Bolsa Drainage, Inc.

National Labor Relations Board - Board Decisions

Jun 4, 1979

242 N.L.R.B. 728 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bolsa Drainage, Inc. and Truckdrivers, Warehouse-
men and Helpers Local Union No. 898, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 21-CA-16518
June 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On December 28, 1978, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the General Counsel
filed an answering 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
After issuance of the Administrative Law Judge's Decision in this case,
Respondent filed a motion to reopen the hearing in order for the Board to
consider newly discovered evidence. The General Counsel filed a motion in
opposition. Respondent would offer in evidence a decision of the California
Employment Development Department, affirmed oin appeal by the Califor-
nia Unemployment Insurance Appeals Board, finding that the claimants
there-employees Moraga, Jones, Herrera. Soto. Barnhart. Swartz, Roller,
Sandoval, Buzo, and Lawson-were not discharged by Respondent and
therefore were ineligible for unemployment compensation. Respondent's
motion is hereby denied. In its motion, Respondent repeats the allegations
made in its exceptions to the Board that the Administrative Law Judge in
this case was biased against Respondent, that his decision was not supported
by substantial evidence, and that Respondent was denied a fair hearing. Our
decision to adopt the Administrative Law Judge's findings of fact and con-
clusions of law was made after we carefully evaluated Respondent's allega-
tions and found them to be without merit.
Respondent further avers that the issue before the state agency was iden-
tical to that in this unfair labor practice proceeding and that the claimants in
the unemployment compensation proceeding "were the same individuals as
those grieving before the ... Board" in this case. We find these contentions
unpersuasive. The state agency's determination was rendered under a statute
with different definitions, policies, and purposes than the National Labor
Relations Act. Respondent does not show that the unfair labor practices
issues in this matter were considered by the state unemployment tribunal.
Our Decision, and that of the Administrative Law Judge, must be based
upon an independent consideration and evaluation of the evidence received
in this unfair labor practice proceeding. See Rollyson Aluminum Products,
Inc., 231 NLRB 422, 428, fn. 11 (1977). See also Windsor Plastics, Inc., 231
NLRB 1222, 1230, fn. 32 (1977). It is on this basis that our findings have
been made. We note in addition that two of the discriminatees in this case,
Frank .nguiano and Clayton McDonald, ale not mentioned by Respondent
as having participated in the unemployment compensation proceeding be-
fore the state agency.
Respondent's motion and accompanying documents indicate that the deci-
sion of the California Employment Development Department issued on No-
vember 1, 1978, and that of the Appeals Board issued February 6, 1979. The
unfair labor practice hearing in this matter closed on September 30, 1978.
Respondent delayed filing its motion to reopen the record until March 29,
1979. Absent an explanation for this delay, we conclude that it provides
additional grounds for denying the motion. See Fort Vancouver Plywood
Company, 235 NLRB 635, fn. 1 (1978).
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Bolsa
Drainage, Inc., Brawley, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
i. Substitute the following for paragraph 2(a):
"(a) Offer employees Frank Anguiano, Jimmie
Barnhart, Joe Buzo, Manuel Herrera, Steve Lawson,
John Moraga, Joe Soto, and Dale Swartz immediate
and full reinstatement to their former jobs, discharg-
ing if necessary any replacements or, if said jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and make said em-
ployees and employees Danny Jones and Clayton
McDonald whole for any losses suffered by them in
the manner set forth in the section entitled 'The Rem-
edy' as modified by the Board's Decision, plus inter-
est."
2. Substitute the attached notice for that of the
Administrative Law Judge.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings. We have further consid-
ered Respondent's contention that the Administrative Law Judge has evi-
denced a bias or at least an appearance of bias in this proceeding. We have
carefully considered the record and the attached Decision and reject these
charges of bias alleged by Respondent as unsupported.
3 The Admnistrative Law Judge found that employees Clayton McDon-
ald and Danny Jones were unlawfully discharged but inadvertently failed to
include them in his recommended remedy and Order with respect to making
them whole for any loss of pay they may have suffered as a consequence of
their discharge. While Respondent subsequently reinstated them, they are
entitled to backpay, like the other discriminatees, up to the time of their
reinstatement or an offer thereof Accordingly, we shall modify the remedy
and Order to so provide.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present their evidence, the National Labor Rela-
242 NLRB No. 105
728
BOLSA DRAINAGE. INC.
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice.
The Act gives all employees these rights:
To act together for collective bargaining or
mutual aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To refrain from any or all of these things.
WE WILL NOT interrogate you concerning your
own union activities or the union activities of
other employees.
WE WILL NOT threaten you expressly or im-
pliedly with discharge or physical harm in the
event you engage in concerted protected and/or
union activity.
WE WILL NOT tell you that your union activity
was the cause of our unwillingness to reinstate
employees or grant them a wage increase.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights guaranteed them in Section
7 of the Act.
WE WILL offer employees Frank Anguiano,
Jimmie Barnhart, Joe Buzo, Manuel Herrera,
Steve Lawson, John Moraga, Joe Soto, and Dale
Swartz immediate and full reinstatement to their
former positions or, if these jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed, and we will make
said employees and employers Danny Jones and
Clayton McDonald whole for any loss of pay
suffered as a result of the discrimination against
them, plus interest.
WE WILL offer to Clyde Presley, upon applica-
tion, reinstatement to his former position or, if
such position no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority or other rights and privileges previously
enjoyed, and we will dismiss if necessary any em-
ployee hired on or after March 27, 1978, to his
former position.
WE WILL, upon request, bargain with
Truckdrivers, Warehousemen and Helpers Local
Union No. 898, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, and with In-
ternational Union of Operating Engineers, Local
12, AFL-CIO, as the exclusive bargaining repre-
sentatives of our employees in the unit found ap-
propriate concerning rates of pay, wages, hours
of employment, and other terms and conditions
of employment, and if we reach an agreement we
will sign a contract with the above-named
Unions covering the terms of such agreement.
The appropriate unit is:
All production and maintenance employees,
including ditcher operators, skip load opera-
tors, welders, mechanics, employees who drive
trucks, and laborers employed by Bolsa Drain-
age, Inc., at its facility located at 151 South
Eastern Avenue, Brawley, California, exclud-
ing all office clerical employees, guards, pro-
fessional employees, and supervisors as de-
fined in the Act.
BOLSA DRAINAGE, INC.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge: Pur-
suant to notice, a hearing with respect to this matter was
held before me in Brawley, California, on September 13, 14,
15, 27, and 28, 1978.' The charge was filed on March 27 by
Truckdrivers, Warehousemen and Helpers Local Union
No. 898, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Teamsters Union). Thereafter,
an amended charge was filed by the Teamsters Union on
May 2. On May 19, a complaint and notice of hearing was
issued alleging a violation by Bolsa Drainage, Inc. (herein
called Respondent) of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended (herein called
the Act). Respondent denies the commission of any unfair
labor practices.
The parties were afforded a full opportunity to be heard,
to call, examine, and cross-examine witnesses, and to intro-
duce relevant evidence. Post-hearing briefs have been filed
on behalf of General Counsel and Respondent.
Upon the entire record, and based upon my observation
of the witnesses and consideration of the briefs submitted, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a California corporation, is engaged in the
business of installing underground drainage tile systems.
with its principal place of business located in Brawley, Cali-
fornia. In the course and conduct of its business operations,
Respondent annually derives gross revenues in excess of
$500.000 and annually purchases and receives goods and
products valued in excess of $50,000 which originate out-
side the State of California. It is admitted, and I find that
Respondent is, and has been at all times material herein, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
I All dates or time penods herein are within 1978 unless otherwise indi-
cated.
729
DECISIONS F0: NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZAIION INVOLVEI)
It is admitted and I find that the Teamsters Union and
International Union of Operating Engineers, Local No. 12,
AFL CIO (herein called the Operating Engineers Union)
are, and each of them is, and at all times material herein
have been, labor organizations within the meaning of Sec-
tion 2(5) of the Act.
Ill. HE UNFAIR I.ABOR PRAC('ICFS
A. The Issues
The principal issues raised by the pleading are:
1. Whether Respondent violated Section 8(a)(I) of the
Act by threatening employees with discharge and by other
conduct.
2. Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging virtually its entire complement of
employees on or about March 23.
3. Whether, upon receiving a demand for recognition by
the Teamsters Union and the Operating Engineers Union,
jointly, on behalf of its employees in an appropriate unit,
Respondent's conduct rendered it unlikely that a fair elec-
tion could be conducted and whether Respondent has
thereby violated Section 8(a)(5) of the Act by refusing to
bargain with the Unions.
B. The Facts
I. The event according to General Counsel's witnesses
On Wednesday, March 22, 1978, employees Manuel Her-
rera and Dale Swartz handed Arthur Fisher, co-owner, vice
president, and manager of Respondent, a typewritten peti-
tion, signed by 15 of Respondent's 17 employees, stating as
follows:
We, the employees of Bolsa Drainage, taking into
consideration the high cost of living, would like to ask
for a raise.
For the past five years that you have been operating
this company we have not yet received a raise in pay.
We feel that an increase of $3 per hour would be a fair
increase in our hourly wage. Our cost for such essential
items as food have risen in the past five years have
increased [sic] as much as 200%.
Please take this matter into consideration. We will
be more than glad to discuss this matter with you. We
the employees of Bolsa Drainage agree with the con-
tents and sign this letter as our sign of approval of its
contents.
Upon reading the petition Fisher became angry, calling
the employees crazy for requesting such a raise and stating
that certain employees were not even worth their current
wages. Singling out Swartz and Joe Roller as examples,
Fisher stated to Swartz that "you ... son of bitches" don't
need or deserve a raise. Swartz disagreed, replying that he
earned his wages, and Fisher exclaimed that Swartz' termi-
nation check could be issued forthwith. When Herrera
started to intervene Fisher said, "Why don't you leave,
too." Herrera told Fisher that there was no reason to get
upset and that the employees merely wanted a little time to
speak with both Fisher and Darwin Cohee, president and
majority stockholder of Respondent, about a raise. Fisher
replied that Cohee's presence was unnecessary and that Re-
spondent's financial circumstances at that time were such
that a raise could not then be given. Herrera asked if Fisher
would agree to speak with the other employees after quit-
ting time that evening, explaining that the employees would
like a direct dialogue with Fisher rather than merely a re-
port from Herrera and Swartz. Fisher stated that he would
be unavailable that evening but, upon Herrera's request,
agreed to meet with the employees the following morning.'
The following morning, Thursday, March 23, about 13
employees were awaiting Fisher's arrival, remaining outside
the gate of Respondent's premises at a location across the
street where they customarily parked their cars. The em-
ployees were determined to speak to Fisher that morning
and therefore refrained from entering the premises at their
accustomed starting time,3 believing that Bob Fisher, Re-
spondent's foreman and the brother of Arthur Fisher.
would not permit them to wait for Arthur Fisher but would
require them to leave immediately for the Coachella Valley
or otherwise require them to begin work.
Arthur Fisher arrived at about 7 a.m. and drove directly
to the shop area where he spoke with Bob Fisher and, ac-
cording to the testimony of Herrera, then drove outside the
gate to where the employees were assembled, rather than
proceeding to his office.' Fisher asked the employees what
they were doing "bunched up" outside the gate. The em-
ployees replied that they had been waiting to speak with
him about the raise. Fisher reiterated what he had stated to
Herrera and Swartz the day before, stating in effect that
Respondent could not afford to give a raise at that time.
Apparently at one point he stated that there was no way in
2 Although Swartz testified that Fisher flatly refused to have a meeting
with the employees at any time thereafter, Swartz also stated he expected the
meeting to be that Wednesday night. However, the testimony of other wit-
nesses supports Herrera's version of this part of the conversation. Thus,
Jimmie Barnhart testified that Swartz and Herrera reported that even a small
wage increase was totally refused by Fisher, adding that "Manuel Herrera
told us that Art told him he wasn't going to be able to show up Wednesday;
he would show up Thursday." Joe Soto, who was working in the shop on
Wednesday, March 22, received a report of the conversation between Fisher,
Herrera, and Swartz immediately thereafter, Herrera explaining Fisher's an-
gry reaction to and denial of the wage request. Herrera then further stated,
according to Soto, "that Art had said that he couldn't talk to us that after-
noon but he would talk to us the next morning." Soto was questioned regard-
ing this matter repeatedly and consistently reiterated that he had been told of
Fisher's agreement to meet with the employees. John Villa Moraga testified
similarly, stating that he asked Herrera the result of the conversation, and
that Herrera related to him that Fisher became angry and "that he could not
talk to us that day, but he would talk to us the next following morning."
3 At least six employees (two field crews, each comprised of three employ-
ees, and perhaps other employees) were then performing fieldwork in the
Coachella Valley, some distance away from Respondent's premises. These
employees would customarily arrive at Respondent's premises around 6:30
a.m. and drive or be transported in Respondent's equipment to their desig-
nated working areas. The remainder of Respondent's employees, who appar-
ently worked either in the shop or at other field locations, would begin work
at about 7 a.m.
4According to Herrera, the employees had been waiting for Arthur Fisher
to enter his office where they anticipated the meeting would take place One
employee stated his belief that the employees were waiting for Fisher to
come out the gate to meet with them, possibly to obtain a psychological
advantage.
730
BOLSA DRAINAGE. INC.
hell he would grant the employees a wage increase. Various
employees started to speak up but were abruptly inter-
rupted by Fisher, who exclaimed that one was just a kid
and was too young to know what was going on, and an-
other one had no right to talk because he was not reliable.
Fisher referred to still another employee as a "drunken
bum." Swartz mentioned that there were no first-aid kits at
the shop, and Fisher said he was worthless and told him to
shut his mouth because "I'm two inches from your ass."
However, at one point Fisher stated if that's all Swartz
wanted, Fisher would put a first-aid kit in every corner of
the shop. When another employee, Joe Soto, told Fisher
that was no way to talk to the employees, Fisher replied
that if he did not like it he could pick up his check. Fisher
asked Johnny Moraga where he would work if he did not
work for Respondent, and Moraga replied, "I been working
here all my life and I plan to keep on working here." Again
Fisher stated that no immediate raise would be given, but
added that Respondent was planning on granting a wage
increase at the end of the summer. Herrera requested "a
small raise" on behalf of the employees, and Fisher asked
to be given a chance to speak to his partner, Cohee, about
this, as he had not realized the day before that things were
going to get to this point. Herrera stated that it had been
the employees' intention to speak with both Fisher and
Cohee about the raise, and he thereupon obtained a general
consensus from the employees that this would be accept-
able.
Those employees who had been issued work uniforms
were wearing them. They had no plans to strike or withhold
their services and, as was their custom, had serviced their
vehicles the previous evening in preparation for work the
next morning. Although the employees had intended to
work that day after their discussion with Fisher, and al-
though they at no time refused to commence work that day,
Fisher stated that he was going to shut down the machines.
He told the employees to "cool down," stated that he would
speak with Cohee about the raise, and said that the employ-
ees could spend the day discussing the matter or getting
drunk, instructing them to return to work the following
morning.5 Immediately thereafter, Fisher approached
Herrera, who appeared to have the most detailed recollection of Fisher's
remarks on this point and to whom Fisher was then directly speaking, testi-
fied that Fisher stated he was going to shut the machines down that day
because it had become too late to begin work in the Coachella Valley and
that he would leave just the one machine running which apparently had
already been transported to, and had commenced operating at., a field loca-
tion. Swartz testified, in effect, that he was upset with Fisher's prior threat to
"whip" him, and for this reason was not paying particular attention to Fish-
er's later remarks. However. Swartz recalls that at the end of the conversa-
tion Fisher said he would talk to Cohee and try to resolve the matter and
that the employees "would come back to work the next day." Barnhart
testified that at the end of the conversation Fisher said he "could afford to"
shut the machines down until he could talk with Cohee that night and be-
lieved that Fisher had given the employees the day off. Soto testified that
"[Fisher and Herrera] talked and [Fisherl agreed to shut the machines down
for that day while he talked to Mr. Cohee, because Mr. Cohee wasn't in town
that day." Moraga testified that Fisher stated at the end of the conversation
that, as he was not the sole owner of the Company. he could not grant a raise
by himself but would have to speak with Cohee about the matter, who would
return that evening or early the next morning. Fisher then asked the employ-
ees, according to Moraga, to "talk about it ourselves if we were going to go
to work or not." The employees said yes. that they were going to work, but
then Fisher "looked at his watch and said it was kind of late for us to go to
work-by the time we got out and started it would be too late. So he would
shut the machines down for the day and the next day we would talk it over."
Swartz and Kenny Holloman, who were in Swartz' pickup.
preparing to leave. Fisher asked Holloman, whom Fisher
had previously told to show up for work that day but was
not then on Respondent's payroll, whether he was going to
work or going to town. Holloman replied that he was going
to town. Then Fisher asked, "s Dale [Swartz] your boss ...
well forget it." and walked away.?
The employees discussed the matter and. according to
Herrera, decided to seek representation for the anticipated
meeting with Fisher and Cohee. feeling that a third party
would facilitate a meaningful discussion.' They first went to
the local office of the California abor Commissioner and
were referred to the union hall. They met with various
union representatives and on that day 14 employees signed
union authorization cards, it being explained that the two
Unions herein would jointly represent the employees, as
discussed below. The union representatives told the em-
ployees they would make a demand for recognition that
day, and would file a petition for representation. and that
they should report to work the following day.
That afternoon, at approximately 4:30 p.m., Joseph
Smith, business representative for the Operating Engineers,
and Gonzalo Bonillas, business representative for the
Teamsters, presented the following letter to Fisher:
Please be advised that a majority of employees in the
following appropriate unit have authorized the above-
named Unions to act as their exclusive collective bar-
gaining representative to negotiate with you on their
behalf regarding their wages, hours, and other terms
and conditions of employment.
Including: All production maintenance, including
ditchers, and skip loader operators, welders, me-
chanics, truck drivers and laborers employed by Em-
ployer at its facility located at 151 S. Eastern Ave-
nue. Brawlev. California.
Excluding: All office clerical employees, guards, pro-
fessional employees, and supervisors as defined in
the Act.
The above-named Unions hereby demands (sic) recog-
nition as the exclusive collective bargaining representa-
tive of your employees in the above-described appro-
priate unit. The above-named Unions further demand
a meeting for purposes of collective bargaining nego-
tiations regarding the wages, hours, and other terms
and conditions of employment of your employees in
the above-referenced appropriate unit.
Truckdrivers, Warehousemen, and Helpers Local
Union No. 898 and Operating Engineers Local Union
I Fisher's initial intention in hinng Holloman was as a crew member on an
extra machine that was to commence operations in the field that Thursday.
Three employees did work that day. namely. Junior Post. Lewis Coffman.
and James Lawson. Post had signed the aforementioned petition for a wage
increase and had entered Respondent's premises that morning before any
other employees had arrived. Coffman had not signed the peittion, believing
that the employees were asking for too much money. Lawson had been hired
on Wednesday, the preceding day, and had previously been on the payroll of
another company owned by Fisher. Apparently Lawson, along with Hollo-
man, was to be plated as a crew member on another machine that was to
commence (operations. The record does not disclose precisely when Coffman
and awson reported for work that day.
'The record does not contain any details of the discussion among the
employees which resulted in this course of action.
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No. 12 have set aside March 30, 1978, at 10:00 A.M.,
in our offices located at 694 Broadway, El Centro,
California, for purposes of collective bargaining nego-
tiations. Teamsters Union Local 898 and Operating
Engineers Local 12 are willing to submit conclusive
proof of their majority status in the above-described
unit to a mutually acceptable neutral third party to be
cross-checked against your payroll as of March 23,
1978. Further, please be advised that our chief organiz-
ers, your employees, are fully aware of their rights
guaranteed under Section 7 of the National Labor Re-
lations Act, as amended. In the event any unfair labor
practices are committed, we will take all appropriate
steps to protect those rights.
Unless we have your response within four days from
the date of this letter it will be necessary for this office
to take further appropriate lawful action to protect and
guarantee the rights of your employees to designate a
collective bargaining representative of their choosing.
After reading the letter Fisher replied, "I don't have any
employees; they quit." Thereupon, without further com-
ment, the union representative exited.8
The next morning, Friday, March 24, Jimmy Barnhart
entered the gate at the usual time to commence work. No
other employees among the group who had signed the
aforementioned petition requesting a pay raise had as yet
entered the gate. Barnhart observed several new employees
preparing to leave in his assigned vehicle and entered the
shop office to ask Bob Fisher the reason for this. Fisher
replied, "You guys quit." Barnhart said that the employees
did not quit and asked if they were fired. Fisher replied that
the employees were not fired but that he understood the
employees had quit, and said that another crew had been
hired.9 As Barnhart was walking to the gate, accompanied
by Fisher who was walking to the main office, Fisher ex-
plained that the employees had brought it on themselves,
having walked off the job; and reiterated that Barnhart had
quit. Barnhart walked out the gate and reported to the
other employees, who had been preparing to enter the gate
and begin work at their usual starting times,'° that they
were no longer employed by Respondent as Fisher claimed
they had all quit.
John Moraga, who was approaching the gate with other
employees, overheard the aforementioned conversation be-
tween Bob Fisher and Barnhart and testified that Fisher
exclaimed, "God damn it, you did it to yourselves. You
guys quit yesterday." Barnhart replied, "Bob, we never
have quit." Thereupon, Fisher walked into the office and
Barnhart walked out the gate.
Moraga further testified that as he was waiting to go to
work, sitting in his car outside the gate at about 6:45 a.m.
that Friday prior to his customary starting time, Art Fisher
came over to his car and ordered him to turn in his uni-
form. Moraga asked why, and Fisher replied, "Because you
quit me yesterday." Moraga denied this and Fisher reiter-
' The Unions filed a joint representation petition on March 29.
9 Bob Fisher gave a similar account of the conversation, but maintains
that it occurred on Monday, March 27, rather than on Friday, March 24.
'0 It was not uncommon for employees to congregate outside the gate prior
to the beginning of work.
ated his prior statement, adding that "your checks have
already been made out before you even got to the union
hall." He also told Joe Buzo, who was present, to turn in his
uniform.
Friday is a regular payday, and that afternoon the em-
ployees went through the gate to pick up their paychecks.
Bob Fisher told the employees that they had 20 seconds to
pick up their checks and get out of the yard, and stated that
those who did not return their uniforms would not get their
checks. Barnhart and, apparently, Herrera protested, insist-
ing that they had not quit, and had been prepared to work.
Certain employees returned Saturday with their uniforms,
and again apparently told Fisher that they had not quit.
They were given their checks that day. Thereafter, the em-
ployees returned for work at their regular worktime each
morning for approximately 3-5 days, hoping they would be
reinstated. They did not picket the premises.
Clyde Presley began working for Respondent on about
March 14. He signed the petition for a wage increase and
thereafter signed a union authorization card. The record is
unclear regarding whether Presley was absent for work on
Wednesday, March 22, On the morning of Thursday,
March 23, Presley was not with the other employees at Re-
spondent's premises, but rather, after receiving a physical
examination at a clinic in a town some distance away, went
directly to the field at about 10:30 a.m. The regular field
crew was not present, and Presley asked Jim Haynes, an
admitted supervisor, what was going on. Haynes said he
was not really sure, but he believed everybody had quit.
Presley asked whether he should go to work, and Haynes
told him to talk to Bob Fisher, who was present. Presley did
so, and Fisher asked where Presley was earlier that morn-
ing. Presley replied that he was late to work because he had
to take a physical examination, and Fisher directed him to
begin work. Then Presley said that he had to take some
papers to town and, advising Fisher that he would return as
soon as possible, left the area. He did not return to work
that day claiming that he thereafter heard from Swartz
what had happened at Respondent's premises that morning
and believed he, too, had been fired.
That evening Presley had occasion to speak to Arthur
Fisher's daughter, Pearl, and asked about Respondent's in-
tentions. Pearl replied that Presley had not been fired be-
cause he was not among the group of employees outside
Respondent's premises that morning, but that the checks of
all the other employees had been made out.
Presley returned to go to work Friday, having been told
to do so by the union representatives, but before entering
the premises it was explained to him by the other assembled
employees that they were to turn in their uniforms and pick
up their checks." He also returned Saturday and waited
outside Respondent's premises with the other employees.
Thereafter, apparently on Sunday, Pearl phoned Presley
and told him that she had just been talking to her father at
a family gathering, that her father explained that Presley
had not been fired because he had not been among the
" Presley testified that the reason he didn't go to work was because he was
advised by the other employees that if some employees went to work and
some didn't it would jeopardize their position. Bob Fisher testified that "we
could have used [Presleyl Friday if he had came [sicl to work, if he had came
Isicl in the yard."
732
BOLSA DRAINAGE. INC.
employees assembled outside Respondent's premises Thurs-
day morning, and that Presley could return to work on
Monday and should be there on time.' 2
The next morning. Monday, Presley reported to Arthur
Fisher, advising him of the aforementioned telephone con-
versation with his daughter. Presley explained that he had
not returned to the field on Thursday. believing that he had
been discharged. Fisher told him to wait and went to speak
with Bob Fisher about the matter. Arthur Fisher then re-
turned, stated that he had talked to Bob who explained
what had happened, and indicated that he had been un-
aware of what had transpired Thursday, mentioning that
Presley had not returned to the field that day and advising
that he could not rehire Presley. Fisher then stated that Bob
was the crew foreman and that Presley would have to talk
to him about returning to work. Presley did not thereafter
talk to Bob Fisher about returning to work, apparently feel-
ing that it would be unfair to his fellow workers in their
attempt to get their jobs back.
As Presley was getting his check, Arthur Fisher asked if
he knew who the leader was among the employees. Presley
replied that there was no leader, and that everyone was
mixed up and did not know what to do, and this was why
the employees had gone to the unions for advice. Fisher
asked whether Swartz was the leader, and Presley replied
no but said that Swartz had given him the petition, which
he signed. Fisher said he had had enough of Swartz and
was "about an inch, inch and a half of slapping him down."
Presley said he would talk to Bob about getting his job
back, and Fisher said that he was sorry., adding that if
everyone had not "went crying to the Union, maybe some-
thing might have been worked out." Bob Fisher had left the
premises, and Presley did not thereafter talk to Bob Fisher
about returning to work.
2. The events according to Respondent's witnesses
Arthur Fisher denied that he agreed, during the March
22 meeting, when he was presented with the petition, to
meet with the employees the following morning. Rather, he
stated that he could grant no wage increase without Cohee's
approval, that Cohee would not return until Friday, and
that upon Cohee's return Fisher would be glad to meet with
the employees and "see what we could come up with."
When Fisher arrived the next morning, Thursday, March
23, he observed the employees congregated across the
street. He drove into the yard and, after going to his office,
proceeded across the yard to the shop area and asked Bob
Fisher what was going on. Bob Fisher told him that the
men had all walked out that morning and were refusing to
work until they got a raise. Thereupon, at about 7 a.m.,
Arthur Fisher talked with the employees across the street
and asked if they were going to work or were going to stand
in the street all day. Fisher then repeated what he had alleg-
edly told Herrera and Swartz the preceding day, namely,
that he understood the men needed a raise. He implied that
a raise would be forthcoming, stating that there could be no
raise until Cohee returned, and that he would meet with the
employees on Friday morning or any time thereafter. pro-
12 Presley's testimony regarding his conversation with Pearl, Art Fisher's
daughter, was not objected to by Respondent on grounds of hearsay
vided that they returned to work immediately. Herrera re-
plied that "it won't do any good to talk . .. I think today
will be my last day." Fisher was shocked and disappointed
that many long-time employees would "just quit and refuse
to work," and asked one employee, Moraga, who had a
physical impairment, what he would do if he did not work
for Respondent. Swartz kept interrupting and butting in,
and Fisher did admit telling him to "shut up. man, let me
talk." Fisher asked the men to go back to work, and they
replied they would think about it. Fisher replied, "Well,
okay, fellows, I will have to shut these machines down to-
day, but I will tell you one thing, they are going to be
running tomorrow." Then, feeling the men had quit and
were not going to work unless they received "that kind of a
raise," he had the secretary make out their checks and com-
menced, along with Bob Fisher, to hire new employees. Re-
spondent's payroll records for each of the employees indi-
cate that the employee was terminated and/or quit on
March 22.
The next day, Friday, March 24, Fisher came to work at
6:30 a.m. and observed the same group of employees across
the street. Fisher's affidavit states that "Jimmie Barnhart.
who spoke to Bob Fisher, came in and reported to work.
and since he had been replaced he did not work on Friday
morning." Fisher also acknowledged the aforementioned
conversation with Moraga that morning at Moraga's car.
Fisher merely told Moraga, who had allegedly been re-
placed, "Well, Johnny, I wish you would bring the uniform
back," and Moraga made no reply other than indicating his
willingness to return his uniform. Thereafter, the employees
remained outside the gate, but none of the employees who
had not been replaced came in asking for work.5
Bob Fisher testified that on the morning of Thursday,
March 23, there were some employees assembled outside
the gate, but only one employee, Post, entered the gate and
started servicing his truck.' Fisher asked what was the mat-
ter, and Post replied that the employees said they were not
going to work unless they received a $3 increase. Fisher
then reported this to Arthur Fisher, who had arrived at the
premises, telling him that the men were waiting to talk to
him, and Arthur Fisher thereupon proceeded outside the
yard and spoke to the men. Upon his return, Arthur Fisher
13 Herrera. who had worked for Respondent and Respondents predecessor
for a number of years, denies that he said anything about the possibility of it
being his last day. However, Barnhart testified that after Fisher had insulted
various employees. and immediately after Fisher called Solo a "drunk bum."
Herrera stated that "It could be my last day." The other witnesses for the
General Counsel denied that Herrera made such a statement. I credit Herre-
ra's testimony in this regard. However, even if Herrera did state something
to the effect that it could be his last day, expressed as a possibility according
to Barnhart and various witnesses for Respondent, Fisher could not have
reasonably understood Herrera to mean that he had indeed quit and was no
longer interested in continued employment with Respondent, or that Herrera
was speaking on behalf of the other employees in this regard. See Richmond
Refining Company, Inc., 212 NLRB 16. 19 (1974): Sibilio's Golden Grill. Inc.
227 NLRB 1688, 1691 1692 (1977).
'' As mentioned above, Bob Fisher acknowledges this conversation, but
testified that it occurred on Monday, March 27.
15 Respondent's records show that four new employees were hired on
March 24 Three then current employees. Lewis Coffman. Junior Post, and
James Lawson. worked during all times material herein. Other employees
were hired on and after March 27. and by April 5 Respondent had a comple-
ment of 14 employees.
'6 Contrary to Fisher's testimony, Post testified that he got to work at 6 or
6:15 am., prior to the arrival of any other employees.
733
DECISIONS 01F NATIONAL I.ABOR RELATIONS BOARD
said something to the effect that. "I guess we're going to
have to get some more men. They have refused to work."
New employees were subsequently hired.
Clayton McDonald, Danny Jones, and James Roller
signed the petition for a wage increase and participated in
the aforementioned events. While the testimony of these
employees is vague, lacking in detail and clarity, and otten
contradictory, their testimony reflects general agreement
that the employees who signed the petition had previously
determined not to return to work without receiving a wage
increase.' Further, these employees generally testified to
the following events on Thursday, March 23: Fisher asked
the employees who were assembled outside the gate to re-
turn to work, hut the employees insisted they would not do
so until they got a raise and also refused to return to work
pending Fisher's promised meeting with Cohee regarding
the matter: Herrera stated he thought this would or
"might" he his last day working for Respondent. Fisher
stated he was forced by the employees' actions to shut
down for that day but guaranteed the machines would he
running the next day, expressly stating or strongly indicat-
ing that new' crews would he hired: and upon reporting this
to the Union, the union representatives told the employees
to appear and remain at Respondent's premises for 2 hours
each morning thereafter to receive showup pay but. in ef-
fect, not to go to work.
McDonald, a current employee of Respondent, had
worked for Respondent on various occasions since 1975. lie
was again rehired on March 7 and worked until March 22,
after which date his employ ment was terminated along with
the other employees. In June he asked Art Fisher or a job
and was rehired on June 27 at the rate of $5 per hour. His
previous wage rate had been $3.50 per hour. McDonald's
recollection of the conversation on the morning of March
23 was exceedingly abbreviated. Nor was he able to shed
light on what the union representatives were allegedly refer-
ring to regarding showup pay.
Jones had previously worked for Respondent and was
rehired on February 20. lIc worked until March 22. Re-
spondent's records show he requested to be rehired and was
again rehired on July 15 as a part-time employee, appar-
ently working Saturdays while going to school, and worked
until about August 24. Ie received an increase rom $3.30
to $4 per hour. Jones testified that while the employees had
decided they would not return to work unless they got a $3-
per-hour increase, he did not expect to receive such an in-
crease. Jones initially claimed that someone from the office
of the California Labor Commissioner told the employees
to report for work and advised them that if the5 waited or
2 hours each day they would get paid waiting time. Later,
his testimony changed, and he said it was the union repre-
sentatives who gave this instruction. Jones recalls that on
Thur Jay morning, March 23, isher said Cohee would be
back that Thursday night and that he would talk to ('ohee
about a wage increase for the employees. However Jones
'7 Mcl)onald and Jones staled that the entploees had decided that av-
thing less than a $3-per-hour wige increase w;s unlcccplale, while Roller
believed that $-per-hour increase would have been suttfficient Junior ('
Post, who signed the petition but cotlinuted working and did not participate
in the subsequent events. testified sImilarly, but did not speciv the amount
of wage increase he believed would have been acceptab;le
does not recall what Fisher said about shutting down the
machinery.
Roller worked for Respondent on several occasions since
1976. Hie was rehired on March II and worked until his
termination on March 22, after which he moved from the
area. He is now living in Indiana. At one point in his testi-
mony Roller stated that during the Thursday morning con-
versation Fisher said he would talk to Cohee about the raise
when Cohee got hack in town, that Fisher was going to shut
the machines down, and that the employees should go
home and think it over fobr a day and come back. Roller
testified he believed he had Fisher's permission to be off
that day. Further. Roller inconsistently testified that he
thought he might not have a job the next day but was not
concerned and "didn't give it too much thought."
C. nal.sis. anld Co'nclu.ions
In March 1978, Respondent had an abundance of work
and was seeking to hire more employees to put additional
equipment in the field. The employees seized upon these
[ilvorable circumstances, believing it an opportune time to
request a wage increase, such request constituting concerted
protected activity. Sigma Service Corporation, 230 NLRB
316 (1977). Upon being presented with the March 22 peti-
tion, Arthur Fisher became verbally abusive toward the
employees. and in no uncertain terms abruptly indicated
that Hlerrera and Swartz. whom I credit, could be termi-
nated as a result of having made such a request. This con-
duct is clearly violative of the Act. Laila Moore d/h/a
Moore Mill and Lumber (mpan, 212 NLRB 264, 269
(1974): Padre Dodge, 205 NLRB 252 (1973); Rahbco Metal
Produc.ts, In., 221 NRB 1230., 1233 (1975): Suburban
.AIM(/Jeep>. Inc., 211 Nl.RB 454. 457 (19741. entd. 513 F.2d
637 (th ('ir. 1975).
I credit the testimony of lerrera, who appeared to be a
forthright witness. and linid that tisher did agree to meet
with employees the following morning, March 23, even
though such testimony was directly contradicted by that of
Fisher and was not supported by that of Sartz. Swartz
sometimes testified in a confused and somewhat incoherent
manner. At the suggestion of counsel for both parties,
Swartz was temporarily excused as a witness. He later testi-
tied, hut his demeanor and responsiveness to the questions
showed little improvement. I credit the testimony of Swartz
only insofar as it is corroborated by the testimony of other
credible witnesses. Further, as noted above, various wit-
nesses, whom I credit, were given to understand that Fisher
had agreed to meet with the employees Thursday morning,
thus supporting the testimony of Ilerrera.
On Thursday morning Fisher continued the invective
which he had initiated in his office the preceding day, ini-
tially emphasizing that the employees were not worthy of a
wage increase, ridiculing them, threatening Swartz with the
possibility of' physical assault, and again remarking that
employees could pick up their checks if they were dissatis-
lied. By such conduct. Fisher clearly conveyed to the em-
ployees the reasonable expectation that should they persist
in their request, they were likely to be discharged or physi-
cally assaulted. Such conduct is violative of the Act. Laila
Moore d/b/a Moore Mlill anl l.mher C(ompantl, supra,
734
BOLSA DRAINAGE, INC
South Shore Pontiac Co.. Inc., 203 NLRB 928. 933 (1973);:
Herbert E. Orr, Inc., 185 NLRB 1002. 1008 (1970).
The credible evidence supports the conclusion, and I
find, that the employees had come prepared to work on
Thursday morning, rather than to engage in a work stop-
page as Respondent contends. On Wednesday, the employ-
ees worked the remainder of the day after having presented
Fisher with the wage request, apparently in the early after-
noon, and had requested that Fisher speak with them that
evening after working hours; on Wednesday evening the
employees returned to Respondent's premises from the field
and serviced their trucks and equipment for work the fol-
lowing morning, as was their custom: and on Thursday
morning those employees who had been issued uniforms
wore them for work. Further, all General Counsel's wit-
nesses, whom I credit, testified that they were prepared to
work and would have worked but for Fisher's decision to
shut down most of Respondent's operations.
At the conclusion of the conversation on Thursday morn-
ing, Fisher stated that he was going to shut down certain
operations for the day, purportedly because it was too late
to begin work, telling the employees he would have to speak
with Cohee about the raise and directing them to return to
work the following morning. I do not credit Fisher's testi-
mony that he stated he would speak with Cohee about a
raise only if the employees returned to work that day, or
that as a result of the employees refusing to work he told
them he had no choice other than to shut down the ma-
chines but warned that the machines would be operating
the following day. Nor do I credit the somewhat inconsis-
tent testimony of employees Post and Roller. who stated
that on Thursday Fisher specifically stated that the employ-
ees would be replaced or terminated for refusing to work
that day. Rather. I credit the testimony of various witnesses
for the General Counsel, and the not inconsistent testimony
of Respondent's witness, Roller, during one portion of his
testimony, that Fisher told the employees he was shutting
down the equipment for the day, that he intended to speak
with Cohee as soon as possible and thereafter meet with the
employees, and that the employees should return to work
the following morning.
Obviously, the employees did not expect to be chastised,
ridiculed, and threatened by Fisher that Thursday morning
and, upon obtaining his agreement to meet and discuss the
matter the following day it was decided to secure represen-
tation from someone who was experienced in such matters
to prevent a similar unproductive confrontation. The em-
ployees immediately contacted the Teamsters Union at
about 9 or 9:30 a.m. that Thursday. It was explained by
Teamsters representatives, apparently both in English and
Spanish, that due to the nature of their work they should
seek representation from both the Teamsters and Operating
Engi.neers Unions, jointly. not on y for wages. but for all
other matters with respect to their employment. The em-
ployees agreed. Thereafter. 12 employees signed authoriza-
tion cards identifying the Teamsters Union as their collec-
tive-bargaining representative.
Later that day at about 3 p.m., the group of employees
again assembled at the Teamsters Union hall and were ad-
dressed by a business representative of the Operating Engi-
neers. Two additional employees who had not been present
at the earlier meeting signed cards for the Operating Engi-
neers. The employees were told by representatives of both
Unions that a demand for recognition would be made, a
petition or an election filed, and that the employees should
report for work the next morning.
The authorization cards, appropriately introduced into
evidences are valid on their face, and there is no record
evidence that the employees were misinformed or were un-
aware of the purpose of the cards. Thus, I find that on
March 23 the Union had obtained duly signed authoriza-
tion cards from 14 of 17 unit employees. Further I find such
express understanding of the joint authorization purpose of
the cards makes them effecti e fr authorizing joint repre-
sentation, even though the cards do not so expressly state.
Cf. The National Hearing Conparv, 167 NLRB 534 ( 1967).
and cases cited therein at footnote 26.
The employees returned to work on Friday. March 24. at
their customary starting time, as instructed by Arthur
Fisher and the representative of the Unions. I credit Barn-
hart's testimony and find that he was the first to enter the
premises and was informed hb Bob Fisher that he and the
other employees had quit. Denying that the employees had
quit, but to no avail, he thereupon related what had tran-
spired to the other assembled employees who had been pre-
paring to enter the gate. I also credit the testimony of' Mo-
raga, who was told that morning by Arthur Fisher that he
had quit, Moraga replying that he had not quit. Thereafter
the employees showed up for work for several dals in suc-
cession, but none of the employees was permitted to return
to work even though on Friday, March 24, Respondent's
employee complement consisted of seven emplo,.ees. only
four of whom were hired after March 23 as replacements.
Ihe TIhursdav morning conversation concluded with
Fisher's comment that he would attempt to resolve the mat-
ter with the employees and again meet with them the next
day after speaking with C'ohee. At this point it does not
appear that he then intended to discharge the employees.
Later that las Fisher apparently determined that the em-
ployees' inter'ening acti ity of contacting the nions war-
ranted their discharge. This conclusion is supported by
Fisher's subsequent statement to Presley that the matter
might have been resolved had the employees not "went cry-
ing to the Union." Based on the foregoing, and the entire
record, I find that the employees did not quit, as contended
by Respondent, but, upon attempting to return to work Fri-
day morning, were refused employment fior haing eng aged
in concerted protected and/or union activit. By such con-
duct Respondent has violated Section 8(a)( ) and (3) of the
Act. I so find.
Even if Respondent's account of the events herein is
given full credence. it is nevertheless clear that Respondent
has violated the Act. Thus, assuming rgucmlo. that Re-
spondent's employees engaged in an economic strike on
March 23 and thereafter refused to work unless rcelx ing a
$3 per hour wage increase, Arthur Fisher admits that upon
the emplo yees' alleged refusal to return to work he con-
cluded that thes had quit and immediatel) caused their
final checks to 'e prepared. Such conduct clearl consti-
is Enlih lI Ici Ji.-,hi. Rli9/ Jacobh . aInd 1tnimI cl d h , I a -' I
Imlrng C. 219 NLRB 666. 671 (1975: Roncm P.a 4a mnrtmli. 232
NI.RB 409. 416 (19771
735
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tutes a discharge, regardless of whether Respondent so
characterizes it. Cone Brothers Contracting Company., 135
NLRB 108, 109 (1962), enfd. 317 F.2d 3, 7 (5th Cir. 1963).
Having thereby discharged its employees admittedly prior
to the hire of replacements, the economic strikers became
unfair labor practice strikers or discriminatees, entitled to
their jobs back upon application. The employees thereafter
appeared for work, and by refusing their application to re-
turn to work Respondent's violation of the Act is apparent.
N.L.R.B. v. International Van Lines, 409 U.S. 48 (1972):
Moffitt Building Materials Company and Lumbermans
Wholesale Company, 214 NLRB 655, 656 (1974).
While the General Counsel contends that the employees
were unlawfully locked out on Thursday, March 23, the
record does not sufficiently support this contention. Fisher
attempted to get only Kenny Holloman, a new hire who
had not signed the petition for a raise, to commence work
that day and would apparently have assigned him to the
work crew that was already in the field. Although this con-
duct may indicate a discriminatory intent vis-a-vis the other
employees, Herrera and Moraga quote Fisher as stating
that it was then too late for the employees to commence
work, instructing them to return the following day. It ap-
pears from the record that a number of employees who
worked in the Coachella Valley customarily left for work at
around 6:30 to 7 a.m. As the Thursday morning conversa-
tion concluded between 8 and 8:30 a.m., the employees
would thus have commenced work as much as 2 hours later
than usual on that day. In light of the foregoing, I find the
record insufficient to support the contention that the em-
ployees would have worked on Thursday but for Respon-
dent's unlawful conduct, or that Fisher's decision to shut
down the equipment for the remainder of the day was dis-
criminatorily motivated.
The complaint alleges that Kenny Holland was dis-
charged and/or that Respondent refused to hire Holloman
on March 23. The record stands unrebutted that on March
23, Holloman, who expected to be hired by Fisher that
morning, was assembled with a group of employees outside
Respondent's premises, and that Fisher specifically asked if
Holloman was going to commence work that day. He re-
fused, stating that he was going to town with Swartz. There
is no evidence that Holloman was refused employment or
thereafter engaged in union activity, waited outside Re-
spondent's premises for employment, or in any manner in-
dicated to Respondent that he desired employment. I shall
thus dismiss this allegation of the complaint.
While it is clear that Presley's absence on Thursday,
March 23 provided Respondent with a legitimate reason for
his discharge, Bob Fisher testified that he would neverthe-
less have put Presley to work for Respondent had he en-
tered the premises on Friday. Therefore, it must be con-
clude:. that Bob Fisher excused P-esley's prior absence or
absences. Presley was never discharged. Rather than speak-
ing with Bob Fisher about returning to work, as Arthur
Fisher had instructed or suggested, Presley chose to support
the cause of his coworkers and did not thereafter return to
work, even though it was reasonable for him to assume that
Bob Fisher would have permitted him to work, or at least
that this was a distinct possibility. In effect, Presley became
an unfair labor practice striker, entitled to reinstatement
upon application. I so find. See De Marco Concrete Block
Company, 224 NLRB 86 (1976).
Presley testified that he was asked by Art Fisher to iden-
tify the leader of the dissident group of employees and was
specifically asked whether Swartz was the leader. Presley
replied "no," but, nevertheless, Fisher stated that he had
had enough of Swartz and was "about an inch, inch and a
half of slapping him down." Presley replied that Swartz was
not "any type of leader," and Fisher commented that he
was sorry about what happened but "that if everybody
wouldn't have went crying to the union. maybe something
might have been worked out." Presley's testimony stands
unrebutted, and I find that by such statements Respondent
interrogated him regarding employees' union activity,
threatened an employee with physical harm, and clearly
indicated that the employees' union activity precluded Re-
spondent from reinstating the employees and acting favor-
ably upon their request for a wage increase. I find that by
such conduct Respondent has committed additional viola-
tions of Section 8(a)( 1) of the Act.
On March 23 Respondent employed 17 employees, 14 of
whom had appropriately designated the Union as their
joint collective-bargaining representative. On the same date
a demand for recognition was made, Respondent replying
that its employees had "quit." In fact, as found herein, Re-
spondent had unlawfully discharged virtually its entire
complement of employees. Respondent's flagrant unfair la-
bor practices are extensive, and it can only be said that a
fair election has been impeded. I therefore find, under these
circumstances, that the authorization cards of an over-
whelming majority of Respondent's employees are a more
reliable indicator of their desire for union representation.
Accordingly, I conclude that, as alleged, Respondent has
violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Unions on and after March
23. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969): Trading Port. Inc., 219 NLRB 298 (1975).
CON(CLUSIONS OF LAV
1. Bolsa Drainage, Inc., Brawley, California. is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Truckdrivers, Warehousemen and Helpers Local
Union No. 898, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, and International Union of Operating Engi-
neers, Local 12, AFL CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)( I) of the Act by
threatening employees with discharge and with the possibil-
ity' of' physical harm should they continue to engage in con-
certed protected activity; by telling employees that their
union activity was the cause of Respondent's unwillingness
to consider reinstating the employees and granting them a
wage increase; and by interrogating employees regarding
their union activity or the union activity of other employ-
ees.
4. Respondent has violated Section 8(a)(3) and (I) of the
Act by discharging employees Frank Anguiano. Miguel
Sandoval, Jimmie Barnhart, Jose Buxo. Manuel Herrera,
736
BOLSA DRAINAGE, INC.
Danny Jones, Steve Lawson, Clayton McDonald, John Mo-
raga, James Roller, Sr., Joe Soto, and Dale Swartz.
5. Clyde Presley became an unfair labor practice striker
on March 27, and is entitled to reinstatement upon applica-
tion.
6. All production and maintenance employees, including
ditcher operators, skip load operators, welders, mechanics,
employees who drive trucks, and laborers employed by
Bolsa Drainage, Inc., at its facility located at 151 South
Eastern Avenue, Brawley, California, excluding all office
clerical employees, guards, professional employees, and su-
pervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining.
7. The Union are the exclusive joint collective-bargain-
ing representatives of the employees in the above-described
unit.
8. By refusing, since March 23, 1978, to recognize and
bargain with the Unions as the exclusive joint collective-
bargaining representatives of its employees in the appropri-
ate unit set forth above, Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged employees
Frank Anguiano, Miguel Sandoval, Jimmie Barnhart, Joe
Buzo, Manuel Harrera, Danny Jones, Steve Lawson, Clay-
ton McDonald, John Moraga, James Roller, Sr., Joe Soto.
and Dale Swartz in violation of Section 8(a)(3) and (1) of
the Act, and has failed to make valid offers of reinstatement
to said employees, with the exception of McDonald and
Jones who were subsequently reinstated, I recommend that
Respondent be ordered to offer the named employees im-
mediate and full reinstatement to their former jobs, dis-
charging if necessary any replacements, or if said jobs no
longer exist, to substantially equivalent positions, with no
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of pay, including subse-
quent wage increases they would have received, suffered as
a result of the discrimination against them. Backpay is to be
computed in the manner prescribed in F W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See generally, ISis Plumbnhing &
Heating Co., 138 NLRB 716 (1962).
It is further recommended that Clyde Presley. an unfair
labor practice striker. be reinstated upon application, and
that Respondent be ordered to post and comply with the
provisions of an appropriate "Notice to Employees" at-
tached hereto as "Appendix." In view of the seriousness of
Respondent's violations it is recommended that Respon-
dent be ordered to cease and desist from in any other man-
ner interfering with, restraining, or coercing employees in
the exercise of rights guaranteed to them in Section 7 of the
Act.
It is also recommended that Respondent be ordered to
recognize and bargain with the Unions upon request as the
exclusive joint collective-bargaining representatives of em-
ployees in the unit found appropriate herein: and, if an
understanding is reached, embody such understanding in a
signed agreement.
Upon the foregoing findings of fact. conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER' 9
The Respondent, Bolsa Drainage, Brawley. California,
its officers, agents, successors and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees regarding their
union activity or the union activity of other employees.
(b) Threatening employees, expressly or impliedly, with
discharge or physical harm in the event they engage in con-
certed protected and/or union activity.
(c) Telling employees that their union activity was the
cause of Respondent's unwillingness to consider reinstating
emploNees or granting them a wage increase.
(d) Discharging employees in violation of the Act.
(e) Refusing to recognize and bargain with Truckdrivers,
Warehousemen and Helpers Local Union No. 898. affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, and
with International Union of Operating Engineers. Local 12,
AFL-CIO, as the exclusive joint collective-bargaining rep-
resentatives of its employees in the following unit:
All production and maintenance employees, including
ditcher operators, skip load operators, welders, me-
chanics, employees who drive trucks, and laborers em-
ployed by Bolsa Drainage. Inc.. at its facility located at
151 South Eastern Avenue, Brawle., California, ex-
cluding all office clerical employees, guards, profes-
sional employees, and supervisors as defined in the
Act, constitute a unit appropriate for purposes of col-
lective bargaining.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed to
them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Offer employees Frank Anguiano. Jimmie Barnhart,
Joe Buzo, Manuel Herrera, Steve Lawson, John Moraga.
Joe Soto. and Dale Swartz immediate and full reinstate-
ment to their former jobs, discharging if necessary any re-
placements or. if said jobs no longer exist, to substantially
equivalent positions, with no prejudice to their seniority or
other rights and privileges. and make them whole in the
manner set forth in the section entitled "The Remedy."
(b) Upon application. offer to Clyde Presley reinstate-
ment to his former position. or, if such position no longer
1 In the event no exceptions are filed as prov ided b Sec. 10' 46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall. as provided b Sec.
102.48 of the Rules and Regulations, be adopted bh the Board and become
its findings, conclusions, and Order. and all objections thereto shall he
deemed aled for all purposes
737
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, dismiss-
ing, if necessary, any employee hired on or after March 27,
1978, for such position.
(c) Preserve and upon 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 neces-
sary to analyze the reinstatement rights of employees and
the amount of backpay due.
(d) Recognize and bargain upon request with Truckdriv-
ers, Warehousemen and Helpers Local Union No. 898, af-
filiated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, and
International Union of Operating Engineers, Local 12,
AFL CIO. as the exclusive joint collective-bargaining rep-
resentatives of its employees in the bargaining unit set forth
above, with respect to wages, hours, and other terms and
conditions of employment; and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(e) Post at its Brawley, California, facility copies of the
attached notice marked "Appendix."2 0 Copies of the notice,
on forms provided by the Regional Director for Region 21.
after being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to ensure that said no-
tices are not altered. defaced, or covered by any other mate-
rial.
(f) Notify the Regional Director for Region 21, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
2o In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional abor Relations Board."
738