Buckley Development Co.

National Labor Relations Board - Board Decisions

Mar 22, 1960

126 N.L.R.B. 1171 (N.L.R.B. 1960)

BUCKLEY DEVELOPMENT COMPANY 1171
except to the extent that such right may 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 offer Dolpha Fouts and Boyd Holland immediate and full reinstate-
ment to their former or substantially similar positions without prejudice to their
seniority and other rights and privileges and make them whole for any loss of
pay suffered as a result of the discrimination against them.
All our employees are free to become , remain , or refrain from becoming or re-
maining members of any labor organization , except to the extent that such right may
be affected by an agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8(a)(3) of the Act.
FRANKLIN HOSIERY MILLS,
Employer.
Dated---------- --------- By-------------------------------------
(Representotive ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
Jerry J. Buckley, d/b/a Buckley Development Company and
West Side Lumber and Coal Company and Carpenters Dis-
trict Council of Saginaw Valley
Jerry J. Buckley, d/b/a Buckley Development Company and
West Side Lumber and Coal Company and Thurlow Kelly,
John Curreli, Richard Montgomery . Cases Nos. 7-CA-0232,
7-CA-2367, 7-CA-2374, and 7-CA-2368. March 02, 1960
DECISION AND ORDER
On September 29, 1959, Trial Examiner James T. Rasbury issued
his Intermediate Report in the above-entitled proceedings, finding
that the Respondent had engaged in and was engaging in certain un-
fair labor practices and recommending that he cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in other unfair labor
practices alleged in the complaint and recommended that such allega-
tions be dismissed. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications :
1. We agree with the Trial Examiner that the Respondent vio-
lated Section 8 (a) (1) of the Act by interrogating employees on or
about December 3, 1958, concerning their union activities and sym-
126 NLRB No. 147.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pathies, and that the Respondent's veiled threat to his employees on
December 23, 1958, when in the midst of a conversation concerning
the results of a State-conducted election the Respondent stated that
there were better men walking the streets than his employees, was
violative of Section 8 (a) (1) of the Act. We also agree with the
Trial Examiner that the Respondent's 1-day layoff of John Curreli
on December 4, 1958, was discriminatory and violated Section 8(a) (3)
of the Act.
2. Contrary to the Trial Examiner, we find that the Respondent
violated Section 8 (a) (3) of the Act by laying off Thurlow Kelly,
John Curreli, Richard Montgomery, and Clifford Skodak 1 on De-
cember 23, 1958.
On December 22, 1958, an election was conducted among the Re-
spondent's employees by the Michigan Labor Relations Board. This
election resulted in five votes for the Union and five votes against the
Union. On the day after the election, the Respondent came to the
job where all of his employees were working, and in the course of a
discussion concerning the election results he said that he knew which
of his men had voted for the Union and which had voted against it,
and he made the veiled threat which was the basis of the finding of
an 8 (a) (1) violation by the Trial Examiner. Shortly after this dis-
cussion, the Respondent had a conversation with Frank Helms, an
employee of the Owosso Redi-Mix Concrete Company, who had come
to deliver concrete to the job. The Trial Examiner credits Respond-
ent's version of this conversation even though Helms was a disinter-
ested party, apparently had not overheard the earlier conversation,
and Helms' version was almost a repetition of the earlier conversation
which was the basis of the finding of an 8(a) (1) violation.
In finding the Respondent's version of this conversation to be more
convincing, the Trial Examiner did not rest his conclusion on the
demeanor of the Respondent, but, rather, rested it on the following
factors : " . . . the testimony of all witnesses as to the limited work
available for rough carpenters, the winter weather conditions of
Michigan and the Respondent's past conduct of laying off people
during December. . . ." In the light of these factors, the Trial Exam-
iner fully accepted the Respondent's statement that the four layoffs of
December 23, 1958, were made because of weather conditions, and
therefore did not violate Section 8(a) (3).
Even if the Respondent's version of his conversation with Helms
be accepted, we cannot agree with the Trial Examiner as to his con-
clusion regarding the reason for the layoffs since the factors relied on
1 Clifford Skodak , one of the four employees laid off on December 23 , 1958, was not
included in the consolidated complaint . However, as the Trial Examiner notes in his
Intermediate Report, the General Counsel moved for Skodak's inclusion at the hearing
and by agreement with Respondent's counsel , the Trial Examiner permitted amendment
of the complaint.
BUCKLEY DEVELOPMENT COMPANY 1173
by the Trial Examiner to support his conclusion lack adequate sup-
port in the record. There is considerable evidence in the record to
refute the Trial Examiner's statement that the testimony of all wit-
nesses indicated there was little or no work remaining on December 23,
1958, that could have been performed by the laid-off employees. Sev-
eral witnesses, including witnesses called by the Respondent, testified
that at least one job was one-third to one-half incomplete, and even
the Respondent himself admitted there was a certain amount of work
to be done. Also, there was undenied testimony by both Skodak and
Curreli that Respondent had told them there was enough work to
keep them busy through the winter. And there was no direct contra-
diction of Thurlow Kelly's testimony that within a few weeks after
December 23, 1958, the Respondent started another job where there
was a lot of rough carpenter work.
Furthermore, insofar as the winter weather conditions are con-
cerned, we find no evidence in the record indicating that the weather
on or about December 23 had become so severe as to warrant a layoff in
the middle of a regular pay period. Indeed there was little, if any,
evidence regarding weather conditions during that period. Finally,
although it is true that Respondent made a practice of reducing his
work force during the winter months, one of the Respondent's own
witnesses who usually worked through the winter testified that the
complement of men kept on during the winter of 1958-59 was three
times the size of the group kept on in prior years.
We further note that the Trial Examiner's characterization of the
rehiring of Curreli as "voluntary" and indicating a lack of discrimina-
tion seems questionable in the light of the fact that Curreli was not
rehired until about May 1, 1959, after the complaint in these cases
had issued. There was also testimony that Curreli owed Respondent
some money and that Respondent told Curreli he could come back and
work off that debt.
The four employees laid off on December 23, 1958, had all signed
union cards and admitted that they voted for the Union in the election
of December 22, 1958. Three of these employees had been specifically
interrogated by the Respondent concerning their union activities.
Furthermore, the Respondent indicated, as found by the Trial Exam-
iner, that he knew which of his men were loyal and which were not
loyal. In the light of the Respondent's repeatedly expressed hostility
to unions in general, it is clear that he equated "loyalty" in his employ-
ees with opposition to the Union. The reaction of the Respondent to
the "disloyal" employees who had voted for the Union in the election
of December 22 was to discharge these employees precipitately on the
day after the election.
In view of the lack of evidentiary support for the factors relied on
by the Trial Examiner as a basis for crediting the reasons given by the
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent for the layoffs, the hostility of the Respondent to unions,
the timing of the layoffs, the whole background of unlawful interroga-
tion and veiled threats, and the earlier instance of a discriminatory
layoff, we find that the only persuasive conclusion that can be drawn
from the whole record is that Curreli, Kelly, Montgomery, and
Skodak were laid off on December 23, 1958, because they were union
adherents and not because weather conditions prevented their further
employment.' Accordingly, we find that by such discriminatory lay-
offs, the Respondents violated Section 8(a) (3) of the Act.
THE REMEDY
Having found, contrary to the Trial Examiner, that the Respondent
discriminatorily laid off Thurlow Kelly, John Curreli, Richard Mont-
gomery, and Clifford Skodak, we shall order the Respondent to offer
them full and immediate reinstatement 3 to their former or substan-
tially equivalent positions,4 without prejudice to their seniority and
other rights and privileges, and, in the event that there is insufficient
work for all such employees entitled thereto, to dismiss, if necessary,
all persons newly hired after the Respondent's discrimination. If
there is not then sufficient work available for the remaining employees
and those to be offered reinstatement, all available positions shall be
distributed among them without discrimination against any employee
because of concerted activities, in accordance with the system of
seniority or other nondiscriminatory practice heretofore applied by
the Respondent in the conduct of his business. The Respondent shall
place those employees, if any, for whom no employment is available
after such distribution on a preferential list, with priority in accord-
ance with such system of seniority or other nondiscriminatory practice
heretofore applied by the Respondent in the conduct of his business,
and thereafter offer them reinstatement as such employment becomes
available and before other persons are hired for such work.
We shall also order the Respondent to make whole those employees
against whom it had discriminated for any losses they may have
suffered because of the Respondent's discrimination, by payment to
each of them of it sum of money equal to the amount that he normally
would have earned as wages from the date of such discrimination to
the date of the offer of reinstatement, or placement on a preferential
list, as the case may be, less his net earnings during said period,' the
backpay to be computed on a quarterly basis in the manner established
' See N L . R B. v. Jones Sausage Company, et al, 257 F. 2d 878 (C.A. 4 ), enfg 117
NLRB 1403.
8 Since it appears that John Curreli has been reemployed by the Respondent since
about May 1, 1959, we shall not require the Respondent to offer Curreli reinstatement.
However, Curreli is entitled to backpay from the date of discrimination to the date of
reemployment computed in the manner as backpay due the other discriminatees
* The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
6 Crossett Lumber Company, 8 NLRB 440.
BUCKLEY DEVELOPMENT COMPANY 1175
by the Board in F. W. Woolworth Company.' Earnings in one par-
ticular quarter shall have no effect upon the baekpay liability for any
other such period. We shall also order the Respondent to preserve
and, upon request, make available to the Board, payroll and other
records necessary to determine employment rights and the amount of
backpay due. In accordance with the Board's customary practice, we
shall exclude from the computation of backpay the period from the
date of the issuance of the Intermediate Report to the date of the
issuance of our Decision and Order herein.
The possibility that one or more of the four employees discriminated
against on December 23, 1958, might have been laid off in a subsequent
seasonal reduction in work force, even absent the Respondent's unfair
labor practices, will be taken into consideration in determining the
amounts of backpay due to these employees, in compliance with our
Order herein.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent Jerry J. Buckley,
d/b/a Buckley Development Company and West Side Lumber and
Coal Company, Owosso, Michigan, his agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership of its employees in Carpenters Dis-
trict Council of Saginaw Valley, or any labor organization, by dis-
criminating against any employee in regard to hire, tenure, or any
other term or condition of employment, except as authorized by Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
(b) Interrogating employees as to their or their fellow employees
membership or interest in or activities on behalf of the Carpenters
Union or any other labor organization.
(c) Intimidating or coercing employees by veiled or direct threats
of replacements because of the interest or activity of employees on
behalf of the Carpenters Union, or any other labor organization.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist the Carpenters Union, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities except to the extent that
such right may be affected by an agreement requiring membership in
4 90 NLRB 289.
E. V. Prentice Machine Worka , Inc., 120 NLRB 417.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a labor organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Thurlow Kelly, Richard Montgomery, and Clifford
Skodak immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority and
other rights and privileges, and make each of them, and John Curreli,
whole for any loss of pay suffered by reason of the discrimination
against them, in the manner set forth in the section of this Decision
and Order entitled "The Remedy."
-(b) Preserve and, upon request, make available to the Board or its
agents , for examination and reproduction, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze amounts of backpay due and
the rights of reemployment under the terms of this Order.
(c) Pay to John Curreli a sum of money equal to that which he
would have earned as wages for the 1 day of discrimination against
him, less his net earnings for said day, if any.
,(d) Post at its office at Owosso, Michigan, and at two other loca-
tions where Respondent's employees are currently working, copies of
the notice attached hereto marked "Appendix." 8 Copies of said
notice, to be furnished by the Regional Director for the Seventh
Region, shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof and main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
MEMBERS RODGERS and JENKINS took no part in the consideration of
the above Decision and Order.
In the event that this Order is enforced by a decree of a 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."
APPENDIX
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 Labor Manage-
ment Relations Act, we hereby notify our employees that:
BUCKLEY DEVELOPMENT COMPANY 1177
WE WILL NOT discourage membership by our employees in
Carpenters District Council of Saginaw Valley, or in any other
labor organization, by discriminating against them in regard to
hire, tenure of employment, or any term or condition of employ-
ment, except as authorized by Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor- Management
Reporting and Disclosure Act of 1959.
WE WILL offer to Thurlow Kelly, Richard Montgomery, and
Clifford Skodak, immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to sen-
iority and other rights and privileges previously enjoyed, and
make each of them, and John Curreli, whole for any loss of pay
suffered by reason of the discrimination against them.
WE WILL reimburse and make whole John Curreli for any loss
of pay he may have suffered by reason of our discrimination
against him on December 4, 1958.
WE WILL NOT interrogate our employees as to their or their
fellow employees' membership, interest in, or activities on behalf
of the above Union, or any other labor organization.
WE WILL NOT intimidate or coerce employees by veiled or direct
threats of replacement because of the interest or activity of em-
ployees on behalf of the above Union, or any other labor
organization.
WE WILL NOT 'interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to form labor
organizations, to join or assist the above Union, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, or legally to refrain from such activities.
All of our employees are free to become or refrain from becoming
members of the above Union, or any other labor organization.
JERRY J. BUCKLEY, D/B/A BUCKLEY DE-
VELOPMENT COMPANY AND WEST SIDE
LUMBER AND COAL COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly designated
Trial Examiner in Owosso, Michigan , on June 9 and 10 , 1959, on complaint of the
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel and answer of Jerry J. Buckley, d/b/a Buckley Development Com-
pany and West Side Lumber and Coal Company, herein called the Respondent. The
issue litigated involved the alleged violation of Section 8(a) (1) and (3) of the
National Labor Relations Act, as amended. Briefs were submitted by the General
Counsel and the Respondent.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. BUSINESS OF THE RESPONDENT
Respondent is an individual proprietor doing business as the Buckley Development
Company and West Side Lumber and Coal Company with an office in Owosso,
Michigan, where Respondent is engaged in the sale of lumber and building supplies
and in the construction of homes. Respondent has also done some miscellaneous
commercial construction work. During the calendar year of 1958, Respondent made
total purchase in excess of $300,000, of which goods in excess of $64,000 in value
originated from points outside the State of Michigan. I find that Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Carpenters District Council of Saginaw Valley, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent is a small building contractor that has for the past few years
engaged in the building of homes and the development of a small subdivision known
as Shady Lane in the city of Owosso, Michigan. As is the case with many build-
ing contractors, Respondent subcontracts various portions of his prime contract, but
during the good weather months has from 10 to 20 regular employees and during
the winter, or bad weather months, has in the past had a lesser number of employees,
generally 3 to 9, depending on the weather and the type of work to be performed.
While the record may be somewhat confusing-due, I am convinced, to the Re-
spondent's complete lack of knowledge of the intricate and to him mystifying field
of labor relations and not from any desire to mislead or deceive-the following
events transpired.
The latter part of November 1958, John Curreli, an employee of Respondent,
was contacted by a representative of the Union and asked to join the Union. Curreli
obtained authorization cards from the union representative and offered them to the
other employees of Respondent. Some of Respondent's employees signed the cards
and returned them to Curreli. On December 3, 1958, a letter dated December 1,
1958, was delivered to Respondent from Carpenters Local Union No. 1077 indicat-
ing that a dispute existed between said Union and the Respondent concerning repre-
sentation of employees, working conditions, and hours of employment. The letter
further advised that Respondent was being notified pursuant to the provision of the
State of Michigan Labor Relations Act. On December 22, 1958, an election was
conducted under the direction and supervision of the State Labor Mediation Board.
The results of the election, which became known to all the employees as well as
the Union and the Respondent immediately following the voting, resulted in a tie.
Ten employees participated. On December 23, 1958, Respondent severed four
employees classified as rough carpenters or general laborers because the weather
prevented further utilization of their services.
With this general background of events we turn to the specific allegations by the
General Counsel: (1) Respondent laid off John Curreli on December 4, 1958, for
1 day and terminated John Curreli, Thurlow Kelly, Richard Montgomery, and
Clifford Skodak on December 23, 1958, and has refused to reemploy each of them
in violation of Section 8(a)(3) and (1) of the Act; i (2) on or about December 3,
1958, and thereafter Respondent interrogated his employees in violation of Sec-
tion 8(a) (1) of the Act; and (3) on or about December 3 and 23, 1958, Respond-
ent threatened to discharge employees who joined or assisted the Union, in violation
of Section 8(a)(1) of the Act.
i Clifford Skodak was not included in the consolidated complaint served herein How-
ever, at the hearing General Counsel moved for his inclusion and by agreement with
Respondent's counsel the Trial-Examiner permitted amendment of the complaint to
include the name of Clifford Skodak.
BUCKLEY DEVELOPMENT COMPANY 1179
B. Interrogation and threats
Thurlow Kelly testified that about a week after he had signed an authorization
card for the Union "Mr. Buckley asked me if I had ever talked to any union or-
ganizers ." Kelly testified that this query was directed to him in the presence of
Robert Crackel, a finish carpenter employed by Respondent. Neither Respondent's
counsel nor the General Counsel questioned Robert Crackel to ascertain his version
of this particular incident. Robert Crackel did testify, however, that sometime
shortly before December 19, 1958, and on an occasion when Buckley was engaged
in conversation with John Curreli, Buckley "asked my opinion on the union ." Kelly
testified that shortly before noon on December 23, 1958, at a time when some of
Respondent's employees were engaged in a commercial contracting job at Shapiro's
Automotive Garage, he heard Buckley state that he would let every man go who
voted for the Union and "Your replacements are walking right up and down out in
front right now."
Much of John Curreli's testimony was vague and rambling and was only specific
and relevant after pointed questions by General Counsel. However, portions of his
testimony are corroborated by other witnesses and for that reason I cannot believe
that his testimony was entirely unreliable, but I am of the opinion that he endeavored
to state the facts in a manner that would be most beneficial to himself. Curreli
testified that in early December 1958, on the day before he was sent home for 1 day
because of rainy weather, that he and Buckley engaged in a conversation about the
Union during which Buckley argued that the Union could not do the employees
any good and Curreli answered, "Yes, they could." 2 Curreli's testimony agreed
with Kelly's version of the conversation at Shapiro's Automotive Garage as he
testified that Buckley stated, "Your replacements are walking the streets," and "that
he was going to let us all go that voted for the union, and he knew who they were."
Richard Montgomery testified that Buckley came to one of the houses in the
Shady Lane subdivision where he and several other employees were working and
"asked us if any of us had talked to the union man."
It is significant to the Trial Examiner that Robert Montgomery, who is still em-
ployed by Respondent, also testified that Buckley came to the job in Shady Lane
subdivision and "asked us if we had ever talked to any of the union guys that had
been around there." Concerning the December 23, 1958, conversation at Shapiro's
Automotive Garage, Robert Montgomery testified that Buckley said, "there were
better men than us walking up and down the street just waiting to get a job like you
guys got. And he knows which men are loyal and which men are not loyal."
Montgomery denied, however, that Buckley specifically threatened to discharge any-
one. I accept and credit Robert Montgomery's version of this conversation as being
the more accurate.
While it is true that sheer number of witnesses does not of itself give weight or
credence to testimony, this Trial Examiner cannot disregard the singular theme which
characterizes the testimony of Kelly, Curreli, and Richard and Robert Montgomery
concerning Respondent's interrogation of employees on or about December 3, 1958,
and his veiled threat to employees on December 23, 1958, when in the middle of an
admitted conversation concerning the election results the Respondent stated that
there were better men walking the streets than his employees. I therefore find that
Respondent, by his questioning of employees on or about December 3, 1958, con-
cerning their contact with the Union, did interfere with, restrain, and coerce em-
ployees in the exercise of their rights guaranteed in Section 7, and thereby committed
an unfair labor practice in violation of Section 8(a) (1) of the Act. I also find that
Respondent by his veiled threat to employees on December 23, 1958, further inter-
fered with the Section 7 rights of employees and thereby violated Section 8(a)(1)
of the Act.
In evaluating the testimony that provides the basis for the above two findings, the
Trial Examiner has carefully considered the testimony of all witnesses concerning
the December 19 meeting at which Respondent advised the employees of the elec-
tion to be held on December 22 and herewith rejects any contention by counsel for
the General Counsel that there were statements made at this meeting that were
2 Buckley's testimony corroborated the fact that a conversation concerning the Union
did occur with Curreli in early December 1958 ; that it was immediately after receipt of
the letter from the Carpenters Local No. 1077, dated December 1, 1958, and that he was
only trying to find out if Curreli "knew anything about this letter that I had got."
From my observation of both Currelt and Buckley on the witness stand, I am con-
vinced that this conversation extended beyond the innocent inquiry related by Buckley
and at its conclusion Buckley knew that Currell was an active union advocate.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative of the Act. Robert Montgomery was the only General Counsel witness
that attributed any statement to Respondent at this meeting that could possibly be
construed as violative of the Act. In view of the testimony of Kelly, Richard Mont-
gomery, Bob and Ray Crackel, and the Respondent Buckley as to what occurred
at this meeting, I regard Robert Montgomery 's isolated remark, as his own interpre-
tation or conclusion rather than what was actually said by Respondent.
C. The alleged discriminatory layoff of Curreli on December 4, 1958, and the
alleged discriminatory discharge of Kelly, Curreli, Montgomery, and Skodak on
December 23, 1958
John Curreli was regarded by Respondent as his leadman over the rough car-
penters. According to the undisputed testimony of Curreli, he had at times been
laid off due to inclement weather, but if any rough carpenters were worked he had
always been included. There was no contention advanced by Respondent that
Curreli was less able than other rough carpenters; his position as leadman would
reflect favorably on his ability. The testimony of witnesses other than Curreli indi-
cates that other rough carpenters were assigned various tasks after reporting for
work on December 4, 1958, but that Currell was sent home. The record clearly
indicates that Curreli was sent home-while other rough carpenters worked-within
I or 2 days following Buckley's discussion of the Union with Curreli as related in
III, B, above. Respondent did not offer any explanation of this deviation from his
normal procedure, but only ventured the opinion that if Curreli was sent home it
was because of bad weather. There is nothing in the Act prohibiting Respondent
from determining which employees, if any, are to work during inclement weather.
However, Respondent's conduct in this instance of singling out his most experi-
enced rough carpenter for treatment that was distinctly different from his past con-
duct and at a time immediately following Respondent 's knowledge of Curreli's union
sympathies is sufficient to raise a reasonable inference that Respondent's conduct
was discriminatory and in violation of Section 8(a)(3) of the Act. This is par-
ticularly true in the absence of an explanation by Respondent that might tend to
negate such an inference. I therefore find that Respondent's action in laying off
John Curreli on December 4, 1958, for the 1 day, was discriminatory in violation of
Section 8(a) (3) of the Act.
We turn now to a consideration of the factors that caused a severance from the
payroll of John Curreli, Thurlow Kelly, Richard Montgomery, and Clifford Skodak
on December 23, 1958. The Respondent testified that he laid these employees off
because the weather was such as to prevent them from performing any work. All
of the employees laid off were classified as rough carpenters and performed duties
for the Respondent on the outside of the homes. With the exception of Robert
Montgomery, all of the men retained by Respondent were finish carpenters. The
finish carpenters performed work inside the homes and obviously their work was not
affected by the weather to the same extent as those employees who worked on the
outside. Robert Montgomery, while not classified as a finish carpenter, performed
many and varied duties for Respondent, much of which was inside work, and he
had been continuously employed by Respondent for "approximately a few years."
The record is abundantly clear that in previous years Respondent had been forced
to lay off some employees when the weather became too bad to perform outside
work. It is also true that in prior years a layoff had occurred in December. Con-
trary to the General Counsel's allegation, Respondent has not refused to reemploy
John Curreli, the one employee clearly known to Respondent as being a strong union
adherent, but instead rehired him approximately May 1, 1959. After Respondent
had rehired Curreli, he sought and accepted Curreli's recommendation on an em-
ployee named Smith that was hired as a rough carpenter by the Respondent. I
think the record is abundantly clear 'both from Respondent's witnesses as well as the
General Counsel's witnesses that there was little or no work remaining on December
23, 1958, that could have been performed by rough carpenters or general laborers. I
accept and credit fully Respondent's explanation that Curreli, Kelly, Montgomery,
and Skodak were laid off on December 23, 1958, because the status of the Re-
spondent's work was such when considered with the wintry weather, he could no
longer keep them profitably employed. The Trial Examiner has no difficulty in
reaching such a conclusion in spite of the earlier finding herein of certain union
animus, remarks constituting interrogation, and even one isolated act of conduct
violating Section 8('a)(3) of the Act. This is not a case of a sophisticated or wily
employer that set upon a studied course of conduct intending to destroy the Union.
Rather this is the case of a naive and uninformed employer that unwittingly com-
BUCKLEY DEVELOPMENT COMPANY 1181
mitted violations which the findings and recommendations herein shall seek to
correct. There is nothing in the Act, however, to prevent this Respondent from
conducting his business in his normal and prudent manner provided it is not dis-
criminatory in violation of employees' Section 7 rights. The General Counsel's
entire case surrounding the layoff rests on the inference to be raised from the tim-
ing of events. This I find insufficient to sustain the burden of proof required of
the General Counsel because, suspect as the timing might become under some cir-
cumstances , in this instance it was not at serious variance with Respondent 's actions
in other years. Furthermore Respondent's conduct after the severance of December
23, i.e., the voluntary rehiring of Curreli, flies in the face of General Counsel's
argument.
It is true, however , that in addition to the suspect timing there are certain state-
ments of union animus on the day of the layoff . (See the discussion and findings
made in III, B above.) Frank Helms, who was employed by an Owosso Redi-Mix
Concrete Company that delivered concrete to the Shapiro job, testified that Buckley
said to him, "Three or four of my men tried to vote the Union in," and he said,
"Well, I think their checks will be ready tonight." Respondent testified that as he
was signing the receipt for the delivery of the concrete , Helms initiated the union
conversation and in the course of it Respondent stated, "I feel sorry for the men, I
mean, that I think this was a wrong time for them to hold a vote, when the winter
conditions are like they are when they know that half of them are going to have
to be laid off because of weather conditions ." In view of the testimony of all
witnesses as to the limited work available for rough carpenters, the winter weather
conditions of Michigan and the Respondent 's past conduct of laying off people during
December , I find Respondent 's version of this conversation to be the more con-
vincing and therefore credit his testimony as to the reasons for the layoff. See
Yutana Barge Lines, Inc., 123 NLRB 1073; Laddie Coal and Mining Co., 122
NLRB 553; and Lloyd A. Fry Roofing Company, 85 NLRB 1222; where the Board
arrived at similar results when confronted with situations of alternative motives.
While the facts in the cited cases may differ from the instant case, once having
resolved the facts, the basic reasoning of the Board is extremely apposite and the
only possible conclusion available under the statute. I am constrained to recommend
that the General Counsel 's allegation concerning the discriminatory discharge of
Curreli, Kelly, Montgomery, and Skodak on December 23, 1958, be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and such of them as have been found to constitute unfair labor practices tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act.
It will be recommended that the Respondent , upon request , make available to the
Board and its agents , payroll and other records necessary for the determination of
the amount of income loss suffered by John Curreli due to failure to work on
December 4, 1958.
Upon the above findings of fact, and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Carpenters District Council of Saginaw Valley is a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminatively laying off John Curreli for 1 day on December 4, 1958, as
found above, the Respondent engaged in an unfair labor practice within the meaning
of Section 8 (a) (3) and (1) of the Act.
4. By interfering with , restraining, and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above , the Respondent
1182 DECISION OF NATIONAL LABOR RELATIONS BOARD
has engaged in unfair labor practices within the meaning of Section 8(a) (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not discriminatively discharge John Curreli, Thurlow
Kelly, Richard Montgomery , and Clifford Skodak or discriminatively refuse to
rehire these named persons as alleged in the complaint.
[Recommendations omitted from publication.]
Detroit Plastic Products Company i and United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO 2 and
Employees Representative Association , Party to the Contract
Employees Representative Association 3 and United Rubber,
Cork, Linoleum and Plastic Workers of America, AFL-CIO
and Detroit Plastic Products Company,4 Party to the Contract.
Cases Nos. 7-CA-16926, 7-CA-1939, and 7-CB-366. March $2,
1960
DECISION AND ORDER
On July 22, 1959, Trial Examiner Alba B. Martin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
and the General Counsel filed exceptions to the Intermediate Report
and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions and modifications
noted below.
1. In agreement with the Trial Examiner, and for the reasons stated
in the Intermediate Report, we find that the Employer engaged in
surveillance of its employees for the purpose of discovering their union
sentiments thereby violating Section 8 (a) (1) of the Act.
2. As did the Trial Examiner, and for the reasons given in the
Intermediate Report, we find that ERA, by threatening employees in
order to obtain signatures for an ERA petition and to collect dues
and initiation fees, violated Section 8(b) (1) (A).
'Referred to hereinafter as the Employer.
8 Referred to hereinafter as United.
8 Referred to hereinafter as ERA..
4 The 'caption of. the Intermediate Report is hereby corrected to show the name of the
Party "to the Contract in Case No. 7-CB=866 as set forth herein.
X126 NLRB No. 138.