Brown and Root, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1952

99 N.L.R.B. 1031 (N.L.R.B. 1952)

BROWN AND ROOT, INC. 1031
Schenectady stores, excluding the head cashier,4 tailor shop em-
ployees,' and all other employees, and supervisors as defined in the
Act.
If a majority of the employees in both voting groups select the
Petitioner, they will be taken to have indicated their desire for a single
bargaining unit, and the Regional Director conducting the elections
directed herein is instructed to issue a certification of representatives
to the Petitioner for such unit which the Board in that event finds to be
appropriate for purposes of collective bargaining. In the event that
a majority of the employees in voting group 1 select the Intervenor
and a majority of the employees in voting group 2 select the Petitioner,
the employees in each will be taken to have indicated their preference
for a separate bargaining unit, and the Regional Director is instructed
to issue a certification of representatives to the Petitioner or Inter-
venor, as the case may be, for the separate unit which the Board finds
in such circumstances to be appropriate for purposes of collective bar-
gaining.
[Text of Direction of Elections omitted from publication in this
volume.]
4 We find, in accordance with the Employer's contention , that the office employee classi-
fied as head cashier In each store should be excluded from the unit as a confidential employee.
The record shows that only this employee has access to all confidential memoranda sent
to the store manager concerning labor relations policy and al other Instructions concerning
employment conditions and rates of pay. See B. F. Goodrich Co., 92 NLRB 575.
° The parties have stipulated to exclude the tailor shop employees.
BROWN AND ROOT, INC., WUNDERLICH CONTRACTING COMPANY, PETER
KrEwrr SONS COMPANY, WINSTON BROS. COMPANY, DAVID G. GOR-
DON, CONDON-CUNNINGHAM CO., MORRISON-KNUDSON COMPANY, INC.,
J. C. MAGUIRE & COMPANY, AND CHAS. H. TOMPKINS CO., DOING BUSI-
NESS AS JOINT VENTURERS UNDER THE NAMES OF OZARK DAM CON-
STRUCTORS AND FLIPPIN MATERIALS Co. and FORT SMITH, LITTLE
ROCK & SPRINGFIELD JOINT COUNCIL, A. F. L. Case No. 3P-Ci A-111.
June 07, 1952
Decision and Order
On August 15, 1951, Trial Examiner David F. Doyle issued his In-
termediate Report in the above-entitled proceeding finding that the
Respondents 1 had engaged in and were engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and (3) of the Act and
1 As used herein , Ozark Is Respondent Ozark Dam Constructors ; Flippin Is Respondent
Flippin Materials Co.; Respondents are Flippin and Ozark, jointly, and severally ; Joint
Council Is Fort Smith, Little Rock & Springfield Join Council, A. F. L.; and IAM Is Inter-
national Association of Machinists.
99 NLRB No. 153.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Re-
port attached hereto. The Trial Examiner also found that the Re-
spondent had not discriminated against Harry Hermanson and L. A.
Shankler, and recommended the dismissal of the complaint as to them,
Thereafter, Respondent Ozark and Respondent Flippin separately
filed exceptions to the Intermediate Report and jointly filed a sup-
porting brief. The Respondents' request for oral argument is denied,
as the record, exceptions, and brief, in our opinion, adequately present
the issues and the positions of the parties.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed? The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the conclusions and recommendations of the
Trial Examiner with the following additions and modifications.'
1. The Joint Council strikers 4
We agree with the Trial Examiner that the Joint Council strikers
were unfair labor practice strikers. On August 19, 1948, the Joint
Council was certified as the exclusive bargaining representative with
respect to two of the four units of Ozark employees found appropriate
by the Board.° Thereafter, on December 3, 1948, the Joint Council
employees struck because of an alleged unlawful refusal to bargain
on the part of Ozark. A finding that Ozark had in fact refused to
bargain collectively with the Joint Council in violation of Section S
(a) (5) was subsequently made by the Board on October 13, 1949,6 and
2 We agree with the Trial Examiner's exclusion of evidence offered by the Respondents
regarding the alleged failure of the Regional Director to advise the Respondents upon their
request which strikers to reinstate and what steps to take relative to their obligations
under the Act. It is not the function of the Board to furnish such advice regarding alleged
unfair labor practices under investigation , and evidence of settlement negotiations are not
admissible in the formal complaint proceedings.
The following corrections and clarifications of the Intermediate Report are noted, with-
out otherwise affecting our agreement with the findings of the Trial Examiner • (1) The
charge filed on October 1, 1948, In the earlier complaint proceeding was only against Ozark,
but was later amended to include Flippin ; ( 2) from December 1 to 3, 1949 ( not 1948), the
parties held conferences in Mountain Home, Arkansas , (3) the reference to "Respondents"
is intended , as in the Decision and Order , to refer to Ozark and Flippin, jointly and
severally.
4 As used herein, Joint Council employees or strikers are those in the two bargaining
units of Ozark employees as to which the Joint Council was certified by the Board ; IAM
employees or strikers are those in the two bargaining units of Ozark employees as to which
the IAM was certified by the Board ; Flippin employees or strikers are those appearing on
the Flippin payroll as of December 3, 1948, when the strike was called , and who were not
included in the - IAM or the Joint Council units.
5 Specifically , the units for which the Joint Council was certified consisted of (1) mill-
wrights, and ( 2) a residual unit of "all employees at the Bull Shoals Dam." As more fully
discussed below, the IAM was certified generally for units of mechanics and machinists.
See Brown and Root, Inc., et al, 77 NLRB 1136.
6 Brown and Root, Inc, et al., 86 NLRB 520.
BROWN AND ROOT, INC. 1033
.by the Court of Appeals for the Eighth Circuit on July 5, 1951.7
Indeed, we note that the Respondents in the.course of their dealings
with the Joint Council after the strike, and in the positions they took in
the present proceedings, apparently have not disputed the fact that
the individuals under discussion were entitled, as unfair labor prac-
tice strikers, to displace the replacements hired in their jobs.8
2. The Flippin strikers
The Trial Examiner found, and we agree, that the Flippin strikers
were unfair labor practice strikers. However, we rely particularly
upon the considerations which are discussed below. The strike called
by the Joint Council on December 3, 1948, was participated in by
certain of the Flippin employees, and a picket line was erected at the
Flippin plant. As already noted, the Flippin employees were not
included in the Joint Council units; nor were they represented in any
other bargaining units. In resolving the immediate question whether
the Flippin strikers were economic or unfair labor practice strikers,
it is necessary, we believe, first to consider the nature of the relation-
ship between Flippin and Ozark. The facts are fully developed in
the Intermediate Report.
Flippin and Ozark are separate joint ventures made up of the same
participating venturers. In April 1947 Ozark commenced"operations
for the purpose of constructing the Bull Shoals Dam under special
Government contract. In November 1947 the Flippin operations were
begun, on the basis of a different Government contract, specifically to
provide Ozark with crushed stone aggregate to be mined by Flippin
from a nearby quarry. Although the quarry was located 7 miles from
the Ozark dam site, a conveyor belt line, constructed and maintained
by Flippin employees and teams of Ozark employees on loan to Flip-
pin, served to connect the two plant locations. Both ventures em-
ployed the same project superintendent, shared in the employment of
other supervisors, and jointly utilized, among other facilities, a per-
sonnel office located on the Ozark premises. The cost of the personnel
and facilities used in common was allocated between the two joint
ventures. Of particular significance is the fact that one of the par-
ticipating joint venturers, i. e., Brown and Root, was designated and
empowered as attorney-in-fact to direct all the operations of both
joint ventures, and to exercise control of their personnel and labor
relations.
I N. L. R. B. v. Ozark Dam Constructors and Flippin Materials Co., 190 F. 2d 222
C. A. 8).
8 See, for example , Ozark's note of December 14, 1949, in reply to the Joint Council's
application for the reinstatement of certain strikers , expressly stating "You are aware that
this will require Ozark Dam Constructors to replace existing employees , who have been
hired for the first time since December 4, 1948. . . :'
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the prior complaint proceeding involving these Respondents,
there was not presented before the Board or the court an issue, such
as we have here, of whether Flippin and Ozark constituted a single
employer or separate employers. There, the violation of Section 8 (a)
(5) was charged against Ozark alone; under the circumstances that
was all that was deemed necessary to litigate the particular unfair
labor practic6 and to effect a remedy. However, the violation of
Section 8 (a) (1) was charged and found by the Board against both
Flippin and Ozark. As ultimately decided by the court, the latter
violation was essentially confined to statements made by a carpenter
foreman, only to Ozark employees, on the same day that Board elec-
tions among such employees were to be held. Although the carpenter
foreman was in the employ of both Flippin and Ozark, under the
allocation arrangement described above, the court enforced the
Board's Order only against Ozark with respect to the conduct found
violative of Section 8 (a) (1), because, as it stated, the "election in
no way involved the employees of Flippin," and because there was
no evidence that the carpenter foreman in these circumstances "was
speaking for or on behalf of Flippin," or that his remarks in any way
affected the rights of the Flippin employees.
But we believe that the resolution of this question, whether Ozark
and Flippin constituted a single employer, is necessarily dependent
upon the nature of the issue ultimately to be decided. Here, the basic
issue to be decided concerns the rights of the Flippin strikers 9 whether
they are to be regarded as economic or unfair labor practice strikers
for reinstatement purposes under Board law.
As indicated above and in the Intermediate Report, the evidence in
the present record demonstrating the close unity of ownership and
control of all the operations and labor relations of Flippin and Ozark
is overwhelming. From the standpoint of the employees, it has also
been clearly shown that the working personnel of both ventures could
and did reasonably regard Ozark and Flippin as their common em-
ployer, notwithstanding the incidental fact that their pay checks were
made out by one or the other, depending upon the particular job they
were performing at a given time. Such factors as the common super-
vision of Flippin and Ozark employees and their joint use of the same
personnel office were important in this regard. We are impressed, too,
with the evidence of interchange and transfer of the employees between
Ozark and Flippin. Stipulations in the record show that of a total
of some 1,373 persons employed over an average recent period of ap-
proximately 11/2 years, there were 595 instances of interchange and
transfer of employees from Flippin to Ozark and from Ozark to Flip-
9 Distinguish , for example , Board cases involving issues of appropriate bargaining units,
and questions of the liability of commonly owned or controlled companies for the commis-
sion of unfair labor practices by one such company.
BROWN AND ROOT, INC.. 1035
pin10 Likewise significant, in our view, is the fact that after the
strike Flippin strikers were reinstated to Ozark jobs, and Ozark strik-
ers to Flippin jobs. Thus, it is amply evident that the Flippin em
ployees, though they were not included in the Joint Council units
limited as they were to Ozark employees, had been transferred at sub-
Aantially frequent intervals to and from employment embraced in
such units, and could reasonably contemplate the continuation of such
interchange and transfer practices 11
Consequently, in view of the foregoing considerations, we reach the
same conclusion as the Trial Examiner, i. e., that Ozark and Flippin
are a single employer for the purpose of determining the remedial
status of the Flippin.strikers. We further conclude that the Flippin
strikers, as unrepresented employees of the same employer, whose in-
terests, as already shown, were closely interwoven with those of the
Joint Council strikers, were substantially affected and aggrieved by
Ozark's unlawful refusal to bargain with respect to the Joint Council
units; that they had a "sufficiently immediate relation" to the unfair
labor practices described; that such practices constituted the direct
cause of their participation in the strike, and that they were entitled,
like the Joint Council strikers, to the full reinstatement remedy of
unfair labor practice strikers.12
3. The Section 10 (b) contention
The Respondents contend that a finding that any of the strikers
were unfair labor practice strikers is precluded by the proviso in Sec-
tion 10 (b) of the Act which restricts the issuance of a com-
plaint ". . . based upon any unfair labor practice occurring more
than six months prior to the filing of the charge. . . ." Specifi-
cally, the Respondents assert that the present case is analogous to
the Greenville Cotton Oil Company case,13 in which the Board held
that the finding of an unfair labor practice strike was precluded under
Section 10 (b), where the charge was filed more than 6 months after
the unfair labor practice which caused the strike, although timely with
respect to that company's failure to reinstate the strikers upon appli-
cation. However, like the Trial Examiner, we find a very basic dis-
10 From Ozark to Flippin there were 300 instances , and from Flippin to Ozark 295
Instances of transfer between payrolls . These figures include cases involving severance
from the payroll of one venture because of resignation , termination , or reduction in force,
and subsequent rehire in the same or in a different classification on the payroll of the other
venture. Data were derived from General Counsel 's Exhibits Nos. 11, 15, 16, 19, and 20.
Cf. Ocala Star Banner, 97 NLRB 384.
18 See N. L. R . B. v. Biles Coleman Lumber Co ., 98 F. 2d 18 ( C. A. 9), (cited and dis-
cussed in the Intermediate Report ) similarly involving a strike caused by an unlawful
refusal to bargain in which the sole pertinent holding of the court , as relates to the present
case, was that certain unrepresented nonunit strikers ( I. e., the two foremen ) were unfair
labor practice strikers.
1892 NLRB 1033 , enforced 30 LRRM 2289 ( C. A. 5), June 12, 1952.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,tinction between the two cases. In the case before us, unlike the
Greenville case, a separate timely charge was filed with respect to the
unfair labor practice causing the strike which, indeed, culminated in a
finding of a violation of Section 8 (a) (5) of the Act by the Board and
the court in another proceeding.14 The construction offered by the
Respondents is wholly untenable, i. e., that the proviso under Section
10 (b) applies here merely because our finding of an unfair labor prac-
tice strike is literally "based upon" Ozark's unlawful refusal to bar-
gain, which antedated the present charge by more than 6 months. For
the undoubted purpose of the Section 10 (b) proviso, as is apparent in
its express terms, was merely to discourage dilatory filing of charges.15
4. The IAM strikers
On August 19, 1948, following the Board elections, the Joint Coun-
cil was certified to represent two of the Ozark units, as already indi-
cated, and the IAM was certified in respect to the remaining two
bargaining units, generally consisting of (a) machinists, and (b)
mechanics, including "mechanical repairmen." As of December 3,
1948, when the strike was called by the Joint Council, the IAM was
in the process of negotiating for a contract to embrace the employ-
ees in the two units it thus represented. Some of these IAM em-
ployees participated in the Joint Council strike, albeit with no sanc-
tion or authorization of the IAM.
The Respondents contend that the IAM strikers were not at all
entitled to reinstatement, because they violated an alleged "no-strike,
no-lockout" provision in a contract between the IAM and Ozark. This
issue was not raised or litigated at the hearing. It was contended for
the first time by the Respondents in their brief to the Board. Al-
though there is some evidence in the record that a contract was ulti-
mately executed with the TAM as of about November 17, 1949, some
11 months after the strike, the contract itself was not introduced in
the record. More particularly, as the Trial Examiner found, there
is nothing, parol or in writing, as evidence of the alleged no-strike
,clause. Consequently, because of the Respondents' failure factually
to support its contention, we do not reach the question whether a no-
strike clause executed, as it is alleged here, long after the strike had
begun, had the effect of converting employees covered by the contract
who continued in their strike into misconduct strikers not entitled to
reinstatement.
The Respondents also contend that, under the Draper doctrine;"
14 Ozark Dam Constructors, 86 NLRB 520, enforced N. L. R. B. v. Ozark Data Construc-
tors, et at., 190 F 2d 222 (C. A. 8) ; also cited supra.
15 Senate Report No. 105 on S. 1126, p. 27; House Conference Report No. 510 on H. R.
3020, p. 53.
16 N. L. R B. v. Draper Corporation, 145 F. 2d 199 (C. A. 4).
BROWN AND ROOT, INC. 1037'
the IAM strikers forfeited their right to any reinstatement' because
their unauthorized strike interfered with the representative authority
of the IAM. The Trial Examiner properly rejected this contention.
The Draper case involved a wildcat strike undertaken for the express
purpose of affecting the position of the strikers' authorized repre-
sentative then engaged in collective bargaining negotiations, which
conduct, it was found, was in derogation of the exclusive bargaining
authority of such representative. The strike was therefore held an
act of misconduct which justified the refusal on the part of the em-
ployer to reinstate the strikers. But the Draper doctrine certainly
was not intended to deprive minority strikers of their ordinary pro-
tection in striking, with or without the consent of their bargaining
representative. There is clearly no Draper situation under the pres-
ent facts. In this case the IAM strikers joined the strike for a pur-
pose entirely unrelated to the collective bargaining authority and'
activities of their own representative, the IAM. They struck to sup-
port and sympathize with the unfair labor practice strikers in the
Joint Council units. For such a purpose, as we have already shown,
they were entitled to the protection afforded by the Act to strikers
generally.
However, the Trial Examiner held that the IAM employees who
struck were themselves unfair labor practice strikers to whom the full-
reinstatement rights available under the Act should be granted. With
this conclusion we cannot agree. Unlike the Flippin strikers, the IAM
strikers were affirmatively represented in separate certified units with
respect to which, Ozark was properly bargaining collectively with the
IAM. This minority group of IAM employees, unauthorized by their
own representative, undertook to strike in conjunction with the Joint
Council strikers as to whom Ozark did unlawfully refuse to,
bargain. It is therefore clear that the strike was not caused by any
unfair labor practices directed at the IAM employees, and that they
were not immediately affected or aggrieved by Ozark's conduct relat-
ing to the Joint Council units. Nor are we able reasonably to con-
clude that Ozark's unfair labor practices, rather than a desire to
express sympathy and support for the Joint Council strikers, consti-
tuted the actual reason for the work stoppage on the part of the IAM
strikers.
The Biles Coleman case, supra, is cited by the Trial Examiner as
authority for the proposition that employees in the position of the
IAM strikers have the same rights as those employees (the Joint Coun-
cil strikers here) who are directly affected by the commission of un-
fair labor practices. That is not our view of the court's holding in
the Biles Coleman case. The nonunit strikers in that case who were
held by the court to have been unfair labor practice strikers, in circum-
stances otherwise similar to those in the present case, were not affirm-
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
atively represented in different units as were the'IAM strikers here.
Moreover, the seemingly sweeping language used by the court in
that case , upon careful analysis, reveals that the court confined itself
to the narrow facts there in question, and specifically refrained from
considering "the ultimate limits of the Board's authority to order
reinstatement of strikers against whom an unfair labor practice is
not directly committed." Thus, the court's holding there was not that
all employees of an employer who participate in an unfair labor prac-
tice strike are necessarily unfair labor practice strikers, but simply
that the particular strikers under consideration in that case had a
"sufficiently immediate relation" to the unfair labor practices to be
entitled to full reinstatement 17 Accordingly, it is our view that the
JAM strikers did not have a "sufficiently immediate relation" to the
Respondent's refusal to bargain to support a finding that they were
unfair labor practice strikers,"' like the Joint Council and Flippin
strikers whom we have found were directly affected by the unfair
labor practice.-
5. The Joint Council's applications for reinstatement
The General Counsel alleged in the complaint that on December 2,
1949, and at various dates thereafter, the striking employees made
unconditional offers to return to work. The Trial Examiner did not
specifically pass upon this allegation. The record shows that on
about such date, at one of the bargaining conferences with Ozark, the
Joint Council orally requested that all the strikers be put back to
work. Ozark's counsel refused this broad request but handed the
Joint Council's representatives a note, which is in evidence,, stating
in substance that it would reinstate the strikers upon their discon-
tinuance of the strike, "to the extent required by the Labor Manage-
ment' Relations Act." 20 Although as of December 2, 1949, all picketing
17 There appears no evidence to support the implied finding in the Intermediate Report
that all or any of the IAM strikers attended the Joint Council strike meeting and voted
-with the others to go out on strike ; we cannot accept such an inference from the fact that
the Joint Council meeting was "open to all employees of the Respondents ." Nor would we
attach significant weight to such a conclusion even if supported . And we do not deem it
valid or at all persuasive that the IAM employees were uncertain of their classification, or
that they had not become accustomed to the differences between the units, in particular
view of the hearing, elections , and certifications in the representation case, supra, and the
stipulations in the record showing clearly that the employees in question held IAM classi-
fications at the time of the strike.
18 Member Houston dissents from this portion of the decision ; his dissenting opinion
appears separately , infra.
19 The stipulations in the record reflect a pattern of interchange and transfer of employees
to and, from •classiflcations embraced in the IAM units in the same manner as'that shown
above with respect to the Flippin employees . However, in view of the distinct considera-
tions affecting the IAM strikers, as shown herein, we do not regard this factor sufficient to
find that their strike was caused by an unfair labor practice.
20 Testimony on behalf of the Joint Council that Ozark agreed to reinstate strikers only
"as vacancies occurred " cannot be accepted as the precise or final position of Ozark in view
of the documentary evidence of Ozark 's note, described in the text above, which the Joint
VVouncil admitted it received.
BROWN AND ROOT, INC. 1039
had long since been abandoned, it is entirely clear that the parties
viewed the strike as continuing.21 Nor is it contended, and it does not
appear, that any of the strikers presented themselves for reinstate-
ment and were rejected on or about December 2, 1949. As of such
date the record establishes merely that the parties commenced nego-
tiations looking toward an agreement between them on the subject of
the settlement of the strike and the reinstatement of the strikers?
Accordingly, we find no support for the allegation in the complaint
that strikers were discriminatorily denied reinstatement beginning
December 2,1949.
However, on December 14, 1949, a formal memorandum was deliv-
ered by the Joint Council to Ozark, reading in pertinent part :
As a result of the action on the part of the Ozark Dam Con-
structors in violating the provision of the Management Relations
Act of 1947, a large number of the employees who participated in
the -certification election went on strike under date of December 2,
1948. Many of these employees have been either totally or par-
tially unemployed since December 2, 1948, suffering severe loss and
privation to themselves and their families. The undersigned now
formally demands these employees, or those of them who present
themselves, be immediately employed by the Ozark Dam Con-
structors. (Emphasis added.)
Ozark accepted this offer of the Joint Council in the form of a note
submitted on the same day, stating inter alia:
In accordance with the demand in your letter of this date for the
reinstatement of those persons who went out on strike on Decem-
ber 3,1948, and who were employed on December 2,1948, by Ozark
Dam Constructors, this is to advise that we will re-employ such
persons to the extent required by the Labor Management Relations
Act of 1947 and in the manner required thereby upon their appli-
cation to Ozark Dam Constructors for such re-employment. You
are aware that this will require Ozark Dam Constructors to replace
existing employees, who have been hired for the first time since
4 December 1948 with such employees who have been out since
3 December 1948 and who re-apply for such jobs. (Emphasis
added.)
31 The Respondents contend in their brief that the strike was over when the picketing was
called off about August 1, 1949 . We disagree . The strikers did not return to work after
the cessation of the picketing on August 1, 1949. And apart from other considerations the
understanding and actions on the part of the parties themselves , as clearly revealed in the
record ,„ wholly negate this contention . Thus, for , example, Ozark conceded in its negotia-
tions with the Joint Council-on'December 2, 1949 ,' and at subsequent dates, that the strike
was still in progress . Cf. Kallaher & Mee, 87 NLRB 410.
22 Among other things, the conferees at the December 2, 1949 , meeting designated a com-
mittee to make a spot check of Ozark's payroll to determine the approximate number of
strike replacements hired. Such a check was made and was taken under consideration by
the parties.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD)
The Trial Examiner rested his reinstatement and back-pay findings
upon the conclusion that a proper unconditional application for re-
instatement on behalf of all employees who participated in the strike,
i. e., Joint Council, Flippin, and IAM strikers, was made by the Joint
Council in its letter of December 14, 1949, as set forth above. We are
able to draw no such conclusion from the Joint Council's December 14,.
1949, letter. The unmistakable language in this offer of the Joint
Council clearly restricts the applicants to considerably fewer than
all of the strikers. The letter is addressed specifically to Ozark; refers
to those employees "who participated in the certification election,"
which excludes, of course, the Flippin employees, and may be construed
in the context of the letter to exclude the IAM employees as well; and
demands employment in the alternative for "those of them who present
themselves." Ozark's letter of acceptance of the same date, revealing.
its own interpretation of the content of the offer, plainly shows its
agreement only to take back such strikers "upon their application for
re-employment."
The sequence of the developments which ensued upon the agreement
of the parties in their exchange of notes on December 14, 1949, as re-
lated in detail in the Intermediate Report, also amply demonstrates
that the intent and understanding of the parties was that the strikers
were to make individual applications for reinstatement. The perti-
nent events may be recapitulated as follows :
(a) The strike was formally terminated by the Joint Council on
December 14,1949, and the strikers were advised to report to the union
hall to register for employment.
(b) From December 14, 1949, until January 3, 1950, the parties
undertook and carried out, in part, a joint reinstatement program.
(c) During such period, numerous strikers bearing referral slips
from the Joint Council made application for reemployment at the
dam site; some were reinstated, some rejected.
(d) At about the beginning of the joint reinstatement program,
the parties agreed that only 25 referrals a day should be made by the
Joint Council.
(e) The parties mutually agreed to postpone any reinstatement of
strikers between December 22, 1949, and January 3, 1950, for reasons
owing to the holiday season.
(f) Under the joint program, lists of available applicants were
submitted by the Joint Council to Ozark on December 21, 1949, and
on January 3, 1950.
(g) On January 3,1950, at a meeting with the Joint Council, Ozark
indicated, over the protest of the Joint Council, that it considered its
reinstatement obligations completed, except in respect to the reemploy-
men of laborers and the existence of some 38 vacancies in specific
classifications, a list of which it furnished the Joint Council.
BROWN AND ROOT, INC. 1041
(h) On January 15, 1950, the Joint Council sent to Ozark and to
Flippin separate formal letters with attached lists of available strikers
employed by each respective joint venture, stating inter alia:
The following employees . . . having abandoned their strike,
hereby unconditionally apply for employment. (Emphasis
added.)
(i) On January 24, 1950, Ozark and Flippin replied, rejecting the
demand of the Joint Council. However, Ozark instructed the Joint
Council to direct any of the employees on the January 15, 1950, list
to its employment office, and it would "endeavor to employ as many
of such men as possible."
In the recent case of American Manufacturing Company of Texas '13
the Board had occasion to pass upon a similar question. The Board
held there that an incomplete application for reinstatement was made
in the following circumstances : (a) The union agreed that the men
should report individually to indicate their availability and to ascer-
tain whether or not jobs were still available; (b) the union informed
the strikers to make individual application; (c) the union itself filed
back-to-work applications.
Likewise in the present case, we do not find support in the evidence
that a proper blanket application on behalf of all or any of the
strikers was made and rejected by the Respondents on December 14,
1949.
6. The authority of the Joint Council to make application
However, the record shows that personal applications were made by
many of the strikers. In addition, as previously indicated, there
were separate lists of available strikers submitted to Ozark by the
Joint Council on December 21, 1949, January 3, 1950, and January
15, 19.50, and submitted to Flippin on January 15, 1950 24 As regards
the December 21, 1949, and January 3, 1950, lists, it appears that they
were compiled largely on the basis of the registration of strikers at
the union hall in connection with the joint reinstatement program.
The January 15, 1950, lists compiled, as has been shown, after the
collapse of the joint reinstatement program, were comprehensive in
coverage and named all but a few of the strikers who had not there-
tofore been reinstated.
The named strikers on all of the afore-mentioned lists submitted
to the Respondents were thus represented by the Joint Council to be
applicants available for immediate reinstatement. The Respondents
did in fact reinstate many of the strikers named on the lists; such
23 NLRB 226 . (Member Styles dissenting.)
11 Respondents Exhibits Nos. 3, 7, and 5, and General Counsel Exhibit No. 7, respectively.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers for the most part are not complainants in this case. However,
in determining whether those strikers who are complainants herein
can be said to have made proper application for reinstatement, by
reason of their appearance on the Joint Council's lists, we must first
examine the Joint Council's authority to make such application on
their behalf.
The Joint Council strikers were, of course, represented by the Joint
Council as their certified bargaining agent in respect to all matters,
of collective bargaining, as well as those matters which pertained
solely to the strike. Although, when the strike was finally terminated
by the Joint Council after about 1 year, there were strikers who had
of necessity located themselves long distances from the area of the
dam site, the record does reflect that a number of such strikers main-
tained communication with the nearest office of the Joint Council or
with one of its constituent unions; and many corresponded with
friends or relatives living near the dam site who registered for re-
employment in their behalf at the union hall. In any case, we believe
that the Joint Council, as the statutory bargaining representative of
the Joint Council strikers, did have the necessary authority to make
proper application for the reinstatement of these strikers.
With respect to the Flippin strikers, although they were not in the
Joint Council units, the record supports a finding that the Joint Coun-
cil received proper authorization to make application for the reem-
ployment of a number of these strikers from the registration of
their names at the union hall, by personal appearance, or through
instructed intermediaries. It is entirely clear, in any event, that the
strike was organized and conducted in the name and authority of the
Joint Council and that the unrepresented Flippin strikers submitted
themselves to such authority and participated in the various strike
activities and procedures within the framework of the Joint Council's
strike organization. Under these circumstances, we are of the opinion
that the Joint Council may properly be regarded as the representative
of the Flippin strikers respecting all matters which pertained to the
strike, including their agreement to terminate the strike and their
applications for reinstatement.
The IAN strikers, however, were affirmatively represented by the
IAM in other than Joint Council units in regard to all matters of
collective bargaining. The IAM did not authorize or sanction their
participation in the strike. And, as the statutory exclusive representa-
tive of these strikers, the IAM formally advised the Respondents' proj-
ect superintendent by letter, in evidence, shortly after the termination
of the strike, not to recognize or deal with any other union than the
JAM relative to the reinstatement of IAM strikers. The letter stated
in perinent part :
BROWN AND ROOT, INC. 1043
To avoid any possibility or future misunderstanding, this is to
advise that no union or group of unions, other than the I. A. of M.
has any authority to authorize or request any change in present
personnel or to represent any employee coming within the bar-
gaining units described in the above-mentioned agreement, regard-
less of any understanding or agreement which may have been
reached or which may be reached in the future with any other
union regarding the rehiring of former employees. (Emphasis
added.)
The position of the Respondents in their post-strike dealings with
the Joint Council was rigidly and consistently to the effect that the
Joint Council had no authority to speak for any of the IAM strikers.
Moreover, the Respondents contended then, as they do now, that they
would have violated Section 8 (a) (5) of the Act to have dealt with
the Joint Council regarding the IAM strikers. We need not pass
upon this contention. In view of the afore-mentioned letter of the
IAM, and all the circumstances of the strike, we conclude that the
Joint Council had no authority to make application for the reinstate-
ment of any of the IAM strikers appearing on the Joint Council's
lists described above.25 We find, therefore, that personal applications
for reinstatement by the IAM strikers were necessary.
Accordingly, in our opinion, the Joint Council and Flippin strikers
whose names appeared on the lists of December 21, 1949, January 3,
and 15, 1950, submitted by the Joint Council to the Respondents,
thereby made effective application for reinstatement.26 Moreover, we
find that the Joint Council's letters to the Respondents on January
15, 1950, with the attached comprehensive lists as described above, in
clear and unequivocal terms effected a blanket unconditional applica-
tion for the reinstatement of the Joint Council and Flippin strikers
named on the lists. Thus, except in the classifications in which the
Respondents indicated vacancies on January 3, 1950, which we shall
further discuss below, the rejection by the Respondents of the Joint
Council's blanket demand of January 15, 1950, made it unnecessary for
these listed strikers to apply personally at the darn site .27
23 The Intermediate Report refers to the existence of an agreement as of December 14,
1949, on the part of the Respondents to reinstate the strikers , and to the Respondents'
breach of such an agreement . As regards the Joint Council and Flippin strikers, as unfair
labor strikers, they were entitled to reinstatement as a matter of legal right , apart from
any agreement by the Respopdents . As regards the IAM strikers , we find no evidence that
06 Reepondents agreed on or about December 14, 1949, to reinstate them.
2e Although in a few instances the names of strikers on the lists were misspelled or
appeared under inaccurate job classifications , we find that the names of specific strikers oil
the lists which we shall indicate below were sufficiently clear to be identified by the
Respondents.
27 See, e. g. , Pecheur Lozenge Co ., Inc, 98 NLRB 496.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The futility of application theory
Although the Trial Examiner held, erroneously as we have found
above, that personal applications by the strikers were not required
and that they had a right to reinstatement as of December 14, 1949,
when a purported blanket application was made by the Joint Council,
he also indicated that after January 3, 1950, individual applications by
the strikers would have been futile, citing cases to support a futility
of application finding. On January 3,1950, as has already been shown,
the joint reinstatement program undertaken by the parties immedi-
ately after the strike was called off when the Joint Council was for-
mally apprised by the Respondents' representative that the reemploy-
ment of the strikers had been completed to the extent that permanent
replacements had been hired in their jobs, except for some 38 specified
vacancies, and all laborers. In regard to the reemployment of the
Flippin and IAM strikers, the Respondents' position was that they
were not obligated to displace any replacements. It also appears that
on or shortly after January 3, 1950, there were many strikers, Joint
Council, Flippin, and IAM, who applied personally for reinstatement
and were rejected by the Respondents.
Contrary to the Trial Examiner, we do not believe that "a futility
of application" theory is supportable in the light of all of the circum-
stances in this case, e. g.: (a) After the abandonment of the joint
reinstatement program on January 3, 1950, the Joint Council never-
theless advised the strikers to continue to go down to the dam site and
apply for reemployment at Ozark and Flippin 28; (b) the Joint Coun-
cil was advised there were still job vacancies at the project in many
classifications which the strikers could fill ; this is significant particu-
larly in view of the interchangeable character of many of the jobs; (c)
moreover, the record shows that a substantial number of strikers in
various classifications did continue to apply for work at the Respond-
ents' personnel office, or directly to certain of the foremen, and that
many of them succeeded in getting reemployment; and (d) on January
15, 1950, the Joint Council itself made application, as we have found,
for most of the remaining strikers who were available.
8. The Respondents' "overload" theory
The Respondents contend now, as they did on January 3, 1950, that
they had fulfilled their reinstatement obligations on such date when
they completed the reinstatement of certain classifications of unfair
2s This is based on the clear testimony of Joint Council Representative Keeler. The Joint
Council's allegation that it undertook, after January 3, 1950, to advise all strikers at or
away from the project area not to make application, that there were no jobs, is therefore,
not creditable.
BROWN AND ROOT, INC., 1045
labor practice strikers to the extent and in the amount that permanent
replacements were hired during the strike in these classifications-
notwithstanding the fact that all such replacements continued to be
employed. The Respondents' attempt to justify the retention of the
replacements as an "overload" or "luxury" which they chose to indulge
in after having satisfied what they construed to be the requirements of
the Act. Without deciding the validity of such a legal argument, we
find, on the present record this contention, has no factual support.
The Trial Examiner found, and we agree, that the strikers who were
thus reinstated, i. e., before January 3, 1950, were given jobs which
were vacant. Thus, among other things, the evidence shows: (a) In
about October 1949 the Respondents' total employee complement was
drastically reduced by a layoff from a one-time peak of about 1,600
to about 200, made necessary as a result of a strike on the Missouri
Pacific Railroad. Many of the laid-off employees thereafter became
unavailable, thus indicating-a strong probable need by the Respondents
for employees when the strike here in question was finally ended in
December 1949; (b) the Respondents advised their foremen in regard
to the reinstatement of strikers to keep the replacements "if they could
afford it," none of the replacements were discharged, all were ap-
parently regularly used at work; (c) shortly after reinstating many
of the strikers, the Respondents instituted reductions in force in which
the reinstated strikers were given no preference over the replacements;
and (d) the Respondents continued to hire new employees during
the period immediately following the strike in many of the affected
classifications.
9. The January 3, 1950,-list of vacancies
We have found that the Joint Council was properly the agent for
the Flippin and Joint Council strikers in respect to making applica-
tions for reinstatement. Likewise we find the Joint Council was the
agent for these strikers in receiving offers of reemployment from the
Respondents. Thus, as previously shown, on January 3, 1950, the
Respondents' representative furnished the Joint Council with a list
of 38 vacancies in various specified classifications'29 and also made it
clear that all laborers could be immediately reemployed. Conse-
quently, we must view this show of vacancies in the existing context
as an affirmative willingness to employ, and as offers of reemploy-
ment, which necessarily affects the reinstatement rights of the claim-
251. e., one truck driver, one euclid operator , one waiehouseman , one pipefitter, one
plumber, three thin -wall tubing men, one boilermaker , four carpenter apprentices , one iron-
worker-rodman , one bellboy, one dozer operator , five oilers , one shovel operator , four elec-
trician apprentices , four welders and eight certified welders.
215233-53-67
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing -strikers who had such classifications.3° For their own economic
reasons; the Respondents could, in the circumstances, properly make
such reemployment offers to available strikers before receiving their
applications for reinstatement. Specifically, we find that the affected
strikers were not discriminated against after January 3, 1950, unless
the -vacancy, indicated by the Respondents on such date was timely
claimed' and filled by a striker thereafter, or unless these strikers ap-
plied (personally at the plant after such date 31 and were rejected by
the Respondents.
10. Violation of Section 8 (a) (1)
We agree with the Trial Examiner that independent violations of
'Section 8 (a) (1) were committed by the Respondents by the coercive
statement of Master Mechanic Estes and the discriminatory conduct
of 'Foreman Walter G. Balleau, as detailed in the Intermediate Report.
In these instances, we believe the nature of the proscribed conduct
was sufficiently pervasive as to affect coercively the employees on the
payrolls of both Respondents Flippin and Ozark.
11. General findings affecting reinstatment and back-pay questions
The Joint Council and Flippin strikers were, as we have found,
unfair labor practice strikers. They were therefore entitled, upon
proper application, to reinstatement in their own or substantially
equivalent positions , and to displace, if necessary, any replacements
hired by the Respondents in their jobs, consistent with the formula
for effecting the remedy as described and quoted by the Trial Exam-
iner32 We have found that the IAM strikers were economic strikers.
They were therefore entitled to be reinstated to their own or sub-
stantially equivalent positions, if available upon their proper appli-
cation. In addition, we agree with the principle applied by the Trial
Examiner , that although the legally available jobs in a given classifi-
cation were less than the number of former strikers making proper
application for such jobs, all such applicants who were thus denied
reemployment were discriminated against when the Respondents
failed to reinstate any of them to the available jobs.'
11 In the circumstances of this case , as revealed herein, we believe and find that all the
parties understood such vacancies to be available at both Flippin and Ozark. As we have
already noted , most of the strikers were ultimately offered reinstatement and reinstated
without regard to any distinction between their Flippin or Ozark status at the time of the
strike.
11 Most of these strikers appear on the lists of applicants submitted by the Joint Council
to the Respondents on January 15, 1950 This we construe as establishing their availability
early in January 1950. In the circumstances , we find that it was incumbent upon them
personally to present themselves at the dam site to accept and qualify for the vacancies
indicated.
11 See footnote 14 in the Intermediate Report.
33 Cf e g., Luzerne Hide and Tallow Company, 89 NLRB 989 , enforced 188 F 2d 439
(C. A 3), cert. den 342 U S 868 ; v L. R B v. American Creosoting Company, Inc, 139
F. 2d 193 (C. A. 6).
BROWN AND ROOT, INC. 1047
As already indicated, the Respondents ultimately made offers of
reinstatement at various times following the termination of the strike
to virtually all the strikers in question. In many instances a sub-
stantial period of the time elapsed between the date of the offer and
the date of acceptance by the striker. As to some of these instances
the Trial Examiner recommended back pay until the actual date of
reinstatement, where there was no showing of a valid explanation for
the striker's delay. Although the strikers were not, of course, in any
way compelled to remain at the scene of the strike during the approxi-
mate year that it continued, and were free to take employment and
residence elsewhere, which the record shows many of them did, the
Respondents cannot be held obligated for back pay after their offer
of reemployment beyond a reasonable time for the striker to'receive
and personally accept the offer. We believe and find such a reasonable
time in the present situation to have been 5 days."
12. Joint Council and Flippin strikers considered individually
The individual complainants in their respective classifications are
considered below in compilations and in discussions of particular
factual issues from which we draw our conclusions, to accord with
the holdings and general principles herein described. The order of
consideration shall insofar as practicable conform to that followed in
the Intermediate Report.
Carpenters
In this classification, there are 35 former strikers who are com-
plainants herein, all of whom, the record shows, made applications
for reinstatement, personally or through the Joint Council, on or be-
fore January 15, 1950, which applications were refused by the Re-
spondents. At the time of their applications, the Respondents retained
in their employ 21 carpenter replacements. Accordingly, we find, like
the Trial Examiner, that on this basis alone the Respondents dis-
criminatorily refused reinstatement to all of the carpenter complain-
ants. But the record establishes also that about the time they applied
for reinstatement there were additional jobs available to which they
would have been entitled. Thus, the stipulations in the record show
that there were in this classification 4 promotional replacements; 3 dis-
criminatory replacements on or before January 15, 1950; and 4 dis-
criminatory replacements after January 15, 1950. The parties specif-
ically stipulated that there were 39 new employees hired as car-
penters between February 1 and July 25, 1950. As former unfair
84 We are cognizant of the fact that the Respondents ' letter to the strikers offering re-
instatement ( General Counsel's Exhibit No . 5) permits a reply within 14 days. However,
we do not construe this to indicate a willingness by the Respondents to assume responsi-
bility for back pay during the whole 14-day period , if taken.
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor practice strikers, the complainants were entitled to a preference
as against new employees with respect to any such jobs. after first
having made proper application. Thus, we find the 39 new employees
were also discriminatory replacements.35 In addition, we agree with
the conclusion of the Trial Examiner that the Respondents engaged
many carpenter apprentices during the strike 36 to fill the places of car-
penters on strike, and that therefore the Respondents had available
jobs to which all of the carpenter strikers were entitled upon their
application.
In respect to the compilations below, we find discrimination in
the individual cases listed, as follows:
(1) Between the date of application, as indicated, and the date of
the offer of reinstatement, where the offer was not accepted.
(2) Between the date of application, as indicated, and the date
of actual reinstatement where the later date is not more than 5 days
from the date of the offer.
(3) Between the date of the application, as indicated, and the date
of the offer of reinstatement, plus 5 days where reinstatement took
place in excess of 5 days from the offer.
'
(4) From the date of application, as indicated, up to and includ-
ing the present, where no offer of reinstatement was made.
Application
Personal JointCouncil
Offer of
reinstate-
ment
Reinstated
Bailey, Benjamin W----------------------------------- ------------ 27 12-21-49 10-26-50 11- 1-50
Bevens, J. N ., Jr--------------------------------------- 1- 3-50 1- 3-50 3- 8-50 ------------
Blecker, Robert R------------------------------------- 878 1- 3-50 ------------ ------------ 3- 8-50
Bonner, Glen M--------------------------------------- ------------ 1-15-50 7-25-50 7-29-50
Brents, J B-------------------------------------------- 1-15-50 3- 8-50 3-21-50
Cypert, Eugene N----------------------------------- ------------ 1-15-50 ------------ 3-21-50
Drown, William H-----_----_----_ _---- 1-15-50 3- 6-50 ------------
Flippm, Francis--------------------------------------- 1-15-50 7-25-50 ------------
Ford, Jason S----------------------------------------- 1- 3-50 3- 8-50 ------------
Ford, W ----------------------------------------------- ------------ 1-15-50 No offer
made
Harris, E. E ------------------------------------------ ------------ 1-15-50 7-25-50 7-23-50
Hayes, Herman E---------------------------------- ------------ 1- 3-50 3- 8-50 3-15-50
Hudson, Raymond A---------------------------------- ------------ 1-15-50 10-26-50 ------------
James, John A-- ----------------------------- ------------ 1- 3-50 3- 8-50 ------------
Kent, W A-------------------------------------------- 1-15-50 7-25-50
a5 We adopt the Trial Examiner's definitions of "replacements" and "promotional re-
placements ," the former as new employees hired in strikers' classifications during the period
of the strike, and the latter as old employees promoted into the strikers ' classifications
during the same period . However, "discriminatory replacements " we define as all new
employees hired in particular strikers ' classifications after these strikers bad made applica-
tion for reinstatement and were not yet reinstated.
30 The stipulations in the record show 13 replacements and 6 promotional replacements.
87 As noted , Bailey's name was on the Joint Council 's December 21, 1949, application list,
at which time the Joint Council was informed by the Respondents that Bailey would not
be reinstated.
87a (Stipulated by parties.)
BROWN AND ROOT, INC. 1049
Application
Offer of
reinstate- Reinstated
Personal Joint 'Council
ment
Kilfoy, Wilbert A (disc(issed below) ------------------- ------------ ------------ ------------ ------------
King, Lucian R (discussed below ) --------------------- ----------- ------------ ------------ ------------
Landry, C C ------------------------------------------ ------------ 1-15-50 7-25-50 -
------------ 1-15-50 3- 8-50 _
S L-------------------------------------------- ------------ 1-15-50 7-25-50 -----------
Marberry , F P________________________________________ 1- 3-50 1- 3-50 .3- 8-50 _______-----
Mashaw, Roy ------------------------------------------ ----------- 1-15-50 3- 8-50 ------------
Miller, Joe (Flippm)----------------------------------- ------------ 1-15-50 3- 8-50 -----------
Patton, H. C----------------------------------------- ------------ 1-15-50 3- 8-50 ------------
Pflngston , Jake - ------------------- 8912-23-49 --- 8-50 -
1- 3-50 1- 3-50 3- 850 __________ ._
Putney, Clyde S--------------------------------------- ---------- 39 1-15-50 0-26-50 _
----------- 1-15-50 3- 8-50 -
Billy B--------------------------------------- ----------- 1-15-50 3- 8-50 -
------ 1-15-50 3- 8-50 -----------
Rutledge, Robert M__________________________________ ___________ 1-15-50 7-25-50 8- 8-50
Shaw, Hoy-------------------------------------------- ---------- 1-15-50 3- 8-50
_____Smith, Elbert C__________________ 1- 3-50 1- 3-50
Tulipana, George (discussed below)____________________ 1-10-50 ____________ ____________ 0-23-50
Wood, Russell T. (discussed below)___________________ 1- 3-50 ____________ ____________ 2-25-50
Wilbert Kilfoy's name was on the Joint Council's December 21,
1949, application list. The record shows that it was put on by his
father. It also appears that the Respondents' representative ap-
proved his name on such list as being eligible for employment but that
Kilfoy never showed up to claim the job. As there is no further evi-
dence of an application on his part until after he received the Re-
spondents' offer of October 26, 1950, contrary to the Trial Examiner,
we find no discrimination, and shall dismiss the complaint as to him.
Tulipana was on the Joint Council's December 21, 1949, application
list. His name was approved by the Respondents' representative.
However, he did not immediately present himself for the job because,
as he testified, he had to take care of his boys while his wife was out of
town. As he did make personal application shortly thereafter, i. e.,
on January 10, 1950, under the circumstances, we do not find that
his application was untimely.
Russell Wood did not testify. However, F. P. Marberry testified
that he and Wood made personal application for reinstatement on
January 3, 1950, and were rejected. This testimony was not refuted.
Wood was also on the Joint Council's January 15,1950, list.
8s Pflngston's name was also on the Joint Council's December 21, 1949, application list.
His personal application on December 23, 1949, we consider as the same application, under
the joint reinstatement program
81 Putney's name was also on the Joint Council's December 21, 1949, application list.
However, the record shows that his name on this list was approved as eligible by the
Respondents' representative, but that Putney did not personally appear to claim the job.
Thereafter, his communications with the Joint Council were insufficient, we find, to con-
stitute proper application for reinstatement.
1050 DECISIONS OF.'NATIONAL LABOR RELATIONS BOARD
Carpenter Apprentices
There are two' former strikers in this classification who are com-
plainants herein, i. e., T. H. Vickery and Troy Williamson.40 Both ap-
peared on the Joint Council's January 15, 1950, application list and
both were offered reinstatement on July 25, 1950. However, as noted
above, there were vacancies for four carpenter apprentices on the
Respondents' January 3, 1950, vacancy list 41 which, as we have found,
constituted an offer of reemployment. There is no evidence that on
or after January 3, 1950, Vickery or Williamson personally applied
for reinstatement and were rejected. In accordance with our findings
above, we shall dismiss the complaint as to them.
Aggregate Conveyor Operators
Claiming strikers------------------------------------------- 2
Replacements---------------------------------------------- 3
Promotional replacements ___________________________________ 2
Discriminatory replacements________________________________ 1
Application
Personal
Lamb, Keith (Flippm)---------------------------------
Kyles, Onimus (discussed below) ----------------------
Joint
Council
1-15-50
Offer of
reinstate-
ment
7-25-50
Reinstated
7-27-50
Kyles earned $1.25 per hour at the time of the strike. He person-
ally applied for reinstatement on January 3, 1950, and was refused.
On July 25, 1950, he was sent an offer of reinstatement and was ulti-
mately reinstated at Flippin as aggregate conveyor operator on Au-
gust 1, 1950. Continuing his employment, he was transferred to
Ozark as a pump operator on September 30, 1950, and remained in
this classification until October 10, 1950, when he was discharged by
Foreman Balleau allegedly for refusing to clean up after the other
men on the job. The Trial Examiner found, and we agree, that his
termination was discriminatory.42 As shown in detail in the Inter-
mediate Report, the record clearly establishes an animus on the part
of Foreman Balleau against the reinstated strikers, and in particular
Kyles. An independent violation of Section 8 (a) (1) on the basis
of such conduct has been found herein. We are of the opinion that
Balleau was discriminatorily motivated in instructing Kyles to clean
up after the other men, which was not his function, and that this
alleged basis for his discharge was merely a pretext for Balleau's true
40 Included by the Trial Examiner in his discussion of the carpenters.
4s Only one of these vacancies was filled by a striker , on January 7, 1950.
43 This issue was fully litigated at the hearing.
BROWN AND ROOT, INC., 1051
purpose in taking reprisal. against Kyles,'for engaging in the strike.
However, we do not agree with the Trial Examiner that Kyles was
never properly reinstated. Accordingly, we find that Kyles was dis-
criminated against from January 3, to August 1, 1950, and from Oc-
tober 10, 1950, up to and including the present.
Air Tool Operators
Claiming strikers------------------------------------------- 5
Replacements---------------- -- --------------------------- 8
Promotional replacements ------------------------------------ 7
Discriminatory replacements -----.--------------------------- 4
Application
Offer of
Personal JointCouncil
reinstate-
ment
Reinstated
Wells, John D_---------_----- 1-15-50 7-25-50 ------------
Cutler, Lee R (discussed below)--------------------_- 1-15-50 ------------ 5-24-50
Lee, Marion W (Flippm)------------------------------ 1-3-50 ------------ 4-13-51 ------------
McCracken,, Guy (Fhppm)--_-___ _-_--__--- 1-15-50 1-27-50
Reed, Laurel D. (Flippin) (discussed below) ----------- 1-3-50 ------------ 4-14-51
Unlike the Trial Examiner, we find that Cutler was reinstated on
May 24, 1950, to a substantially equivalent position and that his re-
classifications thereafter were not discriminatory.
Reed testified he was in a group of former Flippin strikers who
applied at the dam site on January 3, 1950, as also testified by Marion
W. Lee, supra. However, in Reed's case, we find, like the Trial Ex-
aminer, that the Respondents' refusal to reemploy him, upon his appli-
cation shortly after the strike, on the ground that he had a hernia was
a pretext, and that in fact he was denied reinstatement because of his
strike participation. As the Trial Examiner found, the Respondents
were aware that Reed had a hernia during his employment before the
strike. And, indeed, the Respondents ultimately reinstated Reed after
the strike, despite the hernia. Accordingly, we find discrimination in
his case from January 3, 1950, until April 14, 1951.
Batch and Mix Operator
James R. Marler is the only complainant in this classification. He
made personal application on January 3, 1950, was offered reinstate-
ment as of July 25, 1950, and was reinstated July 27, 1950. We find,
unlike the Trial Examiner, that there was one promotional replace-
ment in this classification, as well as replacements in such classification
as jackhammer operator, which the record shows Marler was quailfied
to hold. Accordingly, we find discrimination in his case from Janu-
ary 3 to July 27, 1950.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cement Finisher
Freeman, , A. D-----------------------------------------
Application
Personal
Compressor Operator
Fenton, J. R. (Fllppin)43--------------------- ---------- I 1-5-50
Joint
Council
1-15-50
Offer of
reinstate-
ment
7-25-50
------------ I ------------ I
Crane Operators
Reinstated
1-23-51
Claiming strikers___________________________________________ 2
Promotional replacements___________________________________ 7
Discriminatory replacements________________________________ 2
Marehant, Harvey E. (discussed below) ---------------
Morgan, W. E -----------------------------------------
1-4-50 ------------
1-15-50 7-25-50
7-12-50
Marchant was earning $1.75 per hour at the time of the strike. He
was rehired on July 12, 1950, as an aggregate conveyor operator at
$1.25 per hour. Thereafter, he held several classifications, but not
that of crane operator, until the date of the hearing. At the time
of the hearing, he was earning $2.121/2 per hour as a structural iron
worker. We disagree with the Trial Examiner that Marchant was
not properly reinstated and was discriminated against up to and in-
cluding the present. For it appears that he may have been reinstated
to a substantially equivalent position some time before the hearing.
Accordingly, we find discrimination in his case from the date of his
personal application on January 4,1950, until such time as he is shown
to have been reinstated to a substantially equivalent position, if at
all, upon compliance investigation of the facts.
Crusher Operator
James Schvimacher, a former Flippin striker, did not testify, but
W. E. Higley, discussed infra, testified without contradiction that
Schumacher was in a group of strikers who personally applied at
the plant "early hi January" 1950. Schumacher was offered rein-
statement as of July 25, 1950. It was stipulated by the parties that
a new employee was hired as crusher operator between February 1,
and July 25, 1950. Accordingly, we find such an employee to have
been a discriminatory replacement. The record also shows that Schu-
43 Fenton was a compressor operator at Flippin at the time of the strike and not em-
ployed at Ozark as inadvertently stated by the Trial Examiner.
BROWN AND ROOT, INC.
macher was qualified to fill other available jobs, e. g., jackhammer
operator. We therefore find discrimination from a date early in Jan-
uary 1950, to be determined upon compliance investigation, until July
25, 1950, when Schumacher was offered reinstatement.
Dinkey Operator
Claiming strikers-------------------------------------------- 2
Replacements----------------------------------------------- 3
Promotional replacements------------------------------------ 7
Application
Personal
Carlton, H L------------------------------------------
Hale, R. L. (discussed below) (Jan. 1950, 2nd week) ----
Joint
Council
1-15-50
Offer of
reinstate-
ment
3-6-50
7-25-50
Reinstated
Hale testified that he applied for reinstatement in the second week
in January 1950, and was refused. He made a further unsuccessful
attempt to get reinstated in March 1950. He was offered reinstate-
ment on July 25, 1950, as noted, which Hale apparently ignored. In
February 1951 he appeared at the personnel office and was offered
employment, which he refused to accept because it was to be under his
former supervision " Accordingly we find discrimination from a
date during the second week in January 1950, to be determined upon
compliance investigation, until July 25, 1950.,
Dozer Operators
Howard S. Bidwell and James Hill, both former Flippin strikers,
were on the Joint Council's January 15, 1950, application lists. - Bid-
well was reinstated January 27, 1950, and Hill was offered reinstate-
ment July 25, 1950, which he declined. As shown above, there was
a vacancy in this classification offered to the Joint Council by Re-
spondents' representative on January 3, 1950. There is no evidence
that on or after January 3, 1950, Bidwell or Hill 45 applied personally
for reinstatement and was rejected. In accordance with our findings
above, we shall dismiss the complaint as to them.
'+ The Trial Examiner inaccurately found that this offer of reemployment at the plant
was made in February 1950.
4i Hill did not testify . Joint Council Representative Wilkerson ' s testimony that Hill was
in the area of the dam site, that he was available and wanted employment , is insufficient
upon which to base a finding that Hill personally applied. The Trial Examiner found that
Hill could have been reinstated in the classification of air tool operator for which he was
qualified and in which there had been available replacement jobs. However , the stipulations
Show only that Hill had been employed as an air tool operator for not more than 1 day.
On this record, we cannot find that Hill was qualified in such other classification.
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electricians
Claiming strikers------------------------------------------- 5
Replacements---------------------------------------------- 8
Discriminatory replacements-------------------------------- 5
Application
Personal JointCouncil
Offer of
reinstate-
ment
Reinstated
Anderson , Truman E --------------------------------- is 1-3-50 3-13-50
Dorell, Charles ----------------------------------------- 1-15-50 7-25-50 ------------
Gardner, W . A----------------------------------------- 1-3-50 7-25-50 ------------
Hermanson, Harry ------------------------------------- (1e.) (46.) (46.)
Mooney, Carl----------- ------------------------------ 1-15-50 7-25-50
Form Setter and Strippers
C. D. Stamps was on the Joint Council's January 15, 1950, applica-
tion list. There is no showing that there was in this classification
a vacancy or a replacement on the Respondents' payrolls at the time of
application. However, the parties stipulated that between February
1 and July 25, 1950, a new employee was hired in this classification.
As a former unfair labor practice striker, Stamps was entitled to
preference for such a job after first having made application. The
Respondents offered reinstatement to Stamps as of July 25, 1950,
which he refused. Accordingly, we find that Stamps was discrimi-
nated against from the date that the new employee was hired in this
classification, to be ascertained upon compliance. investigation, until
July 25, 1950.
E. E. Tickle was on the Joint Council's list of applicants submitted
to the Respondents on January 3, 1950. He personally applied at the
dam site and was reinstated as form setter and stripper 47 on January
6, 1950. We find, under the circumstances, that Tickle' s personal
application and that of the Joint Council were correlated and consti-
tuted in effect the same application. As he was reinstated upon his
application, we find no discrimination against Tickle, and shall dis-
miss the complaint in his case.
40 Anderson did not testify, but W . A. Gardner , infra, testified that he and Anderson per-
sonally applied on January 3 , 1950, and were rejected.
468 The Trial Examiner found no discrimination ; no exceptions filed.
& 'We note that this classification , in which Tickle was reemployed on January 6, 1950,
was not on the Respondents ' January 3 , 1950, vacancy list.
BROWN AND ROOT, INC,
Ironworkers 48
1055
Claiming strikers------------------------------------------- 8,
Replacements --------------------- ------------------------- .3
Promotional-replacements----------------------------------- 6
Discriminatory replacements-------------------------------- 2
Application
Personal JointCouncil
Offer of
reinstate-
ment
Reinstated
Choate, Wirt ------------------------------------------- 1-15-50 7-25-50 ------------
Marchant , John W. (discussed below) ----------------- 1- 3-50 ------------ ------------
Beal,Jones R --- - - - - - - - - - - ----------------------- - - - 1-3-50 1- 3-50 2-14-50 ------------
C o o p e r , V. W---------------------------- ------------ 1-15-50 7-25-50 ------------
Curtis, William 1 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 1-15-50 7-25-50 ------------
M a c F a r l a n d , A. J . 1 9 ---------------------- ------------- 1-15-50 7-25-50 ------------
Roberts, T. R---------------------------- ------------- 1-15-50 7-25-50 ------------
Walker, V. B------------------------------------------ ------------ 1-15-50 7-25-50 ------------
John Marchant was on the Joint Council's application list of
January 3, 1950. At the time of the strike, he was earning $1.75
per hour. On or about January 21, 1950, he made personal applica-
tion for reinstatement as an ironworker and was refused. On Janu-
ary 25, 1950, he was reinstated as a mechanical repairman at $1.50
per hour. Later, he was increased to $1.671/2 as a working foreman.
Accordingly, like the Trial Examiner, we find that he was never
properly reinstated and that he was discriminated against from
January 3, 1950, up to and including the present.
48 This includes the specific classification of structural ironworker, which paid about the
same wage rate as ironworker and which we find is substantially equivalent . We note that
a vacancy was indicated in the classification of ironworker-rodman by the Respondents on
January 3 , 1950. There is also the classification of reinforcement ironworker paying
substantially less than ironworker . We believe that the vacancy was in the former and
not in the latter classification . In any event , it appears that one of the strikers (C. C
Harrison ) applied and was reinstated as a structural ironworker on January 6, 1950,
thereby claiming and filling the vacancy , if it had been intended in such classification.
4e MacFarland worked beyond the date of the strike until January 9, 1949, when he re-
fused to cross the picket line. We find that he was a striker on such date , having then
Joined in the concerted activities of the other strikers. Rubin Bros . Footwear, Inc., 99
NLRB 610.
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jackhammer Operators
Claiming strikers------------------------------------------- 4
Replacements---------------------------------------------- 1
Discriminatory replacements -------------------------------- 6
Application
Offer of
reinstate - Reinstated
Personal Joint wentCouncil
Bailey, D. W. ii (discussed below) ---------------------- 1-3-50 - 8-1-50
Jencks, R. H------------------------------------------- ------------ 1-15-50 7-25-50
Killian, D . E------------------------------------------- ------------ 1-15-50 7-25-50
Stone, C. L---- ---------------------------------------- ------------ 611-3-50 -------- 4-4-50
D. W. Bailey earned $0.971/.2 per hour at the time of the strike. He
was reinstated on August 1, 1950, as a wagon drill operator at $1.25
per hour, which we find, contrary to the Trial Examiner, was substan-
tially equivalent employment. Bailey personally applied on January
3, 1950, and was rejected. The record evidence, in our opinion, is
insufficient to find discrimination with respect to Bailey's termina-
tion on August 8, 1950, "for failure to report." Accordingly, we find
that he was discriminated against from January 3, 1950, to August
1, 1950.
Laborers
There are 12 complainants in this classification. None applied for
reinstatement personally. John E. Bailey and Louis Roehrs made no
application for reinstatement at all, personally or through the Joint
Council. The remainder appeared on the Joint Council's application
lists of January 3 or 15, 1950. As has already been shown, the Re-
spondents did not refuse to reinstate any laborers on January 3, 1950,
and indicated on such date that vacancies existed in this classification.
As none of these former strikers made personal application for the
vacancies after January 3, 1950, in accordance with our findings above,
we shall dismiss the complaint as to these complainants 52
Millwright 63
Hubert Petty was on the Joint Council's application list of January
15, 1950. He was offered reinstatement on July 25, 1950, which he
60 Distinguish B. W. Bailey , carpenter , supra.
" Stone also applied personally on and after January 6 , 1950. We find no merit in the
Respondents ' exception that Stone did not indicate he was a striker when he applied.
Among other things, the Respondents were on notice when Stone made his applications
that former unfair labor practice strikers were then seeking reinstatement.
62Jobn E. Bailey ; Louis Roehrs ; D. R. Strout, C. R. Adams, Lloyd E. Collins , Otis L.
Crawford ; Troy Engles ; Truman Erwin ; Charles R . Hodge ( Flippin ) ; Alvin Honeycutt
( Flippin) ; Elva Honeycutt ( Flippin ) ; and Melvin L. Singleton.
6' The Trial Examiner apparently erred in considering this classification , which is em-
braced in one of the Joint Council 's bargaining units, an IAM classification.
BROWN AND ROOT, INC.. 1057
declined. The parties stipulated that one new employee was hired in
the classification of millwright between February 1 and July 25, 1950.
As a former unfair labor practice striker, Petty was entitled to pref-
erence for such a job after first having made proper application.
Accordingly, we find that Petty was discriminated against from the
date that the new employee was hired in this classification, to be ascer-
tained upon compliance investigation, until July 25, 1950.
Oiler
Lloyd E. Insco was on the Joint Council's application list of Janu-
ary 15, 1950, and was offered reinstatement as of July 25, 1950, which
he declined. As noted above, there were five vacancies in this classi-
fication offered to the Joint Council by the Respondents on January
3, 1950. There is no evidence that on or after January 3, 1950, Insco
applied personally for reinstatement and was rejected. In accordance
with our findings above, we shall dismiss the complaint as to him.
Powderman
Claiming strikers------------------------------------------- 1
Promotional replacements ----------------------------------- 1
Discriminatory replacements _____--------------------------- 1
Application
Offer of
reinstate- Reinstated
Personal Joint wentCouncil
Bullet, Paul R (Flippin) ----------------------------- ------------ 1-3-50 ------------ N 5-23-50
Pump Operators -
Claiming strikers------------------------------------------- 4
Replacements---------------------------------------------- 2
Promotional replacements----------------------------------- 2
Discriminatory replacements-------------------------------- 5
Kilfoy, Jessie A. (discussed below ) _____________________ ------------ ------------
Lackey, W. W. (discussed below )______________________ ------------ ------------ ------------ ------------
Lazenby, A M----------------------------------------- ------------ 1-15-50 7-25-50 ------------
Mynatt, Calvin C------------------------------------ ------------ 1-15-50 7-25-50 8-2-50
J. Kil f oy was a regular pump operator employed during the day
shift on the "barge" at the time of the strike. On December 21, 1949,
Kilfoy applied for reinstatement. Foreman Balleau offered Kilfoy a
job as relief pump operator "in the hole." As noted in the Intermedi-
ate Report, the relief schedule was as follows : Monday-day shift
The Trial Examiner inadvertently found Bullin was reinstated on July 23, 1950
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(8-4) ; Tuesday-swing shift (4-12) ; Wednesday-same; Thursday-
graveyard shift (12-8) ; Friday-same. Also as appears in the record,
the job of pump operator "in the hole" required the maintenance of
more pumps than on the "barge," and in other respects carried more
onerous conditions of work. We note again the evidence of Foreman
Balleau's discriminatory intent against returning former strikers. Ac-
cordingly, we find, like the Trial Examiner, that Kilfoy was not of-
fered substantially equivalent employment, and that he was therefore
discriminated against from December 21, 1949, up to and including the
present.
W. W. Lackey was a regular pump operator employed during the
day shift on the "barge" at the time of the strike. He was reinstated
on December 23, 1949, through the joint reinstatement program as a
relief pump operator on the barge. After 8 days, Foreman Balleau
sought to transfer him to the job of relief pump operator "in the hole,"
having the duties as described immediately above in the case of Kilfoy.
Lackey, an elderly man, refused to accept the transfer to the more
difficult job "in the hole." We have already noted the existence of a
discriminatory disposition on the part of Balleau against the rein-
stated strikers. Under the circumstances, we agree with the Trial
Examiner that Lackey's termination on -February 23, 1950, was dis-
criminatory 55 However, we believe, his reemployment from Decem-
ber 23, 1949, until February 23, 1950, was in a substantially equivalent
position. Accordingly, we find discrimination in this case from Feb-
ruary23,1950, up to and including the present. -
Riggers
Claiming striker-------------------------------------------- 1
Replacement----------------------------------------------- 1
Promotional replacement ------------------------------------ 1
Discriminatory replacement --------------------------------- 1
Application
Offer of
reinstate- Reinstated
Personal JointCouncil
ment
Dunn, R. 0-------------------------------------------- ------------ 1-15-50 7-25-50 ------------
Sandblaster-Nozzle Man
Claiming striker--------------------------------------------
Replacements:
Sandblasters------------------------------------------- 3
Nozzle man-------------------------------------------- 1
Promotional replacements: Sandblasters ----_______________ 5
m As specifically alleged in the complaint and fully litigated at the hearing.
BROWN AND ROOT, INC.- 1059
ashaw, J. W-----------------------------------------
Application
Personal JointCouncil
------------ 1-15-50
Offer of
reinstate-
ment
7-25-50
Reinstated
------------
Signal Men
Claiming strikers -------------------------------------------
Promotional replacements ___________________________________
Application
Personal
Holden, L . M-----------------------------------------
Cloven, George A-------------------------------------
Truck Drivers
Joint
Council
1-15-50
1-3-50
Offer of
reinstate-
ment
7-25-50
2
6
Reinstated
------------
2-8-50
There are three complainants in this classification, i. e., W. E.,
Higley (Flippin) ; 0. M. Smith (Flippin) ; and Paul J. Williams.
All three appeared on the Joint Council's application lists of January
15, 1950 and they were, ultimately offered reinstatement or reinstated
on June 12, August 8, and July 25, 1950, respectively. However, as
indicated above, there was a vacancy in this classification offered to
the Joint Council by the Respondents on January 3, 1950. With
respect to Smith and Williams, there is no evidence that on or after
January 3, 1950, they applied personally for, reinstatement and were
rejected. Consistent with our findings above, we shall dismiss the
complaint as to them. However, in the, case of Higley, the uncon-
tradicted testimony shows that he applied for reinstatement "early
in January 1950" and was refused. It appears that Higley's personal
application postdated the Respondents' offer of, January 3, 1950, and
that therefore his proper application for the vacant job had been
rejected. Accordingly, we find that Higley was discriminated against
from a date "early in January 1950," to be determined upon com-
pliance investigation, until the date of his reinstatement on June 12,
1950.
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vibrator Operators
Claiming strikers___________________________________________ I
Replacements---------------------------------------------- 18
Promotional replacements___________________________________ 2
Discriminatory replacements________________________________ 2
Application
Offer of
reinstate - Reinstated
Personal Joint mentCouncil
Haynes, George W------------------------------------- -- --------- 1-15-50 ------------ 603-25-50
Wagon Drill Operators
Claiming strikers ------------------------------------------- 2
Promotional replacements___________________________________ 4
Discriminatory replacements________________________________ 2
Application
Offer of
reinstate- Reinstated
Personal Joint mentCouncil
Parris, T. H------------------------------------------- 1-3-50 1-3-50 ------------ 4-10-51
Richardson, Ishmael (Flippin) 67----------------------- ------------ 1-3-50 7-25-50 8-8-50
Welders
There are six complainants in this classification 5a All appeared on
at least one of the Joint Council's application lists and all were offered
reemployment as of July 25, 1950, which they declined, except Russell,
who was reinstated on March 22, 1950. However, as noted above, there
were some 12 vacancies in the classifications of welder and certified
welder offered to the Joint Council by the Respondents' representa-
tive on January 3, 1950. The record shows no evidence that on or
after January 3, 1950, any of these complainants personally applied
for reemployment and were rejected. In accordance with our findings
above, we shall dismiss the complaint as to them.
50 Haynes was reinstated initially as laborer and reclassified as vibrator operator on May
27, 1950. The Trial Examiner found discrimination until May 27, 1950. However, as it
appears that the classification of laborer paid about the same wage rate as vibrator oper-
ator, we find the two classifications to have been substantially equivalent.
67 The Trial Examiner found that Richardson had never been properly reinstated. Thus
he found discriminatory Richardson's reduction in force on August 11, 1940, 3 days after
his reinstatement, his rehire on October 30, 1950, as jackhammer operator, and his resigna-
tion on November 29, 1950, when he refused an assignment to the day shift after his job
on the swing shift had been concluded. We disagree, as we do not find the evidence is
sufficient upon which to support a finding of discrimination after Richardson was reinstated
to his former position of wagon drill operator on August 8, 1950.
53H. D. Hefiey ; Billy Lackey ; Richard Lamb ; Ira E. McGuire ; R. H. Rodgers ; and Rex
-Russell.*
BROWN AND ROOT, INC.
Working Foreman
1061
Claiming striker-------------------------------------------- 1
Promotional replacement___________________________________ 1
Application
Offer of
reinstate- Reinstated
Personal
Joint ment
Council
Lippe, Frapk J---------------------------------------- ------------ 1-3-50 I 7-25-50 ------------
13. IAM Strikers Considered Individually
As economic strikers, these complainants were entitled to rein-
statement only if vacancies existed at the time of their proper appli-
cation for employment. We have already determined that personal
applications were necessary on the part of these individuals in the
IAM units. Of the total of 36 complainants in IAM classifications,59
only 13made personal applications, viz:
Applied
Arnold, Hayes G----- 1-4-40.
Arrowsmith, Harold__ 1-3-50, and "about once a week" thereafter until rein-
stated on 2-&-50.
Crosby, Houston D___ "In January 1950."
Davis, Lewis E______ 1-3-50.
Hotalling, Raymond R 1-2-50.
Hurst, Thomas E----- 1-4-50, and thereafter spoke to Master Mechanic Estes
"on several occasions."
Langston, Corley O___ "Early in January 1950."
Marchant, T. A------- 1-3-50.
Miller, V. O---------- 1-5-50.
Pearl, Samuel J______ "In January 1950."
Smith, Ewell D_______ 1-2-50.
Trivett, Dewey "January 1950."
Satterlee, Harry Ivan_ 1-3-50.
The record does not clearly establish that there were vacancies in
any of the IAM classifications at about the time the personal applica-
tions were made in the above cases. The stipulations in evidence do
show, however, that new employees were hired in these classifications
after the strike, as follows: 1 on December 17, 1949; 1 on January 17,
1950; 2 on January 18, 1950; and 2 on January 28, 1950. In addition,
some 32 new employees were hired after February 1, 1950. All of
the complainants, except Hayes G. Arnold and Quenton E. Dempsey,
511. e, mechanical repairmen , machinists , maintenance machinists , maintenance mechani-
cal repairman, and heavy duty mechanic The 36 complainants include L. A. Shankler as
to whom the Trial Examiner dismissed the complaint and no exceptions were taken. (See
Schedule E, attached hereto, for full list of the IAM complainants.)
215233-53-68
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were ultimately reinstated, or offered reinstatement which they de-
clined.
Accordingly, we shall dismiss the complaint in respect to the 23
complainants who did not personally apply. As regards the 13 com-
plainants who did apply, as set forth above, it does appear in the
record that vacancies in their former or substantially equivalent
positions may have existed at the time that any or all of them made
their personal applications. In such event, we find that their denial
of reemployment was discriminatory, and that they were accordingly
entitled to back pay from the date of such denial, on the same basis
as prescribed above in the cases of the unfair labor practice strikers.
However, we refer these specific questions to be determined upon com-
pliance investigation, to conform with the general holdings and
principles stated herein.
The Remedy
We have found that the Respondents have engaged in and are
engaging in certain unfair labor practices. Accordingly, we shall
order them to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondents discriminatorily failed to rein-
state, or discriminatorily terminated their employment after rein-
stating, the employees listed in Schedule A, attached hereto, we shall
order the Respondents to offer to such employees full reinstatement to
their former or substantially equivalent positions without prejudice
to their seniority or other rights and privileges. If there are not
sufficient positions available in appropriate classifications, the Re-
spondents shall make room for the employees ordered reinstated by
dismissing or demoting, to the extent necessary, employees occupying
such classifications, who were hired or promoted to such classifications
after December 3, 1948. If, after such dismissals and demotions,
there are still insufficient positions available, all existing positions in
the appropriate job classifications shall be distributed among the em-
ployees ordered reinstated, and other employees who were hired on
or before December 3, 1948, without discrimination against any of
them because of their union affiliation or strike or other concerted
activities, following such system of seniority or other nondiscrimina-
tory practices as would normally have been applied by the Respond-
ents to determine job retention rights in instituting reductions in force.
All employees remaining after such distribution, including those
ordered reinstated for whom no employment is immediately available,
shall be placed upon a preferential list and offered reemployment
as work becomes available in a suitable classification and before other
persons are hired for such work, in the order required by the Re-
BROWN AND ROOT, INC
spondents' normal seniority system or other nondiscriminatory
practice
We have also found that the Respondents discriminated against the
employees listed in Schedule B, attached hereto, by refusing them
reinstatement upon their proper request following their unfair labor
practice strike. However, as all such employees were subsequently
either offered or granted reinstatement to their former or substantially
equivalent positions on the effective dates as found herein, we shall
not order reinstatement as to them. Provision for loss of earnings
suffered by them as a result of 'such discrimination is made below.
If, as determined upon compliance investigation, there were vacan-
cies for which any or all of the employees listed in Schedule C prop-
erly made personal application, thus resulting in discrimination as we
have found herein, we shall order the Respondents to effect the same
remedies as prescribed hereinabove with respect to the employees
listed in Schedules A and B, as the case may be.
We shall order the Respondents to make whole each of the em-
ployees' listed in Schedules A and B, and subject to the conditions
described herein, the employees in Schedule C, for any loss of pay he
may have suffered as a result of the discrimination against him,
during the period of discrimination in each case, as already described
herein, by payment to each of them of a sum of money equal to the
amount he normally would have earned as wages, less his net earnings
during that period.60 Such loss of pay shall be computed in ac-
cordance with the formula initiated by the Board in F. W. Wool-
worth Co., 90 NLRB 289. We shall also order the Respondents to
make available to the Board, upon request, payroll and other records
necessary to facilitate the determination of the amount of back pay
due. F. W. Woolworth Company, supra.
Not having found the discrimination alleged with respect to the
complainants listed in Schedule D, we shall dismiss the complaint as to
them.
We have found that the Respondents have violated Section-8 (a) (1)
and (3) of the Act. In our opinion, the commission of unfair labor
practices generally is reasonably to be anticipated from this unlawful
conduct in the past. We shall, therefore, order the Respondents to
cease and desist not only from the unfair labor practices herein found,
but also from in any other manner infringing upon the rights of
the employees guaranteed in Section 7 of the Act.
The Board reserves the right to modify the back-pay and reinstate-
ments findings herein, if made necessary by, a change in circumstances
since the hearing or in the future, or to make such supplements
thereto as may hereafter become necessary in order to define or clarify
their application to a specific set of circumstances not now apparent.
61 See Crossett Lumber Co., 8 NLRB 440; Republic Steel Corp . v N. L. R. B., 311 U. S. 7.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entirety
record considered as a whole, the Board makes the following addi-
tional :
CONCLUSIONS OF LAW
1. By refusing, upon their proper request, to reinstate, and by
discriminatorily terminating the employment after reinstating, the-
strikers listed in Schedules A and B, and subject to the conditions
described herein, employees listed in Schedule C, attached hereto,
the Respondents discriminated in regard to the hire and tenure of
such employees, thereby discouraging membership in Fort Smith,
Little Rock & Springfield Joint Council, A. F. L., in violation of
Section 8 (a) (3) and (1) of the Act.
2. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
Order
Upon the entire record in the, case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Brown and Root, Inc.,
Wunderlich Contracting Company, Peter Kiewit Sons Company,
Winston Bros. Company, David G. Gordon, Condon-Cunningham Co.,
Morrison-Knudson Company, Inc., J. C. Maguire & Company, and
Chas. H. Tompkins Co., doing business as joint venturers under the
name of Ozark Dam Constructors and Flippin Materials Co., Mountain
Home, Arkansas, their agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Coercing or engaging. in the discriminatory treatment of em-
ployees because they engaged in a strike or other concerted activities
protected by the Act.
(b) Discouraging membership in Fort Smith, Little Rock & Spring-
field Joint Council, A. F. L., or in any other labor organization of
their employees, by discriminating in regard to their hire or tenure
of employment or any term or condition of their employment.
(c) Discriminatorily refusing to reinstate, or discriminatorily ter-
minating their employment after reinstating, employees because they
engaged in a strike or other concerted activities protected by the Act.
(d) In,any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist Fort Smith, Little Rock &
Springfield Joint Council, A. F. L., or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any
BROWN AND ROOT, INC. 1065
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
2. Take the following affirmative action which ,the Board finds will
effectuate the policies of the Act :
(a) Offer the employees listed in Schedule A, and subject to the
conditions described herein, the employees listed in Schedule C, imme-
diate and full reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other rights and
privileges, as provided in the section entitled "The Remedy," above.
(b) Make whole the employees listed in Schedules A, B, and subject
to the conditions described herein, the employees listed in Schedule C,
in the manner set forth in the section entitled "The Remedy," above,
for any loss of pay they may have suffered by reason of the discrimina-
tion against them.
(c) Upon request make available to the Board or its agents for ex-
amination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due and the rights
to employment under the terms of this order.
(d) Post at the construction job at the Bull Shoals Dam, on the
premises of both Ozark Dam Constructors and Flippin Materials Co.,
copies of the notice attached hereto marked "Appendix A," 61 includ-
ing Schedules A, B, and C. Copies of said notice, to be furnished by
the Regional Director for the Fifteenth Region, shall, after being
duly signed by the Respondents' representative, be posted by the Re-
spondents immediately upon receipt thereof and maintained by them
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to the employees are customarily
posted. Reasonable steps shall be taken by the Respondents to insure
that said notices are not altered, defaced, or covered by other notices.
(e) Notify the Regional Director for the Fifteenth Region, in
-writing, within ten (10) days from the receipt of this Decision and
-Order, what steps the Respondents have taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be,, and it hereby is, dis-
missed insofar as it alleges discrimination with respect to the em-
ployees listed in Schedule D.
MEMBER HOUSTON, dissenting in part:
I agree with my colleagues' disposition of this case with the excep-
tion of their treatment of the IAM strikers. The issue as to them is
whether they are entitled to the rights customarily given unfair labor
m In the event that this Order is enforced by a decree of the United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice strikers or whether they should be classified as economic strik-
ers. In deciding that these strikers fall into the latter category, my
colleagues have not given proper emphasis to undisputed evidence
relating to terms and conditions of employment common to all strik-
ers involved in this case. That evidence shows that the IAM strikers
were employed in the same job classifications and in the same manner
as were the'Flippin strikers. The Employers' illegal refusal to bar-
gain with the Joint Council vitally affected these very conditions of
employment. It is particularly upon that basis that the majority has
found that the Flippin strikers were unfair labor practice strikers. I
should have thought that since the same unfair labor practices af-
fected the same jobs in which both Flippin and IAM strikers worked
that therefore both groups would be treated alike. However, my col-
leagues find a distinction in the fact that the Flippin strikers were un-
represented while the IAM strikers belonged to the Machinists' union.
I do not perceive the validity of this distinction as it bears upon the
present issue. Its only possible meaning might appear to lie in the
idea that the Machinists' Union might have been bargaining about
matters over which the strike was called. But such a view has no sig-
nificance, it seems to me, in deciding the question of what degree of
protection these strikers must be given. I cannot view their member-
ship in the Machinists' Union as constituting any waiver in these cir-
cumstances of their right to be treated equally with their fellow strik-
ers-the Flippin employees-yet this is what is implicit in my col-
leagues' decision.
Once granted that the strike in which all were engaged arose be-
cause of the illegal refusal to bargain about terms of employment com-
mon to all, the fortuity of separate representation of certain strikers
can have no possible bearing on their protection, as such, under well-
established concepts. Consequently, I would find that the IAM strik-
ers should be given the same status as all other strikers in this case.
MEMBER MURDOCK took no part in the consideration of the above
Decision and Order.
Appendix A I
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT coerce and engage in discriminatory treatment
of employees for engaging in strikes or other concerted activities.
-WE WILL NOT discourage membership in FORT SMITH, LITTLE
ROCK & SPRINGFIELD JOINT COUNCIL, A. F. L., or in any other
BROWN' AND ROOT, INC. 1067
labor organization of our,employees, by discriminating in regard
to their hire or tenure of employment or any terms or conditions
of employment.
WE WILL NOT discriminatorily refuse to reinstate, or discrimi-
natorily terminate after reinstating, any of our employees for
engaging in strikes or other concerted activities protected by the
Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist FORT Storrs,
LITTLE ROCK & SPRINGFIELD JOINT COUNCIL, A. F. L., or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right might be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3)
of the Act.
WE WILL, in the manner and under the conditions described in
the section of the Board's Decision and Order entitled "The
Remedy," offer to the persons listed in Schedules A and C, which
is attached hereto and made a part hereof, full reinstatement to
their former or substantially equivalent positions without preju-
dice to any seniority or other rights and privileges previously
enjoyed, and mike each of them whole for his loss of pay suffered
as a result of the discrimination against him.
WE WILL, in the manner described in the section of the Board's
Decision and Order entitled, "The Remedy," make whole each of
the persons listed in Schedules B and C, which is attached hereto
and made a part hereof, for any loss of pay suffered as a result of
the discrimination against him.
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the above-named union, or any other
labor organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
We will not discriminate in regard to hire or tenure of employment
or any term or condition of employment against any employee be-
cause of membership in or activity on behalf of any labor organization.
BROWN & ROOT, INC., WUNDERLICH CONTRACTING CO.,
PETER KIEWIT SONS COMPANY, WINSTON BROS. COMPANY,
DAVID G. GORDON, CONDON-CUNNINGHAM Co.,
MORRISON-KNUDSON COMPANY, INC., J. C. MAGUIRE &
COMPANY, and CHAS. H . TOMPKINS Co., doing busi-
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness as joint venturers under the names of OZARK
DAN CONSTRUCTORS AND FLIPPIN MATERIALS VO.5
Employer.
By -------------=---------- ---------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced , or covered by any other material.
Schedules A, B, and C must be posted with this notice.
Ford, W.
Kilfoy, Jessie A.
Kyles, Onimus
Anderson, Truman E.
Bailey, D. W.
Beal, Jones P.
Bevans, J. N., Jr.
Blecker, Robert R.
Bonner, Glen M.
Brents, J'. B.
Bullin, Paul R.
Carlton, H. L.
Choate, Wirt W.
Cloven, George
Cooper, V. W.
Curtis, Wm. I.
Cutler, Lee R.
Cypert, Eugene N.
Dorrell, Chas.
Drown, Em. H.
Dunn, R. O.
Engles, Troy
Fenton, J. R.
Flippin, Francis
Ford, Jason S.
Freeman, A. D.
Gardner, W. A.
Hale, R. L.
Harris, E. E.
Hayes, Herman E.
Haynes, Geo. W.
Higley, W. E.
Schedule A
Lackey, W. W.
Marchant, John W.
Reed, Laurel D.
Schedule B
Holden, L. M.
Hudson, Raymond A.
James, John A.
Jencks, R. H.
Kent, W. A.
Killian, D. E.
King, Lucian R.
Lamb, Keith
Landry, C. C.
Lazenby, A. M.
Lee, Marion W.
Lippe, Frank J.
Losch, R. E.
Lynch, S. L.
Marberry, F. P.
Marchant, Harvey E.
Marler, Jemes R.
Mashaw, J. W.
Mashaw, Roy
McCracken, Guy
McFarland, A. J.
Miller, Joe
Mooney, Carl
Morgan, W. E.
Mynatt, Calvin C.
Parris, T. H.
Patton, H. C.
Petty, Hubert L.
Pfingston, Jake
BROWN AND ROOT, INC. 1069
Plymate, Donald C.
Putney, Clyde S.
Rains, Willis
Reedus, Billy B.
Richardson, Ishamael E.
Roberts, T. R.
Russell, Kern K.
Rutledge, Robert M.
Schumacher, James
Shaw, by
Smith, Elbert C.
Stamps, C. D.
Stone, C. L.
Tulipana, George
Walker, V. B.
Wells, John D.
Wood, Russell T.
Schedule C
Arnold, Hayes G.
Arrowsmith, Harold S.
Crosby, Lewis E.
Davis, Lewis E.
Hotalling, Raymond A.
Hurst, Thomas E.
Langston, Corley O.
Marchant, T. A.
Miller, V. O.
Pearl, Samuel J.
Satterlee, Harry Ivan
Smith, Ewell D.
Trivett, Dewey E.
Schedule D
Adams, C. R.
Bailey, John E.
Beaty, Clyde K.
Bidwell, Howard S.
Boyd, Alvie
Brandstrup , Albert V.
Cantrell , Healey Edger
Collins, Lloyd E.
Crawford , Otis L.
Crosser, J. D.
Crow, E. J.
Damron, J. J.
Dempsey, Quentin E.
Duck, Robert C.
Engles, Troy
Erwin, Truman
Forbes, Herbert
Hefley, H. D.
Hermanson, Harry
Hester, Henry O.
Hickenbottom, E. D.
Hicks, Carroll E.
Hill, James
Hodge, Charles R.
Holt, J. E.
Honeycutt, Alvin
Honeycutt, Elva
Hudson, Herman E.
Hughes, R. B.
Hulet, Wilfred D.
Insco, Lloyd E.
Kilfoy, Wilbert A.
Lackey, Billy
Lamb, Richard
McGuire, Ira E.
Mynatt, Joseph
Roehrs, Louis
Rogers, It. H.
Russell, Rex
Shankler, L. A.
Shaw, W. L.
Shaw, William E.
Smith, O. M.
Singleton, Melvin L.
Strout, D. R.
Terry, Cecil A.
Tickle, E. E.
Vickery, T. J.
Williams, Paul J.
Williamson, Troy
Wood, Waldo James
1070 DECISIONS OF NATIONAL LABOR RELATIONS
Schedule E
(List of IAM Complainants)
Arnold, Hayes G.
Arrowsmith, Harold S.
Beaty, Clyde K.
Boyd, Alvie
Brandstrup, Albert V.
Cantrell, Healey Edgar
Crosby, Houston D.
Crosser, J. B.
Crow, E. J.
Damron, J. J.
Davis, Lewis E.
Dempsey, Quenton E.
Duck, Robert C.
Forbes, Herbert
Hester, Henry
Hickenbottom, E. D.
Hicks, Carrol E.
Holt, J. E.
BOARD
Hotalling, Raymond R.
Hudson, Herman F.
Hughes, R. B.
Hulet, Wilfred D.
Hurst, Thomas E.
Langston, Corley 0.
Marchant, T. A.
Miller, V. 0.
Mynatt, Joseph
Pearl, Samuel J.
Satterlee, Harry Ivan
Shankler, L. A.
Shaw, W. L.
Shaw, William E.
Smith, Ewell D.
Terry, Cecil A.
Trivett, Dewey F.
Wood, Waldo James
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed January 24, 1950, and amended March 1, 1951, by Fort
Smith, Little Rock & Springfield Joint Council, A. F. L., herein called the Union
or the Council, the General Counsel of the National Labor Relations Board' by
the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued
his complaint, dated March 13, 1951, later amended against the above-named
companies, herein called the Respondents, doing business as joint venturers
under the names of Ozark Dam Constructors, and Flippin Materials Co., herein
referred to as Ozark and Flippin, alleging that the Respondents had engaged in
and were engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge, amended
charge, complaint, amended complaint, and a notice of hearing were duly served
upon the Respondents and the Union.
With respect to the unfair labor practices, the complaint as amended, alleged
in substance that : (1) On December 3, 1948, the employees of the Respondents
ceased work concertedly and went on strike; (2) on October 13, 1949, the Board
issued a Decision and Order finding that Respondents under the name, Ozark
from September 23, 1948, and at all times material thereafter, had engaged in
and were engaging in unfair labor practices by refusing to bargain with the
Union, and that the Respondents under the naive Ozark since September 23, 1948,
have continued to engage in this unfair labor practice; (3) the strike referred
1 The General Counsel and his representative at the hearing are referred to herein as
the General Counsel ; the National Labor Relations Board as the Board.
BROWN AND ROOT, INC. 1071
to above was caused and prolonged by the unfair labor practices of the Re-
spondents. On December 2, 1949, and at various dates thereafter, a number of
employees whose names are listed in the complaint, made unconditional offers to
return to work abandoning their strike; (4) the Respondents on or about Decem-
ber 2, 1949, and at various dates thereafter, refused and has continued to refuse
to reinstate the employees previously on, strike, or refused to reinstate the em-
ployees until certain specified dates; (5) after reinstating certain employees the
Respondents laid off or terminated their employment because said employees had
assisted or become members of the Union and had participated in the strike
-above described; (6) the Respondents,, through their officers, agents, and super-
visors made statements, threats, and warnings , and engaged in conversations with
-employees which interfered with and restrained the employees in their concerted
activities for the purpose of collective bargaining and other mutual aid and pro-
tection; (7) by these acts, the Respondents have committed unfair labor prac-
tices in violation of Section S (a) (1) and (3) of the Act.
The Respondents filed separate answers on behalf of Ozark and Flippin. These
-answers alleged that: (1) The operations of the Respondents constitute original
construction wholly within the State of Arkansas which has not as yet been
used in commerce and that becauise of this and other considerations the opera-
tions of the Respondents are not subject to the jurisdiction of the Board; (2)
-Ozark and Flippin are separate entities and separate employers and that the
-complaint violates the Respondents' rights under the due process clause of the
-constitution because the complaint is directed against Ozark and Flippin jointly,
and seeks to hold both jointly responsible for acts alleged to have occurred in the
relations between only Ozark and its employees, and that the complaint fails to
allege which acts were committed by Ozark and which committed by Flippin;
(3) that the complaint was issued in violation of Section 10 (b) of the Act
which requires, that charges of unfair labor practice be filed with the Board
within 6 months of their commission; and (4) denies generally that the Re-
spondents have committed any unfair labor practices.
Pursuant to notice a hearing was held at Mountain Home, Arkansas, between
April 3 and 14, 1951, before David F. Doyle, the undersigned Trial Examiner, duly
'designa,ted by the Chief Trial Examiner. At the close of oral evidence, pursuant
to a stipulation of counsel, the hearing was adjourned to give counsel for the
parties sufficient time to prepare certain exhibits which were to be offered in
evidence by the parties. Pursuant to the stipulation made at the close of the
hearing, the exhibits referred to were prepared and submitted to the Trial Exam-
iner on May 8, 1951, together with a stipulation that the hearing might be closed.
The undersigned thereupon closed the hearing as of that date.
At the hearing at Mountain Home, Arkansas, the Respondents and the General
Counsel were represented by counsel and the Council by three of its officers. A
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence was afforded all parties. At the conclusion of the oral testi-
mony, counsel for the General Counsel and the Respondents presented oral argu-
ment and after the submission of the exhibits referred to, flied briefs with the
Trial Examiner.
At the opening of the hearing various motions, based on the pleadings were
made by counsel for the Respondents These motions and the ruling of the
Trial Examiner thereon will be discussed hereafter. In the course of the hear-
ing the General Counsel made several motions to either delete or add names to
the complaint. These motions for deletions were granted with the consent of
counsel for the Respondents ; additions were granted over the objections of
counsel for the Respondents , with a statement by the Trial Examiner that in
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the event counsel for the Respondents claimed that he was surprised by the
addition of any name, that additional time would be afforded the Respondents
to investigate the merits of the claim of the named employee. Counsel for the
Respondents did not ask for any such additional time. At the close of the
hearing, the General Counsel moved to conform the pleadings to the proof as
to minor variances such as the spelling of names, dates, and other minor- details.
The motion was granted.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS ; THE JOINT VENTURE ; THE ASSUMED NAMES
OF THE RESPONDENTS
Brown and Root, Inc., a Texas corporation, with its principal office at Houston,
Texas; Wunderlich Contracting Company, a Nebraska corporation, with its
principal office at Jefferson City, Missouri ; Morrison-Knudson Company, Inc.,
a Delaware corporation, with its' principal office at Boise, Idaho ; Peter Kiewit
Sons Company, a Nebraska corporation, with its principal office at Omaha,
Nebraska ; J. C. Maguire & Company, a family copartnership, with its principal
office at Los Angeles, California ; Winston Bros. Company, a Minnesota corpora-
tion, with its principal office at Minneapolis, Minnesota ; David G. Gordon, of
Denver, Colorado ; Condon-Cunningham Co., a copartnership, with its principal
office at Omaha, Nebraska ; and Chas. H. Tompkins Company with its principal
office at Washington, D. C., are companies engaged in some phase of the con-
struction business.
In April 1947 the above-named companies, herein referred to collectively as
the Respondents, by agreement among themselves became joint venturers or
special partners for the purpose of bidding upon, and building if awarded the
contract, Bull Shoals Dam, a construction project then planned by the United
States Government. The Respondents submitted a bid for the job and were
awarded the contract . For this phase of their business and the purpose of this
project they assumed the name of Ozark Dam Constructors. Certificates that
the Respondents were doing business under the assumed name of Ozark, were
filed in the two counties in Arkansas, where the construction job was to be built.
In November 1947 the above-named Respondents continuing to act as joint
venturers or special partners submitted a bid to the Government to supply
crushed rock aggregate to be used in the construction of the dam. This contract
was also awarded to the Respondents. For the purpose of this bid and the
performance of this contract the Respondents assumed the name, Flip pin. As
in the case of Ozark, certificates of doing business under an assumed name were
filed in the two counties in Arkansas, where the work was to be performed.
It is important to note that the special partners or joint venturers, who
assumed both names, Ozark and Flippin, are the same.
Among the Respondents, Brown and Root, Inc., occupies the position of lead
contractor, with primary authority over the operation of the joint venture. By
virtue of two powers of attorney executed by all the joint venturers in favor of
Herman Brown, that officer of Brown and Root, Inc., has blanket authority to
bind all the joint venturers, within the scope of the common purpose. Brown and
•Root, Inc., as the lead contractor has authority to direct the labor relations
incident to the joint venture.
Bull Shoals Dam, concerning which the Respondents have these contracts, is
part of a flood control and electrical power development of the War Depart-
ment. Its situs is the White River Watershed in the State of Arkansas, near
BROWN AND ROOT, INC. 1073
the town of Mountain Home. Under existing laws the Secretary of War must
deliver all electricity not required to operate the project to the Secretary of the
Interior, who is required to transmit and dispose of the same in such manner
as to encourage the most widespread use of the power at the lowest possible
rate to consumers.
The total contract price of the aforesaid project is approximately 22 million
dollars and the total cost, including materials furnished by the United States
Government, is approximately 37 million dollars.
Prior to April 1948, the Respondents purchased materials and services in the
amount of approximately $3,000,000, of which $2,000,000 worth was pur-
chased outside the State of Arkansas and delivered to the darn site. As of that
date the Respondents had placed further orders amounting to approximately
$3,000,600 for materials, of which amount 90 percent was ordered from outside
the State of Arkansas. Materials valued at approximately $16,824,000 will be
shipped into the State of Arkansas from without that State for incorporation
into the dam.
These facts, and many other facts of the Respondents' business have been
found in prior cases before the Board.' On a petition of the Board for enforce-
ment of its order in 86 NLRB 520, the Court of Appeals for the Eighth Circuit,
found that the Board has jurisdiction over the operations of the respondents.'
Upon the facts here presented and the prior decisions of the Board and the
court, I find that the Respondents are engaged in commerce within the meaning
of the Act.
H. THE ORGANIZATIONS INVOLVED
Fort Smith, Little Rock & Springfield Joint Council, A. F. L., is a labor
organization composed of the various building trades unions in Little Rock and
Fort Smith, Arkansas, and Springfield, Missouri, affiliated with the Building
Trades Department of the American Federation of Labor which admits employees
of the Respondents to membership.
The International Association of Machinists, is a labor organization which
admits to membership employees of the Respondents.'
III. THE UNFAIR LABOR PRACTICES
A. Background, including prior decisions of the Board which are basic to the
present controversy
The labor relations of the present parties first gave rise to a Board case early
in the -year 1948, in Case No. 32-RC-33. This proceeding ended in the Decision
and Direction of Election in Matter of Brown and Root, Inc., et al., 77 NLRB
1136, decided June 11, 1948.
In that proceeding, the Council was petitioner. It sought certification as the
representative of a unit composed of all the employees of Ozark, excluding office
and clerical employees, guards, professional employees, supervisors, and
machinists.
The International Association of Machinists intervened in the proceeding and
requested certification as the representative of a craft unit which would include
machinists, millwrights and welders, auto, truck, and heavy duty equipment
mechanics, and mechanics' welders, then classified on Ozark's payroll as mechan-
ical repairmen and helpers.
8 Bro,vn and Root, Inc, of al ., 77 NLRB 1136 and 86 NLRB 520.
' N. L. R. B. v. Ozark Dam Constructors and Flappin Materials Company, 190 F. 2d 222.
(C A. 8).
4 This finding is based on facts in the instant case , and on the findings in 77 NLRB 1136,
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board in the decision, supra, directed an election in four units of employees;
as follows :
Unit 1. All employees at the Employer's Bull Shoals Dam construction
project, including welders but excluding machinists, millwrights, mechanic
repairmen and their helpers, office and clerical employees, guards, profes-
sional employees, and supervisors as defined by the Act.
Unit 2. All machinists, being those employees of the Employer who oper-
ate lathes, shapers, billing machines, drill presses, planers, boring machines,
and any other machines used in the manufacture of metal products within,
a shop, excluding supervisors as defined by the Act.
Unit 3. All millwrights excluding supervisors as defined by the Act.
Unit 4. All mechanics, auto mechanics, truck mechanics, and heavy duty
equipment mechanics now classified on the Employer's payroll as mechanic
repairmen and their helpers, excluding supervisors as defined by the Act.
On July 28, 1948, and thereafter, elections by secret ballot were conducted
under the supervision of the Regional Director. On August 19, 1948, the Board
certified the Council as bargaining representative for units 1 and 3, and the
I. A. M. as representative for units 2 and 4.
On August 25, 1948, the Council by its attorney, wrote Ozark, requesting a
meeting for the purpose of discussing a contract. This action instituted nego-
tiations. Ben H. Powell, Jr., the present attorney for the Respondents, was the
principal representative of Ozark during all of the negotiations which ensued.
These negotiations were not productive of a contract and on December 3, 1948,
the employees at the Bull Shoals Dam project went on strike. Thereafter, nego-
tiations were resumed but were finally broken off by the Company on January
8. 1949.
Feeling aggrieved by the tactics and apparent lack of faith displayed by the
Company in these negotiations, the Union on October 1, 1948, had filed with the
Board a charge of unfair labor practices against the Respondents doing business
under the names Ozark and Flippin. This procedure instituted the second pro-
ceeding between the parties which ultimately resulted in an Order of the Board
on October 13, 1949.6 The charge as filed was subsequently amended and on
January 11, 1949, the Regional Director issued a complaint against Brown and
Root, Inc., and the other Respondents doing business under the names Ozark and
Flippin. Pursuant to notice a hearing on the complaint was conducted from
January 27 to 31, 1949, at Mountain Home, Arkansas, before a Trial Examiner
of the Board duly appointed by the Chief Trial Examiner. On July 12, 1949, the
Trial Examiner issued his Intermediate Report in which he found that the Re-
spondents, doing business under the name Ozark during negotiations with the
Union, beginning on September 13, 1948, and ending in January 1949, had not bar-
gained in good faith with the Union. The Trial Examiner also found that both
Ozark and Flippin had interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed to them by Section 7 of the Act e
On October 13, 1949, in issuing its decision in Brown and Root, Inc., et el., 86
NLRB 520, the Board adopted the findings, conclusions, and recommendations of
the Trial Examiner with the modifications set forth below :
1. We agree with the Trial Examiner that the Respondents interfered
with, restrained, and coerced their employees in violation of Section 8 (a)
(1). However, we do not rely on Foreman Milam's speech, as the record does
6 This unfair labor practice case is Brown and Root, Inc , et at., 86 NLRB 520.
13 In N. L. R B. v Ozark Dam, Contractors and Flippin Material Company, supra, this
finding of the Board as to Flippin was dismissed by the court of appeals on the ground
of insufficient evidence.
BROWN AND ROOT, INC. 1075
not show that the speech was made less than 6 months before the service of
the charge on the Respondents , as required by Section 10 (b) of the amended
Act. Nor do we rely on Superintendent Lucas' speech, except to the extent
that he stated that if the Union won, the job would be cut down from a 6-day
to a 5-day week , and that the job would be "rougher" than previously.
2. We also agree with the Trial Examiner 's conclusion that Respondents
Constructors refused to bargain collectively with the Union , and thereby vio-
lated Section 8 (a) (5). This Respondent not only refused to bargain in
good faith , but in addition insisted that the Union post a drastic performance
bond, and granted unilateral wage increases during the course of the nego-
tiations . That Respondent Constructors did not fulfill its statutory duty to
bargain in good faith is amply evidenced by its "take it or leave it" attitude,
its failure to invest real authority in its only negotiator , and its insistence
upon sole control over matters affecting wages, hours , and other conditions
of employment, all of which are proper subjects for collective bargaining.
During all the time that the parties were engaged in these legal proceedings
before the Board the employees of the Respondents were continuously engaged
in the strike which had begun on December 3, 1948.
B. The strike ; its character ; negotiations leading to its termination ; and its
termination
The findings in the last section of this Report are based on the prior cases
between the parties herein. It was with this background that the instant case
was begun. The General Counsel in the present case requested that the Trial
Examiner take judicial notice of these prior proceedings before the Board. This
request was granted.
At the hearing herein, counsel for the Respondents moved to dismiss the
complaint on the ground that it was issued-in violation of Section 10 (b) of
the Act, and cited Greenville Cotton Oil Company, 92 NLRB 1033, as authority
on that point. The motion is hereby denied. In the instant case, unlike the
Greenville case, the Respondents have been found guilty of unfair labor practices
in a prior timely prosecution.
In the instant hearing the undersigned ruled that evidence pertaining to the
violation of Section 8 (a) (5) of the Act, covered in the Board's decision of
October 13, 1949, was not relevant to the instant issues, that those matters had
been finally determined even though the Order of the Board was then pending
before the United States Court of Appeals for the Eighth Circuit upon an appli-
cation for enforcement of its order by the Board, and to that extent was not
final.' At the time of the instant hearing , the Order of the Board had not been
complied with by the Respondents, Ozark, or Flippin, nor had the unfair labor
practices therein found , been remedied. There is no dispute between the parties
on that point.
In the instant case the General Counsel adduced testimony from several union
officials as to the beginning of the strike of December 3, 1948. The uncontra-
dicted testimony of the union officers was to the effect that the council called a
meeting of all employees on the Bull Shoals Dam and their union representatives
at a hall at Cotter, Arkansas, for December 2, 1948. Prior to the date of the
meeting the Union notified its members of the meeting, and passed out handbills
7Y. L. R. B. v Ozark Dam Constructors and Flip pin Materials Company, Inc., footnote
3, supra. Decision in this case , directing enforcement of the Board 's order as to Ozark and
dismissing as to Flippin was handed down July 5, 1951.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to all the men engaged in the construction of the dam and in the quarrying
operations . On December 2, approximately 400 employees and business agents
of the various trades met at the appointed time at Cotter, Arkansas. In the
meeting which ensued the various business agents reviewed, for the benefit of
the men , the history of the negotiations which the Union was then conducting
with Ozark. After several business agents, who were members of the negotiat-
ing committee, had spoken, someone among the employees made a motion that
the men not return to work until Ozark negotiated in good faith with the Union.
This motion was put to the meeting and unanimously passed by a voice vote.
Thereafter, the men did not return to work. This evidence as to the inception
of the strike given by the union officials is uncontroverted in the record.
Consequently, in view of the prior Order of the Board in Brown and Root, Inc.,
et al., 86 NLRB 520, and this evidence, I find that the strike of employees was
an unfair labor practice strike caused by Respondents' refusal to bargain.
At the time of the strike there were approximately 1,000 employees on the
payrolls of the Respondents. The strike appears to have been effective as to
approximately half of the employees. In the early days of the strike picketing
was conducted at all places where the operations of Ozark and Flippin were
taking place. As the months passed in stalemate, the extent of the picketing
lessened until the pickets finally disappeared around August 1, 1949. However,
the strike continued while the parties engaged in their legal proceeding before
the Board.
On September 26 and 27, 1949, representatives of the parties met at the Lamar
Hotel at Houston, Texas. At this meeting the Respondents were represented by
Messrs. Herman Brown, J. D. Moore, and Attorney Ben H. Powell, Jr. The Union
was represented by Folsum, Lindsley, Clause, and Smith, four of its officials. It
is undisputed that at this conference the representatives touched upon the differ-
ences between the parties only casually. The greater part of their time was
spent in a discussion of generalities. However, it appears that at this meeting
the first tentative proposal that the strike be terminated was made.
On December 1 to 3, 1948, representatives of the parties again met at the
Virginia Lee apartments in Mountain Home, Arkansas. Ozark was represented
by Messrs. J. D. Moore, Pat Earnest, and Attorney Powell ; the Union by a
group of business representatives. At these conferences the parties again tried
to negotiate a contract to no avail.
In the course of the conferences, however, the union representatives offered
to call off the strike provided the Respondents would reinstate the strikers. At
that time Powell said that if the Respondents had some vacancies they would
take back some of the men. That was not satisfactory to the union representa-
tives, but it was agreed that Representatives Keeler and Folsum would go with
Powell to the personnel office at the dam, and spot-check the payroll, to see how
many employees had been hired since the beginning of the strike. The conferees
at that time did not know the approximate number of men who had been hired
to replace strikers, nor did they know the number of strikers who sought rein-
statement. After a spot-check of the company records the three representatives
reported to the conference that about 50 percent of the working force at the dam
had been hired since the beginning of the strike. No final agreement to call off
the strike and to reinstate the strikers was reached at these conferences but the
proposition had received very serious attention. At one of these conferences
Powell gave the Council a memorandum dated December 2, 1949, which reads
as follows :
Whenever you decide to allow your men to return to work, if you do decide
to call off the strike, we will reinstate those employees who went out on
BROWN AND ROOT, INC. 1077
strike and apply for reinstatement to the extent required by the Labor Man-
agement Relations Act.
On December 14, 1949, the representatives of the parties again met at the
Grady-Manning Hotel, Little Rock, Arkansas. Messrs. Moore and Powell again
represented the Respondents ; Richard Gray, president of the Building Trades
Department, AFL, Washington, D. C., was the spokesman for the union repre-
sentatives. The proposal to call off the strike and to arrange the reinstatement
of the men by agreement, was discussed, but the parties could not agree on the
terms of such an agreement.
After a recess in the conference, Gray and the other Council representatives
handed to Respondents' representatives the following letter, dated December 14,
1949, addressed to Ozark :
Under date of July 28, 1948 an order was issued by the National Labor
Relations Board that an election would be held under the supervision of the
National Labor Relations Board representative for the purpose of deter-
mining and certifying an appropriate unit as the bargaining representative
of the employees employed by the Ozark Dam Constructors on the construc-
tion of the Bull Shoals Dam.
The Election was held on August 19, 1948, and as a result of said election
the National Labor Relations Board under date of August 19, 1948 certified
the Little Rock, Arkansas Building and Construction Trades Council and the
Springfield, Missouri Building and Construction Trades Council known as
the Joint Council as the bargaining representative of the employees em-
ployed by the Ozark Dam Constructors on the Bull Shoals Dam, with the
exception of the employees specifically noted in the official order of the
Board known as Case No. 32-RC-33.
On receipt of such notification the Building Trades Council named held
a number of meetings with the representatives of the Ozark Dam Con-
structors for the purpose of trying to negotiate a Management-Labor rela-
tion contract as to wages, hours, and working conditions.
The unions involved charged the Ozark Dam Constructors failed to bar-
gain in good faith and filed such charges with the National Labor Relations
Board. -
After a hearing on these charges held on July 29, 1949, the National Labor
Relations Board issued an order dated October 17, 1949 directing the Ozark
Dam Constructors to desist from refusing to bargain in good faith.
As a result of the action on the part of the Ozark Dam Constructors in
violating provisions of the Management-Relations Act of 1947 a large num-
ber of the employees who participated in the certification election went on
strike under date of December 2, 1948. Many of these employees have been
either totally or partially unemployed since December 2, 1948, suffering
severe loss and privation to themselves and their families. The undersigned
now formally demands these employees, or those of them who present them-
selves, be immediately employed by the Ozarks Dam Constructors.
When these employees are again employed by the Ozark Dam Constructors
on the Bull Shoals Dam project, we the undersigned, certified bargaining
representatives, will meet with the representatives of the Ozark Dam Con-
structors for the purpose of carrying out orderly collective bargaining
processes. [Emphasis supplied.]
Powell, chief negotiator for the Respondents, then prepared and gave the union
representatives the following letter, dated December 14, 1949:
215233-53-69
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with the demand in your letter of this date for the reinstate-
ment of those persons who went out on strike on December 3, 1948, and who
were employed on December 2, 1948, by Ozark Dam Constructors, this is to
advise that we will re-employ such persons to the extent required by the
Labor Management Relations Act of 1947 and in the manner required thereby
upon their application to Ozark Dam Constructors for such re-employment.
You are aware that this will require Ozark Dam Constructors to replace
existing employees who have been hired for the first time since 4 December
1948 with such employees who have been out since 3 December 1948 and
who re-apply for such jobs.
We will continue our bargaining with you at an agreed time after bearing
further from you. [Emphasis supplied.]
After the parties had assumed the positions expressed in the exchange of
'letters, some further discussion ensued. It is clear that all representatives un-
derstood that the exchange of letters constituted a termination of the strike, and
the beginning of a procedure by which the strikers would be reinstated. It is
clear from the evidence of union officials that the strike was called off on that
day, and it is likewise clear from the letter of the Respondents that they under-
stood that the Respondents had a duty under the Act to reinstate the strikers,
even to the extent of discharging replacements where necessary. At the con-
ference, therefore, there was considerable discussion as to how, and when, the
strikers would be reinstated. Powell and Moore agreed that a committee of the
Council could examine Respondents' payroll to determine how many men then
working, had been hired after the commencement of the strike in the classifica-
tions of the strikers, and that the Union would start a program of sending the
men to the job for reinstatement.
That night, the Union by paid spot announcement over a local radio station,
announced that the strike was terminated and that the men were to apply for
reinstatement . Local newspapers also carried a story that the strike was called
off.
In the next few days several groups of strikers were sent by the Union to
the dam site with referral slips. The Respondents, as part of the reinstate-
ment procedure, directed that these men be given physical examinations by
the company physician. These men were required to stand around outside in
wintry weather, while they awaited examination. Moore, acting for the Re-
spondents, and Keeler, acting for the Union, agreed that to relieve that hard-
ship, that in the future the Union would send 25 referrals a day to the dam site
until the program was completed. It was estimated that 25 examinations was
the maximum number that could be given,daily by the examining doctor. There-
after, the Union referred men at this rate.
Of the men so referred, some were immediately reinstated and some men re-
jected. On the whole, however, this reinstatement program was going forward
as a joint effort of Union and Respondents, when the Christmas holidays of
1949 intervened. Both the Union's and Respondents' representatives desired
to suspend the program over the holidays, so on December 19, 1949, the parties
entered into the following stipulation : ,
Agreement by and between ODC e and Joint Council Representatives for
the re-employment method to be followed.
It has been agreed between J. D. Moore, Jr., Administrative Superintendent,
and Council Representatives that the Company will re-employ on the days
of December 21 and 22 such employees that have been on strike that it is
B Ozark Dam Constructors was frequently referred to in the testimony by its initials,
O. D. C.
BROWN AND ROOT, INC. 1079
possible to process through the office and give their physical examination.
It is further agreed by both parties to this agreement that re-employment
will be discontinued until January 3, 1950, and that on this date re-em-
ployment process will continue as previously agreed.
This agreement is brought about for the convenience of Company Repre-
sentatives as well as Council Representatives due to the holiday season and
prior plans made by both parties.
Meanwhile union representatives had completed the check of the payroll men-
tioned previously, and from time to time had submitted lists to the Respondents,
which contained the names of some of the men who sought reinstatement.
On January 3, 1950, Union Representatives Hendricks, Keeler, and Wilkerson
went to the personnel office of the Respondents to continue the reinstatement
program. They saw Moore who told them that Pat Earnest had been designated
by the Company to handle the reinstatement program. Moore told the union
officials that they were to deal with Earnest and, in the event any disagreement
arose, that the union officials could then see him. In this conversation, Keeler,
representative of the carpenters, complained that Knight, one of the carpenters,
had been rehired and then terminated. Also Wilkerson told Moore that there
were rumors on the job, and in the neighboring villages that the union men were
to be reinstated and later run off the job. Wilkerson pointed out that such
rumors were harmful to the program. Moore agreed, and stated that he had
told his foreman not to discriminate in any way against the union men who were
reinstated.
At a conference with Earnest which followed, the union representatives fur-
nished to Earnest a list of people they desired to reinstate who were available
at that time for reinstatement. Earnest accepted the list, and stated that he
would check the company records to see if the men could be reemployed, and
would phone the union representatives his decision.
He then stated to the union representatives that the reinstatement program
was completed as far as the Company was concerned, except for some 30-odd
men of special skills, who would be accepted by the Company. He informed
the union representatives of the number and classification of these men.
That the Company considered the reinstatement program completed came as
a shock and a surprise to the union representatives. They demanded to know
how the Company reached that conclusion. In the discussion that followed,
Earnest stated several propositions for the first time, which are defenses of the
Respondents in this proceeding. He said that no more carpenters would, be
hired because the Company had reinstated strikers in a number equal to replace-
ment carpenters then on the job. He also said that the Respondents were not
obligated to reinstate employees on the payroll of Flippin, and that since the
I. A. M. represented the units of mechanics and mechanic repairmen, none of
these men would be reinstated through the intercession of the Union. Earnest
• concluded the conference by saying that he would notify the Union by phone as
to which men on their list the Company would employ, and that the Company
would employ men only in the classifications and to the extent mentioned to the
representatives. Later in the day he phoned the union representatives and
informed them which men on their list would be accepted for employment.
This state of affairs was not acceptable to the Union, so it sought a conference
with the Respondents.
On January 10, 1950, representatives of the Council met with Moore and
Powell, representing the Respondents, at the Grady-Manning Hotel at Little
hock, Arkansas. The principal topic of this conference was the failure.of. the
Company to reinstate more of the strikers. Powell stated that the Company
had employed 74 persons from the various lists supplied by the Council. The
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Council representatives told Powell and Moore that Earnest had informed
them that as far as the Company was concerned the reinstatement program was
finished. The union representatives claimed that there were approximately
350 to 400 strikers eligible for reinstatement and that the 74 reinstated up to
that time did not fulfill the Respondents' obligation to the strikers under the
Act. Powell stated that he could not believe that Earnest had said that no
more men were to be reinstated. He told the union representatives that he
would phone Earnest, who was not at the conference, and check with him as to
what Earnest had said to the union representatives. After making this phone
'call, Polvell reported to the conference that Earnest's version of his conversa-
tion was that he had told the union representatives that the rehiring program
was completed as to some classifications of workers. In the light of later events
this difference in the reported conversation is of minor importance.
In the course of determining the number of places to which strikers had a
right to reinstatement, certain differences had arisen between the parties. At
this conference these differences were discussed. These differences are basic
to the controversy, so for the sake of clarity and brevity I will discuss them here
at length and make a finding as to each.
1. Disagreement as to the reinstatement of employees of Flippin Materials
Company
At the conference of January 10, 1950, at the hearing, and in their briefs, the
Respondents contended that they were under no duty to reinstate former em-
ployees of Flippin who, it was contended, could not possibly have been unfair
labor practice strikers. The Respondents argued that some of the employees
of Ozark had chosen the Council as their bargaining representative, and that
some of the employees of Ozark had chosen the IAM as their bargaining rep-
resentative but that the employees of Flippin had never chosen a bargaining
agent because the employees of Flippin were not covered by the original repre-
sentation case before the Board. Also that though collective bargaining had
taken place to some extent between the Council and Ozark with regard to `Ozark
employees, no collective bargaining had taken place between the Council and
Flippin with regard to any Flippin employees. Respondents also pointed out
that though the General Counsel in the unfair labor practice proceeding had
"sought to ignore all of the facts in its treatment of Flippin and Ozark as one
and the same employer, and to obtain orders against both Ozark and Flippin,
the order which the Board entered in that prior case held that Ozark had not
bargained in good faith with the Joint Council and entered no such order against
Flippin." Further, counsel for the Respondents contended that all bargaining
conducted had been between the Council and Ozark, and that Flippin was not
involved.
This contention that Ozark and Flippin are separate entities has a certain
amount of surface plausibility. At the hearing the undersigned gave counsel for
the Respondents full latitude to develop evidence supporting this contention.
However, it was only late in the hearings that the true relationship of the
Respondents, Ozark and Flippin, was disclosed in the testimony of Ben H. Powell,
Jr., attorney for the Respondents. He testified that the Respondents conduct
their operations under the names of Ozark and Flippin by virtue of certificate of
doing business under an assumed name, filed in the proper counties in Arkansas.
Certainly this filing did not create new legal entities, separate and distinct from
the joint venturers, who in legal contemplation constitute a partnership. Flippin
and Ozark are merely different names for the same partnership, and are not legal
entities in their own right.
0 Testimony of Ben H. Powell, Jr.
BROWN AND ROOT, INC. 1081
The facts of Respondents' operation prove that the Employer here is the joint
venture or special partnership. Evidence adduced at the hearing discloses that
the Government through the Corps of Engineers has let two contracts. The
contract for the dam itself and the appurtenant works thereto, was let on May
8, 1947. The contract for the furnishing of the aggregate to be incorporated into
concrete used in the.construetion of the dam was let on November 3, 1947. The
terms of these contracts provide that the aggregate will be furnished by the
Government to the contractor constructing the dam.
The Respondents as stated previously, bid and were awarded the construction
contract. For the purposes of this contract they assumed the name Ozark. Using
the name Flippin, they bid for and were awarded the contract to supply aggregate.
The aggregate used in the manufacture of the concrete of which the dam is
being built is produced in a quarry located approximately 7 miles from the dam
site. The joint venturers, as Flippin, quarry stone, crush it to aggregate of
various size, and deliver it to themselves, doing business as Ozark at the dam
site. The joint venturers, as Ozark incorporate the aggregate into the dam.
Separate payrolls are maintained by the joint venturers for Ozark and for
Flippin. However, employees are shifted from one payroll to the other, with
great frequency and without any apparent limitation.
The contract for the supply of aggregate is a lump sum contract with a savings
clause. This necessitates accurate cost accounting to the Government with regard
to the aggregate contract. The construction contract is on a cost-plus 10-percent
basis. The joint venturers maintain a common office for the performance of
work under both contracts Hiring and firing is effected through a common per-
sonnel office.
The common overhead costs are originally charged to Ozark, but 30 percent
of those costs are later carried over, and attributed on the books to Flippin. The
salaries of all supervisors and management officials are handled in the same way,
70 percent is carried on Ozark's books, and 30 percent on Flippin's. The time of
hourly paid employees is prorated between Ozark and Flippin, in accordance
with the actual time spent on either phase of the work. Thus some employees
have received checks from both Flippin and Ozark for part of a week's work.
Employees testified they were shifted from one payroll to the other at the will
of the joint venturers.
From all the evidence, it is obvious, and I find, that the Respondents constitute
a single employer within the meaning of Section 2 (2) of the Act, and that Ozark
and Flippin are mere assumed names for this single employer.10
3° In making this finding . I am mindful of the fact that in the prior unfair labor practice
proceeding between these parties, 86 NLRB 520, the Board by inference treated Ozark and
Flippin as separate entities I alp also mindful of the fact that the Court of Appeals for
the Eighth Circuit, continued by inference to recognize a distinction between Ozark and
Flippin. However , since this proceeding raises directly the question of legal entities for
the first time , on facts which clearly compel a finding that Ozark and Flippin are mere
names for the single employer , Root & Brown , Inc, et al, I feel constrained to disregard
these inferences. When the question here raised is directly before the Board and the
court on this evidence , I believe the question will appear in such a light that the Board and
court will remove the inferences of their prior decisions
Sa-Mor Quality/ Brass Company , 93 NLRB 1225; Home Furniture Company, 77 NLRB
1437 , Salter Mills Company , 76 NLRB 930 : Vivtor Hosiery Corporation, et al, 86 NLRB
195 ; Atlas Imperial Diesel Engine Co , et at, 89 NLRB 372; L . W. Hayes, Inc., et at., 91
NLRB 1408 ; Gerber Products Company, 93 NLRB 1668 ; Vulcan Tin Can Company, 94
NLRB 10; Merchants Eepress Corporation , Inc, 92 NLRB 107; Lloyd A. Fry Roofing
Company, et al , 92 NLRB 1432 ; Launderepair Company, 90 NLRB 778; Federal Engineer-
ing Company, Inc, et at , 153 F . 2d 233 ( C A 6) ; American National Bank and Trust
Company of Chicago, 7-1 NLRB 503 , Orleans Materials and Equipment Company, Inc, 76
NLRB 49 , Ecusta Paper Corporation , 66 NLRB 1204.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It follows from this finding that the Respondents are a single employer ; that
all the men who went on strike December 3, 1948, were unfair labor practice
strikers. The employer of all men involved had previously been adjudged guilty
of a refusal to bargain with a group of these employees, and at a meeting the
employees in the unit aggrieved and some employees not in the unit, unanimously
voted to strike. They maintained their strike until it was called off by the certi-
fled representative for the unit aggrieved. Under these circumstances, I find
that all the strikers, regardless of whether they were on the payroll of Ozark
or on the payroll of Flippin, were entitled to be reinstated when they called off
their unfair labor practice strike and unconditionally offered to return to work.
2. Respondents ' contention as to men in the I. A. M. unit
As previously noted in the elections conducted by the Board, the Council
had won the right to represent two units of employees. These units were com-
prised generally of those craftsmen usually affiliated with the AFL Building
Trades, such as carpenters, electricians, boilermakers, operating engineers, pipe-
fitters, ironworkers, plumbers, and laborers. The IAM had won the right to
represent two units composed of machinists and the crafts generally associated
with machinists such as auto, truck, and heavy duty mechanics, mechanic repair-
men, and their helpers. In the conference of January 10, 1950, and at the
hearing, the representatives of the Respondents stated that the IAM was the
certified bargaining representative of many individuals who were on strike with
the Council. Men classified as mechanical repairmen were included in the
unit represented by the IAM. Powell stated at the conference that Ozark had
received a letter from the IAM dated December 28, 1949, which reads as follows :
Article 1, Section 1, Paragraphs 2 and 3 of the current agreement between
the Ozark Dam Constructors and The International Association of Ma-
chinists clearly defines the jurisdiction of the I. A. of M. as regards the
Bull Shoals Project as awarded by the National Labor Relations Board.
To avoid any possibility of future misunderstanding, this is to advise that
no Union or group of Unions, other than the I. A. of M. has any authority
to authorize or request any change in present personnel or. to represent any
employee coming within the bargaining units described in the above-men-
tioned agreement, regardless of any understanding or agreement which
may have been reached or which may be reached in the future with any other
Union regarding the re-hiring of former employees.
Powell said that Ozark had received this letter shortly after December 28,
1949, and that in view of the fact that Ozark had a contract with the IAM
covering the machinists-mechanics unit, that Ozark could not and would not,
reinstate employees in the IAM unit who were on strike with the Council.
The Union on the other hand took the position that all the men were unfair
labor practice strikers and that upon abandonment of their strike they were
eligible for reinstatement upon request by the Council, the IAM, or the individual
strikers themselves. In examining this difference between the parties some
general facts and general considerations are helpful. It must be remembered
that the division of these craftsmen into separate units with different certified
representatives had been effected only a short time before the strike. The cus-
toms and practices of collective bargaining had not been used by the employees
in the specific units for such a length of time that the distinction between the
units had been impressed upon the minds of the employees. It is also apparent
that Ozark's refusal to bargain with the Council as representative of many
crafts, was regarded as a serious matter by a large number of employees.
BROWN AND ROOT, INC. 1083
The meeting at which the strike vote was taken was open to all-employeea of
the Respondents regardless of craft, and regardless of whether the individual
was on the payroll of Flippin or Ozark. Acting in concert they all voted not to
return to work until Ozark bargained in good faith with the Council, and there-
upon they put their resolution into effect by concertedly stopping work. The
purpose of all, was to force the Respondents to cease their unfair labor prac-
tice directed at some of them. An employee need not wait until he is the
object of his employer's unfair labor practices before he can resort to strike.
This was the right that all these employees exercised when they struck on
December 3, 1948.
It must be pointed out that the only part of the contract between the Respond-
ents and the IAM which is before us in that contained in the letter quoted above.
There is no proof of any union-security clause or "no-strike" clause in this
contract. The Respondents could and actually did hire whom they chose
without reference to the IAM or the Council, and none of the employees were
bound by a "no-strike" clause or a union-security clause in any contract. The
Respondents' position, therefore, is based on the certification of the IAM for
the employees in the unit, and not on the contract between the Respondents and
the IAM. A similar situation was before the Board and the courts in The Texas
Company, 93 NLRB 1538. In commenting upon the refusal of the company to
hire a person who had formerly been discharged by the company for his union
activities as a supervisor in a rank-and-file position, the Board said :
The situation before us is not unlike those cases in which employees
join sympathetically in protected concerted activity initiated by a union in
which they are not and perhaps even could not become members. This
Board and the courts have held that reprisal against such employees
necessarily discourages not only their participation in concerted activities
but also active union membership on the part of employees on whose be-
half they acted.
The Court of Appeals for the Ninth Circuit has very clearly held that em-
ployees in the position of the mechanical repairmen have the same rights as those
employees directly affected by the unfair labor practice. In N. L. R. B. v.
Biles Coleman Lumber Company, 98 F. 2d 18, 23 (C. A. 9), employees had en-
gaged in a strike because of the company's refusal to bargain. The strike was
an unfair labor practice strike and the Board in its Order, ordered the company
to reinstate, upon application, all employees on strike. Among these striking
employees were employees who were not included in the unit because of their
supervisory status and location in a group of employees not in the units. The
court said :
The reinstatement remedy is designed to vindicate the policy of the Act
and to compel observance of its purpose and spirit. There is nothing in
the Act which limits the reinstatement remedy to members of a labor organ-
ization or even to striking employees who are primarily and directly ag-
grieved by an unfair labor practice which causes a strike. An entire crew,
union or non-union, may strike by reason of an unfair labor practice in-
volving the discharge of only one man . It could hardly be contended that
reinstatement of the entire crew in such case would not be a reasonable
measure for effectuating the policies of the Act, under Section 10 (c). We
need not consider the ultimate limits of the Board's authority to order rein-
statement of strikers against whom an unfair labor practice is not directly
committed. It is sufficient here to hold that any of these 600 employees of
this single employer who strikes by reason of unfair labor practices [ in this
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instance a violation of Section 8 (5) ] directed against any of the 600 had
a sufficiently immediate relation to such practices to warrant the Board
in requiring its reinstatement.
The Respondent takes the position that to reinstate the men at the request of
the Union , or the men themselves , would be an infringement upon the rights of
the IAM under the certification of the Board Respondents cite N. L. R. B. v.
Draper Corporation , 145 F . 2d 199 (C A. 4), as authority for its position.
That case involved a "wildcat" strike , called by a "minority group of employees
in an effort to interfere with the collective bargaining by the duly authorized
bargaining agent selected by all employees " The instant case is far different.
This was a strike in protest of the unfair labor practice of the employer. Work-
men, regardless of union affiliation or the lack thereof, refused to work until the
Employer bargained in good faith with the certified representative of a large
group of them . They attended the meeting of the Council and in concert heard
the report of the Council 's negotiating committee and in concert they unanimously
voted not to work until the Employer discontinued his unfair labor practices.
I have found that the strike was an unfair labor practice strike . I find. there-
fore, that these employees in the unit represented by the lAM who engaged in the
strike were unfair labor practice strikers , and just as entitled to reinstatement,
as the employees in the unit directly affected by the unfair labor practices.
3. Disagreement as to which employees were replacements for strikers
At the January 10, 1950, meeting the Respondents took the position that in
ascertaining how many jobs were available for the strikers that any employee
who was on the payroll of the Respondents at any time prior to the strike and
who was rehired after the strike, was a continuous employee and not subject to
replacement by a striker . The Union, on the other hand, took the position that
the only employees not replaceable by strikers were employees who were on the
payroll at the time of the strike , who had not struck, and whose employment
had been uninterrupted or continuous during the time of the strike. These con-
tentions presented a problem because of the nature of the Respondents ' working
force.
The Bull Shoals Dam , as noted before , is being built in a relatively remote
section of Arkansas . Within a radius of 60 miles there are no cities or towns
which have a population above 5,000 people. The relatively few communities
within that area are small villages with a few hundred inhabitants. It is mainly
a hilly agricultural area . Main lines of the railroads are distant from the dam
site. The people in the vicinity derive their livelihood from the land , either by
farming or some very small lumbering operations. The labor requirements of
the Respondents , at times approximately 1,500 men, was in excess of the normal
supply. In consequence , its labor force for the larger portion was made up of
residents of the community within a radius of 60 miles , and a few skilled workers
who came to the dam site from such places as Fort Smith and Little Rock, and
a few itinerant craftsmen . The great bulk of the labor force , therefore, were
farmers, sons of farmers, or people who resided in the community and who had
some indirect interest in farming . Employment at the dam was a source of added
income to these people. Work on the dam and work in their own interests, were
used by these men to complement each other . The work on the dam lent itself to
such an arrangement , for the labor force of the Respondents rose and fell as
certain operations of the dam were completed . Thus, the farmers were able
to work at the dam and still attend to their crops or follow their agricultural
occupations. Those indirectly interested in agriculture could do likewise. The
natural result of these activities was that the Respondents were forced to accom-
BROWN AND ROOT, INC. 11085
modate themselves to having workmen take temporary layoffs, during which the
workmen followed agricultural pursuits for a period of weeks, and then returned
to the Respondents. Likewise, the Respondents laid off some of its force when
a particular section of the dam was completed, and' a few weeks later hired the
same men when a new phase of the operations was begun. In all the operations
unrestricted interchangeability among the crafts and among the employees was
used. In one operation an employee might be classified as a mechanic but on
another operation, if he was qualified, he might be hired and classified as a truck
driver.
During July 1949, the mid-point of the strike, the entire labor force at the
dam was laid off because a strike on the Missouri Pacific Railroad prevented
the delivery of materials to the clam site. After the use of stored materials, all
men were laid off for the duration of the Missouri Pacific strike.
The payroll records of the Respondents followed an accounting procedure
required by the Government. This procedure required that men, in fact, laid
off temporarily, be designated as "terminated" because the accounting procedures
would not permit employees to be carried on the payroll who were not actually
working and being paid.
As a result of this procedure the payroll records show a man as "terminated,"
every time he quit to farm or follow his own pursuits even temporarily, or
when he was laid off at the end of some phase of the construction, or when he
was laid off temporarily at the time of the Missouri Pacific strike. This pro-
cedure had been followed since the beginning of the project Before the strike
some of the strikers had conducted their employment in this general fashion.
This situation caused severe disagreement in the conference of January 10,
1950, as to which employees should be discharged and replaced by the returning
unfair labor practice strikers. Some union representatives took the position
that "terminated" was exactly and literally used in the payroll records, and
that every man on the job was subject to replacement by a striker, since all
had been terminated at least once in the Missouri Pacific strike. Others, of
the union representatives believed that "terminated" should be construed in the
light of custom and usage. The Respondents' position was that "terminated"
meant laid o$; that it established the employee as an "old employee," and
that if he was terminated before the strike and rehired after the strike began,
he could not be considered a "new hire" and subject to replacement by a re-
turning striker.
On the evidence before me, I find that the employees laid off or terminated
during the Missouri Pacific strike were not rendered subject to displacement
by that break in their employment. There is no evidence before me that the
Respondents recruited men, formerly employed by the Respondents to come to
the plant and work in the strikers' job at the time the strike occurred. After
the strike, men who were formerly employed by the Company returned to the
payroll of the Respondents but it appears that this was part of the normal and
natural ebb and flow of employment of these individuals. I find also, that those
individuals were not subject to displacement by the strikers. However, in
regard to the last finding there is one notable limitation. Some of these men
were hired and later promoted, or hired at a classification other than their
former classifications, and thus given a striker's job. As to those cases where
an "old employee" was rehired during the strike at a classification different
than the one previously held by him or promoted to a classification formerly
held by a striker, I find that despite his previous employment, the "old em-
ployee" was subject to demotion or transfer to his former job or classification,
thus making room for a striker to also resume his former position. In the
order which I will hereafter recommend, I will direct that these "old employees"
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who were promoted into the positions or classifications of strikers or rehired
after the strike in a striker's classification rather than their own, be reduced in
classification or demoted or transferred to the classification which they held
before the strike, and that their present positions be given to the unfair labor
practice strikers who are hereafter determined to be eligible for reinstatement.
In making the above finding in regard to these "old employees" and the unfair
labor practice strikers, I have endeavored to lay down a realistic rule which
observes the rights of strikers and nonstrikers alike.
4. The disagreement as to the right of the Respondents to "overload" their payroll
At the meeting of January 10, 1950, at the hearing, and in their brief, the
Respondents contended that their obligation to reinstate strikers was limited to
reinstating strikers in a number equal to the number of replacements which they
had hired in the course of the strike. This contention was demonstrated by the
treatment of the carpenters on reinstatement. In the course of the strike, the
Respondents had hired 21 carpenters as replacements. The Council sought rein-
statement for approximately 56 striking carpenters. The Respondents reinstated
22 strikers and continued to employ the 21 replacements. They claimed this
fulfilled their obligation under the Act despite the fact that this procedure left
34 striking carpenters not reinstated. The position of the Respondents under
their interpretation of the Act was that they had fulfilled their duty under the
Act, and were carrying the replacements as an "overload" or a "luxury" at their
,own expense. It is manifest that this interpretation of the Act worked a.dis-
crimination against the striking carpenters not reinstated. It left them without
Jobs while the Employer had replacements performing the duties of carpenter.
This procedure of "overloading" worked an additional discrimination against the
men, because in some instances after reinstatement had taken place, the Respond-
ents, in a reduction of force, laid off reinstated strikers and kept on their payroll
those replacements retained as an "overload" or "luxury."
The correct legal principle governing this situation is that the strikers, being
unfair labor practice strikers, were at all times the employees of the Respondents.,
When the strikers called off their strike and unconditionally offered themselves
for employment, they had a right to reinstatement superior to the right of any
replacement in their classification on the payroll of the Respondents.
When the Respondents refused reinstatement to the claiming unfair labor
practice strikers in a certain classification, and retained replacements in that
classification, the Respondents discriminated against all claiming unfair labor
practice strikers in that classification."
These points constitute the principal controversial issues in the case, and were
the points on which the parties could not agree on January 10, 1950.
On January 15, 1950, Folsom, as president of the Council, wrote letters to Ozark
Dam Constructors and Flippin Materials Company. Attached to each letter was
a list of employees for whom the Union demanded reinstatement. These letters
which were identical were as follows :
The following employees, who went on strike December 3, 1948, having aban-
doned their strike, hereby unconditionally apply for employment. The
Undersigned organization offers its assistance in effecting employment for
these people who left their jobs due to labor dispute.
The following individuals comprise most of the balance of the employees
abandoning their strike, partial lists of whom have been presented as appli-
cants for employment on December 21, 1949, and January 3, 1950.
12 Lucerne Hide and Tallow Company, 89 NLRB 989.
BROWN AND ROOT, INC, 1087
Regardless of the action taken by the Company in regard to these applica-
tions the Joint Council requests that meetings continue in an effort to reach
an agreement with the Company covering the wages ; hours and other condi-
tions of employment of the employees whom it represents.
On January 24, 1950, Powell replied by letter on behalf of Ozark as follows :
We have received your letter of January 15, 1950, addressed to Ozark Dam
Constructors.
As you have heretofore been informed at conferences in Little Rock,
Arkansas, and by Ozark Dam Constructors personnel at the dam site, Ozark
Dam Constructors has re-employed many of the persons whom you have
referred to Ozark Dam Constructors for employment on the list which you
have heretofore submitted. You are also aware that the jobs which were
held and the work which was being performed on December 2, 1948, when the
strike commenced have, as a result of the progress which has been made in
the construction of the job during the past thirteen months been terminated
and no longer exist and that the overall employment by Ozark Dam Con-
structors has been reduced approximately 50%. As you have heretofore
been advised, we suggest that you direct any employee on the list enclosed
in your letter of January 15, 1950, who desires employment, to the Ozark
Dam Constructors employment office and their application for employment
will be accepted in the order of their appearance. Ozark Dam Constructors
will endeavor to employ as many of such men as possible.
With regard to your request for a further meeting to negotiate an agree-
ment between your organization and Ozark Dam Constructors, we have
always met and bargained with you upon your request, and so long as there
is any possibility that an agreement might be concluded, we will be glad
to continue to meet with you. [Emphasis supplied.]
On the same date, Powell replied on behalf of Flippin as follows :
We have received your letter dated January 15, 1950, addressed to Flippin
Materials Company. .
As you do not represent the employees of Flip pin Materials Company, we
feel that it is inappropriate to confer with you with regard to those employees.
As you know, Flippin Materials Company employs men required for its
operations at the employment office on the job site, and Flippin Materials
Company gives preference in employment to those persons who have hereto-
fore worked for the company and who are qualified to perform the work
which Flippin Materials Company is performing.
This exchange of letters brought to a conclusion all efforts on the part of the
parties to reinstate the men by a joint program. The Union instructed some
of the strikers to present themselves for employment, which they did. Some of
them were hired ; others for the reasons mentioned above, were refused employ-,
ment . Other employees, who were available for work, heard that fellow em-
ployees had not been employed, and so did not present themselves for employment.
In the course of the strike a great many strikers had sought employment at
distant places and would not return without a firm assurance that their jobs were
available.
From time to time thereafter, while the charges here involved were being in-
vestigated by the Board, the Respondents made various offers to employees of
reinstatement to their jobs. Most of these offers occurred from approximately
March 6 to July 15, 1950. The offers, on the stationery of Ozark, were in the
form of the following letter :
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DEAR Silt: We now have an opening for you as a carpenter." If you are
interested please report to our employment office at once and not later than
Monday, March 20, 1950.
OZARK DAM CONSTRUCTORS.
Some of the men to whom these offers were directed applied for reinstatement
and were reinstated. Their names appear in the complaint, and the date of their
reinstatement is shown. Some others did not apply for various reasons.
The individual cases will be discussed hereafter.
5. The availability of jobs for the strikers
Though an employer must reinstate unfair labor practice strikers who call off
their strike and unconditionally offer themselves for employment, he is under no
duty to reinstate strikers for whom he has no job. As indicated previously in
this Report, one of the contentions of the Respondents was that the working force
at the dam had been curtailed by about 50 percent and that therefore it did not
have jobs available for the strikers at the time they called off their strike.
Counsel for the parties exhibited extreme diligence in analyzing payroll records
and payroll data pertinent to this subject. Much of this data was reduced to
certain exhibits which were offered in evidence by stipulation. It was for the
preparation of these exhibits that the hearing was adjourned. These exhibits
are the source of all information on this subject.
General Counsel's Exhibit No. 11 shows the active employees on the payroll of
Ozark as of December 18, 1949, including each employee's work history as on file
at the Company's office. Basically this document was prepared from the Re-
spondents' records by the members of the Joint Council, with the help of some
company employees on December 17, 18, and 19, 1949, with certain additions
and deletions, which were later made upon comparison with the actual payroll
of December 18, 1949. There are approximately 700 names on this exhibit.
General Counsel's Exhibit No. 15 shows the employees on the payroll of
Flippin as of the payroll period ending December 18, 1949, and the work histories
of the men. There are approximately 130 employees listed on this exhibit.
General Counsel's Exhibit No. 11 shows the work histories of each employee
named in the complaint as amended. These work histories show work done both
for Ozark and for Flippin. There are approximately 150 men listed on this
exhibit.
In addition to the above exhibits the parties stipulated as follows :
At sometime between February 1, 1950, and July 25, 1950, new employees
were hired by Ozark and Flippin in the following classifications and in the
following numbers : Carpenters-39, carpenter apprentice-2, laborers-11, bell-
boy-1, form setter and strippers-1, pump operators-4, conveyor operator-
2, euclid driver-2, dinkie operator-2, oilers-2, welders-7, jackhammer-5,
air tool operator-6, wagon drill-2, and 1 each in the following classifications :
rigger, millwright, cement finisher, vibrator operator, bulldozer operator, crusher
operator, powderman, compressor operator and truck driver.
General Counsel's Exhibit No. 19 is compiled from the Company 's records and
shows new employees hired between December 18, 1949, and February 1, 1950,
in all classifications held by employees named in the complaint. On employees
hired during this period who had prior work histories with either Ozark or
Flippin, work histories are also given. General Counsel's Exhibit No . 20 is an
12 The letters usually designated the appropriate craft for the specific employee.
BROWN AND ROOT, INC.- 1089
exhibit compiled from company records which shows new employees hired since
the payroll date of December 18, 1949, in the classifications as follows : mechan-
ical repairman, ironworker, electrician, blacksmith, crane operator, battery car
operator.
These exhibits I have studied and analyzed. These records establish two
fundamental facts that: (1) employees were shifted between the payrolls of
Ozark and Flippin at the will of the Respondents without any limitation what-
soever; and (2) employees possessing more than one skill were transferred or
shifted from one skilled job to another, so that in the course of employment,
they filled practically all jobs for which they were qualified.
It is also apparent and I find from these records that if the Respondents had
fulfilled its duty under the Act toward the returning unfair labor practice
strikers, that all the strikers named in the complaint could have been rein-
stated with reasonable promptness. The Respondents had an ample number
of jobs occupied by replacements, or vacant, to accommodate all the strikers
in every classification. This is especially true, since some strikers had skills
in more than one classification. This finding is based on an analysis of the
payroll exhibits, covering the various types of replacements, and the stipula-
tion of the parties as to new employees hired between February 1, 1950, and
July 25, 1950.
To determine the payroll situation as of December 14, 1949, I have analyzed
the payroll exhibits, to find the number of replacements on the payroll, on and
shortly after that date. This analysis was as follows : From the work histories
of the men on the payroll of December 18, 1949, the date of original hire was
determined. If the man had been hired previous to the strike by either Ozark
or Flippin he was considered to be "an old employee" and not subject to
being discharged to make room for a striker. If the employee hired after the
strike was a new employee, he was considered a "replacement," if he was an
old employee but promoted into a striker's classification, he was considered
a "promotional replacement" in the strikers' classification ; if he was a "new
hire" at or near the time that the strike was called off, he was considered a
"discriminatory replacement" inasmuch as he was hired rather than a striker
at a time when the strikers were asking for reinstatement. These categories
of replacements are totaled in the column marked total replacements. This
figure is the number of positions which were available for the strikers on De-
cember 14, 1949, at the time the strike was called off. It will be noted that
in some of the classifications hereafter set forth there appear to be replace-
ments and no strikers claiming these jobs. I have set out these classifications
nevertheless, to show the amplitude of construction jobs available for the return-
ing unfair labor practice strikers.
In addition to the jobs occupied by replacements at the time the strike was
called off, the Respondents had the jobs of the new employees hired between
February 1, 1950, and July 25, 1950, which are enumerated in the stipulation
mentioned above. These jobs must be considered in any assessment of the job
situation, for these men were hired at the same time the Respondents refused
employment to some of the strikers.
In discussing the individual cases hereafter, I will give the replacement situa-
tion as of December 18, 1949, for each classification immediately after each
heading. I will refer to the stipulation as to "new hires" when I think it is
pertinent.
Before making specific findings as to the individual strikers named in the
complaint , I think it proper to make general findings at this point in the Report.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Findings
Upon all the evidence , I find that the employees of Brown and Root, Inc.,
Wunderlich Contracting Company, Peter Kiewit Sons Company, Winston Bros.
Company, David G. Gordon, Condon-Cunningham Co., Morrison-Knudson Com-
pany , Inc., J . C. Maguire & Company , and Chas. H. Tompkins Co., doing business
as joint venturers under the names of Ozark Dam Constructors and Flippin
Materials Company, engaged in a strike beginning December 3, 1948 , which was
caused and prolonged by the unfair labor practices of the aforesaid Respondents.
I find that the employees aforesaid called off their unfair labor practice strike
on December 14, 1949, and that on that date the Union made a demand on behalf
of all the striking employees that the Respondents reinstate them, and that on
that date the Union on behalf of all the striking employees made an uncondi-
tional offer to return to work.
The Respondents contend that before the Employer was under any duty or
obligation to reinstate the unfair labor practice strikers , the strikers themselves
had to make individual applications for reinstatement . Upon the evidence in
this case, that contention is without merit for several reasons. In this case, a
blanket application for the reinstatement was made by the Union on behalf of
all strikers and the Respondents agreed to the reinstatements , a great many of
which it later failed to make. In Indiana Desk Company, 56 NLRB 76, the
Board said :
"A blanket application by the union on behalf of strikers for reinstatement
cannot be ignored by the Employer and makes individual applications un-
necessary ." [Emphasis supplied.]
The enforcement proceedings in the Court of Appeals for the Seventh Circuit,
left untouched this holding of the Board . In the Rapid Roller Company case,
supra, the Board said :
There is no testimony that any of the strikers made individual applications
for reinstatement . However , in view of the general application made by
Local No . 120 on May 9, in behalf of all the strikers and the Respondents'
refusal to displace new employees in order to put the strikers back to work,
a subsequent individual application would have availed the employees noth-
ing. It cannot be said that because the strikers did not make individual
applications to go back to work they were not refused reemployment. To
require the strikers to make individual applications in this situation would
place a penalty upon them for not doing what they knew would have proved
fruitless in the doing . [Emphasis supplied.]
It is obvious that after the unilateral termination of the reinstatement program
by the Respondents on January 3, 1950, that individual application by the strikers
would have been futile.
Despite this conduct of Respondents, many strikers in ensuing months made
personal application for reinstatement. Also, the Union made repeated demands
for the reinstatement of the strikers, furnishing to the Respondents lists con-
taining the names of striking employees who sought reinstatement. Under the
evidence here, I find personal applications and such demands were not required
by the Act, and that the unfair labor practice strikers had a right to reinstate-
ment beginning on December 14,1949.
I further find that on December 14, 1949, Respondents agreed to reinstate said
employees but thereafter failed and refused to reinstate certain employees here-
after named in this Report, and failed and refused to reinstate certain other
striking employees until later dates ; the names and dates being hereinafter set
forth.
BROWN AND ROOT, INC. 1091
The violations of the Act found above in most instances were caused by the
Respondents' discriminatory refusal to grant to the striking employees several
rights and benefits conferred on them by the Act.
Since these employees of Brown and Root, Inc., et al., were unfair labor prac-
tice strikers, they all remained employees of the Respondents during the strike
and were entitled to reinstatement at any time that they called off their strike.
The Texas Company, supra; N. L. R. B. v. Biles Coleman Lumber Company , supra;
Spencer Auto Electric Co., Inc., 73 NLRB 1416, 1421, in which the Board said :
As we have already noted the strikers were engaged in protected concerted
activity for which they could not lawfully be discharged or punished. Under
the express provision of Section 2 (3) of the Act, they retain their status
as employees. Therefore, when they abandoned their strike, the Respondent
was duty bound to reinstate them on application."
To provide employment for the strikers, if necessary, the Respondents were
obligated to discharge replacements hired after the strike began ; and to demote
or transfer other employees who had been promoted or transferred into the
positions of strikers, back to their former positions or classifications. In Indus-
trial Cotton Mills Company, Inc., supra, the Board adopted the Trial Examiner's
language on this proposition as follows :
All new employees hired by the Respondent on and after June 11, 1942, the
date of the commencement of the strike in question, shall, if necessary, to
provide employment for those to be offered reinstatement, be dismissed. If
thereafter, despite such reduction in force, there is not sufficient employment
available for all the employees to be offered reinstatement all available
positions shall be distributed among the remaining employees , including
those to be offered reinstatement, without discrimination against any em-
ployee because of his union affiliation or concerted activity, following such
system of seniority or other practice to such extent as has heretofore been
applied in the conduct of Respondent's business . In this process, if neces-
sary, the spare hands and other employees who were placed in the jobs of
the employees to be offered reinstatement shall be removed from such jobs
back to the jobs they held prior to June 11, 1942, before distribution of the
positions is made among the regular weavers including the persons named
herein. Those employees if any remaining after such distribution for whom
no employment is immediately available shall be placed on a preferential list
and offered employment to their former or substantially equivalent positions
as such employment becomes available and before other persons are hired
for such work in the order to be determined among them by such system of
seniority or other practice as has been followed heretofore by the Respondent.
[Emphasis supplied.] 34
Though the Respondents stated on December 14, 1949, that they would
reinstate all strikers in accordance with the provisions of the Act, it is patent,
and I find , that they never intended to observe those provisions of the Act which
required the discharge or demotion of replacements. This is conclusively estab-
lished by the fact that in this entire record and the voluminous exhibits, there
is no evidence of one replacement being discharged or demoted to make room
for one striker.
13 See also Dalton Telephone Company, 82 NLRB 1001; Industrial Cotton Mills Co., Inc,
50 NLRB 855, 869; Twelfth Annual Report of the National Labor Relations Board, page
31 ; Fourteenth Annual Report of the National Labor Relations Board, page 63.
14 See also Fast Trucking, Inc., 56 NLRB 1826, 1843; Palmer-Lee Company, 65 NLRB
492, 506-507; Rapid Roller Company, 33 NLRB 557.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, those employees who were reinstated were given jobs which were
vacant, and in many instances the reinstated strikers were treated as new
employees . It is obvious that to a certain extent, the Respondents used the
reinstatement program as an accommodation , whereby they filled their existing
labor requirements and then terminated the program by unilateral action
Under the law the Respondents were required to rehire the strikers in any
classification for which they were qualified , if their services were not required
in their primary classification.
The Board in Lewis & Holmes Motor Freight Corporation , 63 NLRB 996, 995-
999, ordered the respondent to reinstate the discriminatees to other jobs for which
they were qualified , and to return them to their jobs when they again opened up.
In that case , the company had claimed that it could not reinstate the 8 ( a) (3)'s
because their jobs had been eliminated . The Board , in effect , stated that this
defense of the company ' s was not sufficient inasmuch as there were jobs in the
company for which the employees discharged were qualified It further stated
that the discriminatorily discharged employees were entitled to those jobs, until
such time as the company found a need to reopen the eliminated jobs.
I find that this principle applies to unfair labor practice strikers as well as to
discriminatorily discharged employees and that they both had the same status as
employees before the law. In the instant case , Respondents observed this rule
in only a few cases.
Upon all the evidence including that hereafter referred to in the subdivision
entitled " Specific Findings as to Individuals ," I find that the Respondents vio-
lated Section 8 (a) (1) and ( 3) of the Act by not reinstating the employees
listed in Schedule A, attached hereto, and by not reinstating until the date set
opposite each name the employees listed on Schedule B, attached hereto.
Specific Findings As to Individuals by Classifications
Carpenters
Claiming strikers------------------------------------------- 37
Replacements---------------------------------------------- 22
Discriminatory replacements -------------------------------- 12
Total replacements----------------------------------- 34
Stipulated : New employees hired 2/1/50-7/25/50------------- 39
Bailey, Benjamin W.: Rehired 11/1/50 as carpenter ; registered letter sent
10/26/50 offering job as carpenter.
This employee testified that on January 3, 1950, he and employee Pfingston
presented themselves at the employment office and requested reinstatement.
Pat Earnest , in charge of the reemployment program for the Company , told the
men that the Respondents had hired all the men they were required to hire.
Bailey had a referral slip from the Union, but was not hired. On November 28,
after he received a letter from the Company , he again presented himself for
employment and was reemployed on that date . I find the Respondents discrimi-
nated against this employee from December 14, 1949 , to the date of his reinstate-
ment on November 1, 1950.
Bevanis, J . N., Jr.: Rehired 12/13/50 as carpenter ; quit 1/9/51-going to an-
other job ; notified of opening as carpenter on 3/8/50.
This employee testified that between January 3 and 5, 1950, he applied for a
job at the personnel office. The man in charge told him that the Respondents
had hired as many strikers as it iad hired nonstrikers and that therefore they
had fulfilled all their obligations to the Union. He was not rehired. Around
October 5 , 1950, he called Hock, the personnel man from Lake Andes, South
Dakota, and asked if he was hiring any men. Hock said a few . When Bevans
BROWN AND ROOT, INC.. 1093
got to the dam a few days later, he was told that the Company was not hiring
any carpenters . In December he applied to J. D Moore at the dam and was
given a job as a carpenter . I find that the Respondents discriminated against
this employee from December 14, 1949, to December 13, 1950.
Blecker, Robert R.: A registered letter was sent this employee on 3/8/50 offer-
ing him a job as a carpenter . He did not testify . I find that the Respondents
discriminated against this employee from 12/14/49 to the date of the above offer
of reinstatement.
Bonner, Glen M.: Rehired 7/29/50 as carpenter. Registered letter sent
7/25/50 offering job as carpenter . I find that the Respondents discriminated
against this employee from 1/14/49 to 7/29/50, the date of his reinstatement.
Brents, J. B.: Rehired 3/21/50 as carpenter ; quit 4/25/50, "going to another
job" ; registered letter sent 3/8/50 offering job as carpenter . I find that the
Respondents discriminated against this employee from 12/14/49 to 3/21/50, the
date of his reinstatement.
Cypert , Eugene N.: Rehired 3/21/50 as carpenter ; terminated 6/15/50, reduc-
tion in force ; registered letter sent 7/25150 offering job as structural ironworker.
I find that the Respondents discriminated against this employee between dates
12/14/49 and 3/21/50, the date of his reinstatement.
Drown, Witham H.: Registered letter sent 3/6/50 offering job as carpenter
I find that the Respondents discriminated against this man until the date of
his offer of reinstatement
Flip pin, Francis : Registered letter sent 7/25/50 offering job as carpenter. I
find that the Respondents discriminated against this employee from 12/14/49
until the date of the offer of reinstatement.
Ford, Jason S.: Registered letter sent 318/50 offering job as carpenter. I find
that the Respondents discriminated against this man to the date of the offer
of reinstatement.
Ford, W.: No offer was ever made to this employee . I find that the Respondents
have discriminated against this employee from 12/14/49 up to the present.
Harris, E. E .: Rehired 7/28/50 as carpenter ; terminated 8/10/50 "failure to
report"; rehired 2/5/51 as carpenter . Registered letter sent 7/25/50 offering
job as carpenter.
This employee testified he received a letter offering him a job on July 25, 1950,
and that he presented himself for employment on July 28, 1950 , and was hired.
After working 8 days, Harris was terminated . Harris testified that he had
broken ribs while working at his home and that this illness was reported to his
foreman. About a week later, he reported for work and discovered that his
"brass" was off the board. Upon making this discovery he talked to his foreman
and after being sent back and forth between company officials , was told that he
could return to work. However , upon reporting the next day his "brass" had
not been returned to the Board ; without further inquiry he "picked up" his tools
and went home . I find that the Respondents discriminated against this employee
from December 14, 1949 , to July 28, 1950, when he was reinstated. I find
that his subsequent termination on August 10, 1950, was not proven to be
disc r! minatory.
Hayes, Herman E.: Rehired 3/15/50 as carpenter ; fired 4/25/50-"too slow" ;
registered letter sent 3/8/50 offering job as carpenter . I find that this employee
was discriminated against between 12/14 /49 and 3/15/50 , the date of his rein-
statement.
Hudson, Raymond A.: Registered letter sent 10/26/50 offering job as carpenter.
I find that the Respondents discriminated against this employee from 12/14/49
to the date of the offer of reinstatement.
215233-53-70
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James, John A.: Rehired 5/23/50 as carpenter ; registered letter sent 3/8/50
offering job as carpenter.
This employee testified that he "received a letter offering him a job around
March 10, 1950, and that he went to the office of the Respondents. The employ-
ment manager, Hock, seemed very anxious to sign him up for the job, but the
employee inquired as to working conditions. After some discussion of working
conditions, James said, "Well, if working conditions aren't any better than they
were when I quit, I don't care anything about going to work." Hock said that
he didn't think conditions were any different than they were prior to the strike.
James then excused himself and left the office. Later James talked to Stone, a
foreman on the job, who gave James a requisition and he went to work. James
stated that at the time he first went to the Company he was working at the
Arkansas State Highway Department. I find that the Respondents discriminated
against this employee from December 14, 1949, to March 8, 1950, the date on which
he was offered reinstatement as a carpenter. The fact that he was not hired
pursuant to the Respondents' offer, was entirely due to his own choosing not to
work under the "rough" conditions on the job. It is apparent that having a
more desirable job at the time, this employee refused reinstatement.
Kent, W. A.: Registered letter sent 7/25/50 offering job as carpenter. Replied,
would not report. I find that the Respondent discriminated against this man
from 12/14/49 to 7/25/50, the date of offer of reinstatement.
Kilfoy, Wilbert A.: Registered letter sent 10/26/50 offering job as carpenter.
Rehired 1/16/51 as carpenter.
This witness testified that he went on strike December 3, 1948, and received
no offer of reinstatement until he received a letter dated October 26, 1950. When
he received this letter, he was in Canyon Ferry, Montana. He wrote back and
asked the Company the wage scale and hours per week. The Company answered
that the scale and hours were the same as when he went on strike. He testified
that he then went to the job and was hired. At the time of his testimony he
was foreman of carpenters. I find, in accordance with Kilfoy's testimony, that
the Respondents discriminated against him between the dates of December 14,
1949, and January 16, 1951, the date of his reinstatement.
King, Lucian R.: Rehired 10/26/50 as carpenter.
This employee testified that he was never offered reinstatement and that he
was not reemployed until he made personal application at the office of the Com-
pany on November 5, 1950. On that date he was given a job as carpenter.
This witness testified that he knew when the strike was called off in December
1949. However, at that time,.he and his father owned and operated a shoe shop
at the town of Flippin. He did not wish to go back to work until after he had
disposed of the shoe shop. In February 1950, when he had disposed of the
shoe shop, he applied for a job to Mr. Hock who told him that the Company was
not hiring any men. He did not again apply for employment until November 26,
1950. Reinstatement of this man had been demanded by the Union early in the
reinstatement program. I find that the Respondents discriminated against this
employee from December 14, 1949, to October 26, 1950, the date of his reinstate-
ment. Though he delayed his personal application for reinstatement, he cannot
be penalized for that delay. At all times from December 14, 1949, until his ulti-
mate reinstatement, the Respondents' position was that of denying him rein-
statement. '
Landry, C. C.: Registered letter sent 7/25/50 offering job as carpenter. I find
that the Respondents discriminated against this employee between 12/14/49 and
the date of the offer of reinstatement.
BROWN AND ROOT, INC. 1095
Losch, R. B.: Registered letter sent 3/8/50 offering job as carpenter. I find
that the Respondents discriminated against this employee between the dates
12/14/49 and 3/8/50, the date of offer of reinstatement.
Lynch S. L.: Registered letter sent 7/25/50 offering job as carpenter. I find
that the Respondents discriminated against this employee between the dates
12/14/50 and 7/25/50, the date of the offer of reemployment.
Marberry, F. P.: Registered letter sent 3/8/50 offering job as carpenter ; rehired
5/18/50 as carpenter.
This employee testified that Keeler, the representative of the carpenters, sent
him to the Company's office on January 3 or 5, 1950, to apply for reinstatement.
He was accompanied by Russell Wood, another carpenter. The men talked to
Pat Earnest who told them that the Company had reinstated 22 carpenters and
that was all the Company was obligated to reinstate. Neither Wood nor Mar-
berry were employed. He testified that he received a letter offering him em-
ployment about March 6. This employee was offered reinstatement on March
8, 1950. He did not obtain employment until May 18, 1950. In the absence
of any explanation of his delay in accepting reinstatement, I find that the Re-
spondents discriminated against him from December 14, 1949, to March 8, 1950,
the date of the offer of reinstatement.
Mashaw, Roy: Registered letter sent 3/8/50 offering job as carpenter. I find
that the Respondents discriminated against this employee from 12/14/49 to
3/8/50, the date of the offer of reinstatement.
Miller, Joe: Rehired 11/3/50 as carpenter ; registered letter sent 3/8/50
offering job as carpenter. Though this employee testified, he made no explana-
tion of the long delay between the offer of reinstatement and his acceptance of
the same. I find , therefore, that the Respondents discriminated against him
between the dates of 12/14/49 and 3/8/50, the date of offer of reinstatement.
Patton, H. C.: Registered letter sent 3/8/50 offering job as carpenter. I find
that the Respondents discriminated against this man between the dates 12/14/49
to 3/8/50, the date of the offer of reinstatement.
Pfingston, Jake: Rehired 2/7/51 as carpenter; registered letter sent 3/8/50
offering him job as carpenter.
This employee testified that he was referred for employment by the Union
on approximately December 23, 1949. On his first trip to the personnel office
he did not have his referral slip with him and so was not employed. He re-
turned to the Respondents' office on January 3, and was referred to Pat Earnest
who said that the Respondents would not hire Pfingston as they had filled their
quota of carpenters. On the following day, Pfingston talked to Earnest again,
who told him to go back to the Union, that the Company was not hiring any
more men. Thereafter, Pfingston contacted several people on the job and
finally obtained employment on February 7, 1951, as a carpenter through the
efforts of Foreman Freeman. Pfingston testified that on March 8, 1950, he
received a letter offering him a job but at that time he had made other ar-
rangements about another job. I find that Respondents discriminated against
this employee between the date of December 14, 1949, and the date of offer of
reinstatement, March 8, 1950.
Plymate, Donald C.: Registered letter sent 3/8/50 offering job as carpenter.
This employee testified that he applied in person for reinstatement on January
3, 1950, with a group of employees but he was told by the Respondents that they
were not hiring any more men. He received a letter offering him a job as
carpenter approximately March 6, 1950, but he did not go back to work. I find
the Respondents discriminated against this employee between the dates De.
cember 14, 1949, and March 8, 1950, the date of offer of reinstatement.
1096 DECISIONS OF, ' NATIONAL : LABOR RELATIONS BOARD
Putney, Clyde S.
Putney testified that he was a carpenter employed by Ozark at a rate of $1.35.
an hour before the strike. After the strike, he kept in touch with his union
representative. On October 26, 1950, he received a registered letter from the-
Company offering him reinstatement as a carpenter. He went to the dam site
and the foreman offered him a job as a carpenter at $1.75 an hour which was
journeymen carpenter's pay. But the foreman wanted him to do layout work.
Prior to the strike Putney had been doing layout work and receiving journeymen
carpenter's pay. At the time he sought reinstatement, Putney told the foreman
that unless he received an additional 5 cents an hour for doing layout work, he
would not return to work. At this time, the carpenters doing layout work on the
job were being paid $1.75 an hour, the same as all other carpenters. During the
time he was on strike, this employee had been employed by a local carpenter at
the rate of $1.85 an hour. I find that at the time of his application for em-
ployment, this employee demanded more than reinstatement to his former
position and that he voluntarily chose not to accept reinstatement unless he
was paid more than the other carpenters doing the same kind of work. I
find, therefore, the the Respondents discriminated against this man from De-
cember 14, 1949, to the date of the offer`of reinstatement, October 26, 1950. On
this man, the records are apparently incomplete.
.Rains, Willis: Registered letter sent 3/8/50 offering him job as carpenter. I
find that the Respondents discriminated as to this employee between the dates
12/14/49 and the date of offer of reinstatement, 3/8/50.
Reedus, Billy B.: Registered letter sent 3/8/50 offering job as carpenter. I find
that the Respondents discriminated against this man between the dates 12/14/49
and the date of offer of reinstatement, 3/8/50.
Russell, Kern K.: Registered letter sent 3/8/50 offering job as carpenter. I
find that the Respondents discriminated against this man between the dates
1/14/49 and the date of offer of reinstatement, 3/8/50.
Rutledge, Robert M.: Rehired 8/8/50 as carpenter ; quit 12/28/50-"going to
better job." Rehired 1/22/51 as carpenter ; registered letter sent 7/25/50 offer-
ing job as carpenter.
This employee testified that after the strike he went to Texas, but kept in
touch with both his foremen at the dam and various union representatives in
regard to the strike and its progress. When the strike was called off he read of
it in the papers and called the Union, who told him that the Company had agreed
to put men to work, but were not,doing it. Under these circumstances he did not
apply for reinstatement. In July he received a letter offering him reinstatement.
He replied to the letter and requested a few days time to straighten out his
business before applying for reinstatement. A short time thereafter, be went to
the office of the Company and was reinstated. I find that the Respondents dis-
criminated against this employee between the dates December 14, 1949, and
August 8, 1950, the date of his reinstatement.
Shaw, Hoy: Registeied letter sent 3/8/50 offering him a job as carpenter.
I find that the Respondents discriminated against this man between the dates
12/14/49 and 3/8/50, the date of offer of reemployment.
Smi,th, Elbert C.: Rehired 2/16/50 as carpenter ; quit 4/17/50-"dissatisfied
with 5-day workweek" ; rehired 1/23/51 as carpenter.
This employee testified that he applied personally for reinstatement on Janu-
ary 3, 1950. He went to the job seeking reinstatement with a group of men
among whom was James R. Marler. Smith asked the man at the employment
office for reinstatement. This official told the assembled men that the Company
had reinstated 23 carpenters, and that they had replaced strikers with only 22
BROWN AND ROOT, INC. 1097
.carpenters , so the Company had hired one more carpenter than necessary, and
they didn ' t feel obligated to take any more men back . Smith went back several
times and talked to his foreman with the result that on February 16, 1950, he
was reinstated as a carpenter . I find that the Respondents discriminated against
this man between the dates December 14, 1949, and February 16, 1950, the date
of his reemployment.
Tulipana , George: Rehired 10/23/50 as carpenter ; quit 11/27/50-"refused to
transfer to the day shift " Rehired 1/17/51 as carpenter.
This employee testified that he applied for reinstatement a few days after
January 3, 1950 . He went to the personnel office where there was quite a crowd
of returning strikers . The word was passed around among them that no more
union men were to be hired, so he 1%ent home . For some time thereafter, he did
not apply for reinstatement because he heard that men were not being hired,
or were being fired. In October he talked to his former foreman, Joe Stone, and
asked him to see about his reinstatement Shortly thereafter , he was reemployed
by the Company on October 23, 1950, as a carpenter I find that the Respondents
discriminated against this employee between the dates December 14, 1949, and
October 23 , 1950, the date of his reinstatement.
Vickery , T. J.: Registered letter sent 7/25/50 offering job as carpenter ap-
prentice ; replied WILL NOT REPORT . ( Note: was carpenter apprentice third
year at time of strike. ) I find that the Respondents discriminated against this
man between the dates 12/14/49 and 7/25/50, the date of offer of reinstatement.
Williamson , Troy: Registered letter sent 7/25/50 offering job as carpenter
apprentice . ( Was carpenter apprentice third year at time of strike.) I find
that the Respondents discriminated against this employee between the dates
12/14/49 and 7/25/50, the (late of offer of reemployment
Wood, Russel l T.: Rehired 2/25/50 as carpenter ; quit 4/12/50-"going to an-
other job." Rehired 12/ 12/50 as carpenter ; reclassified 2/8/51 as carpenter fore-
man; quit 2/15/51, leaving State. I find that the Respondents discriminated
against this man between the dates 12/14 /49 and 2/25/50, the date of his rein-
statement . ( Note this is the employee who accompanied Marberry when they
sought reinstatement
Carpenter Apprentices
Claiming strikers------------------------------------------- 0
Replacements---------------------------------------------- 13
Promotional replacements ---------------------------------- 1
Discriminatory replacements-------------------------------- 5
Total replacements----------------------------------- 19
Stipulated : new employees hired 2/1/50-7/25/50-------------- 2
An examination of the payroll records discloses that in the classification of
.carpenter apprentices, there were 19 replacements on the payroll at the time the
strike was called off or shortly thereafter. This is a factor which I believe can
be properly taken into account when evaluating the ability of the company to
reinstate all the striking carpenters and carpenter apprentices. At the time the
strike was called off, the Company had replacement positions for 34 carpenters
in addition to these carpenter apprentices. It is obvious that in the course of the
strike when the Company could not obtain the services of carpenters to the ex-
tent desired, they hired more apprentices and thus filled out their carpenter force.
In view of this replacement situation, the Company actually had a place for each
of the returning carpenters and apprentices. However, the Respondents did not
choose to reemploy all these strikers. They reinstated 22 and retained 21 re-
placements on the payroll. Obviously, this did not fulfill Respondents' obligation
under the Act as the retention of these replacements as an "overload" or
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"luxury" deprived some of the strikers of prompt reinstatement. This refusall
to give these available jobs to any of the strikers was a discrimination against
all of them in this classification."
Mechanical Repairmen
Claiming strikers ------------------------------------------- 34
Replacements ---------------------------------- ----------- 7
Promotional replacements----------------------------------- 11
Discriminatory replacements -------------------------------- 40
Total replacements----------------------------------- 5S
Arnold, Hayes G.: No offer made. "Never an employee of Ozark Dam,
Constructors."
This employee testified that he was on the payroll of Flippin as a welder's
helper at $1.07 an hour before the strike. On January 4, 1950, he applied for
reinstatement. Pat Earnest told him that the Respondents did not need any
welder's helpers at that time, and that the Respondents were not required to
reinstate him because, in the first place, the Respondents were not obligated to
hire any Flippin men ; and in the second place, that if Arnold was to be rein-
stated, it would have to be through the International Association of Machinists
which was the bargaining representative of men in that unit. He told Arnold
to see a representative of the IAM. In the group which had this conversation
with Pat Earnest were five or six employees with classifications similar to that
of Arnold. Arnold testified that he saw J. D. Gray applying for reinstatement
while he was at the Company. On several later occasions he asked his former
foreman, Joe Estes, for reinstatement. This employee was never offered rein-
statement or reinstated. I find that the Respondents discriminated against him
in failing to reinstate him, beginning December 14, 1949, and that this dis-
crimination has continued from that date up to and including the present.
Arrowsmith, Harold S.: Reinstated 2/18/50 as mechanic repairman ( shop) ;
fired 4/14/50- (unsatisfactory).
This witness testified that he made several applications for reinstatement
and was finally reinstated on February 18, 1950. He was fired on 4/14/50 be-
cause he was blamed for an unsatisfactory repair job on a truck transmission.
I find that the Respondents discriminated against this employee between the
dates December 14, 1949, and February 18, 1950, the date of his reinstatement.
Beaty, Clyde K.: Registered letter sent 7/25/50 offering job as mechanical
repairman.
Boyd, Alvie: Registered letter sent 7/25/50 offering job as mechanical repair-
man.
Brandstrup, Albert V.: Registered letter sent 7/25/50 offering job as mechani-
cal repairman.
I find that the Respondents discriminated against the three last named em-
ployees between the dates December 14, 1949, and July 25, 1950, the date of
the offer of reinstatement to each.
Crosby, Houston D.: Rehired 7/18/50 as laborer; fired 12/29/50, reduction in
force. Offered job as mechanical helper 4/13/51.
This employee testified that in January he obtained a referral slip from the
Union and took it to the personnel office of the Respondents. The man in charge
of the office told him that the Council did not have jurisdiction over the men in
the shop and that the Respondents could not reinstate him. At the time of the
strike, Crosby was an acetylene generator attendant.at a rate of $1.25 an hour.
11 Luzerne Hide and Tallow Company , supra.
BROWN AND ROOT, INC . 1099
In July, on his personal application again, he was employed by the Respondents
as a laborer at 85 cents an hour. The payroll records reveal that on January 18,
1950, one Robert Grimshaw, a new employee of the type which I have classified as
a discriminatory replacement, was employed in the classification of mechanical,
repairman. It is obvious from this set of facts that the Respondents did not
reinstate this employee to his former position or to one that was an equivalent.
I find that this employee was discriminated against beginning December 14, 1949,
and that the discrimination continued until April 13, 1951, the date on which he
was offered reinstatement as a mechanical helper.
Crosser, J. D.: Registered letter sent 7/25/50 offering job as mechanical re-
pairman . I find that this employee was discriminated against between the dates
12/14/49 and 7/25/50, the date of offer of reinstatement.
Crow, E. J.: Registered letter sent 4/13/50 offering job as plumber. The work
history of this employee shows that he was employed installing cooling pipe.
Because of the great interchange ability of the employees as to crafts on this
job and because of the lack of other evidence, I will find that the offer of 4/13/50,
was an offer of an equivalent position. On that basis I find that the Respondents
discriminated against this employee between the dates 12/14/49 and 4/13/50.
the date on which he was offered a job as a plumber.
Damron, J. J.: Registered letter sent 7/25/50 offering job as mechanical re-
pairman . I find that the Respondents discriminated against this man between,
the dates 12/14/49 and 7/25/50, the date of his offer of reinstatement.
Davis, Lewis E.: Rehired 8/3/50 as aggregate, conveyor operator ; transferred
9/30/50 to cement finisher ; transferred 9/30/50 to pumper ; notified 7/25/50 that
Respondents had job for him as mechanical repairman.
This witness testified that he began work for Ozark as a plasterer in 1948.
At the time of the strike he was a mechanical repairman. He was engaged in
laying cooling pipe and hooking up water meters. After the strike was called
off, around January 2, 1960, he applied for reinstatement in a group in which:
were Ray Hotalling and Ewell Smith. The man at the employment office in-
formed these men that the IAM had taken over the men's craft and that the
Respondents were not obligated to hire them. Davis testified that he was hired
on August 3, 1950, as an aggregate conveyer belt operator on the Flippin payrolls
at $1.25 an hour. His rate at the time of the strike was $1.50 an hour. About
6 weeks later he was laid off in a reduction in force and he protested to Mr..
Slocum, who was in charge of all operations on the dam. Slocum arranged for
him to work as a cement finisher at $1.671/2 cents an hour. A week later, he was
transferred to work on the pumps and classified as a pumper at $1.25 an hour.
Three weeks later, he was raised to $1.50 an hour and has continued working
since that time. I find that this man was not hired as a mechanical repairman
although the letter of July 25, 1950, offered him a job in that classification.
Though his employment has been continuous since that time he has still not
been reinstated to his former or equivalent position. I find, therefore, that the
Respondents have discriminated against this employee from December 14, 1949,_
up to and including the present.
Dempsey, Quentin E.: No offer was ever made to this employee. I find there-
fore , that Respondents have discriminated against him from the date 12/14/49
to the present.
Duck, Robert C.: Registered letter sent 7/25/50 offering job as mechanical)
repairman.
Duck testified that,from the time of the strike, he kept in touch with his busi-
ness representative, Wilkerson, and that when the strike was called off he in-
quired from Wilkerson about reemployment. Wilkerson told him to keep ins
touch with him as not many of the men had been reinstated. In July 1950 he-
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received a letter offering him a job as a mechanical repairman. He wrote an
answer to the Respondents inquiring as to the wage scale and other details of
the job. Upon receipt of the Company's answer he considered the situation and
decided not to return to work because he had started to attend a vocational
school at Scotts Hill, Tennessee, where he was then living. I find Respondents
discriminated against this employee from December 14, 1949, to July 25, 1950,
the date of offer of reinstatement.
Forbes, Herbert: Registered letter sent 7/25/50 offering job as mechanical
repairman . I find that the Respondents discriminated against this man from
12/14/49 to 7/25/50, the date of offer of reinstatement.
Hester, Henry 0.: Registered letter sent 7/25/50 offering him job as mechanical
repairman. I find that the Respondents discriminated against this employee
between 12/14/49 and 7/25/50, the date of offer of reinstatement.
Hickenbottom, E. D.: Registered letter sent 7/25/50 offering job as mechanical
repairman. I find that the Respondents discriminated against this man from
12/14/49 to 7/25/50 the date of offer of reinstatement.
Hacks, Carroll E.: Rehired 2/7/50 as euclid truck driver ; terminated 11/27/50-
reduction in force. I find that the Respondents discriminated against this em-
ployee from 12/14/49 to 2/7/50, the date on which he was reinstated to an
equivalent position.
Holt, J E.: Registered letter sent 7/25/50 offering job as mechanical repair-
man; reply stated he was employed in New Mexico. I find that the Respondents
discriminated against this employee from 12/14/49 to 7/25/50, the date of offer
of reinstatement.
Hotallang, Raymond A.: Rehired 5/11/50 as mechanical repairman (shop)
terminated 8/12/50, "can't work graveyard shift" I find that the Respondents
discriminated against this man from 12/14/49 to 5/11/50, the date of his re-
instatement.
Hudson, Herman F.: Registered letter sent 4/13/51 offering job as mechanical
repairman. I find that the Respondents discriminated against this man from
12/14/49 to 4/13/51, the date of offer of reinstatement.
Hutlet, Wilfred D.: Registered letter sent 4/13/51 offering job as mechanical
repairman. I find that the Respondents discriminated against this man from
12/14/49 to 4/13/51, the date of offer of reinstatement.
Hurst, Thomas E.: Registered letter sent 7/25/50 offering job as mechanical
repairman.
This employee testified that after the strike was called off, he went to the per-
sonnel office on January 4, 1950. He talked to Hock, who told him that the
Company did not need any men just then. On several occasions Hurst also
talked to Joe Estes, master mechanic. On one occasion Estes told him that the
Company had sent to Texas to obtain some men to take the place of the strikers
as Estes wanted somebody he could depend on. At another time Estes told him
that the Company was going to use Flippin men Hurst stated that he received
a letter offering him his job on July 26, 1950, but that he did not take his job,
because he thought his reinstatement would not be lasting in view of Estes' atti-
tude. I find that the Respondents discriminated against this man from Decem-
ber 14, 1949, to July 25, 1950, the date of offer of reinstatement. Estes' conduct
in this incident was improper, and will be commented upon later in this Report.
However, when offered reinstatement, Hurst was legally obliged to accept or
decline the offer; he could not decline and still claim to be an unfair labor prac-
tice striker, who had called off his strike, and unconditionally offered to return
to work.
Langston, Corley 0.: Rehired 8/12/50 as dozer operator ; fired 9/1/50-reduc-
tion in force; rehired 9/6/50 as oiler ; reclassified 10/5/50 to dozer operator;
BROWN AND ROOT, INC. 1101
reclassified 7/9/50 to euclid driver ; fired 11/27/50-reduction in force ; rehired
12/16/50 as laborer; fired 1/27/51-reduction in force; rehired 1/27/51 as air
tool operator ; reclassified 4/9/51 to carpenter apprentice ; quit 5/19/51-"going
to better job."
This employee testified that prior to the strike, he was a mechanical repair-
man installing cooling pipe at the dam. After the strike was called off early
in January, he was in a group of mechanical repairmen who went to the per-
sonnel office and asked for reinstatement . Earnest told them that the agree-
ment of the Company with the IAM was that, they weren't required to hire
any mechanical repairmen. The men were not reinstated. Langston testified
that he was never offered a job. In August, he made an application for reemploy-
ment and was placed on the Flippin payroll as a bulldozer operator.
It is apparent that this man was never properly reinstated. Originally the
Respondents refused to reemploy him because he was in the unit represented
by the IAM. When he was rehired it was on his own personal application and
he appears to have been accorded the treatment of a new employee. Though he
was shifted around to many positions, he never was reinstated to his former
or a substantially equivalent position I find that the Respondents discriminated
against this man from December 14, 1949, up to and including the present.
Marchant, T. A.: Rehired 4/11/50 as mechanical repairman ; late increase
7/24/50; reclassified 11/24/50 to mechanical helper ; terminated 12/29/50-
reduction in force.
This employee testified that he applied for reinstatement on January 3, 1950,
but that Hock said the Company did not need mechanics at that time. On
April 5, 1950, he was hired on the Flippin payroll as a mechanical helper at a
rate of $1.10 per hour. On July 24, he was raised to a rate of $125 per hour,
and later laid off in a reduction in force. It was stipulated by the parties that
Marchant was a mechanical repairman as of the time of the strike and that
he was rehired as a mechanical repairman on April 11, 1950. However, it
appears that his rate of pay was substantially less than his former rate of pay
between April 11, 1950, and July 24, 1950. I find that the Respondents dis-
criminated against this employee between December 14, 1949, and July 24, 1950,
the date on which his rate of pay was adjusted.
Miller, V. 0.: Rehired 10/12/50 as carpenter ; quit 11/13/50- "leaving area" ;
rehired 2/5/51 as carpenter. Registered letter sent 7/25/50 notifying of job as
mechanical repairman; replied, "Will not report."
This employee testified that on January 5, 1950, he went to the Company and
asked for reinstatement but Hock told him that they were not hiring anybody.
Late in August 1950, he received a letter from Flippin offering him a job as
mechanical repairman. The witness said that lie was classified as an oiler
prior to the strike and felt that this offer was not proper because he had not
been a mechanical repairman before the strike and because he had been on the
Ozark payroll before the strike. He did notrccept reinstatement pursuant to the
letter because it did not offer him his job. He testified that he is a permanent
resident of Gassville, a town close to the dam site, and that at all times he
desired reinstatement to his former position. I find that prior to the strike he
was classified as a mechanical repairman and that the registered letter sent by
the Respondents on July 25, 1950, offered him reinstatement in that classification.
I find therefore, that the Respondents discriminated against this employee be-
tween the dates December 14, 1949, and July 25, 1950, the date of offer of
reinstatement.
Mynatt, Joseph: Rehired 8/3/50 as mechanical repairman; reclassified
11/22/50 to mechanical helper; registered letter sent 7/25/50 offering job as
mechanical repairman.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This employee testified confirming the record above. I find this employee was
discriminated against between the dates of December 14, 1949, and August 3,
1950, the date of his reinstatement.
Cantrell, Healey Edgar: Rehired 8/2/50 as hoist operator; reclassified
8/5/50 to laborer ; reclassified 8/7/50 to vibrator operator ; quit 8/11/50-leaving
area ; rehired 9/13/50 as laborer ; reclassified 2/26/51 to reinforcing ironworker
apprentice.
This employee testified that before the strike, he was a mechanical repairman's
helper at a rate of pay of $1.10 per hour plus a 5-cent bonus on the graveyard
shift. He first learned that the strike was over in July or August 1950. At that
time, he was in Melbourne, Arkansas; approximately 60 miles from the dam. At
that time he was working on the farm with his father. A week or two later, he
came back and asked for reinstatement and was hired, as the record above
indicates. I find that the Respondents discriminated against this employee from
December 14, 1949, to August 7, 1950, the date on which he was reclassified as a
vibrator operator, which I find was an equivalent position to mechanical repair-
man helper.
Pearl, Samuel J.: Rehired 7/10/50 as laborer ; reclassified 9/23/50 to nozzle-
man ; reclassified 12/1/50 to laborer ; reclassified 1/19/50 to air tool operator.
This employee testified that he was classified as a mechanical repairman at
the time of the strike. During the month of January 1950, Pearl, in the company
of Crosby, both having union referral slips, presented themselves to the Respon
dents for reinstatement. A company representative refused to reinstate them,
claiming that their classification was under the jurisdiction of the IAM. During
July, Pearl was rehired as a laborer at 85 cents an hour. During January 1950,
there were openings for mechanical repairmen as evidenced by the fact that the
Company hired new employees at approximately that time. I find that this
employee was never properly reinstated and that the Respondents have discrim-
inated against him from December 14, 1949, up to and including the present.
Sham kler, L. A.: The only record on this man shows that he was employed
12/2/48 as mechanic repairman ( cooling pipe) and quit 12/7/48-gave no reason.
In the absence of other evidence, I find that this employee was not a striker,
but quit on December 7, 1948, and was not discriminated against.
Shaw, W. L.: Hired 8/21/50 as mechanical repairman ; reclassified 8/22/50,
mechanical repairman ( maintenance ) ; reclassified 11/12/50 to mechanic; termi-
nated 1/19/51-reduction in force . Registered letter sent 7/25/50 offering job
as mechanical repairman ; registered letter 4/13/51 offering job as mechanical
helper.
This employee testified that he was a heavy duty mechanic at a rate of pay of
$1.45 an hour before the strike. In July , he received a letter from the Company
offering him reinstatement and giving him 12 days to report for work. He
answered this letter asking for more time as he was employed , and wished to
give notice to his employer . On August 21, he reported at the personnel office
and was hired at $1.45 an hour as a heavy duty mechanic. I find that this
employee was discriminated against between December 14, 1949, and July 25,
1950 , the date of offer of reinstatement.
Shaw, William E.: Registered letter sent 4/13/51 offering job as mechanical
repairman . I find the Respondents discriminated against this employee from
12/14/49 to 4/13/51, the date of offer of reinstatement.
Smith, Ewell D.: Rehired 7/20/50 as oiler ; terminated 11/3/50-reduction in
force.
This employee testified that before the strike he was a pipeline mechanic helper
installing cooling pipe . On January 3, 1950 , he obtained a referral card from the
Union and presented that to the Company . Employee Lewis E. Davis was with
BROWN AND ROOT, INC. 1103
him. The man in the personnel office told the men that the Machinists had taken
over their part of the job and that the Company was not obligated to hire them.
On July 20, 1950, he was rehired as an oiler in the cooling plant at $1.07 per
hour. Before the strike, his rate of pay was $1.25 per hour. Later he was
terminated in reduction in force, and after that went back to work as a laborer.
I find that this man was never properly reinstated and that the Respondents have
discriminated against him from December 14, 1949, up to and including the
present.
Terry, Cecil A.: Registered letter sent 7/25/50 offering job as mechanical
repairman . I find that the Respondents discriminated against this man from
12/14/49 to 7/25/50, the date of offer of reinstatement.
Trivett, Dewey F.: Registered letter sent 7/25/50 offering job as mechanical
repairman . Replied "will not report."
This employee testified that prior to the strike, he was working on cooling
pipe. After the strike was called off, pursuant to instructions which he received
-at the union hall in Cotter, he saw Pat Earnest who told him that the mechanical
repairmen would have to be reinstated through the "shop." In July he received
a letter offering him reinstatement, but he was working on his farm and had a
crop so he refused reinstatement. I find that the Respondents discriminated
against this employee between the dates December 14, 1949, and July 25, 1950,
the date of offer of reinstatement.
Wood, Waldo James: Rehired 1%13/50 as mechanical repairman; reclassified
4/20/50 to pump operator; reclassified 11/24/50 to cooling plant pumper; died
12/26/50. I find that the Respondents discriminated against this man between
12/14/49 and 1/13/50, the date of his reinstatement.
It is worthy to note that in the classification of mechanical repairmen, ap-
proximately 13 men made personal applications for reinstatement when the
strike was called off. All were refused ; 9 were refused on the specific ground
that the IAM represented the employees in this unit; 1 was refused on the
specific ground that he was a Flippin employee; and the remainder were refused
on the ground that the Respondents had no need for them, or that the Company
was not hiring. This demonstrates the futility of personal application by the
strikers . On this point the case is very similar to Rapid Roller Company, supra.
Aggregate Conveyor Operator
Claiming strikers------------------------------------------ 2
Replacements---------------------------------------------- 3
Promotional replacements---------------------------------- 1
Discriminatory replacements-------------------------------- 2
Total replacements---------------------------------- 6
Kyles, Onimus: Reinstated 8/1/50 as aggregate conveyor operator; reclassi-
fied 9/25/50 as pump operator ; terminated 10/10/50, "refusing to obey orders."
This employee, who was an aggregate conveyor operator before the strike,
testified that on January 3, 1950, he personally presented himself for reinstate-
ment to his former position and was refused on the ground that the Respondents
had not employed anybody in his place. In this conversation with Earnest,
Kyles said, "Mr., you don't claim to set up a laborer to $1.25 an hour." By this
phrase Kyles meant that other employees had been promoted to fill the positions
of some of the strikers including his own. Respondents' payroll data indicates
that one Carlis Hurst was promoted from laborer to aggregate conveyor operator
on December 7, 1948, 4 days after Kyles went on strike. Under these circum-
stances, the refusal of the Respondents to reinstate Kyles was discriminatory.
In July of 1950, Kyles received a registered letter offering him a job as a laborer.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon reporting to Respondents' personnel office, Kyles informed the company
representative that he was an aggregate conveyor operator at the time of the
strike. Kyles was rehired in the classification of aggregate conveyor operator.
However, it is Kyles' undisputed testimony that he was assigned work as patrol-
man on the belt line, and that he worked there for approximately 6 weeks at
which time the work of patrolman on the graveyard shift was discontinued.
After receiving a termination slip, this employee sought further work with the
Company and was subsequently rehired as a pump operator in the "hole."
After working for approximately 2 weeks, Kyles was terminated by Foreman
Balleau for refusing to obey orders. Kyles stated that after being shifted to
pump operator, on one occasion he was asked to "clean up" after the rest of
the men. He told Foreman Balleau that he was not the "clean up man" for the
rest of the shift and was thereupon discharged. From a review of the case
of Kyles, and the cases of employees Kilfoy and Lackey, it appears that Foreman
Balleau was biased and prejudiced against the returning strikers, and treated
them more harshly than the other men. Appropriate comment will be made on
that point later in this Report. In any event, it is clear and I find, that Kyles
was never properly reinstated, and I find that the Respondents discriminated
against him from December 14, 1949, up to and including the present.
Lamb, Keith: Reinstated 7/27/50 as aggregate conveyor operator. I find that
the Respondents discriminated against this employee between the dates 12/14/49
and 7/27/50, the date of his reinstatement.
Aggregate Screenplant Operator
Claiming strikers___________________________________________ 0
Replacements ---------------------------------------------- 1
Discriminatory replacement_________________________________
Total replacements___________________________________ 2
Air Tool Operator
Claiming strikers ------------------------------------------ 5
Replacements ---------------------------------------------- 7
Promotional replacements__________________________________ 2
Discriminatory replacements________________________________ 4
Total replacements___________________________________ 13
Stipulated: new employees hired 2/1/50-7/25/50 ------------- 6
Wells, John D.: Registered letter sent 7/25/50 offering job as air tool operator.
I find that the Respondents discriminated against this man from 12/14/49 to
7/25/50, the date of offer of reinstatement.
Cutler, Lee R.: Rehired 5/24/50 as laborer ; reclassified 6/5/50 as vibrator
operator ; quit 9/13/50-"don't like job "
The above record indicates that the employee named was not satisfied with
the position of vibrator operator to which he was reclassified on June 5, 1950.
He was reinstated as a laborer. Under the circumstances, I find that he has
never been properly reinstated and that he has been discriminated against from
December 14, 1949, up to and including the present.
Lee, Ma, ion W.: Registered letter sent 4/13/51 offering job as air tool operator.
This employee testified that he was a jackhammer man before the strike. On
January 3, 1950, with a group of employees belonging to the Operating Engineers'
Union, he went with Wheeler, union representative, to the office of the Company.
All the men in the group had been on the Pippin payroll. At the personnel
office, the representative of the Company said that the Respondents were not
obligated to reinstate any men on the Flippin payroll. He did not apply again
BROWN AND ROOT, INC . 1105
for reinstatement. I find that this employee was discriminated against from
December 14, 1949, to April 13, 1951, the date on which he was offered rein-
statement.
McCracken, Guy: Rehired 1/27/50 as shovel oiler ; reclassified 11/24/50 to
mechanical helper ; terminated 12/29/50-reduction in force. '
In the absence of further proof, I hold that the reemployment of this man as
a shovel oiler, was reinstatement to a position equivalent to air tool operator. I
find Respondents discriminated against this man from December 14, 1949, to
January 27, 1950.
Reed, Laurel D.: Rehired 4/14/51 as air tool operator; offered job day he
testified at hearing.
This witness testified that shortly after the strike was called off, he presented
himself with a group of men and Wheeler, the union representative, at the Re-
spondents ' personnel office. All the men asked for reinstatement, but the official
in charge said the Respondents were not reinstating Flippin men. Later he re-
quested and was assigned a job at the quarry, but was turned down on his
physical examination because of a hernia. He testified that he has always had
the hernia , and had passed three or four prior physical examinations given by
the Company. I find that the Respondents discriminated against this employee
between the dates of December 14, 1949, and April 14, 1951, the date of the offer
of reinstatement.
Beltmen
Claiming strikers ----------------------------------------- 0
Replacements --------------------------------------------- 1
Batch and Mix Operators
Claiming strikers ------------------------------------------ 1
Replacements --------------------------------------------- 0
Marler, James R.: Rehired 7/27/50 as batch and mix operator ; terminated
11/4/50-reduction in force ; registered letter sent 7/25/50 offering job as batch
and mix operator.
This employee's history shows that he was originally hired as a jackhammer
operator. Though no replacement is disclosed by the records in the exact classi-
fication for this man, it is evident from the over-all payroll situation that the
Respondents had replacements in positions which he was qualified to hold. I
find that the Respondents discriminated against this employee between the dates
December 14, 1949, and July 27, 1950, the date of his reinstatement.
Cement Finishers
Claiming strikers------------------------------------------ 1
Replacements --------------------------------------------- 3
Discriminatory replacements ------------------------------- 1
Total replacements----------------------------------- 4
Freeman, A. D.: Registered letter sent 7/25/50 offering job as cement finisher.
I find that the Respondents discriminated against this man from 12/14/49 to
7/25/50, the date of offer of reinstatement.
Churn Drill Apprentices
I
Claming strikers ------------------------------------------ 0
Discriminatory replacements -------------------------------- 2
Total replacements----------------------------------- 2
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Compressor Operator
Claiming strikers ------------------------------------------- 1
Replacements --------------------------------------------- 1
Total replacements___________________________________ 1
Stipulated: new employees hired 2/1/50-7/25/50______________ 1
Fenton, J. R.: Rehired 1/23/51 as carpenter ; quit 4/13/51 "to start farming."
This employee testified that he was a boilermaker on the Ozark payroll prior
to the strike. After the strike was called off on January 5, 1950, he applied, to-
gether with 15 or 16 other strikers, for reinstatement. Pat Earnest told the
group that it was not possible for the Respondents to hire the men back at that
time. On a later occasion he applied for reinstatement but Hock told him that
they were having a layoff at that time. Around February 1951, he again asked
for employment and was given a job as carpenter. I find that the Respondents
discriminated against this man between the dates December 14, 1949, and
January 23, 1951, the date on which he was reemployed in an equivalent position.
Crane Operators
Claiming strikers __________________________________________ 2
Promotional replacements__________________________________ 3
Discriminatory replacements________________________________ 2
Total replacements___________________________________ 5
Marchant, Harvey E.: Rehired 7/12/50 as aggregate conveyor operator; re-
classified 8/19/50 to heavy duty truck driver ; reclassified 12/4/50 to truck driver
operator.
Marchant testified that he was a crane operator at the time of the strike. When
the strike was called off he applied on January 4, 1950, for reinstatement with a
group of approximately 20 employees. He talked to Pat Earnest and asked for
reinstatement. Earnest said that the Respondents were not obligated to put
anyone on the job except where men had been hired to take a strikers' job.
Marchant told Earnest that he knew that some bellboys and signal men had
been promoted to the position of crane operator. Earnest said that he would
talk to Mr. Slocum about the situation. He came back in a few moments and
said that Slocum said if there was anyone on the crane trestle hired after
Marchant, that the men would have to be replaced by Marchant. Earnest told
Marchant to return the next morning. On the next morning Earnest said that
he bad talked with Powell, attorney for the Respondents, in the interim, and
that as Powell interpreted the law, the Respondents were not required by the
law to demote the promoted men to make a place for Marchant. Another crane
operator, Dickerson by name, was present. Earnest called Foremen Shipp and
Germany, and learned that the Respondents needed the services of one crane
operator. Dickerson and Marchant discussed the situation and the men decided
that Dickerson should be given the job inasmuch as he had more experience than
Marchant. Marchant testified that in July he was reemployed by the Company
as an aggregate conveyor operator at $1.25 an hour. At the time of the strike
his rate was $1.75 an hour. After 5 weeks he was transferred to bulldozer
operator at a rate of pay of $1.45 per hour. At the time he testified in the pro-
ceeding he was being paid $2.121/2 an hour as a structural ironworker. On
cross-examination, this witness testified that he knew Jive signal men who were
doing crane, operating work at the time he applied for reinstatement. On the
last-mentioned point his testimony is partially borne out by the employment
records. The work history of Freeman W. Bates shows that he was promoted
BROWN AND ROOT, INC. 1107
from dragline operator to crane operator on December 13, 1948, 10 days after
Marchant went on strike. Under the rule of Indvstrial Cotton Mills Company,
Inc., supra, the Respondents were required to demote a promotional replacement
for Marchant . I find that the Respondents discriminated against this employee
from December 14, 1949, up to and including the present.
Morgan, W. E.: Registered letter sent 7/25/50 offering job as crane operator.
As with Marchant , Morgan 's job was evidently taken over by a promotional
replacement . I find that the Respondents discriminated against this employee
from 12/14/49 to 7/25/50, the date of offer of reinstatement.
Crusher Operator
Claiming strikers------------------------------------------ 1
Replacements---------------------------------------------- 0
Stipulated : new employees hired 2/1150-7125/50____________ 1
Schumacher, James: Registered letter sent 7/25/50 offering job as crusher
operator ; "never an employee of ODC."
The record of this employee shows that he was originally hired as a laborer ;
then was reclassified as a jackhammer operator, and then as a crusher operator.
On the basis of the general employment situation as of the time the strike was
called off, I find that the Respondents had jobs which this employee was qualified
to fill. Therefore, I find he was discriminated, against between the dates Decem-
ber 14, 1949, and July 25, 1950, the date on which he was offered reinstatement.
Dinkey Operators
Claiming strikers__________________________________________ 2
Replacements---------------------------------------------- 3
Total replacements___________________________________ 3
Stipulated : new employees hired 2/l/50-7/25/50 ------------- 2
Carlton, H. L.: Registered letter sent 3/6/50 offering job as dinkey operator.
I find Respondents discriminated against this employee from 12/14/49 to 3/6/50,
the date of offer of reinstatement.
Hale, R. L.: Registered letter sent 7/25/50 offering job as dinkey operator.
This employee testified that he applied for a job at the personnel office in the
second week in January and was told by Hock, the personnel man, that he could
have a job at the quarry. Upon his application at the quarry, however, he found
that this job was taken by a transferee . Early in February 1950, he again went
to the personnel office and talked to J. D . Moore. Moore offered to reinstate this
employee , but Hale said that he would not accept a job working under the super-
vision of Ed Shipp, his former foreman . I find that this employee refused rein-
statement because of his personal feelings against Foreman Shipp. I find the
Respondents discriminated against this man between the dates December 14,
1949, and February 1, 1950, the date of offer of reinstatement.
Dozer Operators
Claiming strikers_________________________________ ---------- 2
Discriminatory replacements ________________________________ 1
Total replacements ___________________________________ 1
Stipulated: new employees hired 2/1/50-7/25/50 ______________ 1
Bidwell, Howard S.: Rehired 1/23/50 as,,dozer operator. I find that the
Respondents discriminated against this employee between 12/14/49 and 1/23/50,
the date of his reinstatement.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hill, James: Registered letter sent 7/25/50 offering job as dozer operator. I
find that the Respondents discriminated against this man between 12/14/49 and
7/25/50, the date of offer of reinstatement. Note: This man was originally
hired as an air tool operator. He was qualified and could have been reinstated
in that classification as well as in the classification of dozer operator. See-number
of replacements in air tool operators above.
Electricians
Claiming strikers ------------------------------------------ 5
Replacements---------------------------------------------- 8
Promotional replacements___________________________________ 1
Discriminatory replacements________________________________ 5
Total replacements----------------------------------- 14
Anderson, Truman E.: Reinstated 3/13/50 as mechanical repairman (shop) ;
fired 6/7/50, loafing.
Though this man was not reinstated to his exact proper classification, I find
that he was properly reinstated on March 13, 1950, on the ground that he was
given equivalent employment which he accepted. I find therefore, that the
Respondents discriminated against this man from December 14, 1949, to March 13,
1950, the date of reinstatement. See testimony of W. A. Gardener, below.
Dorrell, Charles: Registered letter sent 7/25/50 offering job as electrician. I
find Respondents discriminated against this man between 12/14/49 and 7/25/50,
the date of offer of reinstatement.
Gardener, W. A.: Registered letter sent 7/25/50 offering job as electrician.
This employee testified that he was a journeyman electrician at a rate of pay
of $1.75 an hour before the strike. On January 2 and 3, 1950, he and Truman
Anderson, another journeyman electrician, went to the personnel office and asked
for reinstatement. The man in the office said that the Respondents had hired
all the striking employees that they were going to hire, and that he didn't have
room for any more. He said that he was just putting men on that he actually
needed to take care of his requirements at that time. Gardener had been working
in Oklahoma and had come to the job site to get his old job back. Thereafter,
he kept in touch with his business agent but was never employed. In July, he
received a letter from the Respondents offering him his job but he didn't know
if he would have security in the job, so he did not accept it. I find that the
Respondents discriminated against this employee between December 14, 1b49, and
July 25, 1950, the date of offer of reinstatement.
Hermanson, Harry: This man's record has the following notations. Employed
12/1/48 as electrician; quit 12/8/4S-"going to another job." There is no other
evidence concerning this man. On the basis of the record, I find that he was
not a striker and that the Respondents did not discriminate against him.
Mooney, Carl: Registered letter sent 7/25/50 offering job as electrician. I find
that the Respondents discriminated against this man between 12/14/49 and
7/25/50, the date of offer of reinstatement.
Form Setter and Stripper
Claiming strikers------------------------------------------ 2
Replacements ---------------------------------------------- 0
Stipulated: new employees hired 2/1/50-7/25/50_____________ 1
Stamps, C. D.: Registered letter sent 7/25/50 offering job as form setter. I find
that the Respondents discriminated against this man between 12/14/49 and
7/25/50, the date of offer of reinstatement.
BROWN AND ROOT, INC. , 1109
Tickle, E. E.: Rehired 1/6/50 as form setter and stripper; terminated 1/17/50;
failure to report ; rehired 7/21/50 as form setter and stripper ; terminated
12/17/50-"going to better job." I find that the Respondents discriminated
against this man between 12/14/49 and 1/6/50, the date of his reinstatement.
Ironworkers
Claiming strikers------------------------------------------ 2
Replacements---------------------------------------------- 2
Promotional replacements---------------------------------- 5
Discriminatory replacements-------------------------------- 8
Total replacements----------------------------------- 15
Choate, Wirt W.: Registered letter sent 7/25/50 offering job as ironworker.
,I find that the Respondents discriminated against this man from 12/14/49 to
7/25/50, the date of offer of reinstatement.
Marchant, John TV.: Rehired 1/25/50 as mechanical repairman; reclassified
6/18/50 to working foreman; quit 7/17/50-better job.
This employee was classified as an ironworker earning $1.75 an hour at the
time of the strike. He testified that during January, he presented himself at
Respondents' office for reinstatement to his former position. Hock, personnel
manager, stated to the group of employees that they weren't hiring any iron-
workers. After this refusal of employment Marchant saw Estes, the master
mechanic, who told him that the Respondents did not need men at that time
but that he would send for Marchant later. Three or four days later, Estes
called for Marchant. He was reemployed as a mechanical repairman on Janu-
ary 25, 1950, at a rate of pay of $1.50 per hour. Later he was made a working
foreman at $1.671/2 an hour.
I
The records disclose that at the time Marchant was refused employment as
an ironworker, there were replacement ironworkers on the job who should have
been displaced to make room for Marchant. I find this employee has not yet
been properly reinstated and find that the Respondents have discriminated
against him from December 14, 1949, up to and including the present.
Reinforcement Ironworkers
Claiming strikers ------------------------------------------ 0
Total replacements----------------------------------- 2
Jackhammer Operators
Claiming strikers ------------------------------------------ 4
Replacements---------------------------------------------- 1
Stipulated : new employees hired 2/1/50/-7/25/50------------ 5
Bailey, D. W.: Rehired 8/1/50 as wagon drill operator ; terminated 8/8/50
"failure to report." Registered letter sent 7/25/50 offering job as wagon drill
operator.
This employee testified that he was a jackhammer operator employed at a
rate of 971/, cents per hour prior to the strike. On January 1, 1950, he went to
Respondents' office and saw J. D. Moore who told him that there were no jobs
open at that time. In August, Bailey received a letter signed by Moore offering
him a job. He went to the dam site and was hired as a wagon drill operator at
$1.25 per hour, and put on the Flippin payroll. At the time of the strike he was
on the Ozark payroll. He worked the next 4 days. and then his wife became ill.
He told his boss, Roy Cunningham, that he would like to get off to take her to
215233-53-71
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hospital. Cunningham said O. K. On the following day, Cunningham told
Bailey that Pat Earnest had instructed Cunningham to let Bailey go. Cunning-
ham told him that he was discharged because he had not reported his proposed
absence to the Company. The payroll records show that at the time Bailey ap-
plied for reinstatement as a jackhammer operator, E. J. Vandeventer was on
the payroll as a jackhammer operator. Vandeventer was hired as a new em-
ployee on October 31, 1949. Upon all the evidence, I find that Bailey's dis-
charge for his alleged failure to report his absence was discriminatory. Fur-
ther, I find that Bailey has never been properly reinstated. The Respondents
should have displaced Vandeventer to make room for Bailey at the time he
applied for reinstatement in January 1950. I find that the Respondents have
discriminated against Bailey from December 14, 1949, up to and including the
present.
Jencks, R. H.: Registered letter sent 7/25/50 offering job as jackhammer op-
erator. I find that Respondents discriminated against this man from 12/14/49
to 7/25/50, the date of offer of reinstatement.
Killian, D. E.: Registered letter sent 7/25/50 offering job as jackhammer
operator. I find Respondents discriminated against this employee between
12/14/49 and 7/215/50, the date of offer of reinstatement.
Stone, C. L.: Rehired 4/4/50 as jackhammer operator ; quit 7/24/50; "doesn't
like the work"; rehired 9/9/50 as laborer; reclassified 9/23/50 to vibrator op-
erator ; reclassified 11/30/50 to laborer ; reclassified 12/12/50 to jackhammer
operator.
This employee testified that he made repeated efforts to be reinstated between
January 6, 1950, and April 4, 1950. On the latter date, Norris, excavating super-
intendent, gave him a job as jackhammer operator. I find that the Respondents
discriminated against this man between the dates December 14, 1949, and April
4,1950, the date of his reinstatement.
Laborers
Claiming strikers------------------------------------------- 12
Replacements---------------------------------------------- 44
Promotional replacements ---------------------------------- 1
Discriminatory replacements-------------------------------- 34
Total replacements----------------------------------- 79
Stipulated: new employees hired 2/1/50-7/25/50-------------- 11
Strout, D. R.: Registered letter sent 7/25/50 offering job as laborer. I find
Respondents discriminated against this employee between 12/14/49 and 7/25/50,
the date of offer of reinstatement.
Adams, C. R.: Registered letter sent 7/25/50 offering job as laborer. I find
that the Respondents discriminated against this man between 12/14/49 and
7/25/50, the date of offer of reinstatement.
Bailey, John E.: No offer was ever made to this man. I find the Respondents
have discriminated against this man from 12/14/49 up to and including the
present.
Collins, Lloyd E.: Rehired 2/15/50 as laborer. Quit 3/30/50-sickness in fam-
ily ; rehired 6/20/50 as laborer ; terminated 6/25/50-unsatisfactory work. I
find that the Respondents discriminated against this man between the dates
12/14/49 and 2/15/50, the date of his reinstatement.
Crawford, Otis L.: Registered letter sent 7/25/50 offering job as laborer.
Engles, Troy: Registered letter sent 7/25/50 offering job as laborer.
Erwin, Truman: Registered letter sent 7/25/50 offering job as laborer. I find
that the Respondents discriminated against Crawford, Engles, and Erwin between
the dates 12/14/49 and 7/25/50, the date of offer of reinstatement.
BROWN AND ROOT, INC. ; 1111
Hodge, Charlie R.: No offer was made to this man, although his name was
submitted to the Company in one of the Union's written demands for reinstate-
ment. I find that the Respondents discriminated against this man from 12/14/49
up to and including the present.
Honeycutt, Alvin: Rehired 8/2/50 as laborer; fired 9/15/50-sleeping on job:
registered letter sent 7/25/50 offering job as laborer. I find that the Respondents
discriminated against this man between 12/14/49 and 8/2/50, the date of offer of
reinstatement.
Honeycutt, Elva: Registered letter sent 7/25/50 offering job as laborer; re-
plied working "Kortes Dam." I find that the Respondents discriminated against
this man between 12/14/49 and 7/25/50, the date of offer of reinstatement.
Roehrs, Louis: Rehired 11/29/50 as carpenter apprentice; terminated 1/6/50-
reduction in force. I find that the Respondents discriminated against this man
between 12/14/49 and 11/29/50, the date of his reemployment as a carpenter
apprentice.
Singleton, Melvin L.: Registered letter sent 7/25/50 offering job as laborer. I
find that the Respondents discriminated against this man from 12/14/49 to
7/25/50.
Machinists
Claiming strikers------------------------------------------- 0
Total replacements----------------------------------- 2
Maintenance Machinists
Claiming strikers------------------------------------------ 1
Total replacements----------------------------------- 0
Hughes, R. B.: Registered letter sent 4/13/50 offering job as machinist. I
find Respondents discriminated against this man between the dates 12/14/49
and 4/13/50, the date of offer of reinstatement.
Maintenance Mechanical Repairman
Claiming strikers------------------------------------------- 1
Replacements---------------------------------------------- 0
Satterlee, Harry Ivan: Rehired 9/6/50 as carpenter apprentice; terminated
11/14/50-failure to report.
This employee testified that prior to the strike he was on the Ozark payroll:
that he understood his classification to be pipefitter as he answered an ad of
the Company for that type of work. The Company classified him as main-
tenance mechanical repairman at the rate of pay of $1.45 an hour. Satterlee
testified that his classification was not mechanical repairman and that he al-
ways performed pipefitter's work. Around January 3, 1950, he went to the per-
sonnel office on several occasions. He was told that the Company had nothing
for him. He also talked to Balleau, his foreman, who told him that he had
a full crew. In the fall, he went to the personnel office, and then to Balleau
again, but was not reinstated. Finally, he went to the personnel office, deter-
mined to take any job to pay the cost of transportation. On this occasion,
the Company employed him as an apprentice carpenter at $1 an hour. Two or
three days later, he heard that the Company was looking for pipefitters again.
He went back to Balleau and asked for reinstatement or a job, but Balleau
told him that he had a full crew. He was never reemployed as a pipefitter.
or as a maintenance mechanical repairman. In November, he was laid off
for failure to report on two nights. His wife was sick on one night, and he
missed his ride in the car pool on the second night.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The payroll records disclose that during the time that this man was seek-
ing reinstatement from the Company, the Company hired approximately 40
individuals in the classification of mechanical repairmen. Under these cir-
cumstances, I find that the Respondents have never properly reinstated this
employee, and that they have discriminated against him from December 14,
1949, up to and including the present.
Millwright
Claiming strikers ________________________________________- 1
Total replacements___________________________________ 0
Stipulated: new employees hired 2/-t/50-7/25/50 ------------ 1
Petty, Hubert: Registered letter sent 7/25/50 offering job as mechanical re-
pairman.
The discrimination against Hughes, Satterlee, and Petty is obvious. Respond-
ents hired approximately. 40 employees in the mechanical repairman classi-
fication, while refusing to reinstate these men with similar qualifications and
skills. I find Respondents discriminated against Petty from December 14,
1949, to July 25, 1950, the date of offer of reinstatement.
Mix Plant Operator
Claiming strikers__________________________________________ 0
Total replacements___________________________________ 1
Oiler
Claiming strikers------------------------------------------ 1
Replacements --------------------------------------------- 4
Promotional replacements__________________________________ 1
Discriminatory replacements_______________________________ 3
Total replacements___________________________________ 8
Stipulated: new employees hired 2/l/50-7/25/50 ------------ 2
Into, Lloyd E.: Registered letter sent 7/25/50 offering job as oiler. I find
that the Respondents discriminated against this man from 12/14/49 to 7/25/50.
Nozzle Man
Claiming strikers----------------------------------------- 0
Replacements---------------------------------------------- 2
Pipeman
Claiming strikers -------------------- ----_-_-_---__-------- 0
Replacements ---------------------------------------------- 3
Promotional replacements___________________________________ 1
Discriminatory replacements________________________________ 1
Total replacements___________________________________ 5
Powderman
Claiming strikers------------------------------------------- 1
Total replacements___________________________________ 0
Stipulated: new employees hired 2/l/50-7/25/50 -------------- 1
Bullin, Paul R.: Rehired 7/23/50 as laborer ; quit 9/2/50 to seek employment
elsewhere.
This employee's work history discloses that he was employed as a jackhammer
operator for some time prior to his reclassification as powderman. I find that
BROWN AND ROOT, INC ., 1113
the Respondents discriminated against this employee from December 14, 1949, to
July 23, 1950. Inasmuch as the payroll data shows no replacement powderman
hired, I find that Bullin's reinstatement as laborer was equivalent employment.
Plumber and Steam Fitter
Claiming strikers------------------------------------------- 0
Replacements ---------------------------------------------- 1
Promotional replacements ----------------------------------- 3
Total replacements----------------------------------- 4
Painters
Claiming strikers------------------------------------------- 0
Replacements ---------------------------------------------- 2
Pump Operators
Claiming strikers------------------------------------------- 4
Replacements ---------------------------------------------- 2
Promotional replacements----------------------------------- 1
Total replacements----------------------------------- 3
Stipulated: new employees hired 2/1/50-7/25/50------------- 4
Kilfoy, Jessie A.: Offered job 12/21/49 as pump operator; failed to report to
ork.
At the hearing, the parties stipulated that Kilfoy, if sworn, would testify as
follows : At the time of the strike he was employed as pump operator on the
barge on the day shift. At the time of the strike, he was in the hospital but upon
coming out of the hospital he joined the strike. On or about December 21, 1949,
Kilfoy was referred to the Company by the Union and that Kilfoy reported to
Joe Estes. Estes took Kilfoy to Ballecvu on the job and that Balleau handed
him a shift schedule saying, "This is what I have for you, reliefer down in the
hole. Schedule, Monday-day-8 to 4; Tuesday-swinges to 12; Wednesday-
swing-4 to 12; Thursday-night-12 to 8; Friday-night-12 to 8." Kilfoy was
told that that job was the only work available, that he was to report at 4 p. m.
that day on the swing shift, and that Balleau would see him then. Kilfoy said
that he wasn't interested in that job as it was not the job he had when he left.
In the job in the hole the pumper has to take care of more pumps than on the
barge ; that the pumps in the hole are electric, Deisel, and gasoline ; the fuel has
to be carried to them ; the work on the barge is cleaner and more pleasant ; that
the pay is the same. Kilfoy refused to take the job in the hole because of his
physical condition, and because he thought he was entitled to his old job on the
barge. Thereupon, Kilfoy left the dam site and did not return to work. I find
the Respondents did not, on December 21, 1949, offer Kilfoy his former position
as they were required to do under the Act. At the time of his application for
reinstatement, the Company had two replacements and one promotional replace-
ment on the job. Under the Act, the Respondents were required to displace one
of these men to make room for Kilfoy. This they refused to do. I find the
Respondents have discriminated against this employeblfrom December;14, 1949
up to and including the present time.
Lackey, TV. W.: Rehired 12/23/49 as pump operator; terminated 2/23/50-
"failure to report."
This employe testified that he was working on the barge as a regular pump
operator on the day shift when the strike was called. On December 23, 1949,
Lackey was reinstated as a relief pumper on the barge rather than to his former
position of a regular pumper. His schedule was similar to Kilfoy's as listed
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-2 days, swing ; 2 days, graveyard ; and 1 day shift . On these brief facts,
it can be seen that Lackey was not reinstated to his former or substantially
equivalent position ( Stillep Plywood Company, Inc., 94 NLRB 932). It is clear
that the Respondent did not fulfill its obligation under the Act since it was re-
quired to displace , if necessary , pump operators hired since the date of the strike,
to make room for Lackey . After Lackey had worked on the barge as relief
pumper for an 8-day period , he was transferred to the position of relief pumper
down in the hole. Balleau, Lackey's foreman , claimed that Lackey was in-
efficient as a pump operator and that he had let certain pumps run dry causing
damage to the pumps . Lackey denied that he had caused damage to the pumps
and attributed the failure of the pumps to an improper repair job which had
been done by one of the mechanics . However , Balleau blamed Lackey and
transferred him to the hole. In this position , Lackey was responsible for the
operation of three or four pumps above the dam and four or five pumps below
the dam . While on the barge , he was only responsible for the operation of five
pumps. Upon being transferred to the hole, Lackey an elderly man, said,
` Shucks, I can't do that ; I just can 't go it," and left the job . I credit the testi-
mony of Lackey in this matter . I find that the Respondents did not properly
reinstate Lackey and that they have discriminated against this employee from
December 14, 1949, up to and including the present.
Lazenby , A. M.: Registered letter sent 7/25/50 offering job as pump operator.
I find Respondents discriminated against this man from 12 /14/49 to 7/25/50,
the date of offer of reinstatement.
Mynatt , Calvin C.: Rehired 8/2/50 as pump operator ; quit 9/15/50-going into
Army; registered letter sent 7/25/50 offering job as pump operator . I find that
the Respondents discriminated against this man from 12/14/49 to 8/2/50, the
date of offer of reinstatement.
Plumber
Claiming strikers------------------------------------------ 0
Promotional replacements---------------------------------- 2
Pipefitters
Claiming strikers------------------------------------------- 0
Promotional replacements---------------------------------- 1
Discriminatory replacements------------------------------- 1
Total replacements----------------------------------- 2
Riggers
Claiming strikers------------------------------------------ 1
Replacements---------------------------------------------- 1
Promotional replacements---------------------------------- 1
Total replacements----------------------------------- 2
Stipulated: new employees hired 2/1/50-7/25/50------------- 1
Dunn, R. 0.: Registered letter sent 7/25/50 offering job as rigger.
This employee testified that after the strike he went to Oak Ridge, Tennessee,
where he was employed. On January 4, 1950, he was laid off at Oak Ridge and
bought a farm in Tennessee. When he received the letter from the Company
offering him a job as rigger, he discussed the proposition with his wife and they
decided that he should stay on the farm. They decided that the expense of
going to the dam site, and the uncertainty of the reinstatement, made the Com-
pany's offer unattractive. I find that the Respondents discriminated against this
man from December 14, 1949, to July 25, 1950, the date of offer of reinstatement.
BROWN AND ROOT, INC . 1115
Sandblasters
Claiming strikers------------------------------------------ 0
Replacements ---------------------------------------------- 2
w
Sandblaster-nozzle Man
Claiming strikers------------------------------------------ 1
Replacements------------------------------------- -------- 0
Mashaw, J. W.: Registered letter sent 7/25/50 offering job as an air tool oper-
ator. There is no other testimony on this employee. Under the circumstances, I
find that the Respondent discriminated against him from 12/14/49 to 7/25/50,
the date of offer of reinstatement as air tool operator.
Shovel Operator
Claiming strikers ------------------------------------------ 0
Replacements --------------------------------------------- 1
Discriminatory replacements------------------------------- 4
Total replacements ----------------------------------- 5
Signal Man (Oiler)
Claiming strikers------------------------------------------ 1
Replacements --------------------------------------------- 0
Holden, L. M.: Registered letter sent 7/25/50 offering job as oiler ; reply
"Lester Holden is in Army." I find the Respondents discriminated against this
man between the dates 12/14/49 and the date he entered the Army on which
date he was withdrawn from the labor market and could not thereafter offer
himself for employment.
Signal Man
Claiming strikers------------------------------------------ 1
Replacements --------------------------------------------- 0
Cloven, George A.: Rehired 2/8/50 as signal man ; quit 9/24/50 to join Army.
I find that this man was discriminated against between 12/14/49 and 2/8/50,
the date on which he was reinstated.
Structural Ironworkers
Claiming strikers------------------------------------------ 6
Replacements --------------------------------------------- 2
Promotional replacements---------------------------------- 2
Discriminatory replacements------------------------------- 2
Total replacements---------------------------------- 6
Beal, Jones P.: Rehired 2/14/50 as rigger ; reclassified 12/11/50 as structural
ironworker.
This employee testified that he was an ironworker at $1.75 per hour before
the strike. On January 3, he talked to Pat Earnest who told him that the
quota for ironworkers was filled. Around February 15, 1950, Clark, ironworker
superintendent, sent for him and he was hired at the same rate of pay. I find
that the Respondents discriminated against this employee from December 14,
1949, to February 14, 1950, the date of his reemployment.
Cooper, V. W.: Registered letter sent 7/25/50 offering job as structural
ironworker.
This employee testified that he was an ironworker before the strike. During
the summer of 1950, he talked with Clark, superintendent of the ironworkers, who
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told him, "You was working down here once and quit on account of the strike
and they might have another one." He was not reinstated. At the time the
strike was called off, he was in California working for the C. F. Brown Company
at a rate of pay of $2.25 per hour. His fathernotified him that the strike was
over around January 1950. I find the Respondents discriminated against this
man between December 14, 1949, and July 25, 1950, the date of offer of rein-
statement.
Curtis, William, I.: Registered letter sent 7/25/50 offering job as structural
ironworker. I find that the Respondents discriminated against this man between
12/14/49 and 7/25/50.
MacFarland, A. J.: I find that the Respondents discriminated against this
employee between 12/14/49 and 7/25/50.
Roberts, T. R.: Registered letter sent 7/25/50 offering job as structural iron-
worker. I find that the Respondents discriminated against this employee be-
tween 12/14/49 and 7/25/50, the date of offer of reinstatement.
Walker, V. B.: Registered letter sent 7/25/50 offering job• as structural iron-
worker. I find that the Respondents discriminated against this man between
12/14/49 and 7/25/50, the date of offer of reinstatement.
Truck Drivers
Claiming strikers ------------------------------------------ 3
Replacements ---------------------------------------------- 4
Total replacements----------------------------------- 4
Stipulated: new employees hired 2/1/50-7/25/50------.------ 1
Higley, W. E.: Rehired 6/12/50 as laborer ; reclassified 7/1/50 to euclid driver ;
quit 9/10/50-going to another job ; rehired 9/23/50 as euclid driver ; terminated
11/27/50 reduction in force; rehired 2/18/51 as laborer; reclassified 3/8/51 to
carpenter apprentice.
This employee testified that he applied for reinstatement early in January
1950. Pat Earnest told him that the Respondents were under no obligation to
reinstate men who were on the Flippin payroll. During March 1950, he was
rehired as a laborer at Flippin. He was later laid off and he went to work
for Ozark as an euclid operator at $1.25 an hour. Thereafter, he was suc-
cessively a laborer at 85 cents an hour and an euclid operator at $1.15 an
hour. This witness also stated that at the time he made his demand for re-
instatement there was a group of employees.among whom was James Schu-
macher. I find that this man was never properly reinstated to his position. At
the time of his application there were truck drivers on the job who had been
hired after the strike began. Respondents did not displace one of these men
to make room for Higley, which they were required to do under the Act. I
find that the Respondents have discriminated against this employee from De-
cember 14, 1949, up to and including the present.
Smith, 0. M.: Rehired 8/8/50 as euclid driver ; fired 8/20/50-reduction in
force. I find that the Respondents discriminated against this employee be-
tween 12/14/49 and 8/8/50, the date of his reinstatement.
Williams, Paul J.: Registered letter sent 7/25/50 offering job as truck driver.
I find that the Respondents discriminated against this employee between
12/14/49 and 7/25/50, the date of offer of reinstatement.
Truck (Tractor Operators)
Claiming strikers------------------------------------------ 0
Replacements ---------------------------------------------- 1
Total replacements----------------------------------- 1
BROWN AND ROOT, INC. 1117
Vibrator in Concrete
Claiming strikers------------------------------------------ 0
Replacements---------------------------------------------- 3
Discriminatory replacements-------------------------------- 9
Total replacements----------------------------------- 12
Vibrator Operators
Claiming strikers------------------------------------------ 1
Replacements --------------------------------------------- 17
Total replacements----------------------------------- 17
Haynes, George 1'V.: Rehired 3/25/50 as laborer ; reclassified 5/27/50 as
vibrator operator; quit '11/17/50-going to another job. I find that the Re-
spondents discriminated against this man from 12 /14/49 to 5/27/50, the date
on which he was reclassified to vibrator operator , his former position.
Wagon Drill Operators
Claiming strikers ------------------------------------------ 2
Promotional replacements ---------------------------------- 1
Total replacements---------------------------------- 1
Stipulated : new employees hired 2/1/50-7/25/50- ----------- 2
Parris, T. H.: Hired 4/10/50 as air tool operator . This employee testified that
lie had previously been employed as a wagon drill operator , but about a month
before the strike he was transferred to a job as a euclid driver, on the grave-
yard shift . On January 3, 1950, he went to the union hall and was given a
referral slip for a job. He went to the job with a group of returning strikers.
At the personnel office, one of the Respondents ' officials said that he was
classed as a wagon drill operator and that there was no job for a man in -
that classification. He explained that he was an euclid operator at the
time of the strike but the official told him that the Respondents had
nothing for him. Parris then talked to Norris who was the superintendent
over the wagon drillers . Upon his application to Norris , the latter said , "If they
won't give you a job , I can't." Parris stated that he went back to the dam site
five or six times looking for work . After that he went over to the quarry and
again asked Norris about a job . The boss of the wagon drillers was with Norris
at that time and he said to Parris that he would give Parris a laborer's job.
Parris said he would take the job and one of the officials gave him a slip for a
physical examination . Parris went to town , took his physical examination, and
returned to the job the next day , but he was told that there was no job for him,
as a man had been sent in his place . Parris thought this was peculiar, so he
went over to see Norris again. He told Norris that the office had sent somebody
out in his place. Norris said , "They ain't sent nobody out here in your place."
Parris said to him, "There is something wrong, I can 't get the job . Rosy, I
believe they have got me culled . I have tried and tried , to get on the job."
Norris did not make any reply to this . After that , Parris applied on several
further occasions , but was never reinstated.
Parris testified on April 5, 1951 . The records show that he was reemployed
as an air tool operator on April 10 , 1951 . I find that the Respondents dis-
criminated against this man from December 14, 1949, to April 10 , 1951, the date
on which he was reemployed as an air tool operator.
Richardson , Ishmael: Rehired 8/8/50 as wagon drill operator ; fired 8/11/50-
reduction in force. Rehired 10/30/50 as jackhammer operator; quit 11 /29/50-
"can't work day shift."
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This employee testified credibly that at the time of the strike he was working
as a wagon drill operator for Flippin. Though his name was presented for rein-
statement by the Union on January 15, 1950, he was not offered reinstatement
until he received a registered letter in July 1950 and was rehired as a wagon
drill operator on August 8, 1950. Three days and two hours later, he was laid
off. When he was rehired, Cunningham, his foreman told him that he would be
laid off, in a layoff that was imminent, because he had been a striker. He was
laid off and later rehired as a jackhammer operator. Sometime thereafter, the
swing shift was changed over to the day shift so he was laid off again.
The testimony of Foreman Cunningham bears out the contention of Richardson
that he was never properly reinstated. Cunningham stated that he considered
Richardson the same as a new employee and accordingly, terminated him rather
than some of the other employees. At the time Richardson was laid off in the
reduction in force, the Respondents retained replacements on the payroll. I
find that this employee has never been properly reinstated and that the Re-
spondents have discriminated against him from December 14, 1949, up to and in-
cluding the present.
Warehousemen
Claiming strikers------------------------------------------ 0
Replacements - -- ---------------------- - -- - - - 4
Promotional replacements 1
Discriminatory replacements 1
Total replacements___________________________________ 6
Welders
Claiming strikers------------------------------------------- 6
Replacements______________________________________________ 14
Promotional replacements__________________________________ 1
Discriminatory replacements________________________________ 1
Total replacements___________________________________ 16
Stipulated: new employees hired 2/1/50-7/25/50 ----------- 7
Hefley, H. D.: Registered letter sent 7/25/50 offering job as welder.
Lackey, Billy: Registered letter sent 7/25/50 offering job as welder.
Lamb, Richard: Registered letter sent 7/25/50 offering job as welder.
McGuire, Ira E.: Registered letter sent 7/25/50 offering job as welder.
Rogers, R. H.: Registered letter sent 7/25/50 offering job as welder.
I find that the above-named employees, Hefley, Lackey, Lamb, McGuire, and
Rogers, were discriminated against between December 14, 1949, and July 25,
1950, the date of offer of reinstatement.
Russell, Rex: Rehired 3/22/50 as welder; quit 1/3/51-"going to another job."
Registered letter sent 3/14/50, offering job as mechanical repairman. I find that
the Respondents discriminated against this man between 12/14/49 and 3/22/50,
the date of his reinstatement as a welder.
Working Foremen
Claiming strikers---------------- - ------------------------
Replacements---------------------------------------------- 0
Lippe, Frank J.: Registered letter sent 7/25/50 offering job as working fore-
man. I find that the Respondents discriminated against this man from 12/14/49
to 7/25/50.
BROWN AND ROOT, INC. 1119
C. Interference , restraint , and coercion
From the credited testimony of some of the employees , it is clear that two of
Respondents ' supervisors were animated by antiunion bias and sought to penalize
the strikers for their concerted activities . This animus is most noticeable in the
cases of the Master Mechanic Joe Estes , and Foreman Walter G. Balleau.
Thomas E. Hurst testified that in refusing him reinstatement , Master Mechanic
Estes told him that the Company had sent to Texas for men to replace the
strikers , as he wanted men that he could depend on. This statement was obvi-
ously coercive.
Though he had replacements in his department at the time the strike was
called off, Foreman Balleau put Kilfoy on duty in the "hole ." He also blamed
W. W. Lackey for some trouble with the pum s and placed him in the "hole."
Balleau also designated Kyles as "clean-up" ma for the rest of the shift, which
led to Kyles' termination . Balleau himself testified that he kept notes on the
work of Kyles, Kilfoy, and Lackey, and that he kept no such notes on other em-
ployees in his crew . I find that this statement of Estes, and this conduct of
Balleau constitute interference, restraint , and coercion and are separate viola-
tions of Section 8 (a) (1) of the Act.
D. Rulings on evidence
In the course of the hearing , two major questions as to the admissibility of
certain evidence arose. The first question arose when the General Counsel of-
fered in evidence certain proof as to a prior proceeding conducted by the De-
partment of Labor as to a violation of the Davis-Bacon Act by the Respondents,
in that certain employees had not been classified properly or paid at the proper
rate of wage . Upon objection by the Respondents , the undersigned ruled that
this evidence was inadmissible as being irrelevant to the instant proceeding.
The General Counsel later submitted the same evidence in an offer of proof,
General Counsel Exhibit #21 . I hereby again rule that the evidence is irrele-
vant. We are not determining the rate at which -men should have been paid
in this proceeding , nor are we enforcing the Davis -Bacon Act in this proceeding.
Here, we are limited to the issues of the instant pleadings . However , in com-
vliance,, the General Counsel might properly raise the point, that the employees
who are to be made whole , should be made whole at , their proper rate of pay,
under the Davis -Bacon Act . A ruling on this contention might then be sought
from the ' proper authority . In this proceeding , such evidence is premature.
General Counsel Exhibit #21.
The second question arose when counsel for the Respondents sought to in-
troduce testimony relating to certain conferences which took place between the
parties, in which certain employees of the Regional Office participated. The
General Counsel objected to the receipt of such testimony on the ground that
these conferences were in the nature of settlement conferences in which a
compromise of the conflicting claims of the parties was sought , and that such
evidence was inadmissible according to established rules of evidence founded
on public policy . This objection was sustained by the undersigned.
However , counsel for the Respondents was permitted to make an offer of proof
as to this evidence including Respondents ' , Exhibits Nos. 9, 10, 11, and •13,
which constitute correspondence between the Respondents and the Regional
Office on this subject. The named exhibits were rejected in conformity with
the ruling mentioned above, and are in the file of rejected exhibits . Evidence
of offers of reinstatement to some of the men named in the complaint , which in
some instances followed these conferences in point of time, was received.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with their activities described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondents have engaged in and are engaging
in certain unfair labor practices, it will be recommended that they cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondents discriminated in regard to the hire and
tenure of employment of the employees listed in Schedule A attached hereto
by discriminatorily refusing, following their participation in a strike caused
and prolonged by Respondents' unfair labor practices, to reinstate these em-
ployees to their former or substantially equivalent position, although they
unconditionally applied for such reinstatement, it will be recommended that
the Respondents be ordered to offer to the employees named in Schedule A, full
reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges. If there are not
sufficient positions available in appropriate classifications, the Respondents shall
make room for the employees ordered reinstated by dismissing or demoting, to
the extent necessary, employees occupying such classifications who were hired or
promoted to such classifications after December 3, 1948. If, after such dis-
missals and demotions there are still not sufficient positions available, all exist-
ing positions in the appropriate job classifications shall be distributed among
the employees ordered reinstated and other employees who were hired on or
before December 3, 1948, without discrimination against any of them because
of his union affiliation or strike or concerted activities, following such system
of seniority or other nondiscriminatory practices as would normally have been,
applied by the Respondents to determine job retention rights upon a reduction
of force. All employees remaining after such distribution , including those
ordered reinstated for whom no employment is immediately available, shall be
placed upon a preferential list and offered reemployment as work becomes avail-
able in a suitable classification and before other persons are hired for such
work in the order required by the Respondents' normal seniority system or other
nondiscriminatory practices.
It has also been found that the Respondents discriminated in regard to the
hire and tenure of employment of the employees listed in Schedule B, attached
hereto, by refusing them reinstatement upon request following their partici-
pation in the unfair labor practice strike. However, as all on Schedule B were
subsequently either offered or granted reinstatement to their former or sub-
stantially equivalent positions on the dates appearing alongside their respective
names, no reinstatement order is necessary as to them. Provision for loss of
earnings suffered by them as a result of such discrimination is made below
It has also been found that the Union on behalf of the employees listed on
Schedules A and B called off the strike of December 3, 1948, which was caused
by the unfair labor practices of the Respondents, on December 14, 1949, and on
the latter date offered on behalf of all the employees listed on Schedules A
and B to return to work without settlement of their grievances, which had caused
them to g) on strike. I therefore find that the strikers listed on Schedules A
and B are entitled to back pay from December 14, 1949.
BROWN AND ROOT, INC. 1121
It will be recommended that the Respondents be ordered to make whole each
of the employees listed on Schedules A and B for any loss of pay they may have
suffered as a result of the discrimination against them. In the case of each
employee listed on Schedule A the back-pay period shall begin December 14, 1949,
and run to the date of Respondents' compliance in each case with the reinstate-
ment provisions herein. In the case of each employee listed on Schedule B,
the back-pay period shall run from December 14, 1949, to the date of his rein-
statement or the date on which reinstatement was offered to him, which date
is set opposite the employee's name on Schedule B. Consistent with the policy
of the Board enunciated in F. W. Woolworth Co., 90 NLRB 289, it will be
recommended that losses of pay be computed on the basis of each separate cal-
endar quarter or portion thereof during the appropriate back-pay period. The
quarters shall begin with the first day of January, April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which
these employees normally would have earned for each quarter or portion thereof,
their net earnings, if any, in other employment during that quarter 1° Earnings
in any one particular quarter shall have no effect upon the back-pay liability
for any other quarter. It is also recommended that the Respondents be ordered
to make available to the Board upon request payroll and other records to
facilitate the checking of the amounts of back pay due.
It is further recommended that the Board reserve the right to modify the
back-pay and reinstatement provisions above, if made necessary by a change of
circumstances since the hearing or in the future, and to make such supplements
thereto as may hereafter become necessary in order to define or clarify their
application to a specific set of circumstances not now apparent.
In accordance with the findings made above, it is recommended that the com-
plaint be dismissed so far as it alleges the Respondents discriminated against
Harry Hermanson and L. A. Shankler.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Fort Smith, Little Rock & Springfield Joint Council, A. F. L., is a, labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
employees named in Schedules A and h attached hereto, thereby discouraging
membership in Fort Smith, Little Rock & Springfield Joint Council, A. F. L., and
labor organizations generally, the Respondents have engaged in and are en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3)
of the Act.
3. By interefering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondents did not discriminatorily refuse to reinstate Harry Her-
manson and L. A. Shankler.
[Recommendations omitted from publication in this volume.]
16 See Crossett Lumber Company , 8 NLRB 440; Republic Steel Corp v. N. L. R. B., 811
U. S. 7.