R. C. Lapeer Builders, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1224 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. C. Lapeer Builders, Inc. and Willard T. Streets
and Paul E. Sandy, Jr. Case 6-CA-13651
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, ANt)
ZIMMERMAN
On July 10, 1981. Administrative Law Judge
Thomas R. Wilks issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, R. C. Lapeer
Builders, Inc., Bridgeport, West Virginia, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
Responldent has excepted to certain credibility findings made by the
Administrative Iaw Judge It is the 1toard's established p licy not to
overrule an administrative law judge's resolutions with respecl to credi-
bility unless the clear preponderance of all of the relevant eidence con-
vinces us that the resolutions are incorrect Standard Dr Wall Productir
Inc.. 91 NlRB 544 (1950), enfd 188 F.2d 3h2 (3d Cir 1951). We have
carefully examined the record and find no hasis for re'ersiiig his finlldings.
Member Jenkins would provide interest on the hackpay aard ill ac
cordance ith his partial dissent in Ompic MIedial C(,rportion. 25(!
NLRIB 146 1980).
DECISION
SIATrMENI OF TIHI CASE
THOMAS R. WIIKs, Administrative Law Judge: Pursu-
ant to an unfair labor practice charge filed by individuals
Willard T. Streets and Paul E. Sandy, Jr., against R. C.
Lapeer Builders, Inc., herein called Respondent, and a
complaint and amendment to the complaint issued by the
Regional Director, and an answer and amended answer
filed by Respondent, a hearing was held before me in
Clarksburg, West Virginia, on April 21. 1981. The issues
litigated are whether Respondent coercively interrogated
employees concerning their union sympathies and threat-
ened employees with discharge if they selected a union
to represent them; and whether Respondent refused to
recall to work employees Willard T. Streets and Paul E.
Sandy, Jr., after they had made an unconditional offer to
return to work following their refusal to cross a lawful
union picket line, thus violating Section 8(a)(l) of the
Act.
On the entire record in this case, including my obser-
vation of the witnesses and their demeanor and in con-
sideration of post-trial briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a West Vir-
ginia corporation with its offices and place of business
located in Bridgeport, West Virginia, herein called Re-
spondent's facility, has been engaged as a masonry con-
tractor in the building and construction industry, con-
structing residential and comercial facilities. During the
12-month period ending September 26, 1980, Respond-
ent, in the course and conduct of its operations provided
services valued in excess of $50,000 for other enterprises
within the State of West Virginia, including Esch and
Sons Company. At all times material herein, Esch and
Sons Company, an Ohio corporation with its principal
office located in Cleveland, Ohio, has been engaged as a
general contractor in the building and construction in-
dustry, constructing residential, commercial, industrial
and office facilities in various States of the United States,
including an apartment complex in Buckhannon. West
Virginia. During the 12-month period ending September
26, 1980, Esch and Sons Company, in the course and
conduct of its operations described above, purchased and
received at its Buckhannon, West Virginia, jobsite, prod-
ucts, goods and materials valued in excess of 50,000 di-
rectly from points outside the State of West Virginia.
It is admitted. and I find, that Respondent is now, and
has been at all times material herein, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. ABOR ORGANIZATION
It is admitted, and I find, that International Union of
Bricklayers and Allied Craftsmen, Local Union No. 15,
herein called the Union, is now, and has been at all times
material herein. a labor organization within the meaning
of Section 2(5) of the Act.
111. IH UNI AIR I ABOR PRACTICES
A. Background
Respondent. a masonry subcontractor, commenced
work for Esch and Sons, the general contractor, at the
Buckhannon. West Virginia, high-rise apartment jobsite
in December 1979. Respondent's owner, president and
chief operating agent. Richard C. Lapeer. commenced
work at the Buckhannon project with his father and two
laborers. After a winter shutdown, the work resumed in
April 1980 and gradually rose to approximately 25 work-
ers who consisted of one labor foreman and an approxi-
mately equal number of bricklayers and laborers. The
258 NLRB No. 165
1 224
R. C. LAPEER BUILDERS. INC.
duties of the laborers included the mixing and hauling of
mortar, bricks, and blocks to the bricklayers, as well as
other duties such as assisting the masons, and building
and maintaining the scaffolding. The Buckhannon job
was completed by Respondent in November 1980.
In September 1979, Respondent had recognized the
Union as bargaining agent for its bricklayers and entered
into an agreement incorporating by reference the terms
and conditions of the building and construction agree-
ment between the Union and the Construction Employ-
er's Association of North Central West Virginia, Inc. On
May 1, 1980, Respondent entered into an agreement with
the Union which incorporated by reference the succeed-
ing building and construction agreement which is effec-
tive through May 31, 1982. Respondent initially adhered
to its collective-bargaining agreement obligations. The la-
borers remained unrepresented by any union.
In April 1980, a dispute arose between Respondent
and the Union concerning the contractual obligation of
Respondent to make fringe benefits contributions for the
bricklayers at the Buckhannon project. Union Business
Agent LeRoy Hunter testified that Respondent had not
by April 1980 made any fringe benefit contributions for
those bricklayers at Buckhannon, and that upon making a
protest he was told by Richard Lapeer, who at first
claimed that he was not bound by a contract with the
Union, that most of his bricklayers were not union mem-
bers and that he was accordingly including the amount
of their fringe benefit contributions in their wages. In his
testimony Richard Lapeer did not claim that he was not
bound to honor the aforesaid union contract but rather
testified that he had made contributions for members of
the Union but not the nonunion members who consisted
of all his bricklayers exclusive of several who had
worked for him regularly for many years. Lapeer testi-
fied that as of May I he had agreed to use union brick-
layers and accordingly was waiting for the remainder of
his bricklayers to become union members before he for-
warded any fringe benefit contributions for them. The
contract provides for a maintenance of membership for
union members and the usual 7-day construction industry
provision for obtaining membership by nonmembers.
There is no evidence that the Union invoked that provi-
so or claimed a breach thereof. There is no exclusive
union hiring hall referral system in agreement or in prac-
tice.
No fringe benefits were paid for the nonunion brick-
layers as of Monday, June 23, 1980, despite the execution
of the May 1 agreement. Or that date Hunter established
a union picket line at the Buckhannon jobsite partly with
Respondent bricklayers and partly with nonemployee
pickets who carried signs which identified Respondent as
the only employer with whom the Union had a dispute,
which identified the Union, and which protested the
nonpayment of contractual fringe benefits. Respondent
does not contend that the picketing was unlawful. The
picketing lasted only I day and was honored by almost
all bricklayers and laborers, as well as the other crafts-
men on the job. Pursuant to an agreement with the gen-
eral contractor, the Union agreed not to picket thereaf-
ter, and Respondent agreed not to schedule any work
until the dispute was resolved, in order that certain
scheduled floor decking could be effectuated by other
contractors. Lapeer and Hunter agreed to meet with Re-
spondent's attorney on Wednesday. June 25. in order to
resolve the dispute. At that meeting Respondent agreed
to make the requested fringe benefit contributions for all
his bricklayers pursuant to the union contract. Respond-
ent scheduled a resumption of its work for Thursday,
June 26.
B. The Rejui'al To Recall Emplovees
Willard T. Streets and his nephew, Paul E. Sandy. Jr.,
were hired by Respondent in April 1980 and worked as
laborers thereafter until June 1980. They were among
the earliest of the laborers hired.
On June 23, Streets and Sandy arrived for work at the
project shortly before the morning starting time. They
observed the picketing and remained in their vehicles for
a few minutes. As other employees began to arrive, they
got out of their cars and mingled with them on the
sidewalk. Streets approached Union Job Steward J. M.
Barkley, who was picketing, and engaged in a conversa-
tion concerning the purpose of the picketing. Richard
Lapeer entered the jobsite several minutes later and
passed near the pickets and other employees who had
not crossed the picket line. Shortly thereafter, Lapeer
emerged again on the street and asked each laborer if he
would comence work. Three or four laborers had al-
ready crossed the picket line and were working. After
Lapeer's inquiry, two laborers crossed the line but subse-
quently changed their minds and reemerged from the
jobsite to rejoin the others, including Streets and Sandy.
The laborers continued to congregate on the sidewalk
and engaged in a conversation among themselves within
view of Lapeer who performed work on the job. The
discussion turned to the subject of whether or not the la-
borers ought to join the laborers' union. and upon reach-
ing a consensus that they should attempt to inquire as to
obtaining membership, Streets left the jobsite to make a
telephone inquiry as to the laborers' union office. He was
unable to contact the laborers' union business agent. but
he did obtain some information from a secretary at the
laborers' union office. He returned to the jobsite and in-
formed the other laborers who continued to mingle on
the street that the laborers' union was not accepting new
member applications. Most of the nonworking laborers
left after a couple of hours. Streets. Sandy, and a third
laborer remained until about 2 p.m. and then left. At
noontime on June 23, two new laborers were hired and
commenced work. There is no evidence submitted as to
the nature of their employment, i.e.. whether they were
hired as strike replacements or whether they were hired
on a temporary or permanent basis. Neither prior to the
resumption of work on June 26 nor thereafter was
Streets or Sandy informed that he had been replaced
during the strike.
According to the testimony of Streets and Sandy. the
following events occurred. Streets reported for work on
June 26 a the starting time. As he approached the high-
rise building on the jobsite. hle was stopped by Lapeer
and told that he was not needed any more. WVhen asked
why, Lapeer said he was cutting back his forces. Streets
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked if he were fired or laid off, but Lapeer merely re-
peated himself. Streets left. Lapeer encountered Sandy
who was reporting for work that day and told him that
he was being "let go" because the crew was being "cut
down," and that he was running out of work. Sandy
became upset and demanded to know the reason why he
should he the first to go since he was one of the first la-
borers hired on that job. Lapeer responded that seniority
was not effective on that job. Sandy continued to protest
that he had observed some new employees on the job.
Lapeer stated that he had "hired them just to work the
day" that the bricklayers were on strike. Sandy contin-
ued to ask Lapeer why he did not select someone who
had been hired several months after Sandy, and further
complained that he, Sandy, had given Lapeer a full
"eight hours a day, plus carried half of the other guys
around on [his] back when [he] was working." To that
Lapeer "just kind of smiled" and said that he had to cut
down the crew. Lapeer told Sandy to give his telephone
number and address to forklift driver Chuck Fox, appar-
ently the laborers' foreman, in the event that he was
needed again. Sandy approached Fox to give him his
telephone number and address and, thinking that Lapeer
intended to discard the information, he warned Fox:
"Don't do me like Richard [Lapeer] done me."
On June 27, Streets reappeared at the jobsite and en-
countered Lapeer and asked if he would ever be needed
again. Lapeer answered that he did not know but in-
structed Streets to leave his name with Fox. Streets ob-
served new workers on the job and asked Lapeer if he
had hired any new employees, but Lapeer did not re-
spond.
Lapeer's testimony regarding the aforedescribed exit
interviews was cryptic and essentially not explicitly con-
tradictory. Lapeer characterized Streets as "a little hos-
tile about it, asking a lot of questions and so forth."
Lapeer testified that he told Streets he was laid off be-
cause Lapeer had to cut back, and that when asked to
leave a telephone number and a way to contact him,
Streets refused. Lapeer testified that Sandy came in to
work and was "rather hostile" and not "calm." Lapeer
testified that he told Sandy that he was being laid off but
that Sandy "hung around for quite a while," and that
"on several occasions he threatened to do me bodily
harm or have blows with me or something and I told
him I didn't think that was a good thing to do." Lapeer
testified that in light of Sandy's statements, Lapeer did
not even get a chance to ask for Sandy's address. Al-
though Respondent admittedly maintains payroll records,
it is not clear why it would not already have telephone
numbers and addresses for employees who had worked
for it for several months. In fact, Lapeer did not testify
that he did not have that information already nor that he
failed to recall Streets and Sandy because of the lack of
such information. Sandy admitted that he was upset at
the time, but convincingly denied making any kind of
threat to Lapeer. In light of Lapeer's generalized testi-
mony and his demeanor of uncertainty, credit the more
detailed testimony of Streets and Sandy who were far
more certain, spontaneous, and responsive witnesses. In
any event, Lapeer did not testify that he refused to recall
Sandy because of any purported misconduct.
On the day of the strike Respondent was at an em-
ployment level of about 25 bricklayers alld laborers com-
bined. Or June 26, three laborers tsere not employed
then or thereafter; i.e., Streets, Sandy. and the third la-
borer who remained on the street with them until 2 p.m.
on June 23. The third laborer was identified only as
Chuck and no testimony was adduced as to his circum-
stances. The record is unclear as to how many bricklay-
ers were not employed after the strike. arkley, the
bricklayer steward, testified that one bricklayer. a non-
union member, was laid off. I.aborcr Michael Bennett
testified that several bricklayers were not employed
thereafter.
There is no evidence that Respondent reduced its
work force because of the lack of work available or that
it had no need to continue with its full prcstrike work
force. Barkley testified, without contradiction, that after
the resumption of work on June 2 he engaged in several
brief conversations with Lapeer wherein he Iasked why
three laborers were laid off and that Lapcci responded
that he would probably recall them. A day or two later,
Barkley met with Lapeer and Respondent's attorney at
lunch under a nearby tree and he again asked about the
layoffs and was told that the crew was cut back and that
things were going to be held "the way they were." Bark-
ley testified credibly, without contradiction, that the two
laborers hired at noon on June 23 continued to work
after June 26 and that on a later date after the strike
other laborers were hired.
Bennett testified credibly, without contradiction, that
after the strike he engaged in a conversation with Lapeer
after Lapeer approached him on the job and commenced
talking about Streets. In that conversation Lapeer said
that he hated to "get rid of' Streets because he was a
good scaffolding builder. Bennett was thereafter assigned
to scaffolding construction. Bennett, again credibly and
without contradiction, testified that after the strike four
new laborers were hired as work progressed, and that a
couple of new bricklayers were also hired. Some laborers
were hired after the investigation of the unfair labor
practice charge which was filed on July 21, 1980(). and
which, of course, contained the address and telephone
numbers of Streets and Sandy, who were not recalled.'
Lapeer testified that he had to cut back because there
were five bricklayers whom he would not employ after
the strike because they were nonunion members. Because
of the loss of five bricklayers, Lapeer reexplained that
the remaining number of bricklayers could not support a
full staff of laborers. He testified that he "just had to
pick who [he] wanted to keep." What Lapeer did not ex-
plain in his testimony is why he concluded that he had to
terminate the employment of nonunion bricklayers and
why he chose to lay off Streets, whose skills he valued,
and Streets' nephew Sandy, both of whom were among
the earliest employees hired. When pressed for an expla-
nation as to the termination of nonunion bricklayers, La-
peer's testimony became evasive and nonresponsive. He
testified that the job became a union job as of May I
' RcipondCni', Cont1tllc(lI ii il, briCi IlL f1 Stf1,-T ;a1 ' l ld' Si \ \.c. CIf-
fered rc 'niplolynellli" 11 ()cthobr 14 . 1 0, i. mit upporlcd 1,\ 11tC
rccord c i(.ClICC
1226
R. C. LAP'FER BUl ILDERS. INC
when he signed the second agreement with the Union.
lie testified that he sent the nonunion bricklayers to the
union hall to apply for membership but that "they
weren't signed up." He testified that he did not know
whether those bricklayers refused to join the Union or
whether the Union refused to admit them into member-
ship, but that in anN event the Union at no time commu-
nicated with him concerning the employment of non-
union bricklayers. He was equally obscure as to how the
failure of five bricklayers to obtain union membership
after Ma I was related to his decision to terminate them
on June 26. Therefore, Lapeer's testimony indicates that
Streets and Sandy were not laid off because of a decline
in work but rather because Lapeer terminated the em-
ployment of bricklayers because of their nonmembership
in the Union in the absence of any evidence that those
bricklayers failed to tender initiation fees and dues to the
Union and in the absence of any evidence that the Union
requested the enforcement of a valid union-security
clause.
However, there is no explanation as to why Streets
and Sandy were not recalled to work when thereafter
Respondent reached the need for four new laborers to
augment the two laborers hired on the day of the strike
and after it hired new bricklayers. Ultimately. Respond-
ent reached a net gain of three more laborers than it had
employed on the date of the strike.
C. nterrogation-' hrelts
Streets testified that commencing in mid-May 1980,
Lapeer engaged in several conversations with him at the
jobsite whcrcin Lapeer, without setting forth his reasons.
and without assuring Streets of no reprisals, interrogated
Streets as to \\ hat he would do in the event the laborers'
union "was to come into the job site," and further told
him that if such eventuality came to pass Streets would
lose his job. Sandy testified that he had several conversa-
tions on the jobsite with Lapeer during late May and
June 1980 concerning the laborers' union. These conver-
sations occurred within the context of Lapeer's an-
nouncement to the bricklayers that the bricklayers' union
was "coming in" and they would have to vote for or
against it. During his conversations with Lapeer, Sandy
was interrogated, without stated reasons for the interro-
gation and without assurances against reprisals, as to
what his sympathies were toward the laborers' union,
whether he was in favor of it, or whether he would vote
for it. According to Sandy, he responded that he did not
know what the union was about, but that he would have
to find out. In these conversations Lapeer told Sandy
that if the laborers' union "came in" Sandy would lose
his job because the laborers' union maintains a hiring
hall. Thus I.apeer implied that he would terminate Sandy
and hire new employees exclusively referred by the
Union. On one occasion, according to Sandy, he asked
Lapeer why he was opposed to the laborers' union in
light of the benefits they might obtain for employees.
Lapeer responded that the laborers' union would not
provide for any benefits but would merel collect
money.
Bennett testified that after the bricklayers' strike and
when he was working on the jobsite. the laborers had
engaged in a great deal of discussion on the job as to
representation by the laborers' union. Immediately there-
after, he and Lapeer entered the building elevator to de-
scend to the ground level and L.apeer told Bennett (that
if he were Bennlett) he would not volte for the laborers'
union because if that union "came in" Bennett would
lose his job.
()1n direct examination Lapeer xsas asked:
Q. 13By Mr. (ill] A numlber f con,.eriatilons haxc
been referred to here today. i the testimony spe-
cifically some one on one conversations with Mr.
Sandy and with Mr. Streets, could you state helth-
er or not you have any recollection of any one on
one coltversations with either of these gentlemen,
specilically with respect to whether or not they
were going to be interested in a union or not'
A. I can't recall any specific one oni one conver-
sations it was a topic of conversation with ever\-
body about that time, but I didn't single them out to
talk to them privately or anything.
Bennett's credible testimony remained uncontradicted.
I do not find Lapeer's testimony, given in a hesitant, un-
certain demeanor, to constitute an adequate contradiction
of the testimony of Sandy and Streets. In any event, I
find them to be the more persuasive and convincing wit-
nesses. I conclude that from at least mid-May 1980 up to
and continuing after the bricklayers' strike, the subject of
union representation of the laborers was an openly dis-
cussed topic of which Lapeer was aware. I conclude that
he attempted to interfere with and frustrate potential em-
ployee interest in union representation by the laborers'
union by coercively interrogating his employees con-
cerning their union sympathies and by threatening them
with loss of' employment directly and indirectly as a
result of an application of a discriminatory hiring ar-
rangement and thereby violated Section 8(a)(1) of the
Act.
Conclusions
Respondent and the Union were involved in a labor
dispute over the application of certain economic terms of
their labor agreement and that dispute led to a strike on
June 23, 1980. 1 conclude that the strike and picketing
constituted lawful activity which as protected by the
Act. Accordingly. the right to engage in a sympathy
strike or to honor another union's picket line is also pro-
tected. Gary IHobart Water Corporation, 210 NLRB 742,
744 (1974). enfd. 511 F.2d 284, 287 (7th Cir. 1975). cert
denied 423 U.S. 925 (1975). Therefore, as sympalh\ strik-
ers Streets and Sandy wvere engaged in activity protect-
ed by the Act, as much as the striking emplosees repre-
sented by the Union. The Supreme Court has stated: "If,
after the conclusion of the strike, the employer refuses to
reinstate striking employees, the effect is to discoutrage
cmployecs from exercising their rights to organize and to
strike guaranteed by 7 and 13 of the Act .... " The
Court further stated that an employer can only justify
such refusal for "legitimatile a; d substlantial business justi-
fication,'' e.g.. the strikers' jobs have been filled by per-
manent replacementis durinig he strike in order to conlin-
1 227
DECISIONS OF NATIONAL LABOR RELATIONS 13OARD
ue operations, or their jobs have been eliminated for
good faith reasons unrelated to labor relations, and that
the burden of proving such justification is placed on the
employer. NL.R.B. v. Fleetwood Trailer, Co., Inc., 389
U.S. 375, 378-379 (1967).
The Supreme Court has stated in N.L.R.B. v. Great
Dane Trailers. Inc., 388 U.S. 26, 33-34 (1967):
Some conduct however, is so "inherently de-
structive of employee interest" that it may be
deemed proscribed without need for proof of an un-
derlying improper motive. Labor Board v. Brown.
supra at 287; American Ship Building Co. v. Labor
Board, supra at 311. That is, some conduct carries
with it "unavoidable consequences which the em-
ployer not only foresaw, but which he must have
intended" and thus bears "its own indicia of intent."
Labor Board v. Erie Resistor Corp., supra at 228, 231.
If the conduct in question falls within this "inher-
ently destructive" category, the employer has the
burden of explaining away, justifying or character-
izing "his action as something different than they
appear on their face" and if he fails "an unfair labor
practice charge is made out." Id. at 228. And even
if the employer does come forward with such
counter-explanation for his conduct in this situation,
the Board may nevertheless draw an inference of
improper motive for the conduct itself and exercise
its duty to strike the proper balance between the as-
serted business justifications and the evasion of em-
ployee rights in light of the Act and its policy.
The Court further stated that "If it can reasonably be
concluded that the employer's discriminatory conduct
was 'inherently destructive' of important employee
rights, no proof of an unlawful motivation is needed and
the Board can find an unfair labor practice even if an
employer introduces evidence that the conduct was moti-
vated by business considerations."
Without justification, clearly the failure to reinstate
sympathy strikers upon request is conduct inherently de-
structive of employees' rights under the Act. Respondent
herein has failed to prove any business justification for
the failure to reinstate Streets and Sandy. Indeed, the
only justification proffered was that Streets and Sandy
were not reinstated because of Respondent's discrimina-
tory termination of nonunion bricklayers. However, in
light of Respondent's failure to prove that there was in-
sufficient work for Streets and Sandy, even such explana-
tion remains inexplicable, and I must infer that Respond-
ent was motivated by a desire to discourage employees
from engaging in protected activities. Accordingly, I
conclude that Respondent, by failing to reinstate Streets
and Sandy, violated Section 8(a)(1) of the Act as alleged
in the complaint.
CONCUSIONS O1- LAW
1. Respondent is and has been at all times material an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. International Union of Bricklayers and Allied
Craftsmen, Local Union No. 15, is and has been at all
times material, a labor organization within the meaning
of Section 2(5) of the Act.
3. On various dates in the second half of May 1980
and in the month of June 1980, Respondent, by its agent,
Richard C. Lapeer, coercively interrogated its employees
concerning their sympathies and support for union repre-
sentation.
4. On various dates in the last half of May 1980 and in
June 1980, the Respondent. by its agent, Richard C.
Lapeer, threatened its employees with loss of employ-
ment in the event they selected a union as their bargain-
ing agent.
5. On or about June 26, 1980, and thereafter, Respond-
ent refused and failed to reinstate employees Willard T.
Streets and Paul E. Sandy, Jr., who had made an uncon-
ditional offer to return to their former or substantially
equivalent positions of employment following their refus-
al to cross a lawful picket line established by the Union
at Respondent's jobsite, in order to discourage said em-
ployees from engaging in such activities or other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection.
6. By the conduct described in paragraphs 3, 4, and 5
above, Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, and thereby has been engaging in
unfair labor practices within the meaning of Section
8(a)(1) of the Act which affects commerce within the
meaning of Section 2(6) and (7) of the Act.
TH R.MtEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I find it neces-
sary that Respondent be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Having found that Re-
spondent violated Section 8(a)(1) of the Act by refusing
to reinstate Willard T. Streets and Paul E. Sandy, Jr.,
who made an unconditional offer to return to their jobs
following their engagement in concerted protected activ-
ity as sympathy strikers, I find it necessary that Respond-
ent be ordered to reinstate these employees to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions. and to make them whole for
any loss of pay they may have suffered as a result of the
failure to reinstate them on June 26 and thereafter. Back-
pay is to be computed in accordance with the formula
set forth by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).2 Additionally, Respondent will be or-
dered to post an appropriate notice to employees where
notices are normally posted at its current jobsites, and
mail a copy of the notice to all employees employed at
the time of its unlawful conduct in May and June 1980
but who are not employed at the timing of this posting.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
2 Sc. gcnerall,. IAI luminw & Iaiig Co.. 13 N RB 716 (1962)
1228
R C. APEER UIL.DERS. INC.
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 3
The Respondent. R. C. Lapeer Builders, Inc., Bridge-
port, West Virginia, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their sympathies and support for union representation.
(b) Threatening its employees with loss of employment
in the event that they select a union as their bargaining
agent.
(c) Refusing and failing to reinstate its employees who
make an unconditional offer to return to their former or
substantially equivalent positions of employment follow-
ing their refusal to cross a lawful picket line at Respond-
ent's jobsite, in order to discourage said employees from
engaging in such activities or other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection.
(d) In any like or related manner interfering with, re-
straining, and coercing its employees in the exercise of
their rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action:
(a) Offer to Willard T. Streets and Paul E. Sandy, Jr.,
immediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss
of pay which they may have incurred by reason of Re-
spondent's failure to reinstate them after the June 23,
1980, strike at the Buckhannon, West Virginia, jobsite in
the manner described above in The Remedy.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports. and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its current jobsites and mail to all employ-
ees employed at the time of its unlawful conduct in May
and June 1980, but who are not employed at the time of
this posting, copies of the attached noticed marked "Ap-
pendix."4 Copies of said notice on forms provided by the
Regional Director for Region 6, after being duly signed
by Respondent's representative, shall be posted and
mailed to the aforesaid employees immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places. including all
I: the cvent no exceptilr are filed a pro ided h Sec I02 46 of the
Rule' and Regulations of the National Labor Relatilos loard. the flnd-
ing. conllusioins and recommended Order herein hall. a pro, ided in
Sec. 1()2.48 of he Rule' and Regulation'.. hb adopted bh the Hoard and
become iti findings'. conclusion'.. and Order. and all ohieclion, lhereto
.hall be deemed w.a aivcd fr all purpose.
In the cut hi', Order is tenforced h it Judgment f a ulted State'
Court of Appeal.. the Lvords in he notice reading "t'o',led h Order of
the National n Iahr Relat ion. IHoard" shall read "'lt'l e(lpu I rsuain I" a
Judgment f he U ited States Court of Appeal, I fortcing an Order of
the Nalional l.abohr Relalions BIoard"
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order. what
steps Respondent has taken to comply herewith.
APPENDIX
No-ICI. To EiMPi OYLES
POSTED) By ORI)I:R 01 THE
NAT IONA. LABOR RiI ArIONs BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form. join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
W. W\tl1. NOI coercively interrogate our em-
ployees concerning their sympathies and support for
union representation.
Wl Willt Nor threaten our employees with loss
of employment in the event that they select a union
as their bargaining agent.
WI, Wll NOT refuse and fail to reinstate our em-
ployees who make an unconditional offer to return
to their former or substantially equivalent positions
of employment following their refusal to cross a
lawful union picket line at our jobsite, in order to
discourage them for engaging in such activities or
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
WE Wll. NOT in any like or related manner in-
terfere with, restrain, and coerce our employees in
the exercise of their rights guaranteed them in Sec-
tion 7 of the Act.
Wt wil.l. offer to Willard T. Streets and Paul E.
Sandy. Jr., immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, and make them
whole for any loss of pay which they may have in-
curred by reason of our failure to reinstate them
after the June 23, 1980, strike at the Buckhannon.
West Virginia, site.
R. C. L.AlI I R lil 1 )IRS. INC.
1229