Bob's Casing Crews, Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1969

178 N.L.R.B. 3 (N.L.R.B. 1969)

BOB'S CASING CREWS
Bob's Casing Crews , Inc. and Local 826,
International Union of Operating Engineers,
AFL-CIO. Case 16-CA-3401
August 1, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND BROWN
On March 18, 1969, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in the case, and adopts the
findings, conclusions, and recommendations of the
Trial Examiner' with the following modification.
Unlike the Trial Examiner, we do not find that
the Respondent refused to reemploy Loper to
discourage membership in any labor organization.
Accordingly, we find no violation of Section 8(a)(3)
of the Act.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that Respondent, Bob's
Casing Crews, Inc., Odessa, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified:
'The Respondent ' s motion to set aside the Trial Examiner's Decision is
denied . As the Trial Examiner ' s Decision , the exceptions , the briefs, and
the entire record in the case adequately present the issues and the positions
of the parties, the Employer 's request for oral argument is denied.
'The Trial Examiner' s finding of an 8(axl) violation , which we adopt, is
based upon the Respondent 's refusal to reemploy Billy Ray Loper because
of his protected concerted activities while employed by Red' s Casing
Crews. There is no showing that any labor union was involved in the
activities at Red 's. The Trial Examiner found it unnecessary to consider
whether Loper' s participation in the Charging Party's strike for recognition
against the Respondent contributed to the Respondent 's decision not to
reemploy him. Accordingly, and in the absence of exceptions to the Trial
Examiner ' s failure to base his 8(a)(3) finding on Loper's strike activity, we
conclude that a finding of an 8(a)(3) violation is not warranted.
3
1. Delete paragraph 1(b) from the Recommended
Order and renumber paragraph 1(c) as paragraph
1(b).
2. Delete the final sentence in the notice attached
to the Recommended Order.
MEMBER BROWN , dissenting:
The record, in my opinion, does not establish that
Respondent refused to hire Loper for union
considerations or for otherwise engaging in
protected concerted activities. I would, therefore,
dismiss the complaint.
TRIAL EXAMINER'S DECISION
JOSEPH I . NACHMAN, Trial Examiner: This proceeding
tried before me at Odessa, Texas, on January 14 and 15,
1969, involves a complaint' pursuant to Section 10(b) of
the National Labor Relations Act (herein called the Act),
which as amended alleges that Bob's Casing Crews, Inc.
(herein Respondent), refused to reemploy one Billy Ray
Loper because of his assistance to and support of Local
826, International Union of Operating Engineers (herein
the Union), and because of his concerted activities with
other employees for their mutual aid or protection, in
violation of Section 8(a)(3) and (1) of the Act, and by
threats and other conduct interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
by Section 7 of the Act, thus independently violating
Section 8(a)(1) thereof.'
For reasons hereafter stated I find and conclude that
Loper was denied reemployment because of his concerted
activities, but the General Counsel has failed to establish
by a preponderance of the evidence, that Respondent
independently interfered with the Section 7 rights of itsl,
employees and that the allegations of the complaint in
that regard should be dismissed.
At the trial the parties were represented by counsel, and
were given full opportunity to examine and cross-examine
witnesses , to introduce relevant evidence, to argue orally
on the record, and to submit briefs. Oral argument was
waived. Briefs submitted by the General Counsel and
Respondent , respectively, have been duly considered.
Upon the entire record in the case, including my
observation of the demeanor of the witnesses, I make the
following:
'Issued October 22, on a charge riled August 9, and amended charges
riled August 19 and September 12. These and all dates hereafter mentioned
are 1968 , unless otherwise noted.
'This case originally came on for trial before Trial Examiner Jerry B.
Stone, on December II. At that time par. 7(a) of the complaint alleged
that between May 15 and June 15, Supervisor Newman ordered employees
to refrain from discussing union matters among themselves during their
nonworking time . On motion par. 7(a) of the complaint was amended by
the General Counsel to allege that the event therein referred to occurred on
or about June 1. Trial Examiner Stone, on the representation of
Respondent ' s counsel that he needed further time to prepare for the
amendment , granted a continuance . At the conclusion of the General
Counsel's case in the trial before me, Respondent moved to dismiss all
allegations of the complaint , individually and collectively, for lack of
adequate proof. In response to my request of General Counsel to detail
what evidence the record contained to support the allegations of par. 7(a),
he answered "None." Accordingly , the motion to dismiss was granted
insofar as it related to par . 7(a). This ruling makes it unnecessary to
consider Respondent 's further contention that par. 7(a) of the complaint as
amended had no charge filed within 6 months of the event , to support it. If
the point had to be decided I would have no hesitance in holding that the
charges herein are adequate to support the complaint as amended.
N.L.R.B. v. Fan! Milling Co., 360 U.S. 301.
178 NLRB No. 2
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACTS
A. The Unfair Labor Practices Alleged
1. Background
The Union began its organizational campaign in late
February or early March, and within the following 30
days held several meetings with employees at which
authorization cards were signed. Company President
Blackmon admittedly learned of the Union's activity
among Respondent's employees on or about March 10.
Later in March, the Union orally requested recognition
from Blackmon , and thereafter renewed its request in
writing . Such requests either went unanswered , or were
denied . Shortly after learning of the Union' s campaign,
Blackmon made a speech to his employees that he caused
to be assembled for the purpose. Although the General
Counsel concedes that the speech was protected by
Section 8(c) of the Act, he contends, and I find, that the
speech and other events hereafter referred to, demonstrate
Respondent's hostility to the organizational activity of its
employees.' On April 17 the Union hand delivered a letter
'The complaint herein alleges that the Union is a labor organization
within the meaning of the Act . Respondent 's answer states that it "neither
admits nor denies" that allegation . No claim was made that Respondent
was without knowledge of the facts . As the answer did not comply with
Sec. 102 . 20 of the Board ' s Rules and Regulations , the averments of the
complaint in that regard are deemed admitted , and I find that fact to be as
there alleged . With respect to commerce , the complaint alleges and the
answer admits that Respondent is engaged at Odessa , Texas and Hobbs,
New Mexico , in the business of running casing for the oil well drilling
industry , and in renting tools and equipment for such purposes , and that
during the past year it performed services valued at more than $50,000 for
customers outside the State of Texas, and also performed services valued
at more than $50,000 for customers within the State of Texas who made
sales to customers engaged in interstate commerce . Although Respondent
admitted those allegations of the complaint , it argues that the Board is
without jurisdiction over its operations because they are essentially local
and there has been no showing that a strike among its employees would
have any impact upon interstate commerce or the free flow thereof. The
contention is plainly without merit . See N.L.R.B. v . Reliance Fuel Oil
Corp., 371 U.S . 224, and the cases there cited. Respondent further argues
that while its business fits the Board 's $50,000 outflow test announced in
Stemon 's Mailing Service , 122 NLRB 81, that standard cannot be applied
to its operations because the casing business is new and was not before the
Board when the test announced in Stemon , supra. was adopted, and hence
cannot be said to have been contemplated by the Board as applicable to
the casing business . In support of this argument Respondent cites Seattle
Real Estate Board , etc., 130 NLRB 608, 610 . 1 find the -.argument
unconvincing . Stemon , supra, was intended to lay down the broad rule,
that absent unusual circumstances , such as were present in Seattle Real
Estate Board (which decision has not been cited or relied upon by the
Board since it issued ), that the Board would assert jurisdiction "over all
nonretail enterprises" meeting the $50 ,000 inflow or outflow test, and
Stemon , supra , has been applied by the Board to the oil well drilling
industry , of which it regarded the running of casing as an integral part.
Hondo Drilling Company N .S.L.. 164 NLRB No. 67 ; Carl B. King
Drilling Co., 164 NLRB No. 68 ; Colo . Well Service . Inc., 163 NLRB 101;
Wek Drilling Co . Inc.. 174 NLRB No. 92 . Moreover , the Board has in
fact found the Union to be a labor organization, and has asserted
jurisdiction over Respondent . In Bob's Casing Crews , Inc.. 16-RC-4968, a
representation proceeding filed by the Union on July 31, 1968 , and still
pending , a hearing was conducted at which Respondent raised the same
jurisdictional issue it raised here . The Regional Director on October 8,
issued his Decision and Direction of Election , finding the Union to be a
labor organization , and specifically rejecting the defense of lack of Board
jurisdiction . The Board , on December 4, denied Respondent 's Request For
Review , holding that the Request "raises no substantial issue warranting
review ." The Regional Director's Decision and the Board's denial of
review , are exhibits 'in the instant case.
to Respondent's office, which Blackmon admitted he
received , again demanding recognition , and stating that
unless such was granted by midnight that day, there would
at that time "be a work stoppage by your employees."
Respondent did not reply to the Union's letter, and at
midnight April 18, a number of Respondent's employees
left their jobs and engaged in a strike against it.' On May
9, the Union wired Respondent that it was unconditionally
offering to return all striking employees to work as of 8
p.m., May 10. Respondent replied that although Union
did not represent a majority, the company would reinstate
those striking employees who had not been discharged for
cause,' and who individually unconditionally offered to
return to work. The strike thereupon terminated.'
2. Independent interference, restraint, and coercion
To establish this aspect of his case, the General Counsel
relies entirely upon the uncorroborated testimony of Cecil
Earnest, who testified that "on or about" April 1, "late in
the morning ," at Respondent's shop, Blackmon stated to
him, in the presence of four or five other employees, in
substance, that he had been in business for 13 years, that
he would run it as he saw fit, and that he would padlock
his doors before he would have a union telling him what
to do. According to Earnest, those present were standing
in a group, within 6 or 8 feet of each other, that
Blackmon spoke in a normal tone of voice so that none of
those present should have had any difficulty hearing what
was said . When pressed for the identity of those present,
Earnest could name only J. R. Tankersley, and Glen
Golden, the supervisory status of the latter not being in
question, claiming inability to recall the names of the
others.
In addition to Blackmon who denied that he made any
statement of the nature attributed to him by Earnest,
Respondent called the three employees regularly assigned
to the shop,' who testified that they never heard Blackmon
make such remark at any time or place. Paul Burns,
employed by Respondent as a caser, testified that he
normally worked as a member of Earnest's crew, and
when he did so accompanied the latter to the shop to turn
in work tickets, and that he never heard Blackmon make
a remark of the nature here involved. Although Earnest
claimed that he had discussed Blackmon's statement with
Glen Golden, the latter denied that he had heard such a
'Blackmon's speech was tape recorded , and a substantial portion of it
was transcribed into the record . I deem it unnecessary and of no particular
benefit to refer to specific portions of the speech . Suffice it to say, the
speech read in its entirety, plainly shows that by comments entirely
legitimate , Blackmon was conveying to the employees that he did not want
a union in his operation , and tried to convince them that it would be in
their interest not to select union representation . To that extent the speech
evidences antiunion animus.
'There is a conflict in the evidence as to the number and identity of the
employees who engaged in the strike. The General Counsel contends that
about 13 employees did so, while Blackmon claims there were only about
seven or eight . Except with respect to Loper, the alleged discriminatee, the
pertinent facts of which are hereafter dismissed , I find it unnecessary to
resolve the conflict.
'The record shows that on April 23 , Respondent discharged employees
Earl Pierce , Cecil Earnest , and Jimmie Branum . According to the letters
sent these employees , each was discharged "for assaulting an employee of
this company on or about April 21, 1968 ." The legality of these discharges
is not in issue here.
'According to Blackmon , whose testimony in that regard is
uncontradicted , all striking employees who applied for reinstatement, were
returned to work. Three employees not involved here did not apply for
reinstatement. It is undisputed that Loper did not do so.
'These are Floyd Bingham, Bidal Moya, and Charles Dugan.
BOB'S CASING CREWS
remark by Blackmon at any time . In addition Golden
identified a work ticket showing that on April 1, he was
on a job about 75 miles from Odessa , and testified that
the job required his absence from town for something over
15 hours.
Conclusions as to the Section 8(a)(1) Allegations
Upon consideration of the entire record relating to this
aspect of the case , I find and conclude that the General
Counsel has failed to prove by a preponderence of the
credible evidence that Blackmon made the remarks which
Earnest attributed to him . I reach this conclusion because
of (1) Earnest ' s demeanor while testifying which did not
impress me as evidencing a credible witness ; (2) the
General Counsel 's failure to call, or explain why he did
not call Tankersley , one employee whom Earnest
identified by name as having allegedly heard Blackmon's
statement ; and (3 ) the fact that Earnest had a motive for
testifying as he did , namely his discharges by Respondent
in April , as noted fn . 6, supra.' When these factors are
considered in the light of the affirmative evidence adduced
by Respondent on this issue , I must and do find and
conclude , that the General Counsel failed to prove this
allegation by a preponderence of the credible evidence,
and that the same should be dismissed.1°
3. Alleged failure to reemploy Loper
Loper had been employed by Respondent since about
July 1967 , as a regular caser , and worked in that capacity
until about December 20, 1967 . During this time he
worked in a crew supervised by Raymond Northcutt."
Because Loper wanted to return to his home in
Mississippi for the the impending Christmas holiday, he
asked Northcutt for the time off. Northcutt explained that
'because the work was of an emergency nature , and that
Loper ' s absence might make it necessary for another
employee to loose his holiday by having to work in
Loper ' s place , it was company policy not to grant time off
during a holiday , and that any regular employee who was
not available if called for work on a holiday , would be
discharged . A day or two later , Loper told Northcutt that
he was going home for Christmas , but rather than risk
discharge he would quit , and when he returned to the
Odessa area would work as an extra . Loper testified
without contradiction that Northcutt raised no objection
to what Loper proposed to do , saying only that he hated
to loose Loper, and would call him as an extra when such.
work was available . The regular employment which Loper
thus terminated ended on or about December 20, 1967.12
Following his return to the Odessa area , Loper worked as
an extra for Respondent and some four or five other
employers , including Red's Casing Crews . The record is
clear that during 1968 , Loper worked for Respondent as
an extra a total of 9 days , the last one being on April 18."
'I have given no consideration to the statement in Respondent 's brief
that on April 29, Earnest filed a charge with the Board alleging that his
discharges by Respondent was discriminatory , which charge was dismissed
by the Regional Director on July 19 , because such facts are not of record
in this case , and the Board's records available in Washington are not of
such a nature as to permit verification of the alleged facts.
"This conclusion makes it unnecessary to consider whether, as
Respondent contends , Earnest was a supervisor within the meaning of the
Act and that there is no proof that any employee heard the statement.
"Respondent 's employees work in crews ; a crew consisting of a crew
hauler , and normally four casers . The crew hauler is the one who gets the
job order, assembles the crew by calling the casers who normally work for
him, or if a particular man is unavailable , an extra that works when called
by any crew hauler . The extras work not only for Respondent, but for any
other employer in the industry who might call them . The crew haulers
admittedly are supervisors.
5
During the Union campaign heretofore mentioned,
Loper attended some four or five union meetings, and at
the first such meeting along with a number of other
employees signed a Union card . That was also attended
by one "Russell ," who is identified in the record only as
"a crew hauler for Bob 's," as well as by Glen Golden and
Billy Gilbert , both admitted supervisors of Respondent,
Golden also then signing a card . On April 18 , when the
Union struck Respondent for recognition , Loper was at
work for Respondent in a crew supervised by Golden, and
left that job before it was completed , as a striker. After
April 18 , Respondent 's crew foremen did not call Loper
for "extra" work , nor did Loper apply to Respondent or
any crew hauler for work . During that period Loper
worked for other employers , but their identity nor with
what regularity , does not appear . Although Company
President Blackmon testified that on April 18, he was not
aware that Loper had participated in the strike against
Respondent , he admitted that he learned of that fact when
the payroll covering that period was prepared . Although
the date of this does not appear , it could not have been
more than a week or 10 days later.
As heretofore stated , after the conclusion of the strike
which began April 18 , Respondent did not call Loper to
work , nor until the events hereafter referred to, did Loper
ask it for work , although he was available for such on the
basis of an "extra ." On or about August 6, Loper
telephoned crew hauler Golden , and in the course of the
conversation asked Golden if the latter had work for him,
saying that he had been discharged by Red ' s Casing
Crews, the employer for whom he had worked
immediately prior thereto . Golden told Loper that he
would hire him, but could not do so unless the latter first
cleared through the office , stating that his standing
instructions were not to hire anyone without such
clearance . Loper agreed to seek the required clearance."'
Loper then called Company President Blackmon and
asked whether he (Loper ) was barred from working for
Respondent . Blackmon replied "No, I don ' t guess. Why."
Loper replied that he had theretofore regularly worked for
Respondent , but had quit and then worked as an extra
until he left the job to engage in the strike which occurred
on April 18 . Blackmon asked where he (Loper) had been
working . Loper replied that he had been working for
Red's Casing Crews , but had been fired because he and
some fellow employees left a job after having worked
more than 20 consecutive hours, and Red's failed to send
relief. Blackmon told Loper that in the oil fields there
were good jobs and bad jobs , that a worker stood to make
them all , that Loper would have to file a new application,
but that the matter of screening applicants had been
delegated to Billy Gilbert , an admitted supervisor, and
that Loper should communicate with Gilbert . However,
Blackmon also told Loper that leaving a job in the middle
wasn't much of a recommendation to go to work for
Respondent . 16 Following his conversation with Loper,
Blackmon called Crew Foreman Northcutt , for whom
Loper had worked prior to December 1967, and inquired
as to the circumstances under which Loper had then quit.
"The findings to this point are based on a composite of the credited
testimony of Loper and Northcutt , which basically is not in conflict.
"The exact dates are January 5 and 25, February 3 and 28, March 13
and April 1 , 3, and 18.
"To this point there is no basic conflict in the evidence ; the foregoing
findings being based on a composite of the credited testimony of Loper
and Golden.
"My findings with respect to this conversation are based on a composite
of the testimony of Loper and Blackmon which , to the extent credited is
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ascertaining that Loper had quit to enable him to go
home for Christmas, and to avoid being fired for not
being available at that time , Blackmon then
communicated with Billy Gilbert. Blackmon told Gilbert
of Loper's call to him for employment, and that he had
referred Loper to Gilbert. He also told Gilbert the reason
for Loper' s quitting before Christmas 1967, and that he
had walked off the Red's job, and remarked that while
Gilbert would have to pass on the matter, in his
(Blackmon's) view this was not much of a
recommendation for employment with Respondent.
Following his conversation with Blackmon on August 6,
Loper sought to telephone Gilbert, but was unable to
reach him until the evening of August 7. Loper told
Gilbert that he had applied for work and that Golden had
agreed to hire him if he (Gilbert) gave his approval.
Although Gilbert had been told by Blackmon about Loper
"walking off" the job at Red's, as well as the
circumstances under which Loper had quit in 1967, he
pretended to be unaware of those facts, his admitted
comment to Loper being, "I thought you were working at
Red's." Gilbert also admitted that Loper then told him
that he had been discharged by Red's, and that he
(Gilbert) replied that being fired by another company was
not much of a recommendation for employment by
Respondent. Gilbert did not deny Loper's testimony,
which I credit, that he was told by Gilbert "it is nothing
personal, but it is just that I had rather not have you back
out there on account of you walking off those jobs," and
that "you have walked off here twice and quit ...",16 nor
did he deny, but in fact tacitly admitted that Loper's
conduct at the Red's job was one of the principal reasons
for refusing to rehire Loper.
Both Blackmon and Gilbert admitted that a number of
casers were hired as regular full time employees after
Loper was denied employment on August 7.
The uncontradicted evidence in the case is that Loper
was discharged by Red's because he and a number of his
fellow employees had left the job to protest what they,
correctly or incorrectly, regarded as excessive hours of
work without relief, and as I have found, Loper informed
Blackmon of these facts in their conversation on August
6. Like the quitting of work to protest excessively cold
conditions, involved in Washington Aluminum , supra, the
quitting of work by Loper and his fellow employees to
protest excessive hours, was equally protected by Section
7 of the Act as concerted activity for which they could not
lawfully be discharged or denied employment. That
Loper's leaving the Red's job was a critical and
substantial factor in Respondent's decision not to
reemploy Loper is plain from the testimony of Blackmon
and Gilbert, for both admittedly told Loper that his
leaving Red's job was not a recommendation for
employment with Respondent. It follows, therefore that
Loper was denied reemployment by Respondent because
he engaged in protected concerted activity at Red's." This
refusal to reemploy was not only interference, restraint
and coercion with respect to Loper's Section 7 rights, in
violation of Section 8(a)(1) of the act, but plainly has the
foreseeable effect of discouraging membership in the
Union, and therefore violated Section 8(a)(3) of the Act. I
so find and conclude.
Having reached the conclusion just stated, it becomes
unnecessary to decide whether Loper's participation in the
April 18, strike played any part in Respondent's decision
not to reemploy him as, in any event, it could be no more
than another reason for concluding that Respondent's
conduct was unlawful.
Upon the foregoing findings of fact and the entire
record in the case, I make the following:
CONCLUSIONS OF LAW
Conclusions on Alleged Refusal To Hire Loper
The General Counsel contends that Respondent's
refusal to reemploy Loper was predicated upon two
factors; (1) that Loper had engaged in the April 18 strike
against Respondent, and (2) that he had engaged in
conduct at Red's which was plainly concerted activity. The
authorities are clear that if either of the two factors
mentioned was a motivating reason for Respondent's
decision not to reemploy Loper, the Act was violated.
Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177; N.L.R.B.
v. Washington Aluminum Company, Inc., 370 U.S. 9." In
the view which I take of the case, only the second of the
General Counsel's contentions need be considered.
not regarded as in conflict. Blackmon did not deny that Loper explained
fully why be had been discharged by Red' s, indeed Blackmon admitted
that the subject was discussed . On the other hand Loper did not mention,
but neither did he deny , that Blackmon told him that walking off the Red's
job was not much of a recommendation to work for Respondent.
"As Loper had only left Respondent 's jobs only on two occasions-once
when he quit in December 1967, and the other on April 18, when Loper
went on strike-Gilbert 's remark must have had reference to Loper 's strike
activity, notwithstanding the fact that he also testified that Loper 's going
on strike did not constitute "walking off" the job , nor did it in any way
breach Respondent 's rules.
"While Washington Aluminum , supra , involved a discharge for engaging
in concerted activity, the discrimination or interference proscribed by the
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The charges filed herein were sufficient to invoke the
Board's jurisdiction and to support the complaint both as
issued, and as thereafter amended.
4. By denying reemployment to Loper because the
latters engaged in protected concerted activity at Red's,
Respondent interfered with, restrained and coerced its
employees in the exercise of rights guaranteed them by
Section 7 of the Act, and discriminated against him to
discourage membership in the Union, and thereby engaged
in and continues to engage in unfair labor practices
proscribed by Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
6. The General Counsel failed to prove by a
preponderence of the evidence that Respondent otherwise
interfered with, restrained or coerced its employees in the
Act is broad enough to include a reTusal to hire or rehire because the
employee had engaged in concerted activity. Phelps Dodge Corp., supra.
"Although notall concerted .activity is protected--forlexample a strike in
violation of a contractual no-strike provision , Southwest Banana
Distributors . Inc., 145 NLRB 815, 819 -the burden of proving facts to
establish the unprotected character of Loper's concerted activity, being a
matter of defense , was on Respondent . Not only did it fail to establish that
fact , but neither at the trial , nor in its brief does Respondent contend that
Loper's conduct at Red' s was in fact unprotected.
BOB'S CASING CREWS
exercise or'rightsiguaranteed them by Section 7 of the Act,
and the allegations of the complaint in that regard should
be dismissed.
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and take certain
affirmative action found necessary and designed to
effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(1)
and (3) of the Act by denying reemployment to Billy Ray
Loper because he had engaged in concerted activity
protected by Section 7 of the Act, I shall recommend that
it be required to forthwith offer him employment as a
regular full time caser , the job for which he applied,
without prejudice to his seniority or other rights, privileges
and working conditions, and make him whole for any loss
of earnings he suffered as a result of Respondent's refusal
to employ him on August 7, 1968, by paying to him a
sum of money equal to that which he would have earned
had he been employed by Respondent on August 7, 1968,
to the date he is offered such employment, less his net
earnings during that period, computed in accordance with
the Board's formula set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at the rate
of 6 percent per annum, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716. To assist in procuring
compliance with this provision, it will be recommended
that Respondent be required to preserve and make
available to authorized agents of the Board, all payroll
and other records necessary or useful to determine
compliance with the Board's order, or in computing the
amount of backpay due thereunder.
Because of the character of the unfair labor practices
found, which go to the very heart of the Act, I shall
recommend that Respondent be required to cease and
desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co.,
120 F.2d 532 (C.A. 4).
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the National
Labor Relations Board order Bob's Casing Crews, Inc.,
its officers, agents, successors, and assigns, to:
1. Cease and desist from:
(a) Refusing to employ or reemploy applicants for
employment because they have engaged in concerted
activities protected by Section 7 of the National Labor
Relations Act, as amended.
(b) Discouraging membership in Local 826,
International Union of Operating Engineers , AFL-CIO,
or any other labor organization , by discharging, refusing
to employ, or in any other manner discriminating against
any employee in regard to his hire or tenure of
employment or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to
self-organization, to form labor organizations , to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
7
or to refrain from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Forthwith offer Billy Ray Loper employment as a
regular full time caser , without prejudice to his seniority,
or other rights privileges or working conditions, and make
him whole for any loss of earnings he suffered, in the
manner set forth in the section hereof entitled "The
Remedy."
(b) Preserve and, upon request, make available to
authorized agents of the Board, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary or useful to determine compliance
with this order, or in computing the amount of backpay
due hereunder.
(c) Notify Billy Ray Loper if presently serving in the
Armed Forces of the United States of his right to
employment with Respondent upon application, after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended.
(d) Post at its shop and plant premises in Odessa,
Texas, copies of the notice attached hereto marked
"Appendix."" Copies of said notice on forms furnished by
the Regional Director for Region 16 of the Board (Fort
Worth, Texas), shall after being duly signed by an
authorized representative, be posted immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted, and
take all reasonable steps necessary to insure that said
notices are not altered, defaced or covered by any other
material.
(e) Notify the aforesaid Regional Director, in writing,
within 20 days from the receipt of this Decision, what
steps it has taken to comply herewith."
IT IS FURTHER ORDERED that the complaint herein, to
the extent that it alleges that Respondent interfered
with, restrained and coerced its employees, other
than by its refusal to reemploy Loper, be and the
same is dismissed.
"In the event this Recommended Order is adopted by the Board the
words "a Decision and Order" shall be substituted for the words
"Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event these Recommendations are adopted by the Board, this
provision shall be modified to read : "Notify the aforesaid Regional
Director , in writing , within 10 days from receipt of this Order, what steps
it has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order- to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial at which all sides had the chance to
present evidence, a Trial Examiner of the National Labor
Relations Board has found that we violated the law and
has ordered us to post this notice to inform our employees
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their rights.
WE WILL NOT fire, refuse to hire, or in any other
manner discriminate against any employee because he
joins , assists, or supports a union.
As the Trial Examiner found that we violated the
law when we refused to reemploy Billy Ray Loper as a
regular full time caser , WE WILL offer him a job as a
regular full time caser ; with full seniority, and we will
make up the pay he lost , together with 6 percent
interest.
WE WILL notify Billy Ray Loper, if presently serving
in the Armed Forces of the United States , of his right
to employment , upon application , in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
The law gives all our employees these rights:
To organize themselves
To form, join, or help unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
We assure you WE WILL NOT do anything to interfere
with you in the exercise of these rights . Every employee
is free to become or remain a member of Local 826,
International Union of Operating Engineers , AFL-CIO,
or any other union , or not to become or remain a
member of any union.
Dated By
BOB'S CASING CREWS,
INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board ' s Regional Office , Room 8A24,
Federal Office Building , 819 Taylor Street , Fort Worth,
Texas 76102 , Telephone 817-334-3921.