Bunney Bros. Construction Co.

National Labor Relations Board - Board Decisions

Dec 6, 1962

139 N.L.R.B. 1516 (N.L.R.B. 1962)

1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mexico, Oklahoma, and Texas, excluding professional employees,
confidential employees, executives, managerial employees, over-
the-road drivers, local cartage drivers, mechanics, garagemen,
dock employees, watchmen, guards, and all supervisors as defined
in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Direction of Election.
Merlyn Bunney and Clarence Bunney, partners , d/b/a Bunney
Bros. Construction Company and Harold L. Wilkins. Case No.
19-CA-2300. December 6, 1962
DECISION AND ORDER
On June 4, 1962, Trial Examiner Herman Marx issued his Inter-
mediate Report finding that the Respondents had not engaged in the
unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed, as set forth in the attached Interme-
diate Report. 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 Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and finds merit in certain exceptions of the General Counsel.
Accordingly, it hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent that they are
consistent with our decision herein.
The Trial Examiner found, and we agree, that Wilkins, the Charg-
ing Party, was discharged on September 1, 1961, for submitting a pay
claim for "show-up" time.' The issue here is whether that discharge
was unlawful. Contrary to the conclusion of the Trial Examiner, we
find that it was.
The Respondents were engaged as a subcontractor on the construc-
tion of a runway at the Oak Harbor, Washington, Naval Air Station.
Under the subcontracts, entered into with Western Contracting Cor-
poration, the general contractor, herein called Western, on July 11
and August 14, 1961, Respondents were to furnish drivers and trucks
1 "Show-up" time pay is generally that pay received for reporting to work when in fact
no work is performed because of conditions beyond the control of the employees.
139 NLRB No. 133.
BUNNEY BROS. CONSTRUCTION COMPANY 1517
to haul concrete, stone, and gravel from a batch plant located on the
airfield to the runway; it was further provided that:
Western will pay all driver payroll for trucks furnished under
the agreement and will deduct the total amount of the payroll
including required fringe benefits from the amount due Bunney
Bros.
In consequence, Western kept the drivers'time, maintained the payroll,
and paid the drivers with its own checks.
Wilkins was hired on August 5, 1961, to drive one of Respondents'
trucks on the runway project. On August 31, he and another driver,
Palmer, reported for work around 7 a.m. However, it was raining
and work on the runway was halted. About 10 a.m. Western's batch
plant foreman informed Wilkins and other drivers that there would be
no work that day and told them to report their "show-up" time to
Western's timekeeper. Whereupon, Wilkins and Palmer each reported
2 hours of "show-up" time.
The next day Merlyn Bunney, one of the Respondents, went to the
project site and instructed Western's timekeeper not to allow "show-
up" time to any of Respondents' employees without his prior approval.
Later the same morning he told employee Palmer "that anyone that
turned in `show-up' time would be fired." An hour or two after
making this statement, Merlyn Bunney left orders at Western's office
that Wilkins and Palmer be discharged that day. The order as to
Palmer was later rescinded as there was no available replacement for
him, but Wilkins was discharged.
During the period under consideration, Western was a party to a
collective-bargaining agreement with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
Union X o. 38.2 The contract provided in article VII that :
The Employer agrees that the contractors to whom subcontracts
are let shall be required to comply with all requirements, con-
ditions and intents of this agreement and shall continue to do so
throughout all parts of their subcontract work. In the case of
hired, rented, or leased equipment, the Employer will be respon-
sible to see that the wages and other conditions of employment
hereunder are furnished the driver of such equipment.
It further provided in article III that :
When an employee takes out a vehicle for one-half shift or less,
he shall receive one-half day's pay ; for over one-half shift and
less than one full day, he shall receive a full day's pay. Any
2 The agreement was in fact one between the Union and the Associated General Con-
tractors , an employer association of which Western was a member Concededly , Western
as a member of the Association was bound by the terms of the agreement
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee reporting for duty at the beginning of a shift, waiting
subject to orders, shall receive one-half day's pay at straight time
rate ... .
The General Counsel contends, inter alia, that Wilkins' discharge
was unlawful because it was motivated by his making a claim based
on the Western-Teamster collective-bargaining agreement. The Trial
Examiner rejected this argument on the grounds essentially that the
agreement was between Western and the Teamsters and therefore was
not applicable to Respondents' employees. We believe that he erred
in this conclusion. To be sure, there is no evidence that Respondents
ever formally executed any contract with the Teamsters and the situa-
tion is at best unclear as to whether it informally entered into any
arrangement with the Teamsters whereby it expressly adopted the
agreement.' However, the record shows that everybody concerned
considered that the contract was applicable to the runway job. Thus,
as to Western, the very terms of article VII quoted above obligated
Western to see that the contract was applied to all drivers on the job,
whether its own or those of subcontractors. Indeed, Western assumed
the responsibility, under its purchase orders or subcontracts, for main-
taining the driver payroll, for paying the drivers their wages includ-
ing fringe benefits, and for the payment of "show-up" time as pro-
vided under article III. In the latter connection, it has been pointed
out that it was Western's foreman who on August 31 instructed some,
if not all, of the drivers to put in for "show-up" time. And, as to the
Respondents, the record demonstrates, and we find, that the Respond-
ents left it to Western to apply those terms and conditions of em-
ployment which were applicable on the job, namely those deriving
from the aforementioned contract. In fact, Merlyn Bunney testified
that, through the purchase orders with Western, he was operating
under the terms and conditions of the Teamster contract, that he was
aware it had a provision for "show-up" time, and that he assumed
Western would pay his drivers for such time. Furthermore, Re-
spondents' counsel stated that Wilkins was working under the con-
tract and that he had "a contractual right to put in show-up time."
Lastly, Wilkins himself considered that he was entitled to "show-up"
time under the Teamster contract.4
In the circumstances, especially Respondents' agreeing to Western's
control of the payroll, their statements adverted to above, and the
fact that they apparently did not, in signing the subcontracts, specify
$ At the hearing Respondents ' counsel stipulated that the western-Teamster contract
was the one between the Respondents and their employees, and that the Respondents had
entered into such agreement with the Teamsters . However , at a later time, Merlyn
Bunney testified that no contract existed between the Respondents and the Teamsters.
Thus, in explaining why he put in for only 2 hours of " show-up" time , Wilkins stated
that that was all he thought he was entitled to under the provisions of the contract
BUNNEY BROS. CONSTRUCTION COMPANY 1519
that wage payments were to be made by Western, we conclude that
the terms and conditions of employment applicable to Respondents'
drivers on the runway project were those set forth in the Teamster-
Western contract. Accordingly, we find that Wilkins in seeking
"show-up" time was asserting a claim under the terms of that agree-
ment. It is patent that in asserting such a claim, Wilkins sought to
implement the collective-bargaining agreement applicable to him as
well as other drivers and that the implementation of such an agree-
ment by an employee is but an extension of the concerted activity giv-
ing rise to that agreement. Accordingly, it is found that Wilkins was
thereby engaging in the protected concerted activities. We, therefore,
conclude that Respondents' discharge of Wilkins for requesting
"show-up" time pay interfered with, restrained, and coerced him in
the exercise of his right to engage in such activity and, thereby, vio-
lated Section 8(a) (1) of the Act.'
As set forth above, Merlyn Bunney told employee Palmer on
August 31, 1961, that any drivers who put in for "show-up" time
would be discharged. In view of our findings with respect to Wil-
kins' discharge we conclude, contrary to the Trial Examiner, that the
statement was, as alleged in the complaint, an unlawful threat which
restrained and coerced him in the exercise of his rights under the Act.
Accordingly, we further find that the Respondents through the above
statement by Merlyn Bunney violated Section 8(a) (1) of the Act.
THE EYFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth above, occurring in
connection with their operations as set forth in the Intermediate
Report, 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.
THE REMEDY
Having found that the Respondents engaged in certain unfair
labor practices, we shall order that they cease and desist therefrom
and that they take certain affirmative action which we find necessary
to remedy, and to remove, the effects of the unfair labor practices and
to effectuate the policies of the Act.
Having found that Respondents unlawfully discharged Wilkins
for engaging in protected concerted activities, we shall order the Re-
spondents to offer him immediate and full reinstatement to his former
5 We find it unnecessary to determine whether Wilkins' discharge also violated Section
8(a) (3) of the Act.
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or substantially equivalent position , without prejudice to his sen-
iority or other rights and privileges . The Respondents shall also be
ordered to reimburse Wilkins for any loss of pay he may have suf-
fered by reason of his unlawful discharge by paying to him a sum of
money equal to the amount he would normally have earned as wages
from September 1, 1961, to the date of the Respondents ' offer of rein-
statement , less his net earnings during that period. Backpay shall
be computed as prescribed in F. W. Woolworth Company .6 Interest
at the rate of 6 percent per annum shall be added to the backpay to
be computed in the manner set forth in Isis Plumbing and Heat-
ing Co.'
Upon the basis of the above findings of fact, and upon the entire
record in the case , we make the following :
CONCLusIONs OF LAW
1. By interfering with, restraining, and coercing their employees
in the exercise of rights guaranteed in Section 7 of the Act, the
Respondents have engaged in unfair labor practices within the mean-
ing of Section 8(a) (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices
affecting 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, Merlyn Bunney and
Clarence Bunney, Partners, d/b/a Bunney Bros. Construction Com-
pany, its agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Threatening employees with discharge for seeking benefits
under the provisions of a collective-bargaining agreement.
(b) Discharging employees for seeking benefits under the provi-
sions of a collective-bargaining agreement.
(c) In any like or related manner interfering with, restraining, or
coercing their employees in the exercise of their rights protected by
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer Harold L. Wilkins immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
6 90 NLRB 289.
138 NLRB 716 Member Leedom dissents from the inclusion of interest on Respond-
ents' backpay obligations for the reasons in the dissent in the I8i8 Plumbing case.
BUNNEY BROS. CONSTRUCTION COMPANY 1521
his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered by reason of the discrimination
against him in the manner set forth in the section of the decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary or useful to an analysis of the amount of
backpay due under the terms of this Order.
(c) Post at their main place of business at Everett, Washington,
and at the locations where employees of the Respondents are employed,
including the Oak Harbor, Washington, Naval Air Station, copies of
the attached notice marked "Appendix." 8 Copies of said notice, to
be furnished by the Regional Director for the Twenty-eighth Region,
shall, after being duly signed by a representative of the Respondents,
be posted by them immediately upon receipt thereof, and be main-
tained by them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents to ensure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-eighth Region,
in writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
CHAIRMAN MCCULLocH and MEMBER RODGERS took no part in the
consideration of the above Decision and Order.
8 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 National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discharge our employees or threaten to discharge
them for seeking benefits under the provisions of a collective-
bargaining agreement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights pro-
tected by Section 7 of the Act.
WE WILL offer Harold L. Wilkins immediate and full reinstate-
ment to his former or equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for any loss of pay he may have suffered because of our unlaw-
fully discharging him.
MERLYN BUNNEY AND CLARENCE BIINNEY?
PARTNERS , D/B/A BUNNEY BROS. CONSTRIIC-
TION COMPANY,
Employer.
Dated------ ---------- By-------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full rein-
statement upon application in accordance with the Selective Service
Act after discharge from the Armed Services.
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board 's Regional
Office , 327 Logan Building, 500 Union Street, Seattle, Washington,
Telephone Number , Mutual 2-3300 , Extension 553, if they have any
question concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding , issued by the General Counsel of the National
Labor Relations Board ( also termed the Board herein ), alleges that the Respondents,
Merlyn Bunney and Clarence Bunney, Partners , d/b/a Bunney Bros. Construction
Company, have violated Section 8(a)(3) of the National Labor Relations Act, as
amended (29 U.S.C., Sec . 151, et seq.; also referred to herein as the Act), by
discriminatorily discharging an employee named Harold L. Wilkins because of ac-
tivities "on behalf of" a union ; and has by such discharge and other conduct abridged
rights guaranteed employees by Section 7 of the Act, thereby violating Section 8(a) (1)
of the statute.
The Respondents have filed an answer which , in material substance , denies that they
engaged in the unfair labor practices imputed to them in the complaint.'
Pursuant to notice duly served by the General Counsel upon all parties entitled
thereto, a hearing upon the issues in this proceeding has been held before Trial
Examiner Herman Marx at Seattle , Washington . The General Counsel and the
Respondents appeared through , and were represented by, respective counsel; par-
ticipated in the hearing; and were afforded a full opportunity to be heard , examine
and cross-examine witnesses , adduce evidence , file briefs, and submit oral argument.
No brief has been filed by any party.
Upon the entire record, and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY'S BUSINESS ; JURISDICTION OF THE BOARD
The Respondents, Clarence Bunney and Merlyn Bunney, who are, respectively,
father and son, are engaged , as copartners , under the firm name and style of Bunney
Bros. Construction Company, in the business of supplying trucking services to con-
struction contractors; and maintain their principal office and place of business in
Everett, Washington. (For convenience of reference, the enterprise will be described
herein as Bunney Bros. or the Company.)
i The complaint is based on a charge filed with the Board by Wilkins on September 21,
1961. Copies of the complaint and charge have been duly served upon the Respondents.
BUNNEY BROS. CONSTRUCTION COMPANY 1523
As the complaint alleges, and the answer admits, in the course and conduct of its
business during the year preceding the issuance of the complaint, the Company per-
formed services valued, in the aggregate, in excess of $50,000 for business enter-
prises that are engaged in interstate commerce within the meaning of the Act, and
over which the Board has asserted jurisdiction. By reason of such services, as the
answer concedes, the Company is, and has been at all times material to the issues in
this proceeding, engaged in interstate commerce within the meaning of Section 2(6)
and (7) of the Act. Accordingly, the Board has jurisdiction over the subject matter
of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local Union No. 38 (herein also called the Union), is now, and has been
at all times material to the issues in this proceeding, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
During the summer and fall of 1961, a general contractor named Western Contract-
ing Corporation (also called Western herein) was engaged in the construction of an
8,000-foot runway for the United States Government at a naval air station at Oak
Harbor, Washington, located some 60 miles from the Respondents' headquarters in
Everett. The construction facilities included a "batch plant" where paving materials
such as cement, sand, and stone were kept in bunkers from which the products were
drawn and transported by "batch truck" to the runway site not far away. Approxi-
mately 15 trucks were used in these operations, 5 of them belonging to Western, and
the balance to independent contractors who rented them to Western, supplying drivers
for the rented vehicles.
Bunney Bros. was among such contractors, supplying batch trucks and drivers in
its employ to operate such vehicles at the runway project from some point in the
latter part of July 1961 until about the end of September 1961. These services were
rendered under two written contracts (termed "purchase orders" in the record) be-
tween Western and Bunney Bros., the first dated July 14, 1961, and the second Au-
gust 14, 1961. Both instruments provided, among other things, that Western would
pay the wages of Bunney Bros.' drivers directly to such employees, and then "deduct
[the] total amount of payroll, including required fringe benefits," from the com-
pensation due Bunney Bros. under the purchase orders. To carry out these arrange-
ments, Bunney Bros.' batch-truck drivers at the project recorded their working time
and submitted the information to Western, and the latter followed the practice of pay-
ing the drivers their wages directly, and then deducting the amounts paid from the
sums due Bunney Bros.
Throughout the period of rendition of Bunney Bros.' services at the project,
Western was a party, as an employer, to a collective-bargaining agreement with
the Union, prescribing terms and conditions of employment of truckdrivers. The
only terms of the contract that need be noted here are contained in articles III
and VII of the instrument. Article III provided for compensation for "show-up"
time, specifying in that regard that an employee who reported for duty and was
in the status of "waiting [for work] subject to orders" was entitled to pay for a
half-day (4 hours). Article VII specified that subcontractors "shall be required
to comply with all the requirements, conditions and intents of this agreement,"
and that "in the case of hired, rented or leased equipment, the employer [Western]
will be responsible to see that the wages and other conditions of employment here-
under are furnished the drivers of such equipment."
Harold L. Wilkins has been in the employ of Bunney Bros. a number of
times during the past 18 years. His last such employment, which was as a batch-
truck driver at the runway project, began on or about August 5, 1961, and ended
with his discharge by Merlyn Bunney on September 1, 1961, under circumstances
to be described later. He was not a member of the Union during this last employ-
ment period, but had held such membership previously
Wilkins turned in "show-up" time to Western on two occasions during his em-
ployment at the runway project, doing so the first time about 4 or 5 days before
his dismissal on a day when he reported for work but did not perform any be-
cause inclement weather led Western to suspend hauling operations for the day.
On that occasion, Wilkins reported 2 hours of "show-up" time because he as--
672010-68-vol. 139-97
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumed that he was entitled to it under the collective-bargaining agreement , although
mistakenly believing that the contract required payment of 2 hours rather than for 4.
The second occasion was on August 31, 1961. Wilkins and another of the Com-
pany's batch-truck drivers, William S. Palmer, each driving a separate vehicle,
reported for duty in the batch-plant area about 7 a.m. that day. It had rained
the night before and was raining intermittently that morning, and , because of
the weather conditions, Western required the drivers to stand by to await a decision
as to whether hauling operations would be suspended for the day. Accordingly,
Wilkins and Palmer waited in the area for several hours.
Shortly after their arrival at the batch-plant site, Wilkins and Palmer, as was
their usual daily custom, did some cleaning work on their respective trucks. Wilkins,
as he testified credibly, washed the windows of his vehicle and pounded loose
hardened cement from various parts of the truck. In that regard, it may be noted
that the accumulation of hardened cement on the trucks was a continuing problem.
As Western's batch-plant foreman, Edward L. Morris, testified, all the trucks "are
in pretty bad shape (in appearance) . . . when they are hauling concrete,"
and the procedure customarily followed by truckowners was to maintain a coat-
ing of oil on the trucks in order to counteract the tendency of cement to harden
and adhere to the vehicles; and to defer a thorough cleaning of the trucks until
the completion of a hauling project
About 9:30 a.m. on August 31, while the drivers were still waiting for operat-
ing instructions, Merlyn Bunney came to Wilkins' truck where the latter was then
seated with Palmer and another trucking employee. At Bunneys appearance,
Wilkins' companions left to return to their own vehicles, and then Bunney asked
Wilkins what he was doing, to which Wilkins replied that he was "sitting." Bunney
also asked Wilkins why he was not engaged in cleaning his truck and Wilkins re-
sponded that it was raining 2
About 10 a.m., Foreman Morris told Wilkins that there would be no work that
day, and authorized him, as well as the other batch drivers, to report their "show-up"
time to Western's timekeeper. Wilkins and Palmer then turned in their timecards
to the timekeeper, doing so together, each reporting 2 hours of "show-up" time.
(Palmer apparently believed, like Wilkins, that the Union's contract with Western
required "show-up" time payment for 2 hours instead of 4.)
Later that day, Merlyn Bunney learned that Wilkins and Palmer had reported
their "show-up" time, and ascertained from a representative of Western named
Alread that Bunney Bros. was to be charged with the time. Bunney, as he testified,
thereupon told Alread that he wished to discharge Wilkins and Palmer.
On the morning of the following day, both Bunneys came to the project site,
and Merlyn Bunney told Western's timekeeper not to allow any of the Company's
drivers "show-up" time unless he approved it. During the course of the morn-
ing, also, Merlyn, in the presence of his father, told Palmer, as the latter testified,
"that anyone that turned in show-up time would be fired." 3
Within an hour or two after this statement, Merlyn, in effect discharging Wilkins,
left word at Western's office that Wilkins was to be terminated as of the end of
the day, and was to be paid whatever wages were due him. (According to Merlyn,
he also told Western that he was discharging Palmer, and to pay the latter his
2 In his version of the conversation , Bunney pictures himself as rebuking Wilkins for
not devoting his idle time to cleaning, and quotes Wilkins as saying that Western was
paying his " standby time," that he was not on Bunney Bros ' payroll, and that Western
had told him he "didn't have to work." I note , however, that Bunney does not quote
Wilkins to that effect in a version of the discussion he gave at an earlier point , and that
at another place he testified that he had no conversation with Wilkins regarding "show-up"
time, thus contradicting himself. Moreover , for reasons to be noted later, I am unable to
regard Bunney as a reliable witness. As Wilkins appeared to me to be more credible,
I have based findings as to the conversation on his account.
8 Merlyn Bunney denies that he made the statement Palmer imputes to him, asserting
that he told Palmer that he would not pay "for a lean sitting around on the job" I have
credited Palmer for a number of reasons For one thing, as noted earlier , Merlyn Bunney
gave a substantial volume of unreliable testimony in this proceeding For another matter,
according to Merlyn 's own testimony , when he learned from Alread that Bunney Bros.
was to be charged for "show-up" time, he expressed a wish to discharge Wilkins and
Palmer. The wish , I am persuaded , was the product of Merlyn 's hostility to the idea of
paying "show-up" time, and the existence of that attitude gives credible support to
Palmer's claim that Merlyn voiced the threat imputed to him. It may be noted , moreover,
that Clarence Bunney, although present during his son's remarks to Palmer , gave no testi-
mony supporting his son in the premises , although testifying as to other matters.
BUNNEY BROS. CONSTRUCTION COMPANY 1525
terminal wages, but changed his mind, after his father stated that no replacement
was available for Palmer, informing Western that only Wilkins was to be dis-
missed.) Wilkins learned of his dismissal at the end of the day from Western's
office manager who gave him the wages due him.
Bunney Bros. replaced Wilkins with a driver named Thompson whom Merlyn
Bunney had hired about 2 weeks earlier and had assigned to other work.
B. Discussion of the issues; concluding findings
With respect to Wilkins' dismissal, there are two basic issues. These are (1)
whether he was discharged for reporting "show-up" time he regarded as due him
under the Union's contract with Western; and (2) if that was the reason for the
dismissal, whether the discharge was unlawful as the complaint alleges.
As regards the first question, Merlyn Bunney in effect denied that Wilkins was
dismissed for claiming "show-up" time, asserting that he discharged Wilkins because
the latter had failed, despite "numerous" requests, to clean the truck "when he was
sitting on the job." Clarence Merlyn, it may be noted, although called as a witness
by the Company, and present with his son at the construction site on September 1,
gave no testimony regarding the motive for the discharge; and thus, in the nature of
things, Merlyn's credibility is a matter of prime importance in assessing the motiva-
tion. For reasons that follow below, I am unable to place any credence in his claim.
Merlyn's testimony at various points, if credited, would lead one to believe that
Wilkins' vehicle was abnormally unkempt and dirty because he disregarded the al-
legedly "numerous" requests to clean it over a period of some 6 weeks. Wilkins
actually worked at the project but little more than 3 weeks, but putting that aside, it
is noteworthy that as Merlyn's testimony proceeded, the "numerous" requests be-
come "approximately three, maybe four" between the time Wilkins was hired and
August 31. Moreover, Foreman Morris, who is a disinterested witness, and im-
pressed me as a truthful one, testified that he was "very familiar" with all the batch
vehicles and that Wilkins' truck looked "about as well" as any of the other rented
trucks at the project. Morris also stated that Wilkins' truck would have been in-
operable for cement-hauling after such use for 3 weeks unless its "batch bed" (in
which the cement was hauled) was cleaned during the time. One may fairly con-
clude that the truck was in adequate operating condition for its functions on the day
of Wilkins' discharge, for he used it for batch-hauling on September 1, indeed work-
ing overtime that day. Bearing in mind the adhesive and hardening characteristics
of cement in given circumstances, and the length of time Wilkins drove the truck, its
operable condition at the time of his discharge tends to support testimony by Wilkins
and Palmer to the effect that the former performed daily cleaning operations on the
vehicle. There is no doubt that on one or more occasions during Wilkins' employ-
ment at the project Merlyn told him to keep the truck clean, but I do not believe that
this happened "numerous" times; am convinced, particularly in view of Morris'
testimony, that the truck, taking its use into account, was not abnormally dirty, and
that Wilkins made reasonable efforts to keep it as clean as the use to which it was
put would permit; and am persuaded that Merlyn has resorted to exaggeration re-
garding his cleaning requests and the appearance of the truck in order to implement
his claim that Wilkins was discharged for neglect of duty.
Moreover, there is a considerable vein of evasiveness in Merlyn Bunney's testi-
mony, giving me the impression that he was disposed to dodge pertinent inquiry
when he felt it to be menacing to his cause . For example, he fenced with questions
dealing with Wilkins' employment status, testifying under examination by the Gen-
eral Counsel that he "guess[es]" that Bunney Bros sent Wilkins to the runway project
to drive the Company's truck; that "to be truthful . I don't know" who did so on
behalf of Bunney Bros.; that he "imagine[s]" that Wilkins was hired to drive the ve-
hicle at the project, and that he does not "know how [Wilkins] got there." The
fact is that Clarence Bunney hired Wilkins, as Merlyn himself testified at a later
point under interrogation by his own attorney; and I am persuaded that it was Mer-
lyn, as Wilkins testified credibly, who put the latter to work at the project site
Testimony Merlyn Bunney gave on the subject of "fringe benefits" is also illustra-
tive of his evasiveness. He professed ignorance of the meaning of the phrase "fringe
benefits" used in the purchase orders, despite the fact that he took part in the ne-
gotiation of their terms and signed one of them; that the trucking enterprise of which
he is a proprietor has existed for many years, and employs members of the Union;
that the phrase "fringe benefits" is one of common usage in union-management rela-
tions; that his own testimony makes clear he is knowledgeable about union working
conditions in the trucking industry in his area; and that the very Western purchase
order he signed makes provision for the deduction of the amounts of payments made
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Western for "fringe benefits" of employees of Bunney Bros. from the sums due
that concern . It is evident from the context of Merlyn 's examination on the subject
of "fringe benefits" that the interrogation had relevancy to the question whether
Bunney Bros. had observed the terms of the contract between the Union and Western
and was obligated to follow the agreement . I do not believe Merlyn 's disclaimer of
knowledge of the meaning of "fringe benefits," and am of the opinion that his profes-
sion of ignorance in the premises was an evasive tactic aimed at frustrating efforts to
get at pertinent facts.
Nor do I believe a claim by Merlyn to the effect that he hired Thompson as a
replacement for Wilkins substantially before the controversy over "show-up" time
arose. Bearing in mind that Thompson , as he testified, began work as a driver for
Bunney Bros. on August 17, the question arises why Wilkins was not discharged
soon after August 17, rather than on September 1. Merlyn Bunney's attempted ex-
planation disintegrates into patent untruth . He testified : "Part of it (the reason why
Wilkins was not replaced earlier than September 1) was that [Thompson] didn't
belong to the Teamsters Union ; therefore , he couldn 't have gotten cleared through
the union to go to work up there ( the runway project ). In Everett, there was a
shortage of truck drivers at the time . So I took him down to the union there in
Everett, . paid his union dues up and worked him on the sulphur boat ( a project
unrelated to the runway construction ) until the boat was done so he could clear the
union. Then I gave him money to go up there and relieve Wilkins the day that I
fired Wilkins." But the fact is, as Thompson testified, that he "cleared through the
union" on August 16, the day before he began to drive a truck for Burney Bros.4
Obviously, the claimed requirement of clearance by the Union does not credibly ex-
plain the alleged delay in replacing Wilkins.5
The reason for Wilkins ' dismissal is not to be found in Merlyn Bunney 's self-
serving description of his motive , but in his hostility to payment for "show-up" time.
As noted earlier , he told Palmer only an hour or two before he discharged Wilkins
"that anyone that turned in show-up time would be fired "; and, significantly enough,
Wilkins "turned in show-up time" twice during its last week of work, and his
discharge came on the day after the second time he did so. Indeed , Merlyn all but
admitted that Wilkins' report of "show-up" time on August 31 was the precipitating
cause of the discharge, for Merlyn testified that when Alread informed him on
August 31 that Bunney Bros. would have to bear the cost of the "show-up" time
reported by Wilkins and Palmer that day, he told Alread that he wished to discharge
both drivers. That Merlyn did not dismiss Palmer does not negate a conclusion
that Wilkins was discharged for reporting "show-up" time, for the evidence warrants
an inference that the reason Palmer was retained , as, in fact, Merlyn testified, was
4 Merlyn testified that he hired Thompson about August 23, stating he based his esti-
mate on Thompson 's "union book" ( shown to Merlyn , according to him , by Thompson
during a recess in Merlyn ' s testimony ), and that the book showed that Thompson "cleared
through the union" on August 24 or 25. I have based findings as to the date Thompson
began to work as a driver for Bunney Bros , and the date he joined the Union, on
Thompson's testimony, as his recollection of these matters appeared to me to he firm and
certain . In any case, even if Thompson did not join the Union until August 25, the
alleged requirement for clearance by the organization does not explain why he was not
assigned to replace Wilkins substantially before September 1
5 Thompson , who was called as a witness by the Respondents , testified that at the time
he was hired he was told by Merlyn Bunney that the Company was "going to lay a fellow
off" at the runway project . I am unable to rely on this testimony as support for Merlyn's
claim that be hired Thompson to replace Wilkins. In demeanor , Thompson appeared to
me to be something of an advocate . Moreover , the reliability of his testimony is rendered
suspect by an incident that occurred several weeks after Wilkins' dismissal, following the
filing of the charge in this proceeding On the occasion in question , Merlyn visited a
place where Palmer and Thompson were together and admittedly took each separately
aside for a talk. Contrary to a denial by Merlyn , I credit testimony by Palmer that in
Merlyn 's separate conversation with him, Merlyn threatened to withhold work from him
if he did not "stand up" for Bunney Bros in this proceeding If Merlyn and Thompson
are to be believed , the former said no more , regarding this case , in their separate con-
versation than to ask Thompson what he had heard about the investigation of the charge
One may doubt the credibility of this, to say the least , in view of the credible evidence of
what Merlyn told Palmer in their separate conversation . Because of the threat made to
Palmer, my substantial doubt of the credibility of the claims of Merlyn and Thompson as
to the course of their separate conversation , and Thompson's demeanor , noted above, I
find I am unable to rely on Thompson 's account of what was said when he was hired,
and on his description of the condition of Wilkins ' truck.
BUNNEY BROS. CONSTRUCTION COMPANY 1527
that the Company did not have a replacement available for him and was concerned
that if it discharged Palmer, without a replacement, "we would possibly lose our
job with Western." In sum , the Company discharged Wilkins because he reported
"show-up" time.
It is quite another matter, however, to say that the Company violated the Act
by the dismissal. Certainly, Wilkins was not discharged because he engaged in
"activities on behalf of the Union," as the complaint puts it. This allegation fits no
facts in this proceeding. But even if one reads the averment broadly as an allegation
that Wilkins was discharged because he engaged in a union activity, the evidence
does not spell out a violation of Section 8(a)(3), at least within the framework of
the General Counsel's theory.
The General Counsel advances no claim that there was an employment relation
between Western and Wilkins, nor that Wilkins was a member of the bargaining unit,
as an employee of Western, covered by the collective-bargaining contract between the
Union and Western. In other words, this is not a case where an employee in a
bargaining unit covered by a collective-bargaining agreement is unlawfully discharged
because he has invoked a right he has under the contract. The General Counsel's
theory treats Wilkins as an employee of Bunney Bros., and, judging by the com-
plaint, maintains that he was working "under" the contract between the Union
and Western. Thus, so the thesis appears to run, it was unlawful to discharge
Wilkins because he invoked a right due employees under the contract.
The basic error in this position, it seems to me, is its implicit assumption that
Wilkins had rights under the contract as an employee of Bunney Bros. The nub
of the matter is that Bunney Bros. was not a party to the agreement, and that
Wilkins was not subject to its terms as an employee of that firm. To be sure, the
conrtact obligated Western to require its subcontractors (hence Bunney Bros.) "to
comply with all the requirements, conditions and intents" of the agreement, and "to
see that the wages and other conditions of employment" prescribed by the contract
"are furnished the drivers" of rented vehicles, but these were obligations of Western
and not, of Bunney Bros. Western established machinery for the discharge of these
responsibilities by providing in the purchase orders that it would pay Bunney Bros.'
drivers their wages, and deduct its payments, including those made for "fringe
benefits," from the sums due Bunney Bros., but the purchase order provisions estab-
lished no collective-bargaining relationship between the Union and Bunney Bros.,
contractual or otherwise, nor did they have the effect of vesting any rights under
the Union's contract in Wilkins as an employee of Bunney Bros. That being the
case, Bunney Bros. was not inhibited by Section 8(a)(3) from terminating its em-
ployment relationship with Wilkins because he believed that he was entitled to "show-
up" time compensation under the contract between the Union and Western, and acted
upon his belief in reporting the time. Put another way, absent any contractual or
statutory requiremnt, Bunney Bros. was free to fix the basis for Wilkins' compensa-
tion, and to discharge him for seeking compensation it was not willing to pay.
Similarly, so far as the Act is concerned, Merlyn Bunney was free to tell Palmer, in
the context of circumstances in which the statement was made, that Bunney Bros.
would discharge "anyone that turned in show-up time "
Finally, I do not agree with the General Counsels' thesis that in reporting "show-up"
time Wilkins and Palmer engaged in "concerted activities" within the protective reach
of Sections 7 and 8(a) (1) of the Act. The fact that they were together when each
reported his "show-up" time does not of itself establish that they acted in concert.
There is no evidence that there was any arrangement between them to report their
"show-up" time, or that either reported his time to implement or support the action
of the other So far as appears, their actions were separate, albeit in the presence
of each other, each seeking something for himself.
The sum of the matter is that the evidence does not establish that the Company
violated the Act either in discharging Wilkins or as a result of Merlyn Bunney's
threat, voiced to Palmer, that the firm would discharge any employee who reported
"show-up" time. Accordingly, I shall recommend dismissal of the complaint.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding. I make the following:
CONCLUSIONS OF LAW
1. The Union is, and has been at all times material to this proceeding, a labor
organization within the meaning of Section 2(5) of the Act
2 Clarence Bunney and Merlyn Bunney, Partners, d/b/a Bunney Bros Con-
struction Company, are, and have been at all times material to this proceeding,
employers within the meaning of Section 2(2) of the Act.
1528 DECISIONS OF NATIONr.L LABOR RELATIONS BOARD
3. The record does not establish that the Respondents have engaged in the unfair
labor practices imputed to them in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and the
entire record ill this proceeding , it is recommended that the Board enter an order
dismissing the complaint.
Edmont, Inc. and Amalgamated Clothing Workers of America,
AFL-CIO, Charging Party
Edmont, Inc. and Amalgamated Clothing Workers of America,
AFL-CIO, Petitioner . Cases Nos. 8-CA-2652 and 8-IBC-4425.'
December 6, 1962
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On June 26, 1962, Trial Examiner Frederick U. Reel issued his
Intermediate Report in the above-entitled proceedings, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate Re-
port. The Trial Examiner also found that the Respondent had not en-
gaged in certain other unfair labor practices and recommended that the
complaint be dismissed with respect thereto. The Trial Examiner also
considered the alleged unfair labor practices as objections to conduct
affecting the results of the November 9, 1.961, election in the representa-
tion case and found that this conduct was not grounds for setting aside
that election. Thereafter, the Respondent and the Charging Party
filed exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made at the hearing herein and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, and the entire record in these cases, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner to the extent consistent with its decision herein.
We are in agreement with the Trial Examiner for the reasons enun-
ciated by him that the Respondent, by maintaining and enforcing a
rule against distribution of literature in nonworking areas during non-
working time, violated Section 8 (a) (1) of the Act, and by giving sup-
port and assistance to the Edmont Employees' Committee, violated
1 On February 19, 1962, the Board issued an order in Case No. 8-RC-4425 directing
that a hearing be held to resolve issues raised by unfair labor practice charges and directed
that such hearing be consolidated with the complaint case . At that time , the Board stated
it would hold in abeyance any determination on earlier objections to the November 9, 1961,
election. In view of our findings herein , we find it unnecessary to consider such earlier
objections.
139 NLRB No. 132.