
as Mullins told employees at the time of the takeover
that he wanted them to continue in their existing jobs, I
also conclude that Jones and Brooks continued in the
same capacity under Mullins 1°
10 As indicated above, Jones transferred to the day shift Just before
Thanksgiving, i e, in the week beginning November 16, 1981, and appar-
ently returned to rank-and-file status at that time
b. Factual and legal analysis
Section 2(11) of the Act sets forth various indicia of
supervisory status, including the authority to "assign" or
"to responsibly direct" employees, where the exercise of
such authority "requires the use of independent judg-
ment." "The functions of a supervisor listed in the statute
are disjunctive; the Board need not show that an em-
ployee performed all or several of the functions to sup-
port a finding of supervisory status" NLRB v. Dadco
Fashions, 632 F.2d 493, 496 (5th Cir. 1980), enfg. 243
NLRB 1193 (1979).1'
Brooks and Jones were employed on a jobsite involv-
ing the construction of large earthmoving equipment.
They assigned work to other employees, principally
welders. I conclude that this direction of work was "re-
sponsible" and required "independent judgment." This
conclusion is based on the following factors: (1) the
work to be assigned was given to Brooks and Jones on a
weekly or job-phase basis rather than more frequently; it
included jobs to be completed followed by other jobs,
and thus involved the scheduling of work in which Jones
and Brooks were given "great independence in the distri-
bution of their personnel"; (2) welding constitutes skilled
work; (3) Jones and Brooks did less manual work than
other employees, and almost no routine "work with
tools"; (4) they had the title of "foreman" or "welding
foreman"; (5) they kept employee timecards; (6) employ-
ees were required to call Brooks, and probably Jones, in
the event of absence from work, (7) one admitted super-
visor's description of his own duties was almost indistin-
guishable from his description of Brooks', and differed
only as to extent of area covered; and (8) Jones' state-
ment to Edwards—that he had been promoted to fore-
man to "keep an eye" on Edwards—suggested a position
of authority over the latter. Although this statement was
made under Mulberry's tenure, there was no change in
Jones' status under Mullins, at least until his transfer to
the day shift.
No two cases involving supervisory issues present ex-
actly the same facts. However, at least two circuit courts
of appeals have sustained the Board's findings of supervi-
sory status in cases where responsible direction of work
constituted a key factor in the Board's conclusions,12
and one where the monitoring of timecards was a
factor." A similar conclusion is warranted herein, and I
find that Brooks and Jones were supervisors within the
meaning of Section 2(11) of the Act—Jones until his
transfer to the day shift the week of November 16, 1981.
Even in the absence of such finding, Respondent would
be responsible for their actions since it placed them in
positions where employees could reasonably believe that
they spoke on behalf of management. Sambo's Restau-
" See also NLRB v Brown Specialty Co, 436 F 2d 372, 375 (7th Cir
1971), enfg 174 NLRB 519 (1969), 180 NLRB 969 (1970)
2 NLRB v Dadco Fashions, supra; Justak Brothers Co v NLRB, 664
F 2d 1074 (7th Cir 1981), enfg 253 NLRB 1054 (1981) See also NLRB
v Adam & Eve Cosmetics, 567 F 2d 723 (7th Cir 1977), revg 218 NLRB
1317 (1975)
" Dresser Industries v NLRB, 654 F 2d 944 (4th Or 1981), enfg as
modified 248 NLRB 33 (1980)
F MULLINS CONSTRUCTION 1021
rant, 247 NLRB 777, 782 (1980), enfd. 641 F.2d 794 (9th
Cir. 1981).
3. Robert McMillan
a. Factual summary
The earthmoving equipment, or dragline, which was
being constructed at the Aurora jobsite had been pur-
chased by North Carolina Phosphate from Marion
Power Shovel Company, a Division of Dresser Indus-
tnes, located in Marion, Ohio. The equipment was so
large that it had to be put together at the jobsite. McMil-
lan worked for Manon as a field weld specialist at the
Aurora jobsite from about June 1981 until about June
1982. One of his duties was to witness the contractor's
construction of the dragline, and to determine whether it
was in accordance with Marion's specifications. Based on
his reports, Marion could then decide whether to give a
warranty to North Carolina Phosphate. If certain welds
had not been done in accordance with the specifications,
McMillan would report this fact to the site superintend-
ent and request that the work be corrected.
McMillan also participated in the testing of welders.
Edwards testified that McMillan "gave" him a welding
test. McMillan disputed this, stating that he only "wit-
nessed" tests given by the contractor. However, he
signed a document recording the test results for welders,
and the description of his capacity underneath his signa-
ture is that of "welding engineer, supervisor, or erection
engineer" (R. Exhs. 13 and 14). McMillan also informed
the site superintendent whether the applicant had passed
the test, with a recommendation for or against his qualifi-
cation and employment as a welder. Most of his recom-
mendations were followed, according to McMillan.
Another issue is whether McMillan tested welders and
made recommendations after Mullins took over the job.
Part of the testing involved X-ray analysis of the welds
done by the applicant. Asked whether any tests of weld-
ers were conducted after Mullins took over from Mul-
berry, McMillan "guessed" that none had been conduct-
ed, but then expressed doubt that all the X-ray results
were back by the time of the takeover. Other evidence
suggests the probability of testing after September 9.
Thus, the welding qualification form provides for expira-
tion of the qualification if the employee had not welded
for 6 months. The earliest known qualification form is
dated July 2, 1981 (R. Exh. 14). Respondent contends
that welding work diminished in late 1981, warranting
the layoff of welders. On the other hand, Mullins admit-
ted that he had welding work subsequent to December 3,
1981, and McGuire said that two welders were "rehired"
in December. As noted above, McMillan was at the job-
site until June 1982. I conclude from this evidence that
McMillan made at least some recommendations concern-
ing the qualifications of welders subsequent to the time
that Mullins took over the job on September 9, 1981.
As appears hereinafter, an employee engaged in work
was asked by McMillan to get a union card which was
located in the employee's automobile. The employee
stopped working, obtained the card, and gave it to Mc-
Millan.
b. Legal analysis
The Board has concluded with judicial approval that
an employer was responsible for the actions of a safety
director where it appeared to employees that his com-
ments "carried some weight with respect to their em-
ployment." Cumberland Farms Dairy, 258 NLRB 900 fn.
3 (1981), enfd. as modified 674 F.2d 943 (1st Cir. 1982).
It is obvious that McMillan's recommendations concern-
ing the employment of welders, based on the test results,
carried "some weight" with respect to their employment.
Indeed, his recommendations were followed most of the
time. Moreover, one employee perceived McMillan as
having sufficient authority to warrant the employee's
leaving work to get McMillan a union card. I conclude
under these circumstances that Respondent is responsible
for McMillan's actions.
C. The Alleged Violations of Section 8(a)(1)
1. The facts
a. Terry Jones
(1) Summary of the evidence
The complaint does not allege any violations of the
Act prior to September 1981. However, some of the evi-
dence adduced at the hearing relates to events allegedly
having taken place pnor to that month, i.e., during Mul-
berry's tenure. The General Counsel's apparent position
is that this constitutes background evidence.
Randall Walker testified that Jones asked him in
August whether he had signed a union card. "No, not
yet," Walker replied. In another conversation in August,
Jones told employees that Edwards "would be an all-
right guy ' if he wasn't a union man," according to
Walker. Jones denied making this statement, but asserted
that he heard another employee make it.
One of employee Leslie Heath's affidavits affirms that
Jones asked him several times in August whether he was
for the Union, and Heath replied, "Yes, one hundred
percent." Heath signed a union card in August, and
asked 10-15 other employees to join the Union. Seville
and Jones were present during one of these discussions in
August or September.' 4
' 4 G C Exh 3 During the heanng in July 1982, the General Counsel
represented that Heath was ill with a heart attack and requested admis-
sion of his affidavit under Rule 804(bX5) of the Federal Rules of Evi-
dence The General Counsel acknowledged, however, that he had not
comphed with the requirement of that rule that he give advance notice to
Respondent and argued that he was precluded from giving Respondent a
copy of the affidavit by Sec. 102 118 of the Board's Rules and Regula-
tions During the recess between the hearing dates on July 28 and Octo-
ber 5, I received Heath's affidavit Into evidence on condition that he still
be unavailable as a witness on the date the hearing resumed and directed
the General Counsel to give a copy to Respondent Respondent appealed
this ruling, which was sustained by the Board On October 5, the date the
hearing resumed, it appeared that Heath had died dunng the 'recess The
General Counsel stated that he had complied with my order I thereupon
reaffirmed, dunng the hearing on October 5, my prior ruling, and two of
Heath's affidavits were received, dated October 2, 1981, and January 15,
1982, respectively (G C Exhs 3 and 4). Respondent submitted evidence
to contradict some of Heath's averments
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Randall Walker described conversations about the
Union with employees, including Jones, in August and
September. The Union had started its campaign, and Ed-
wards had given Walker a union card. The first conver-
sations took place in the lunchroom. Jones was "putting
the Union down," and Walker on two occasions said that
he had been a member of the Steelworkers Union in
Tennessee, and that he did not see anything wrong with
the Union. Edwards corroborated this testimony. In the
first part of September, after Mullins had taken over the
job, according to Walker, Jones approached him at his
work station and asked whether Barry Edwards was
trying to get Walker to sign a union card. Walker re-
plied, "Yes." About a week later, while driving to work
with Jones and employee Johnny Williams, Walker asked
Jones how the Union worked, and Jones replied that the
employees would probably lose their jobs if they voted
the Union in.
Jones agreed that he rode to work with Walker and
Johnny Williams, but denied that the former ever asked
him to explain the Union. They would talk about the
Union, Williams testified, and Walker gave the impres-
sion that he was against it. Jones denied threatening any
employees with loss of jobs. He agreed that he had a
conversation with Walker about Edwards' union activi-
ties, but gave a different version of it. According to
Jones, Walker came to him one day and said that Ed-
wards was talking to Walker about the Union.
Employee Jerry Eisenzimmer testified that Jones asked
him about the first of September whether he supported
the Union, and Eisenzinuner replied affirmatively. Eisen-
zimmer's pretrial statement indicates that this conversa-
tion took place prior to the Mullins takeover. Jones
denied having this conversation.
Employee Douglas Lee averred that Jones told em-
ployees on top of a revolving rig in late September, i.e.,
after the Mullins takeover and the September 24 layoffs,
that he would not have anything to do with the Union
himself, because North Carolina Phosphate had given the
company the first chance to do the job as long as it kept
the Union out, and bringing the Union in would mean
that Jones could not work "with Carolina Phosphate."
Jones admitted having this conversation but contended
that what he said was that he intended to "get out of
construction" and take a job with North Carolina Phos-
phate and, therefore, saw no reason to get a union book.
He mentioned the cost of union dues.
Barry Edwards testified to a conversation with Jones
in the first week of September, i.e., probably under Mul-
berry. Jones told him that the union organizer on the
day shift had been fired, and asked Edwards what
chance he had organizing the night shift. Union Organiz-
er James Phillips in fact had been fired, according to Ed-
wards.
Edwards affirmed that employees normally engaged in
conversation during working time when it did not inter-
fere with work. He testified that he talked to employees
about the Union under these circumstances. In late Sep-
tember, according to Edwards, i.e., under Mullins, Jones
told him that he would have to quit talking about the
Union on company time. About the same time, Jones
asked Edwards how many organizers he had, how many
people supported the Union, and whether Edwards
thought he would be able to get a union onto the job.
Edwards replied that he thought he could get a union in,
and that the rest of the information was privileged. Jones
denied prohibiting Edwards or anyone else from talking
about the Union during working hours.
One of Heath's affidavits" avers that Lee, "around
the beginning of September," said that he would never
join a union, that he would cross a picket line, and ad-
monished Heath to "look at all the money you'd lose like
the people picketing down at New Bern." I infer that
Heath referred to statements allegedly made prior to the
Mullins takeover. The affidavit thereafter states that
"sometime in September" Jones asked Heath whether he
was going to join the Union, and Heath replied that he
would if it would benefit his pocketbook. From the se-
quence of allegations in the affidavit, I infer that Heath
was alleging an event which took place after September
9, i.e., after the takeover. "Dunng the week of Septem-
ber 28," the affidavit also relates, Jones noted that Ed-
wards had been laid off, and asked whether Heath would
carry on for the Union or take Edwards' place. Accord-
ing to his affidavits, Heath replied, "Whatever will turn
me on," or "Yes, if it becomes necessary."
In addition to the specific denials listed above, Jones
was asked on direct examination whether he had ever in-
terrogated employees concerning their union activities
and sympathies. He replied, "Not that I recollect."
Asked whether he had ever interrogated other employ-
ees concerning the union sympathies of other employees,
Jones answered, "No, I don't think so."
(2) Factual analysis
Walker's testimony about the lunchroom conversations
in August and September was not contradicted. I credit
it and find that Walker stated in Jones' presence on two
occasions that he had been a member of another union,
and saw nothing wrong with the Union. I do not credit
Jones' account of the conversations with Walker and
Williams during the automobile ride, since it is unbeliev-
able, in light of my prior finding, that Walker could have
given the impression that he was opposed to the Union.
Inasmuch as Jones was thus an unreliable witness, I
credit Walker's account of the conversation and find that
Jones, after September 9, told employees that they
would probably lose their jobs if they voted the Union
in.
Since Walker was a union supporter, it is also improb-
able, as Jones contended, that Walker would have come
to the welding foreman with a statement that Edwards
was talking to Walker about the Union. I credit Walker's
account of this conversation, and find that Jones, after
September 9, asked Walker whether Edwards was trying
to get Walker to sign a union card.
Jones' account of the conversation on top of the re-
volving rig with Lee and other employees admits essen-
tial elements of Lee's version of the conversation—Jones'
desire to work with North Carolina Phosphate, and the
relationship of the Union to this goal. I credit Lee's addi-
15 Ibid.
F. MULLINS CONSTRUCTION 1023
tion of the missing element—that Jones said bringing the
Union onto the Aurora jobsite would mean that Jones
could not obtain employment with North Carolina Phos-
phate. I also find that this conversation took place after
September 9.
Jones was a less reliable witness than Edwards, and I
do not credit his denial that he prohibited Edwards from
talking about the Union dunng working hours. Accord-
ingly, I find that, subsequent to Mullins' takeover of the
job, Jones told Edwards that he could not talk about the
Union during working hours, while it was customary
practice for employees to talk about other subjects
during working hours. I also reject Jones' general denial
of interrogation, and find that, subsequent to September
9, he asked Edwards how many organizers he had, how
many people supported the Union, and whether Edwards
thought he would be able to get a union onto the job.
I also credit Heath's uncontradicted averments that,
subsequent to September 9, Jones asked Heath whether
he was going to join the Union, and, after Edwards'
layoff, whether Heath was going to "carry on the
Union."
I also credit the General Counsel's evidence in the fol-
lowing instances, and find that each took place pnor to
September 9: Jones' asking Walker whether he had
signed a union card yet; Jones' telling employees that he
did not see anything wrong with the Union; Jones'
asking Eisenzimmer whether he supported the Union,
and Eisenzimmer's reply that he did; Jones' telling Ed-
wards that the organizer on the day shift had been fired,
and asking him what chance he had to organize the night
shift; Jones' asking Heath whether he was for the Union,
and Heath's replying, "Yes, one hundred percent"; and
Jones' advising Heath to look at all the money pickets
were losing at another location.
b. Terry Seville and John Brooks
Douglas Lee affirmed that on September 24, after Ed-
wards had been laid off, another employee informed Se-
ville that Edwards had been passing out union informa-
tion in the yard. Seville inquired about the nature of the
information, and Lee told him that it was an "authoriza-
tion for a representation card." Seville said that he
would like to see one, and another employee brought a
card to Seville a few days later. Seville looked at it, and
said that he did not need it any more, that the "problem
had been taken card of." A short time later Seville asked
Lee what kind of cards Edwards was distnbuting, and
Lee gave the same answer. This testimony was partially
corroborated by Seville, and I credit it.
Lee was laid off on December 3, 1981. He testified
that, about 2 or 3 weeks before that event, i.e., in mid-
November, he was wearing a union cap at a party. Se-
ville and Brooks were in attendance at the party. Ac-
cording to Lee, Brooks asked him where he managed to
get the hat, saying that he had been unable to get one
even though he was a union member. Seville then
walked over and asked Lee whether Edwards had given
him that hat. Lee replied affirmatively. Seville then
asked whether Lee had to "sign one of those little blue
cards" to get the hat. Lee replied that he had signed a
card "a long time ago." I credit this testimony, which
was corroborated by Brooks and Seville. I infer that Se-
ville, by his reference to "little blue cards," meant union
cards. Seville asserted that the reason for his inquiry was
the fact that he collects hats as a hobby, wanted one like
the hat Lee was wearing.
c. Robert McMillan
Rodney Gibbs testified that Lee was handing out
union cards at the gate in "late November." The next
day McMillan asked employees, including Gibbs, wheth-
er they had received union cards. This took place in the
shelter where the welding tests were given. Gibbs re-
plied that he had received one, and McMillan asked
where it was. Gibbs replied that it was in his car, and
McMillan told him to get it. Gibbs did not do so at the
time, and went back to work. Later in the day, when
Gibbs was working, McMillan again asked him to get
the card. Gibbs complied, and gave the card to McMil-
lan.
McMillan first testified that he had no recollection of
this event, and then said: "I am going to state that it
didn't happen. I don't remember it ever happening." Mc-
Millan contended that he received a card in early July
while going through the gate. McMillan's denial is incon-
clusive and Gibbs' version shows that he had superior
recollection of the event. I credit the latter's testimony,
and, in light of McMillan's authority, consider his re-
quest to Gibbs—to get the union card—to be an order.
2. Legal analysis
The evidence thus shows that, subsequent to Septem-
ber 9, 1981, Respondent asked its employees: (1) to de-
scribe union information being distributed to employees;
(2) whether one employee was trying to get another em-
ployee to sign a union card; (3) whether employees had
received union cards; (4) whether employees supported
or intended to join the Union; (5) after the layoff of the
leading union activist, whether another employee intend-
ed to "carry on the Union"; and (6) where an employee
had obtained a union hat, whether a specific employee
who was a union activist had given it to him, and wheth-
er the employee had to sign a union card to get it. The
first five inquiries conveyed to employees Respondent's
displeasure with the union activity at the jobsite and
were, therefore, coercive. The same reasoning applies to
McMillan's order to Gibbs to give one of the cards to
McMillan. Accordingly, these inquiries and order violat-
ed Section 8(a)(1) of the Act.' 6
Respondent argues the innocence of the various inquir-
ies grouped under number 6 above because of Seville's
asserted hobby of collecting hats. I do not accept this ar-
gument. Brooks professed no such hobby, and there is no
evidence that Seville stated his hobby as the alleged
reason when he asked Lee the question. Therefore, noth-
ing was said to offset the inherently coercive nature of
the questions. Nor is there any good reason for the ques-
tions about Edwards and the signing of union cards. Ac-
16 Gossen Co., 254 NLRB 339 (1981), PPG Industries, Inc., 251 NLRB
1146, 1147 (1981)
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordingly, I find that such questions also violated Section
8(a)(1).
• Jones' statement to Walker and other employees—that
they would probably lose their jobs if they voted the
Union in—was coercive under established Board law,
and I so find. Jones' statement to Lee and other employ-
ees—that Jones could not get a job, with North Carolina
Phosphate if the Union came onto the Aurora jobsite-
must be interpreted in light of Respondent's other unlaw-
ful conduct, and Jones' threat concerning loss of jobs
made to Walker and other employees, which threat, I
find, preceded the statement to Lee. Even though the
latter ostensibly concerned only Jones' employment pros-
pects with North Carolina ,Phosphate, in the context of
the preceding events the employees could reasonably in-
terpret Jones' statement as meaning that their own jobs
with Mullins, or Mullins' continued presence on the job-
site, would be endangered if they selected the Union as
their collective-bargaining representative. Accordingly,
Jones' statement to Lee and other employees was also
violative of Section 8(a)(1).
Jones' telling Edwards that he could not talk about the
Union during working time was a discriminatory no -so-
licitation rule because it did not prohibit employee con-
versation about other subjects during such time. The rule
was promulgated after the commencement of union ac-
tivities in which Edwards played a leading role. Accord-
ingly, it discouraged employees from engaging in union
activities, and thereby violated Section 8(a)(1) of the
Act. Pedro's Restaurant, 246 NLRB 567, 573, 583 (1979),
enfd. as modified 652 F.2d 1005 (D.C. Cir. 1981).
D. The Alleged Violations of Section 8(a)(3)
1. Evidence of adverse working conditions
The General Counsel elicited evidence of adverse
working conditions selectively applied against Edwards
and Walker. There is no complaint allegation concerning
this evidence, and the General Counsel's apparent inten-
tion was to establish discriminatory motivation with re-
spect to Edwards' and Walker's layoffs. The evidence
concerns "overhead welding," and the measures used to
ameliorate its rigors. According to Walker, in this kind
of welding the employee is lying down on an "angled"
chair, welding over his head with the sparks falling
down on him. The parties differed over the issues of al-
leged rotation of this work among employees and protec-
tive clothing used to guard against the sparks.
Walker testified that, during Mulberry's tenure, Seville
told Walker that it was company policy to rotate jobs
among employees; that this policy continued under Mul-
lins; and that Walker saw overhead welding jobs being
rotated under Mullins. Edwards asserted that Superin-
tendent Ryder told him under Mulberry that employees
were rotated from one job to the next, and that Mullins
told employees at the time of the takeover there would
be no change in working conditions. However, Foreman
Brooks said that, as far as he knew, there was no policy
on rotation of jobs, and Jones gave similar testimony.
Brooks' and Jones' testimonies do not meet the specific
averments of Walker and Edwards, and the latter are
probably accurate because they reflect an employment
practice which was reasonable. Moreover, they are con-
sistent with the authority of Brooks and Jones to switch
employees from job to job. I conclude that Mulberry and
Mullins had a policy of rotating job to job. I conclude
that Mulberry and Mullins had a policy of rotating
among employees, particularly jobs which are onerous,
such as overhead welding.
In addition to job rotation, both Mulberry and Mullins
utilized protective clothing against the sparks. This con-
sisted of leather sleeves, vests, and aprons.
Edwards testified that, shortly after Jones' promotion
to welding foreman, i.e., under Mulberry, he was placed
on overhead welding under "the tub." He asked for pro-
tective clothing, and Jones replied, "This ain't no union
job and we ain't got to furnish you none." Jones first tes-
tified that Edwards asked for a set of welding sleeves,
but that he said, "They don't furnish them" However,
Jones asserted, "If a man needed a pair he could go get a
pair." Then, Jones "offered Barry a pair when we, were
welding under the tub," but Edwards failed to get them.
This testimony from Jones is contradictory and unintelli-
gible, and I credit Edwards.
Edwards asserted that he was given some job rotation,
but on some occasions he was left on overhead welding
as much as 7 days in a row. Walker testified that three
employees, Walker, Edwards, and one other, were not
rotated as frequently as other employees. Edwards pro-
tested to Jones and Seville, but was told that the over-
head welding had to be done. In the middle of Septem-
ber, i.e., under Mullins, Edwards asked what it would
take to get off the overhead welding job. Would he have
to burn his union card? Seville replied, "No comment,"
and Jones, laughing, said that "it might help." Jones tes-
tified that there was a "lot of joking" going around, and
that he might have said this. I credit Edwards.
Edwards was assigned to welding the revolving frame
in mid-September. He asked for protective clothing, and
Jones replied: "This ain't no union job. How many times
do I have to tell you we ain't going to furnish you
none:" Edwards complained that Jones was "discriminat-
ing" against him. The two of them then went to Seville,
who arranged for Edwards to weld on top of the frame.
Jones testified that he "didn't think" he was discriminat-
ing against Edwards.
It started to rain, and Jones put all employees except
Edwards in a protected position inside the frame. Ed-
wards got wet, informed Jones that he was not going to
work in the rain, and went home after arranging to clock
out.
I conclude that Respondent gave Edwards and Walker
more onerous work assignments than those given to
other employees.
2. The continuation of the union campaign—the
union sympathies of Edwards, Walker, and
Eisenzimmer •
Edwards continued to engage in union activities
throughout the change in contractors from Mulberry to
Mullins He obtained 10 to 12 signed union cards after
the Mullins takeover. On September 21, the Charging
Party's attorney signed unfair labor charges against Mul-
F MULLINS CONSTRUCTION 1025
lins, Mulberry, and North Carolina Phosphate." The
next day, September 22, Edwards informed Foreman
Jones that he had filed the charges. On the following
day, September 23, Edwards distributed handbills to Re-
spondent's employees at its front gate. On the day after,
September 24, he was laid off.
As noted above, Edwards had given Walker a union
card, and Jones interrogated Walker about it. Also as
noted, Walker spoke up for the Union in the lunchroom
when Jones was "putting it down." Further, Walker told
Jones that he had been a member of another labor orga-
nization and saw nothing wrong with the Union.
Eisenzimmer signed a union card when Mulberry was
the contractor and gave it to Edwards. He signed an-
other card when Mullins became the contractor. Walker
testified that he did not see Eisenzimmer manifest any in-
clinations for or against the Union. However, as set forth
above, Eisenzimmer told Jones that he supported the
Union. He also testified credibly that he rode to work
"every day" with Barry Edwards, and that company su-
pervisors saw him doing so. Since he did this every day,
I infer that this took place under both Mulberry and
Mullins. Edwards testified on cross-exam ination that Ei-
senzimmer wore a union hat on several occasions.
Mullins, McGuire, and Seville admitted knowledge of
Edwards' union sympathies, but denied knowing that
Walker or Eisenzimmer had the same sentiments. I reject
this latter contention. The evidence is unmistakable in
the case of Walker. Although he himself was unaware of
similar sentiments on the part of Eisenzimmer, this does
not negate the evidence which clearly establishes that
Respondent was also aware of Eisenzimm er's union sym-
pathies.
3. The September 24 layoffs
According to Edwards, Respondent laid off six em-
ployees on September 24—Edwards, Walker, Eisenzim-
mer, Guy Jeanette, Russell Caroway, and a sixth em-
ployee whose first name was "Joe." Alth ough only two
of them had signed cards prior to the layoffs, all were
union supporters, according to Edwards Caroway told
Edwards the day before the layoff that he was seriously
considering signing a card, and Joe attempted to sign one
after the layoff—an attempt which Edwards rejected be-
cause it did not take place during Joe's employment's
According to Walker, he was assigned to the night
shift on September 24. He was laid off without advance
notice at 5 p m. together with the other employees by
Site Superintendent McGuire. The latter told the em-
ployees to turn in their gear and get off the premises as
soon as possible. The employees were not allowed to
complete the shift. According to Walker McGuire told
them that they were being laid off because of lack of
17 G C Exh 1(a), R Exhs 2 and 3 The charges were received and
filed by the Board on September 24
18 Respondent points to Edwards' pretrial affidavit in which he said
that four out of the six employees laid off were union supporters Walker
expressed a similar opinion However, Edwards gave the reasons de-
scribed above to explain his Judgment that Caroway and Joe might also
be appropriately described as union supporters. I do lot consider this to
be a contradiction of sufficient importance to Impeach Edwards' credibil-
ity
work. Walker was then welding a revolving frame, and
said that about 60 percent of this work had been com-
pleted. Edwards was also working on the revolving
frame, said that it was unfinished, and was told that he
had no job and to get off the premises immediately.
Eisenzimmer gave similar testimony—McGuire told
them that most of the welding work had been complet-
ed, and that the employees were not needed any more.
Eisenzimmer said that there were 2 to 3 days of work
left on the job on which he had been working.
Seville gave reasons for the lack of notice of the layoff
and the employees' rapid departure from the jobsite after
the layoff. As to the first, he said that advance notice
makes an employee "edgy," and the employer gets no
work out of him thereafter. He also said that it was his
experience to ask people to leave as soon as they were
dismissed. McGuire averred that the employees were
given "showup" pay for 2 hours on the day of the layoff.
As for the degree of completion of the work, McGuire
estimated "total machine completion at approximately 30
percent by September 24. The welding phase of the
work involved two projects—assembly and welding of
the "tub" and the "revolving frame" McGuire said that
the tub was completely welded by September 24, and
that the welding of the revolving frame was 30 to 40
percent completed. This is even less than Walker's esti-
mate.
Site Superintendent McGuire described Edwards as an
"excellent welder," while Assistant Site Superintendent
Seville said that he was a "very good welder and he
worked." Employee Douglas Lee affirmed that Foreman
Jones, during the above-described conversation with em-
ployees in late September on top of a revolving rig, said
that he "would hate to see Barry go because he was a
good welder." Jones could put him on a job, and "he
would go and do the job." However, Jones added, Ed-
wards "had to go because he was a union organizer."
Jones denied saying this. As noted above, I have credited
Lee's version of the "revolving rig" conversation, and I
also credit his testimony concerning Jones' statement
about Edwards during this conversation. Lee's testimony
is consistent with supervisory assessments of Edwards'
ability, and Lee was a more reliable witness than Jones.
4. The December 3 layoffs
As set forth above, Jones asked Heath in August
whether he was for the Union, and Heath answered,
"Yes, 100 percent." Heath solicited other employees to
join the Union in the presence of supervisors. Later, in
September, Jones asked Heath whether he was going to
join the Union, and Heath replied that he would do so if
it would benefit his pocketbook. After Edwards was laid
off, Jones asked Heath whether he was going to take Ed-
wards' place, and Heath answered affirmatively
Lee testified that, after Edwards was let go, he started
"taking up where Barry left off." He distributed hand-
bills, solicited union cards, and wore a union hat, about
which Seville and Brooks interrogated him in mid-No-
vember.
Gibbs received two union cards, and talked to several
employees about the Union. In late November, when
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McMillan asked employees whether they had received
union cards, Gibbs said that he had received one, and
McMillan ordered him to get it.
As in the cases of Walker and Eisenzimmer, Respond-
ent's witnesses denied knowledge of the union "affili-
ations" of Heath, Lee, and Gibbs. I reject this testimony.
It is clear that all three employees were supporters of the
Union, and that Respondent knew this fact.
The Company laid off Lee, Gibbs, and Heath on De-
cember 3, 1981. 19 About six other employees were laid
off at the same time. About 3 p.m. on December 3, when
the employees were on break, McGuire said that some
employees would get an envelope with two checks and
some with one check. Those with two checks were to
turn in their equipment and get off the premises immedi-
ately. There had been no advance notice, and McGuire
did not give any reason for the layoff, according to the
uncontradicted testimonies of Lee and Gibbs. One of
Heath's affidavits states that the layoff made no sense—
he was then cutting holes for electrical wire, and there
were 6 to 8 months of work left on the job (G.C. Exh
3). McGuire testified that the "total machine" was 50 to
60 percent complete by the time that the welding on the
tub was complete, and welding on the revolving frame
was 90 percent complete.
5. Respondent's economic defense
As stated by Mullins, Respondent decided to lay off
employees as phases of the work were completed. The
entire project was finished by July 14, 1982, at which
time everyone was gone except some maintenance em-
ployees. The alleged discriminatees were those selected
for these phased layoffs for business rather than discrimi-
natory reasons. Mullins asked McGuire for "manpower
study" on taking over the job in September 1981.
McGuire testified that his study resulted in a conclu-
sion that a reduction in force was necessary, taking into
consideration the projected completion date and the
degree of work which had been done. He and Mullins
decided on "productivity" as the factor to be determina-
tive in the selection of employees to be laid off. There
were no records on productivity, and McGuire did not
make any as a result of his investigation. He asked him-
self, "Who is most productive?" He kept a list, and relied
on reports from Seville and Jones. Seville, however,
denied that McGuire ever asked him to observe the pro-
ductivity of employees for layoff purposes and denied
that he reported on this to McGuire. On the other hand,
Seville said that he made a study of productivity "in a
sense," and reported his "feelings" about the alleged dis-
criminatees to McGuire. However, he could not remem-
ber what his feelings were with respect to other employ-
ees.
19 The consolidated complaint alleges the date as September 24—the
date of the first three layoffs—and the answer admits this (G C Exhs
1(o) and (q)) At the heanng, the General Counsel moved to amend the
date to December 3, and Respondent stated that It had no objection This
motion is granted, and the pleadings thus establish December 3 as the
date of the layoff of all three alleged chscnminatees, a fact buttressed by
the testimonies of Lee and Gibbs and one of Heath's affidavits (G C
Exh, 3)
McGuire's testimony on productivity in relevant part
is as follows:
The same cnteria was used [sic] every time we laid
off people—overall productivity, what we were get-
ting out of people. I must say, though, that the
people who were selected, I didn't say "this person
is less productive, and this one is less productive,
and so is this one." I said, "Who is most produc-
tive?" And I made my list there and I said, "Here is
how many I can afford to keep. Who's at the top of
the list?" And you come down here, and the ones at
the bottom. I decided that 6 were going, or 10 were
going . . . . It doesn't mean he isn't a good worker,
it means I may not have considered him to be one
of the best overall performers.
McGuire added that he considered quality and quanti-
ty of work performed, attendance records, "general atti-
tude," and "personal problems" which might affect pro-
ductivity.
McGuire said that he personally observed each of the
26 welders on the day shift for a minimum period of 5
minutes to 1 hour each day. On the other hand, the site
superintendent also testified that he considered only the
qualifications of 10 welders and 4 laborers on the night
shift for the September 24 layoff. The night shift was se-
lected because of a planned elimination of that shift and
because of inadequate lighting. However, a short time
after the September 24 layoffs Respondent started run-
ning a 12- or 24-hour-a-day, 7-day-a-week "millwright"
operation, 2 ° which must also have had lighting prob-
lems. McGuire explained that the problem was too much
sunlight rather than too little—the final "machine cuts"
could not be made in the heat of the day, and the mill-
wright area had proper lighting. These hours were made
necessary by the "field machining" phase of the oper-
ation.
Mullins testified that the accelerated millwright oper-
ation involved jobs that were "associated with the mill-
wrights. Sometimes there's some small welding that goes
along with it." Accordingly, the work was performed by
millwrights, laborers, and welders who had "dual classi-
fications."
Mullins said that he did not know whether McGuire
had determined the skills of the laid-off employees, and
the site superintendent admitted that he was only "par-
tially" familiar with their skills. They were all "quali-
fied," he said, but he had simply determined to make the
cuts from the night shift.
With respect to Respondent's contention that phased
construction projects such as draglines involve progres-
sive layoffs of employees, Eisenzimmer asserted that
such layoffs are usually preceded by notice. Assistant
Site Superintendent Seville agreed that it is customary in
the construction industry to shift employees from one
type of a job to another if they are qualified, since their
other skills might be needed on the first job at a later
time.
2 ° Mullins and Lee affirmed that it was 12 hours per day, McGuire
said that it was 24 hours
F MULLINS CONSTRUCTION 1027
Barry Edwards testified that he was qualified as a
welder, construction boilermaker, rigger, fitter, electri-
cian, aligner, and general laborer. As noted above,
McGuire considered him to be an "excellent welder,"
but noted his complaints about overhead welding and his
"unauthorized" departure from work in the rain Randall
Walker, in addition to being a welder, was also qualified
as a carpenter and in fitting and setting up machinery.
Eisenzimmer qualified in welding, operating a drill rig,
and a little "carpentry." McGuire claimed that Walker
and Eisenzimmer "barely" passed their welding tests
under Mulberry. Eisenzimmer agreed that his overhead
welding was deficient under Mulberry, and that he re-
ceived a reprimand for it, but testified that he thereafter
improved and received Ryder's assurances of a job as
long as there was work at the project.
Despite the September layoffs, Respondent hired new
employees thereafter. Company records show that it
hired the following employees after September 24 two
welders (December 29, 1981); two operators (October
and November 1981); two millwrights (October 1981),
two millwright helpers (October 1981); one laborer (De-
cember 15, 1981); and four electricians (November 1981;
December 7, 1981, January 1982; March 1982) (R Exh.
7). Mullins claimed that two of these were "rehires." He
also admitted that the classifications of some employees
were changed when the accelerated operation began in
October. Lee identified two of these as Dale Ipock and
A. J. Cahoon, and testified that during the accelerated
operation in October they were transferred to the mill-
wright operation and were "drilling holes." One of
Heath's affidavits states that Ipock and another employ-
ee, who were retained, were "known antiunion" employ-
ees. 2 1
McGuire asserted that the same criteria were used in
selecting employees for the December 3 layoff. Gibbs
was qualified as a welder. He had been reprimanded
twice for lack of production, once under Mulberry and
again under Mullins, but McGuire considered him to be
"very qualified as a welder." As described above, Re-
spondent had no records on productivity. Lee, employed
as a welder, had been in construction work for 15-16
years, and could do "most anything on construction that
comes along," including millwright work McGuire de-
scribed Lee as a "good welder" and a "good worker"
He was laid off because McGuire thought he had a death
in the family, and had missed work because of this.
Heath's affidavits affirm that he had 21 years' experience
as a welder. Respondent never disciplined him. On Sep-
tember 21, Mullins complimented Heath and six other
employees, saying that they were the "best men," and
that he was going to keep them working "with other
trades" when the welding work ran out G.C. Exh. 3)
McGuire admitted that Leslie was a good welder and a
good worker, but claimed that he was selected for layoff
because he "liked to chat more than he liked to weld."
21 G C Exh 3 Heath also affirmed that Ipock and the other employee
had less welding experience than he did, and Respondent introduced
their welding certificates to rebut this (R Exhs 13 and 14)
6. Legal conclusions
Respondent's violations of Section 8(a)(1) establish its
union animus, 22 and tend to show discriminatory motiva-
tion in the layoffs. The evidence is particularly strong in
the case of Edwards. He was the leading union activist, a
factor tending to establish Respondent's unlawful motive.
Comet Corp., 261 NLRB 1414 (1982). The Company had
subjected him to working conditions more onerous than
those of other employees. Ward Products Corp., 243
NLRB 354 (1979). The timing of events preceding his
layoff also supports the General Counsel's case—Ed-
wards' acquisition of signed union cards after the Sep-
tember 9 takeover by Mullins, the filing of the unfair
labor practice charge on September 21, Edwards' in-
forming Foreman Jones of this fact on September 22,
and Edwards' handbilling at the gate on September 23
followed by his layoff the next day. Injected Rubber
Products Corp., 258 NLRB 687, 696 (1981). The fact that
Respondent admitted his excellence as an employee but
nonetheless laid him off is additional evidence. Boyer
Ford Trucks, 254 NLRB 1389, 1396 (1981).
Walker and Eisenzimmer were both known union sym-
pathizers, and Walker, like Edwards, had been subjected
to onerous working conditions not applied to other em-
ployees. Ward Products Corp., supra. All three employees
had been told by Mullins on September 9 that the job
would last until the following year, which the employees
could reasonably have interpreted as an implied promise
of continued employment The short time interval be-
tween Mullins' speech and the September 24 layoffs,
coupled with the absence of any warning of a pending
layoff, constitutes additional evidence of Respondent's
discriminatory intention. Glengarry Contracting Industries,
258 NLRB 1167, 1174 (1981). I reject Seville's argument
against such notice—that it makes an employee "edgy,"
and that the employer thereafter gets no work out of
him—and conclude that this was simply manufactured
testimony to justify the absence of notice.
The fact that the project was incomplete at the time of
the layoffs, and that work remained to be done, is addi-
tional evidence. 23 One of the two principal components
of the dragline was the revolving frame, and only 30 to
40 percent of the welding on this part had been complet-
ed by September 24, according to Site Superintendent
McGuire. Edwards, Walker, and Eisenzimmer were all
22 Although Respondent objected to what the General Counsel called
"background evidence" of events under Mulberry, in the absence of any
proved connection between Mullins and Mulberry, I have not relied on
background evidence, as there is sufficient evidence of events taking
place after the Mullins takeover to support the General Counsel's case It
may be noted in passing that knowledge of some of the alleged discrumn-
atees' union activities and sympathies was first acquired under Mulberry
by individuals who later became supervisors under Mullins, and that such
knowledge must be presumed to have been retained
Although there is also evidence that North Carolina Phosphate was
opposed to having a union at the Aurora jobsite, that Mulberry, a union-
ized firm, left the job because it could not persuade North Carolina Phos-
phate to change this policy, and that Mullins was selected by North
Carolina Phosphate to take over the job—Respondent calls this the Gen-
eral Counsel's "conspiracy" theory of the case—I have not found it nec-
essary to rely on this evidence
23 General Tire & Rubber Ca, 262 NLRB 1248 (1982), H B Zachry
Ca, 261 NLRB 681 (1982)
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
welders, yet they were laid off. There is no rational busi-
ness reason for this action The fact Respondent thereaf-
ter hired welders is simply more evidence that it was op-
posed to the three alleged discnminatees for discrimina-
tory reasons, 24 as is the fact that some of the laid-off em-
ployees were recalled. Industrial Erectors, Inc., 261
NLRB 888 (1982).
The accelerated production schedule beginning in Oc-
tober, a few weeks after the September 24 layoffs, shows
Respondent's continuing need for employees, and further
detracts from its case. Respondent's argument that this
was a "millwright" operation, for which it did not need
welders, is pure sophistry partially admitted by Mullins.
The Company hired welders after September 24. Ed-
wards had many other construction skills, and was an
electrician. After getting rid of him, Respondent hired
four electricians. Finally, the Company simply reclassi-
fied employees for the millwright operation, including
Ipock, a welder and a known antiunion employee, fur-
ther demonstrating its unlawful intention. Daniel Con-
struction Ca, 264 NLRB 569 (1982). Eisenzimmer's repri-
mand for deficient overhead welding under Mulberry, a
fault which he corrected, is insignificant in the fact of
the General Counsel's evidence.
The record further shows that, after Edwards' layoff,
Respondent asked Heath whether he was going to take
Edwards' place, while Lee actually did so. One of Lee's
activities consisted of handbilling, engaged in at Re-
spondent's front gate in late November. Gibbs also en-
gaged in union activity, and was subjected to coercive
interrogation concerrung it.
The same pattern of events which preceded the Sep-
tember 24 layoffs is also present in the later layoffs.
There was continued union activity and unlawful con-
duct from Respondent concerning it. Matters came to a
head with Lee's handbillmg at Respondent's front gate in
late November. As in Edwards' case, this was followed
almost immediately by the layoff of known union sympa-
thizers. As in the earlier layoffs, this timing suggests un-
lawful motivation.
Although McGuire attempted to give a reason for the
September 24 layoffs—telling employees that there was
no more welding work—he did not give any reason to
the employees in connection with the December 3 lay-
offs, thus suggesting Respondent's illegal motive. Acme
Die Casting Corp., 262 NLRB 777 (1982).
Respondent's economic defense is no more valid in
connection with the later layoffs than it was with respect
to the earlier ones. It still had work to be done on the
project, and, after the December 3 layoffs, hired two
welders, one laborer, and three electricians. Heath, with
21 years' experience in the construction industry and
praise on September 21 from Mullins as one of the "best"
men, was laid off without notice or reason on December
3 The explanation given at the hearing by McGuire—
Heath liked to "chat more than he liked to weld." Re-
spondent's professed reason for the layoff of Lee is even
more bizarre. Although he was a "good welder" in
McGuire's opinion, and could do almost anything in con-
24 Franchet Metal Craft, 262 NLRB 552 (1982), Coil-ACC, Inc , 262
NLRB 76 (1982), Rain-Ware, Inc , 263 NLRB 50 (1982)
struction, he was laid off because he suffered the misfor-
tune of a death in the family (presumably, although not
certainly, requiring him to take time off for the funeral).
Although Gibbs had been twice reprimanded, this could
not have been the reason for his layoff in light of
McGuire's opinion that he was "very" qualified as a
welder.
Respondent may well have reduced its employee com-
plement as the project progressed toward completion.25
However, the asserted "productivity" criteria for the
order of layoffs, enunciated by McGuire, was completely
vague and subjective. In lieu of objective standards, Re-
spondent relied on supervisory "feelings" about the al-
leged discnminatees' "general attitudes" and "personal
problems." Seville's inability to remember his "feelings"
about other employees, the contradiction between his
testimony and McGuire's, and his admission that he
made a productivity study only "in a sense" show that
the alleged study was a sham. Unlike other enterprises,
every construction project comes to an end, one way or
another. Respondent seized on this fact to rid itself of
known union adherents long before completion of the
job.
For these reasons, the General Counsel has established
a very strong prima facie case that Respondent dis-
charged all six alleged discriminatees because of their
union sympathies and activities. And, for the reasons
given above, Respondent has not rebutted that case by
showing that they would have been discharged in the ab-
sence of those activities or sympathies. Accordingly, I
find that Respondent laid off all six employees for the
reasons alleged in the consolidated complaint, in viola-
tion of Section 8(a)(3) and (1) of the Act. Wright Line,
251 NLRB 1083 (1980).
In accordance with my findings above, I make the fol-
lowing
CONCLUSIONS OF LAW
1. F. Mullins Construction, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Local Lodge 30, International Brotherhood of Boil-
ermakers, Iron Ship Builders, Blacksmiths, Forgers &
Helpers, AFL-CIO is a labor organization within the
meaning of Section 2(5) of the Act.
3. By engaging in the following conduct, Respondent
committed unfair labor practices in violation of Section
8(a)(1) of the Act:
(a) Asking employees whether they had received
union cards, whether one employee was trying to get an-
other to sign a card, and the nature of union information
being distributed to employees.
25 Respondent attempted to bolster its case with an appendix attached
to its bnef assertedly showing a reduction in its employee complement
throughout the life of the project This document was not received at the
hearing, and does not constitute part of the record within the meaning of
Sec 102 45 of the Board's Rules and Regulations, since Respondent's
brief is not an "answering brief" within the meaning of Sec 102 4 .6(d) of
the Rules I note in passing that said appendix suggests that Respondent
continued to employ millwright workers, electricians, rigger workers, op-
erators, and pipefitter helpers at least until June 1982—skills possessed by
some of the discnnunatees
F. MULLINS CONSTRUCTION 1029
(b) Asking employees whether they supported or in-
tended to join the Union.
(c) After the layoff of the leading union activist, asking
another employee whether he intended to "carry on" the
Union or lead its organizational efforts.
(d) Asking an employee where he obtained a union
hat, whether a specific employee gave it to him, and
whether he had to sign a union card to get it.
(e) Directing an employee to give a union card, which
he had received from another employee, to a company
agent.
(f) Telling employees that they would probably lose
their jobs if they voted the Union in.
(g) Telling employees that a supervisor would not be
able to find employment with the owner of the site
where the employees' employer had been engaged by the
owner to perform work if the Union came onto the job-
site.
(h) After the beginning of the union campaign, discri-
minatorily telling employees that they could not talk
about the Union during working time.
4. By laying off Barry Edwards, Randall Walker, and
Jerry Eisenzirnmer on September 24, 1981, and Leslie
Heath, Rodney Gibbs, and Douglas Lee on December 3,
1981, because of their union activities or sympathies, Re-
spondent thereby violated Section 8(a)(3) and (1) of the
Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
6. Respondent has not violated the Act except as
herein specified.
THE REMEDY
It having been found that Respondent has engaged in
certain unfair labor practices, it is recommended that it
be ordered to cease and desist therefrom and to take cer-
tain affirmative actions designed to effectuate the pur-
poses of the Act
It having been found that Respondent unlawfully laid
off Barry Edwards, Randall Walker, and Jerry Eisenzim-
mer on September 24, 1981, and Leslie Heath, Rodney
Gibbs, and Douglas Lee on December 3, 1981, and
Leslie Heath having died, it is recommended that Re-
spondent be ordered to offer Barry Edwards, Randall
Walker, Jerry Eisenzimmer, Rodney Gibbs, and Douglas
Lee immediate and full reinstatement to their former po-
sitions or, if those positions no longer exist, to substan-
tially equivalent positions, dismissing if necessary any
employee hired to fill any of said positions, and to make
them and the estate of Leslie Heath whole for any loss
of earnings they or said estate may have suffered by
reason of Respondent's unlawful conduct, by severally
paying them and said estate sums of money to the
amount each individual would have earned from the date
of his unlawful layoff to the date of an offer of reinstate-
ment, and in the case of the estate of Leslie Heath up to
and including the quarter in which he died, less net earn-
ings during such period, with interest thereon to be com-
puted on a quarterly basis in the manner established by
the Board in F. W Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977). 26 In addi-
tion, it is recommended that Respondent be required to
expunge from its personnel records all references to its
unlawful layoffs of the aforesaid employees, except
Heath, and to notify each of them except Heath's estate,
in writing, that this action had been taken and that evi-
dence of their unlawful layoffs will not be used as a basis
for future personnel actions against them.
I shall also recommend that Respondent be required to
post appropriate notices.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed27
ORDER
The Respondent, F. Mullins Construction, Inc.,
Aurora, North Carolina, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Asking employees whether they had received
union cards, whether certain employees are trying to get
other employees to sign union cards, or to describe the
nature of union literature being distributed to employees.
(b) Asking employees whether they support or intend
to join the Union, or any other labor organization.
(c) Asking employees whether they intend to "carry
on" or lead the union organizational efforts.
(d) Asking employees where they obtained union hats
or other union paraphernalia, whether specific employees
gave such items to them, and whether they had to sign
union authorization cards in order to get them.
(e) Directing employees to give union cards to compa-
ny agents.
(f) Telling employees that they would probably lose
their jobs if they voted the Union in.
(g) Telling employees that a supervisor would not be
able to obtain employment with the owner of the site
where the employees' employer had been engaged by the
owner to perform work if the Union came onto the job-
site.
(h) Discriminatorily telling employees after the begin-
ning of a union campaign that they may not talk about
the Umon during working time.
(i) In any like or related manner interfenng with, re-
straining, 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
effectuate the policies of the Act.
(a) Offer Barry Edwards, Randall Walker, Jerry Eisen-
zimmer, Rodney Gibbs, and Douglas Lee immediate and
full reinstatement to their former positions or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
26 See generally Isis Plumbing, 138 NLRB 716 (1962), and in the case
of Heath's estate, Mastro Plastics Corp, 136 NLRB 1342, 1347, 1364
(1962), enfd as modified 354 F 2d 170, (2d Cir 1965)
22 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
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and privileges, discharging if necessary any employee
hired to replace any of them, and make them and the
estate of Leslie Heath whole for any loss of earnings any
of them or said estate may have suffered by reason of
Respondent's discrimination against them and Heath, in
the manner described in the section of this decision enti-
tled "The Remedy."
(b) Expunge from its personnel records, or other files
of the aforesaid individuals, any reference to their unlaw-
ful layoffs, and notify them, except the estate of Leslie
Heath, in writing, that this action has been taken and
that evidence of their unlawful layoffs will not be used
as a basis for future personnel actions against them
(c) Preserve and, on 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 nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at the North Carolina Phosphate jobsite at
Aurora, North Carolina, if any of its employees are still
employed there, and mail to each of its employees at any
time employed on that jobsite, to his or her last known
address, copies of the attached notice marked "Appen-
dix." 28 Copies of the notice, on forms provided by the
Regional Director for Region 11, after being signed by
Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that insofar as the complaint
alleges violations of the Act not specifically found herein
it is hereby dismissed.
28 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"