Central Engineering and Construction Co.

National Labor Relations Board - Board Decisions

Nov 29, 1972

200 N.L.R.B. 558 (N.L.R.B. 1972)

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert J Horth, Donald A Horth, and Douglas R
Horth, a partnership d/b/a Central Engineering
and Construction Co and Edward Paul Couch and
Ronald C Capps and William Muncy, Jr Cases
25-CA-4432, 25-CA-4466, and 25-CA-4530
November 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 13, 1972, Administrative Law Judge'
Jerry B Stone issued the attached Decision in this
proceeding Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent also filed exceptions and a supporting brief 2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Robert J Horth, Donald A
Horth, and Douglas R. Horth, a partnership d/b/a
Central Engineering and Construction Co, Indian-
apolis, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the
Administrative Law Judge's recommended Order
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19 1972
2 Because in our opinion the record and the exceptions and the briefs
adequately set forth the issues and positions of the parties the Respondent s
request for oral argument is hereby denied
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B STONE, Trial Examiner This proceeding under
Section 10(b) of the National Labor Relations Act, as
amended, was tried pursuant to due notice on January 11,
12, 13, 14, and 15, 1972, at Indianapolis, Indiana
The original charge in Case 25-CA-4432 was filed on
July 19 and served on Respondent on July 21, 1971 The
original charge in Case 25-CA-4466 was filed on August 5
and served on Respondent on August 5, 1971 The original
charge in Case 25-CA-4530 was filed on September 14 and
served on Respondent on September 16, 1971
Cases 25-CA-4432 and 4466 were consolidated on
September 30, 1971 A consolidated complaint for these
Cases was issued on September 30, 1971 Thereafter on
October 29 , 1971, Cases 25-CA-4432, 4466 , and 4530 were
consolidated On October 29, 1971, a complaint was issued
with respect to Case 25 -CA-4530
The issues essentially concern allegations of (1) unlawful
interrogation and threats in violation of Section 8(a)(1) of
the Act , (2) several layoffs of employees in violation of
Section 8(a)(3) and (1) of the Act, and (3) several layoffs
and terminations of employees in violation of Section
8(a)(3) and (1) of the Act
All parties were afforded full opportunity to participate
in the proceeding Oral argument was made by the
Respondent at the hearing and has been considered Bnefs
have been filed by the General Counsel and Respondent
and have been considered
Upon the entire record in the case and from my
observation of witnesses , I hereby make the following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Robert J Horth, Donald A Horth , and Douglas R
Horth are , and have been at all times material herein,
partners doing business under the trade name and style of
Central Engineering and Construction Co
Respondent is now, and has been at all times material
herein , a partnership with its place of business at
Indianapolis , Indiana It is engaged in the business of
construction
During a representative 12-month period , Respondent,
in the course and conduct of its business operations,
purchased , transferred, and delivered to its Indiana
jobsites , goods and materials valued in excess of $50,000
which were transported to said jobsites directly from States
other than the State of Indiana
During a representative 12-month period , Respondent,
in the course and conduct of its business operations,
performed services valued in excess of $50,000 in States
other than Indiana wherein Respondent is located
Annually, Respondent , in the course and conduct of its
business operations , furnished services valued in excess of
$50,000 which had a substantial impact on the national
defense
Based on the foregoing , and as conceded by Respondent,
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act It is so
concluded and found
II THE LABOR ORGANIZATION INVOLVED
Local 716, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein referred to as Teamsters Union), and Local 274 and
Local 204, Laborers' International Union of North
America, AFL-CIO (herein referred to individually and
collectively as Laborers Union), each is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act
200 NLRB No 71
CENTRAL ENGINEERING & CONSTRUCTION CO 559
III THE UNFAIR LABOR PRACTICES
A Preliminary Issues
Supervisory Status
At all times material herein, the following named persons
occupied positions set opposite their respective names, and
have been and are now agents of the Respondent, acting
on its behalf, and are supervisors within the meaning of
Section 2(11) of the Act
Robert J Horth-partner
Donald A Horth-partner
Douglas R Horth-partner
George H Jones-foreman
Bobby Swafford-foreman
Howard Sizemore-foreman
B Background
The Respondent , Central Engineering and Construction
Co , is a general partnership owned and operated by three
brothers (Donald Horth , Robert Horth , and Douglas
Horth) The enterprise was founded in 1934 by the father
of the aforesaid brothers and has been operated since
World War II by these three brothers
It appears that union organizational efforts among
Respondent 's employees occurred in the late 1930's From
that time to date Respondent has had collective -bargaining
relationships and contracts with various unions, including
the Laborers , Teamsters , and Operating Engineers
From the late 1930's to 1970, the facts are clear that the
Respondent has a clean record as regards questions of
unfair labor practices, attitude toward unionism, and
handling of grievances Union business agents, during such
time, regularly visited jobsites and from time to time raised
various issues Most of these issues were resolved informal-
ly
In sum , the evidence reveals that prior to mid- 1970,
Respondent had an exemplary record with respect to its
handling of labor relations
Family Relationship of Employees and Supervisors
The issue in this case concerns Respondent's conduct
directed toward employees William Muncy, Edward P
Couch, Ronald Capps, and James Gray Many of the
supervisors and employees involved in the incidents in this
proceeding are related (by blood or marriage) or have close
family ties Thus Foreman Howard Sizemore, Ricky
Sizemore, William Muncy, Ferns Couch, and Edward P
Couch all appear to have some degree of relationship, one
to the other Foreman George Jones, supervisor of Capps
and Gray, has on his work crew a son, Roy Jones
C Events Concerning Muncy
The General Counsel contends that (1) Respondent, by
Supervisor Howard Sizemore, on or about April 9, 1971,
threatened its employees with physical violence and other
unspecified reprisals for filing charges and giving testimo-
ny to the Board, (2) Respondent, on or about April 15 and
16, 1971, discriminated against William Muncy, Jr, in
regard to hire or tenure of employment, by refusing to
permit said employee to start work upon his arrival, and (3)
Respondent did discharge or lay off and failed and refused
and has continued to fail and refuse to rt call or reinstate
Muncy because he had filed charges with the Board,
engaged in union activity, engaged in protected concerted
activity, and because Respondent believed he had done so
William Muncy, Jr, commenced working for Respon-
dent as a laborer in mid-1970 His foreman was Howard
Sizemore, his uncle (by marriage)
Thereafter and until around the first of December 1970,
it may be said that Muncy complained to his uncle and to
the Laborers Union on a number of occasions that he was
not being paid correctly according to the collective-
bargaining agreement The problem seems to have been
engendered by the fact that Respondent employs employ-
ees for work on sanitary sewers and storm sewers The
collective-bargaining agreements provide for different
wage rates for employees, depending upon whether the
work involved is sanitary sewers or storm sewers It
appears that it is difficult to know which work is being
performed by mere observation of the work As to whether
Muncy was correct or not in his complaint, it may be said
that the facts are insufficient for such a determination
Further, if the facts submitted were to be sufficient to
warrant a determination that Muncy was correct in his
complaint, the facts are still insufficient to warrant a
determination that Respondent had madt such improper
determination of wage rates other than by simple mistake
The Laborers Union's representative investigated Mun-
cy's complaints about his wage rates and contacted the
Respondent, and it was determined that Muncy was being
paid according to the correct wage rates
As indicated, Muncy made a number of complaints to
his foreman and to the Union during the period of mid-
1970 to December 1970 about receiving an improper wage
rate for his work After disposition of his second complaint
around mid-1970, Foreman Howard Sizemore spoke to
Muncy, told Muncy that he could call the union business
agent if he had cause, but that he (Sizemore) didn't have
time to spend with him if he didn't have a cause Foreman
Sizemore told Muncy in effect that if he had the Union out
on the job again without cause that he would have to let
him go i
As the facts otherwise reveal, Muncy had the Union out
on the job on other complaints in 1970 The facts reveal,
excepting for the December layoff, that Muncy was not
laid off or discharged on such occasions
Around the same time, Foreman Howard Sizemore
spoke to employee Edward P Couch, at Couch's home,
about Muncy As previously noted, Sizemore, Couch, and
Muncy are all related by blood or marriage Couch's
testimony as to what occurred is piecemeal in nature
Considering the logical consistency of all the evidence, I
am not persuaded that it reveals the facts completely
I The facts are based on a composite of the credited aspects of the their conclusion of what had occurred and that each testified to the fact, in
testimony of both Muncy and Sizemore The testimony of both witnesses a light favorable to himself The testimony of each witness to facts
was presented in a piecemeal fashion I am persuaded that both testified to contradictory of the facts found is discredited
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, I am persuaded that Sizemore spoke of the fact that
he considered that Muncy was making complaints which
were without cause I credit Couch's testimony to the effect
that as part of the conversation Foreman Howard
Sizemore stated that "If Muncy had union men out on the
job one more time he'd have to let him go " I am persuaded
that this was in the context of other statements about
Muncy making uncalled-for complaints and was intended
to convey that Muncy would be laid off if Muncy made
other uncalled-for complaints 2
Sometime in the fall of 1970, Muncy worked on a
holiday According to the collective-bargaining agreement
involved, this holiday work entitled him to premium pay
for such work Respondent did not pay Muncy for such
work at the premium rate It appears that Muncy
complained to Foreman Sizemore about this matter It also
appears that Foreman Sizemore expressed the position that
the day involved was not a holiday under the contract
Muncy contacted the Laborers Union 3 The Union
thereafter settled this grievance with the Respondent with
the result that Muncy was ultimately paid for the holiday
at the contract premium rate
After the union representative, around December 1,
1970, told Foreman Sizemore that Muncy (and apparently
others) was entitled to holiday pay for the particular day's
work On the same day Foreman Sizemore and Muncy had
an argument In the conversation Foreman Sizemore told
Muncy that he was a "troublemaker "
Following the foregoing, the Respondent, on the same
day, laid Muncy off from work Muncy was on layoff
status from this date until March 26, 1971 After his layoff
in December 1970, Muncy filed, on December 4, 1970, an
unfair labor practice charge concerning his layoff This
unfair labor practice charge was settled by Respondent on
February 8, 1971 Muncy filed another charge on March
15, 1971 This charge was dismissed on April 30, 1971
Muncy testified to the effect that he filed the second
unfair labor practice charge on March 15, 1971, because
the rest of the crew had been returned to work after the
settlement of the first charge and he hadn't been returned
to work
The record is silent as to whether Respondent, on
December 1, 1970, or thereabout, laid off Muncy only or
whether others on the crew were also laid off Muncy's
testimony about the "rest of the crew" being returned to
work suggests that he was not the only one laid off around
the time In sum, the totality of the facts relating to
Muncy's layoff on December 1, 1970, does not reveal a
basis for inference that the layoff was discriminatorily
motivated
Muncy returned to work during the last part of March
1971 Muncy testified to the effect that he was late and that
Foreman Sizemore required him to wait the rest of the half
hour before starting to work Muncy in his testimony did
not indicate how many minutes he was late Foreman
2 Couch testified that Foreman Sizemore also suggested that Don
(Horth) had told him if he had the union men out there one more time to
get rid of him Considering Couch s total testimony on this point I am
persuaded that Couch s testimony is an interpretation of what he believed
was said concerning Horth s alleged remarks and not what was said I
therefore do not credit Couch s testimony to the effect that Sizemore related
that Horth had in effect told him to get rid of Muncy if he had the Union
Sizemore testified in effect that Muncy reported to work
half an hour late and was immediately put to work
As indicated later, there is a contention that Respondent
on another date discriminated against Muncy by not
allowing him to go to work when he and Couch were late
and Couch was allowed to start work immediately In
reference to this issue Muncy testified to the effect that he
knew of an occasion in the summer of 1971 when a
temporary replacement to employee James Turner, Jr,
reported to work late around 15 minutes in the morning
and afternoon of a Friday and was allowed to start work
immediately 4 It is sufficient to say that the evidence as to
Respondent's handling of latenesses is not sufficient to
reveal that Respondent's actions with regard to Muncy as
to lateness is discriminatory in nature Further, noting
Muncy's testimony as to the number of minutes he was late
on other occasions , I am persuaded that Foreman
Sizemore's testimony is more correct as to the incident in
late March , and I credit his testimony as to this incident
over Muncy's I am persuaded that Muncy was either 30
minutes late or so close thereto that it would make no
practical difference
Events-Circa April 9
As indicated, the General Counsel contends in effect that
Foreman Howard Sizemore threatened Muncy on April 9,
1971, because he filed charges with the National Labor
Relations Board
Witnesses Muncy, Couch, Turner , and Sizemore testified
with reference to the events circa April 9, 1971 An
examination of the exhibit relating to payroll records and
the events concerning Muncy and Couch being late reveals
such event to have occurred on April 20 and 21 Muncy
testified to the effect that the event of the "threat"
occurred about 2 weeks before the event of his and
Couch's being late to work I find as a fact that the event of
the "threat" occurred circa April 9
Around April 9, 1971, Muncy was at work He
apparently was handling pipe which was being placed in a
ditch Foreman Howard Sizemore came to the place where
Muncy was working Sizemore and Muncy commenced a
conversation Muncy asked Sizemore about the next job
that the crew would be doing Sizemore told Muncy that
they would finish the sanitary sewer work first and then
start doing storm sewer work Muncy stated that he didn't
like receiving the lower rate (for storm sewer) for the work,
that he did not want to catch the truckdriver doing any
work, and that if the truckdriver worked he would call the
union business agent out Foreman Sizemore told Muncy
to go right ahead and call the business agent and they
would try to get this thing straightened out Foreman
Sizemore told Muncy that he guessed that Muncy knew the
contract pretty good Muncy replied in effect that he knew
it fairly well Foreman Sizemore told Muncy that the only
out one more time Considering the facts are whole I do not believe that
North issued such instructions or that Sizemore had told Couch that such
had been done
3 The two collective bargaining agreements relating to sewer and
sanitary work differed as to the specific holidays
4 Apparently referring to employee Simms who worked in July 1971
CENTRAL ENGINEERING & CONSTRUCTION CO
thing he knew about was getting into trouble, that he had
lied on him (Sizemore) Muncy asked Sizemore in effect if
he meant that he had lied on him when he went to the
Board Sizemore replied in effect that this was what he was
talking about What occurred at this puncture is best
revealed from the following credited excerpts of Muncy's
testimony 5
A Howard Sizemore and I said "are you meaning
when I went to the Labor Board" and he said "yes,"
and I said , "no, I didn't lie You lied," and when he
said that , I said "no," or rather I told him, I said "I
didn't lie on you You're the one that was Tieing" and
he started to swing back and I took it that he was going
to hit me with his hand back, so he told me at the time
"you call me again and I'll knock your ass off " Those
were the words he used And when he said that, well
one of the men standing by backed off and he thought
we were going to fight so I told him, I said, "well I call
it like I see it and that's the only way I see it" and then
he told me again , we changed positions again, he was
on the other side of me again and he told me again, he
said, "if we were off the job and wasn't working on
working hours I'd knock your ass off " That's what he
said again, and I said "the day you hit me will be the
day you die "
Later that day the argument renewed What occurred is
revealed by the following credited excerpts from the
testimony of James Turner, Jr
Q Tell us now right there when you were closing
up the trailer, what did they say to one another, as near
as you can remember?
A As near as I can remember, Bill went up to
Howard and was talking to him about, you know, who
had lied earlier in the year and calling each other liars
and Howard didn't like his being called a liar too
much, you know They almost got into a fight over it
and, well, there wasn't too much said He just said,
"Howard, I am not scared of you You'd better go on
ahead home " So, Howard went on back to his truck
and got in his truck and then he drove off and we were
sitting there , you know and he came over to us and was
talking to us
As indicated, the General Counsel contends that
Respondent, by Foreman Howard Sizemore, threatened
employees with physical violence and other unspecified
reprisals for filing charges and giving testimony to the
Board Considering the event in totality, I am persuaded
that the "threat" by Sizemore was directed to Muncy's
accusation that Sizemore had lied In total context the
threat was not directed to the fact that Muncy had filed
charges or given testimony In sum, the occurrence was a
simple argument over who lied and reflected a threat to
Muncy for stating that Sizemore had lied Accordingly, it
will be recommended that the 8(a)(1) allegation as to
threats relating to the filing of a charge or giving testimony
be dismissed
5 Considering the totality of the evidence and logical consistency thereof
I find the facts as indicated and discredit the testimony of witnesses to a
Events of April 20 and 21, 1971
561
The General Counsel alleged in effect that Respondent
discriminated against William Muncy, Jr, on April 15 or
16 in regard to hire or tenure of employment by refusing to
permit said employee to start work upon his arrival A
consideration of the testimony and employment records
reveals that the event in question occurred on April 21,
1971
Muncy was 12 minutes late when he reported to work on
April 20 , 1971 Foreman Howard Sizemore required
Muncy to wait until the end of the half hour period before
going to work As previously indicated, considering all of
the facts , such requirement does not rt veal an act of
discrimination by Respondent
The facts reveal that employee Ferris Couch was sick
and absent from work on April 20 As the facts have
previously shown , Foreman Howard Sizemore, Fel ns
Couch, and William Muncy , Jr, are all related by blood or
marriage
Later that morning , Foreman Howard Sizemore and
William Muncy, Jr, had a conversation about Fel ns
Couch as is revealed by the following credited excerpts
from Muncy's testimony
A So I waited and he told me on that date, about
10 00 o'clock he told me to tell Ferns Couch , that's the
one that was in bed sick , that he wouldn't have any
work for him the next day and I asked him at that time,
I said, "you mean we are not working tomorrow," and
he said , "no, we're working, but we don't have any
work for Ferns because when a man takes off from
work for one day we are going to make him take off
another day" and I told him then , I said its not my job
to tell Ferns that he's laid off
The next morning Muncy and Couch reported to work
late The facts are revealed by the following credited
excerpts from Muncy's testimony
A Well, Ferns had car trouble and I had to go get
him and we got there approximately seven minutes late
and when we got there , Don Horth met us as we got
out of the car and he came up to us and he said , "okay,
what's it going to be, are we going to work here or
not?" He held out a pocket watch and he said, "what
time is its Just tell me what time it is, look at that and
tell me what time it is9 Do you boys want to work here"
and I looked at him and told him what time his wal ch
said The watch said about 22 minutes to 8 00 Then he
was talking kind of loud and I told him , "now before
we get started don't you go cussing and talking loud at
me," and he said , "well I am not cursing I'm just
showing you the time" and I said, "you're talking, a
little loud Now lower your voice and talk to me like
I'm a man" and he did, and we went on over to the job
site where they were getting ready to lay pipe and
Ferns asked Howard if he wanted him to go ahead and
go to work and he said "yes," and I asked him if he
wanted me to go ahead and go to work and he said,
"no, you wait for the half hour "
contrary effect
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A Yes, he permitted Ferns Couch to go to work
and told me to wait until the half hour was over and I
was standing by the truck and Don Horth said, "are
you going to go to work or not," and I told him at the
time "well Howard told me to wait for the half hour "
So, Howard took me on up to where there was a
manhole and had me beat out a manhole and left at
that time Then he came back and then Ferns came out
of the ditch and started talking to him and I was up
there beating out a manhole and Don Horth was
standing by the truck and we were talking and Don
Horth came up and talked to me
What occurred then is revealed by the following credited
excerpts of Ferris Couch's testimony
A Yes Then Don left and after awhile he came
back and at that time I got out of the ditch and I went
up and asked Don Horth, "do you think that was the
right way to talk to me," for being late six or seven
minutes after working for him for 14 or 15 years, and
he apologized for saying it and he said he was just mad
and I said "don't talk to me that way anymore" and he
,said he was mad, and I said "all right, forget it," and I
walked back over and went to work
Donald Horth then walked over to where Muncy was
What occurred is revealed by the following credited
excerpts from Muncy's testimony
A I wasn't talking in the conversation when they
were standing by the truck Ferris Couch, Sizemore and
Don Horth as far as I know, were in the conversation
and Don Horth came up to me and he apologized to
me for getting on to me that morning and he said
everybody gets mad and loses their head sometimes, at
one time or another, and at that time I brought it up to
him that that was the second time that Howard
Sizemore discriminated against me and I asked him
whether that was discrimination or not- I guess
everybody gets a little mad once or twice, and I
brought it to his attention about Howard Sizemore, the
way he discriminated against me, about making me
wait to go to work and letting Ferris Couch go ahead
and go to work and he said, "don't worry about it, you
are not going to be docked any time on it" and I said,
"that's not the issue, the point is, how he treated me " I
said its not fair for him to do like that and to my
recollection he never did anything about it because as
far as I know nothing was done about it
During this conversation Muncy related to Horth the
early April threat incident as is revealed by the following
credited excerpts of Muncy's testimony 6
THE WITNESS Well, he came up to me, like I said,
and apologized for blowing his stack that morning and
he said I guess everybody gets a little mad once or
twice, and I brought it to his attention about Howard
Sizemore, the way he discriminated against me, about
making me wait to go to work
Considering the foregoing facts and all of the facts in the
case, I am persuaded that the General Counsel has not
6 Muncy s testimony on this point appeared confused as to the time
sequence of when he so related the incident Considering the logical
consistency of the facts I place the timing as indicated
established that Respondent engaged in unlawful discrimi-
natory acts against Muncy on April 21, 1971 Thus the
facts reveal that, irrespective of his protected concerted
activities, Muncy was a difficult employee to handle He
refused to cooperate with his uncle, Foreman Howard
Sizemore, in telling Ferns Couch not to report to work on
April 21 He challenged Partner Donald Horth as to his
tone of voice and conduct when the lateness issue arose on
April 21, 1971 The disparate treatment accorded Muncy
as compared to Couch in allowing Couch to immediately
go to work appears logically to be a realistic reprisal for his
lack of cooperation in refusing to tell Couch to remain
away from work for that day Further, Partner Donald
Horth took every step that a reasonable Respondent could
be expected to take in solving an on-the-job problem
Muncy was not docked for the time he was late on April
21, 1971 Horth clearly revealed that it was Respondent's
position that past problems had been solved In sum, I find
that the General Counsel has not established that Respon-
dent engaged in discriminatory acts against Muncy as
alleged on April 15 or 16, 1971
There was testimony presented by witnesses Muncy,
Sizemore, Horth, and Gilbert relating to complaint and
grievances engendered by Muncy pertaining to the wage
rates for storm and sanitary sewers and to truckdrivers
doing laborers' work The testimony of the witnesses may
be said to have expressed the timing of such events in a
general and imprecise manner excepting for the details
concerning the meetings of union representatives and
company representatives on or about April 26, 1971
Considering all of the testimony and the logical
consistency of all the facts, it appears that the following
summation of complaints and grievances is proper Muncy
consistently throughout his employment complained to
Foreman Howard Sizemore and union officials at various
times about the wage rates on jobs, that when paid storm
sewer wage rates, he should be paid sanitary sewer wage
rates It also appears that prior to circa April 9, Muncy
complained to Foreman Howard Sizemore that truckdnver
Couch was doing laborers' work It appears that, around
April 19, 1971, Muncy complained about truckdriver
Couch's doing laborers' work to Foreman Howard Size-
more
It appears that Muncy complained to the Union around
this time about the wage rates and also about truckdriver
Couch's engaging in laborers' work It appears that 2 or 3
days later, apparently around April 22,7 Umon Represent-
ative Turner appeared on the job and discussed the
questions of wage rates and of a truckdriver doing laborers'
work with Foreman Howard Sizemore and Muncy Umon
Representative Turner indicated to Foreman Sizemore that
he was not up on the contract but would have Union
Representative Gilbert check into this matter
Union Representative Turner on this occasion also spoke
about truckdnver Couch's performing laborers' work as is
revealed by the following credited excerpt of Muncy's
testimony
A Well, like I said, I had him out there because of
7 If the union representative had appeared on the job on April 20 or 21 I
am persuaded that specific testimony would have tied it in to the events of
those days
CENTRAL ENGINEERING & CONSTRUCTION CO
the truck driver doing laborer's work and he told
Howard Sizemore the truck driver wasn't supposed to
be doing laborer's work and I went over and talked to
him and Howard came over and he looked at me and
told me to look at Couch and then he asked me, "what
have you got against that boy?" He said "if he can't do
laborer's work around here I can't afford to pay him
for coming here and not doing anything , just doing
truck driver's work If he can't do laborer 's work I'll
have to lay him off "
Foreman Howard Sizemore reported to Partner Don
Horth that Muncy was complaining about truckdriver
Couch's performing laborers' work Partner Don Horth
decided to transfer Couch to another crew, and Couch was
transferred to Foreman Swafford's crew on April 26, 1971
On April 26, 1971, Union Representative Gilbert went to
the Respondent 's place of business and discussed the
contract and wage rates The Respondent explained its
position as to the different types of work , and the matter
seems to have been resolved without any conclusion that
Muncy was entitled to higher rates of pay for work
performed The Union also appears to have decided to
appoint a steward on the job at this time The Union
appointed Ferris Couch to be its steward It is clear that
the Union appointed a steward at this time so as to ease its
plight in handling the contentions of grievances by Muncy
The facts reveal that Muncy worked from March 26 to
August 20 , 1971, without any events of significance
excepting those previously set forth I find it proper,
however, to make notation about the evidence and
testimony relating to (1) complaints and grievances and (2)
the type of work performed by Muncy
As indicated previously, the evidence relating to the
number of Muncy's complaints and grievances was
presented in a somewhat general and imprecise manner
Muncy testified to the effect that he complained some
seven or nine times about the wage rate problem It is clear
that some of these complaints occurred in 1970 and some
prior to April 26, 1971 It is not clear whether Muncy made
any complaints about wage rates after April 26, 1971 The
facts also reveal that other complaints were made by other
employees to the Union about contract problems
At the hearing the General Counsel adduced testimony
through Muncy which appeared to be directed toward
establishing that Foreman Sizemore assigned more harsh
work assignments to Muncy after the circa April 9, 1971,
argument between Sizemore and Muncy Muncy ultimate-
ly appeared to be testifying that such type assignments
occurred in 1970 after he had started calling the Union As
indicated, much of the testimony and evidence in this case
was presented in a general and imprecise manner Muncy's
testimony revealed that he started working for Respondent
in either June or July 1970, that at some point of time in
1970 he made complaints about wage rates, that when he
first started work, two men were normally assigned to
"busting out" manholes, that during the period of time he
worked he busted out some 40 to 50 manholes, that after
the circa April 9 argument he busted out approximately 10
manholes, and that there was a safety rule requiring two
men working when one was finishing cement in the bottom
of the manholes after placement in the ground Donald
563
Horth 's credited testimony reveals that the manholes are
precast and "busted" out above ground , that two men
normally work in the manholes when one is finishing
cement in the bottom of the manholes, that 40 or 45
manholes were busted out between May 1971 and August
20, 1971 , and that there were four men who did this type of
work
In sum , the evidence does not establish that Muricy
received more harsh assignments of work The critical
question would appear to be a comparison of Munc y's
work assignments during the time involved The facts
indicate that Muncy "busted out" approximaTely 10
manholes during an approximately 4-month period and
that most of these he worked on by himself This would not
appear to be greatly significant It is also noted that the
General Counsel 's evidence as to what Muncy observed
about work that normally was done when he first began
work does not reveal the working circumstances at the time
or whether the period of time itself was a normal period
Thus, the General Counsel 's evidence does not reveal what
assignments were made to other employees during the
period of time involved or whether other employees were
also required to "bust out" manholes by themselves In
sum, the evidence is not sufficient to establish that
Respondent made more harsh work assignments to
Muncy
Muncy did not work during the period of time from
August 20 to September 7, 1971 It appears that on or
around August 20 Muncy had a fight with David Sizemore,
that David Sizemore is Foreman Howard Sizemore's
brother, that Muncy received cuts in the fight, and that
Muncy was away from work during the period of time
from August 20 to September 7, 1971, because of such
injuries It also appears that Muncy had a second fight
during the same period of time
Muncy appeared on September 7, 19711, before work-
time, at the Respondent's jobsite where the crew he
normally worked with was working Foreman Howard
Sizemore noticed his presence What occurred is revealed
by the following excerpts of Howard Sizemore 's testimony
A Well, he was sitting there on the job and Don
Horth drove up dust before work time and I told him, I
said, "Muncy is back to work " I said "Ire is here What
do you want to do with him" and he said, "well, we
haven't got anything In fact, I am going to have to lay
all of them off later this week We have run out of
work" and he said , "do you want me to tell him" and I
said, "yes, I would rather you tell him" because I felt
maybe he might be mad at me
A Don walked up to the truck where he was and
just told him he didn 't have anything for him He was
going to have to lay the whole gang off later that week
He didn't have any work
*
A Well, Muncy wanted to know if the rest of the
men were going to work and he said , ` yes, they were
going to work the rest of the week We haven't got
anything to speak of but" he said, "they are going to
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work " So, as far as I was concerned, that was all that
was said
Since a part of General Counsel's case concerns
contentions about seniority, I note that the facts reveal that
employees James Turner, Jr and Ricky Sizemore were
hired as employees after Muncy was hired, that they
worked during the week after September 7, that Ricky
Sizemore was employed on occasion thereafter on other
jobs, that there were employees on the same crew who had
been hired by Respondent before the hiring of Muncy, that
such employees were not employed for work on the
subsequent occasions that Ricky Sizemore was used, and
that Ricky Sizemore is the son of Howard Sizemore
Further with respect to the question of seniority, I find it
proper to note the following The collective-bargaining
agreements between Respondent and labor organizations
in the record reveal that these are seniority provisions in
the Teamsters contract but not in the Laborers contract
There is some testimony in the record as to whether certain
individuals were hired before or after other individuals
There are also exhibits in the record revealing the dates of
employment of named employees during April through
December 1971 There is also some testimony in the record
as to when several individuals were hired in 1970
The General Counsel introduced an exhibit relating to
payroll records from April through December 1971, and a
listing of jobs engaged in by Respondent The General
Counsel adduced testimony to the effect that certain data
on the payroll exhibits, when considered with the job
listing exhibit, would reveal the jobs on which employees
worked at various times Further, the General Counsel
adduced testimony that certain numerical data would
reveal individual foreman and gangs It suffices to say that
these exhibits, in and of themselves when considered with
such testimony, reveal that the first name on the list can be
ascertained as a foreman The facts reveal that the same
number is assigned to one or more foremen Thus, without
other specific evidence, the data, in and of itself would not
reveal precisely the names of employees working under a
named foreman or who the other foremen are
The General Counsel also adduced testimony to the
effect that the hourly rate data in such payroll exhibit
would reveal whether or not the individual employee was a
Teamster or a Laborer Thus this would follow because
knowledge of the collective-bargaining agreement pay rates
would result in such deduction I am persuaded that
witness Douglas Horth testified to what he truthfully
believed I also am persuaded that he or others with his
knowledge could make reasonably accurate determination
as indicated However, I note that the collective-bargaining
agreements contain some wage scales that are similar for
Teamsters and Laborers The data, in and of itself, will not
reveal whether or not many of the employees are
Teamsters or Laborers
Further, I note that with proper testimony or other facts,
data might indicate a pattern of seniority or lack thereof
during April through December 1971 There is no
testimony as to specific layoffs in 1971 excepting for one in
June and the other in December 1971
The General Counsel was adverted to this problem as he
presented his evidence and indicated that he knew
precisely what the records showed Further, the parties
were adverted to point out specifically in their briefs what
was the persuasive evidence in the large number of
exhibits, and that if they did not do so, they would not be
considered The briefs submitted do not touch the above
point
Further with respect to the question of semonty, it may
be noted that there was evidence as to several Teamsters
employees and their hiring dates or membership in the
Teamsters as compared to Couch The General Counsel
also adduced testimony through several employee witness-
es as to what occurred at times of layoff The testimony
was of such a nature that it may not be said to have been
directed to any specific layoff in time I am persuaded that
such testimony at most reflects such employees' conclusion
that on the occasions they remembered that younger
employees (in terms of hiring dates) were laid off and that
older employees were retained or moved to other crews
The Respondent's witnesses testified to the effect that, as
to Laborers, seniority was not a controlling factor in
layoffs or retentions, that if they kept employees at times of
layoff, they kept the best employees or transferred them to
other crews, and that if ability of employees were equal,
seniority was considered The General Counsel by cross-
examination of Respondent's witness attempted to show
that in 1970 Respondent utilized seniority as a basis in the
December 1970 layoff of Muncy Thus, Respondent's
witnesses, Foreman Howard Sizemore and Partner Donald
Horth had given affidavits in early 1971 to the effect that
Horth had told Sizemore to lay off Muncy because he was
the youngest one Witness Donald Horth testified to the
effect that he knew who the best man was at the time
Considering the totality of the evidence, I am persuaded
that testimony of Respondent's witnesses to the effect that
seniority was not the controlling factor in layoffs or
retentions is more credible than testimony of General
Counsel's witnesses as to the manner of layoffs I credit
testimony of Respondent's witnesses relating to the
practice and factors concerning layoffs and retention I
note that in September 1971, Ricky Sizemore was retained
and employed further despite less seniority than Ferns
Couch In sum, I would further note that General
Counsel's evidence relating to documentary data is not
sufficiently correlated with other evidence as to reveal the
seniority of most of Respondent's employees Thus, it has
little value in attempting to find any pattern of seniority
practice
Conclusion
The General Counsel contends in effect that Respondent
discharged or laid off Muncy on September 7, 1971, for
discriminatory reasons because he filed grievances and
because he had filed charges with the Board Considering
all of the foregoing and all of the facts in the case, I am
persuaded that the facts are insufficient to make such
finding The facts reveal that (1) Muncy had instituted
many contract grievances and had filed charges with the
Board, (2) Respondent considered Muncy to be a trouble-
maker, and (3) Respondent had not discriminated against
Muncy prior to the event in question, and the facts indicate
that Respondent discriminatorily considered Capps and
CENTRAL ENGINEERING & CONSTRUCTION CO
Gray for reemployment after they filed charges with the
Board In total context , however, Respondent appears to
have attempted to solve many problems of friction without
discrimination although circumstances seem to support a
possible reason to cause discriminatory consideration
The facts reveal that Respondent did not consider
seniority as a controlling factor and that as to the
September layoff did not follow seniority as to the layoff of
other employees Since Respondent contemplated an
almost immediate layoff of Muncy's crew during the week
of September 7, I find it very reasonable that Muncy, who
had been away from work since August 20, was not put
back to work on September 7, 1971 Accordingly, I
conclude and find that Respondent did not discharge or
lay off Muncy on September 7, 1971, in violation of
Section 8(a)(1), (3), and (4) of the Act 8
D Events Concerning Edward P Couch
Edward P Couch was hired as a truckdriver by
Respondent in September 1970 After being employed,
Couch became a member of the Teamsters Union during
September 1970 During 1970 and until around April 26,
1971, employee Muncy complained about Respondent's
use of Couch, a teamster truckdriver, in laboring work As
a solution to this problem, Respondent transferred Couch
from Foreman Howard Sizemore's crew to Foreman
Bobby Swafford's crew on or about April 26, 1971
Nothing unusual concerning Respondent and Couch
seems to have occurred until the occasion of his going
home ill one day and a following day layoff The testimony
and evidence relating to these events and a subsequent
grievance filed by Couch is contradictory In my opinion
some of the witnesses are confused as to the facts and, as a
result thereof, counsel appear to have been confused by the
facts
Edward Couch testified to the effect that the day of
illness, the layoff of the next day, and the filing of his
grievance occurred on May 27 and 28, 1971 Partner
Donald Horth testified to the effect that the day of illness
and the next-day layoff occurred on May 20 and 21, 1971
The grievance that was filed was not dated Teamsters
Representative Dempsey testified to the effect that he
dated the grievance June 1, 1971 Records relating to
employee pay reveals that Couch was paid for 1 hour's
work on May 20, for 0 hours on May 21, for 8 hours on
May 27, and for 8 hours on May 28, 1971 Foreman
Swafford's testimony was to the effect that he received the
grievance on a Friday, the day after the 1-day layoff
Couch's testimony reveals that the second layoff involved
occurred in June when most of the crew was laid off and
that this was the first layoff of the kind he had been
involved in The undated grievance, among other things,
referred to a claim for all days worked by any teamster
with less seniority than he had Considering all of the
foregoing and logical consistency of the evidence, I am
persuaded that the day of illness was on May 20, the day of
layoff was on May 21, and the grievance was filed on June
4, 1971 I am persuaded that the union representative
8 Since Respondents motivation was not affected by Muncy s threats
stated to other persons as regards contemplated action against Foreman
Howard Sizemore I find it unnecessary to consider such regarding the
565
belatedly dated the grievance incorrectly , and inadvertent-
ly incorrectly thought that the day of layoff occurred on
May 28, 1971 Considering all of the foregoing, the
testimony of Donald Horth which appeared more logical
and consistent than the testimony of other witnesses in
points involved, the credited aspects of the testimony of all
the witnesses , and the logical consistency of all of the facts,
I find the facts as follows
On the evening of May 19, 1971, Partner Donald Horth
telephoned Foreman Swafford and instructed him to have
Edward Couch take his truck and transport equipment and
a number of men to a street-tarring Job On the morning of
May 20, 1971, Couch did not report to work on time
Foreman Swafford telephoned Couch and told him in
effect that he needed him and his truck for the above job
Foreman Swafford also reported to someone in the shop
that Couch was not at work and that the y would have to
make other arrangements Partner Donald Horth, around
this time , spoke to someone in the shop over the radio and
was advised that Couch had sent word in that he had some
business to take care of and wouldn 't be in Horth told the
shop foreman to send someone else out with a truck to get
the equipment and men to the street-tarring Job
Couch reported to work about 1 hour late 9 Couch told
Foreman Swafford that he was ill and inquired if he could
be spared from work Foreman Swafford told Couch that
he could spare him, and Couch went home
Later that morning, Partner Donald Hoi th told Foreman
Swafford to tell Couch in effect that ]Respondent had
business to take care of and for him to take another day off
to take care of his business so that Respondent would not
have him missing another day when he was needed
Around 1 30 p in, Foreman Swafford telephoned Couch
and told him that he could come pick up his check 10
Couch told Swafford that he would Swab ford told Couch
that Partner Donald Horth had said to give him the next
day off for going home that day Couch went in and picked
up his check
It appears that during the week ending May 28, 1971,
Couch complained to Foreman Swafford that he should
have received "show-up time" for May 20 , 1971 Swafford
reported this complaint to Partner Donald Horth as is
revealed by the following credited excerpts of Horth's
testimony
A That was the total of that conversation with
Bobby and then he was off on the next Monday and
Tuesday and Bobby approached me and said that Paul
had said something about 2, 4 and 8 So I called Paul
over and we talked and he told me there was a 2, 4 and
8 deal in the contract and I said, "well, I thought there
was an inclement weather clause also" but I would
check and I said , "it really doesn't make too much
difference how much hours a day you are driving a
truck , oh, one or two , I guess , you i eally should be
working under a laborer's agreement with all the time
you are spending laboring" and he didn't say any more
Oh, yes , he did He said, "well, do you want me to quit"
and I said , "no Let's Just do our Job and go on about it
issues in this case
9 Reporting time was 7 a in
10 The day was the normal payday for Couch
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I'll check this out" and I believe we got that
straightened out
During the next week, Couch and certain other employ-
ees were laid off There is a dispute as to whether the layoff
occurred on June 2 or 3 Couch's testimony is to the effect
that he was laid off on Wednesday, June 2 Foreman
Swafford testified to the effect that Couch and others were
laid off on Wednesday, June 3 The records relating to pay
for employees reveal in effect that Thursday, June 3, was
the last day worked by Couch and a number of other
employees on Foreman Swafford's gang during this period
I am persuaded and find that the day of Couch's layoff
during this week was June 3 I discredit Couch's testimony
to the contrary effect
As indicated, Couch was laid off on June 3 and was not
returned to work until July 22, 1971
As indicated, there is a dispute as to when Couch filed a
grievance concerning showup time and a 1-day layoff in
May 1971 I am persuaded from all of the facts that the
grievance filed by Couch concerning the showup time and
a 1-day layoff in May and other grievances was filed on
June 4, 1971
The undated grievance as to the foregoing reflects that
Couch contended I was laid off my job because I asked for
wages that are listed in Act VIII The foregoing refers to a
question of showup time There is no testimony or evidence
to reveal that Couch complained on May 20 (or as he
contends on May 27) about showup time The facts reveal
that he did complain during the week of May 28 about
showup time for May 20 This occurred after the day layoff
on May 21 It follows that his contention as to an improper
layoff could not be about the 1-day layoff It follows from
a logical consistency of the facts that his complaint was
that the June 3 layoff was in retribution for his complaints
during the week of May 28, 1971, about showup time on
May 20 Further, it is noted that the undated grievance
claims pay "for all days worked by any Teamster with less
seniority than me " It is clear from the total facts in this
case that this complaint had to have reference to days
worked after June 3, 1971, by other Teamsters
The aforesaid grievance was processed by the Union and
Respondent On June 9, 1971, the parties resolved the
grievance by agreement to pay Couch (1) showup time for
the day he was sent home (May 20) and (2) wages for the
day of layoff (May 21) 11 The parties discussed slightly the
question of the June layoff It appears that the Union was
satisfied that this was a normal and temporary layoff 12
Later on June 19, 1971, Couch filed another grievance
In this grievance Couch complained and asked for (1) his
job back, and (2) pay for all time lost due to the layoff of
June 2, 1971 Couch also contended in his grievance that
certain laborers were performing Teamsters work The
Union investigated and processed this grievance On
August 5, 1971, Teamsters Representative Dempsey
conferred with Respondent and later reported to Couch in
effect that there was no merit to the grievance Couch,
thereupon, withdrew his grievance
11 The date 5/28/71 concerning the layoff date was written in the
grievance at a later date As indicated the facts reveal this date to be
incorrect
12 As to most of the issues in this case testimony from all witnesses was
piecemeal general, and imprecise The facts are determined upon the
Part of the General Counsel's case centers around an
argument that Respondent laid off Couch on June 2 and at
the same time retained other truckdrivers who had less
seniority than did Couch The General Counsel contends
that the collective-bargaining agreement between Respon-
dent and the Teamsters Union provided in effect for
companywide seniority principles to govern layoffs instead
of a "gang" type seniority It suffices to say that the
General Counsel's contentions as to the contract's provi-
sions are correct Respondent's contention that another
provision in the contract reveals that "seniority" as to
utility drivers is to be negotiated separately is without
merit This provision, relating to utility drivers, concerns
wages and rates and does not concern seniority
As indicated in the previous discussion concerning
Muncy, much testimony and data was placed into the
record concerning layoff practices, seniority, and employ-
ment records It is sufficient to say that the evidence as a
whole is not sufficient so as to reveal from such data in the
record the interrelationship of seniority and layoffs on past
occasions As an example, the General Counsel's only
specific evidence as to seniority of Teamsters relates to
Couch and several other employees who apparently had
less seniority than he had
Considering all of the facts, I credit Donald Horth's
testimony to the effect that Respondent's practice was at
tunes of layoffs to lay off the entire gang including the
truckdnver, that if men were retained that the best men
were retained, and that usually the older employees were
retained because usually they were the best men
The facts reveal in effect that the Swafford gang was laid
off on June 3, that one or two laborers were retained, and
that the gang remained laid off until around July 22, 1971,
when Couch was returned to work
Considering all of the foregoing and all of the facts, I am
persuaded that the preponderance of the facts reveals that
Respondent laid Couch off on June 3 for nondiscriminato-
ry reasons Accordingly, it will be recommended that the
complaint allegations of conduct concerning Couch alleg-
edly violative of Section 8(a)(1) and (3) be dismissed 13
E Events Concerning Capps and Gray
During the critical time involved in this proceeding,
James Gray and Ronald Capps worked on Foreman
George Jones' crew Foreman Jones' crew performed
railroad construction work for various plants and compa-
nies in and around the State of Indiana Gray had worked
for Respondent off and on for the 5 years preceding July
30, 1971 His last period of employment for Respondent
was from May 1971 to July 30, 1971 Ronald Capps
worked for Respondent from November 1970 to July 30,
1971
July 7, 1971-at Work
During the week ending July 3, 1971, Respondent had a
overall consistency of facts and testimony Testimony of witnesses
inconsistent with the facts found is discredited
is I would make the same findings even were the facts to be as
contended by the General Counsel as to timing of events of May concerning
Couch and as contended as to the filing of grievance thereto
CENTRAL ENGINEERING & CONSTRUCTION CO
crew headed by Foreman Homer Sizemore working on a
job at the Newport Ammunition Depot Beginning on July
6, 1971, the Respondent placed an additional crew headed
by Foreman George Jones on the Newport Ammunition
Depot job On July 7 both of the aforesaid crews were at
work However, Ronald Capps, a member of Foreman
Jones' crew, was not at work On July 7, Laborers Business
Agent Michael Short made one of his regularly weekly
trips to the Newport jobsite to check with Foreman Homer
Sizemore's crew Foreman Jones was away from the jobsite
when Short appeared on the scene Short noticed the
appearance of additional employees on the job and
questioned the employees on Jones' crew about their union
cards and the question of clearance through this card
Short told the employees to stop work until he checked on
their clearance through his local
Foreman Jones returned to the scene Union Representa-
tive Short and Jones engaged in a heated discussion about
the job stoppage, about the need to check in with the local
union, about Short's other problems with Respondent,
about Jones' being a Teamsters member and not a member
of the Laborers Union, and about the requirement that
Jones as a foreman be a member of the Laborers Union
Foreman Jones and Short also spoke to several employees
Jones requested the employees to go back to work Short
indicated that they couldn't It appears that Gray stated
that you can't work if the business agent won't let you 14
Foreman Jones and the Union Representative also
discussed the Local's need to place more men on jobs
Foreman Jones and Union Representative Short tele-
phoned Partner Douglas Horth An agreement was
reached that Foreman Jones would join the Union and
Respondent would take care of the initiation fees and dues
Agreement was also reached that Respondent would hire
two men out of the local Short left the jobsite Foreman
George Jones' crew returned to work
Later, Union Representative Short checked with other
locals about the current standings of the employees and
ascertained that they were in good standing Short, who
had discussed the question of pay rates with the employees,
returned several days later and advised the employees that
they were being paid at or above the contract rates
As indicated, Foreman Jones' crew returned to work
when Short left The evidence is piecemeal and fragmentar-
y as to what then occurred It would appear reasonable to
believe that Foreman Jones inquired as to the details of
who told the men to stop work It is also reasonable to
believe that he told them not to stop work unless told to do
so by him
The General Counsel alleges and contends that Foreman
Jones questioned the employees about who called the
Union out The General Counsel's only evidence on this
point is the testimony of James Gray Foreman Jones
denies that he questioned the employees about who called
the Union out Employees Ray Jones (Foreman Jones'
son), Hanson, and Dennis Hubbard in their testimony
corroborate Foreman Jones' denial Further the testimony
14 Jones affidavit indicates that Capps made such remarks Capps was
not at work on this date The record indicates that Capps and Gray were
closely associated I am persuaded that Jones erroneously referred to Capps
instead of Gray Even if this is an incorrect designating of the employee it
567
of union agents, and testimony of Gray and of Capps, as to
the substance of conversation made thereafter to the
Union, indicate that Gray and Capps did not complain of
such questioning or threats to fire if employees went to the
Union, at least until after their July 30 discharge I am
persuaded by the overall facts that Gray's testimony as to
the alleged interrogation should be discredited It follows
that the complaint allegation to such effect, of conduct
violative of Section 8(a)(1), should be dismissed
July 7-at Capps' Home
On the evening of July 7, 1971, Foreman George Jones
went to Ronald Capps' home While there, Jones discussed
certain union insurance matters with Capps Foreman
Jones spoke about the work stoppage and asked for and
received evidence of employee union membership from
employees Gray, Hanson, and Capps 15
It is not clear whether the complaint allegations as to
unlawful interrogation concerned only tht alleged inteiro-
gation of Gray at the jobsite or whether it concerns this
incident The General Counsel's brief does not seem to
provide an answer to this question In any event, I am
persuaded that the questioning of and receipt of evidence
of union membership from employees in this case does not
constitute conduct violative of the Act It is clear that in
the context of Respondent's collective-bargaining arrange-
ments, and the job stoppage related to "clearance"
questions, that there existed a legitimate basis for such
inquiry It further appears that employees would not
reasonably construe that such was done to pry into the
question of their union membership or desires for an
ulterior reason Accordingly, it follows that such conduct is
not violative of Section 8(a)(1) of the Act It is so
concluded and found
The General Counsel alleges and contends that Foreman
Jones on this occasion warned the employees that someone
was calling the Union out, and that if he I ound out who it
was that he would get rid of them Witnesses Martha
Capps, Ronald Capps, and James Gray testified to facts
which if credited support the foregoing contention
Foreman Jones denied the above facts His testimony is
corroborated in effect by the testimony of Hanson Again
considering the foregoing and other testimony relating to
the failure of Gray and Capps to mention such threats to
the union agents during ensuing conversations, I am
persuaded that Foreman Jones' denial of such threats
should be credited I so credit the facts
Events July 8-22, 1971
Although the next significant issue set by the pleadings
regarding Capps and Gray concerns the events of July 22,
1971, I find it proper to note that much of the testimony
and evidence adduced was for the apparent purpose of
setting forth the facts as to the events between July 8 and
22, 1971
would not affect the ultimate decision in this case
11 1 credit the testimony of Martha Capps Ronald Capps James Glay
and Hanson over Jones denial that he asked for the union cards or recoi ds
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The facts and comments relating to such facts may be set
forth as follows
I The facts reveal that Mrs Ronald Capps telephoned
union Representative Short at some date after July 7, 1971,
and related that Foreman Jones had asked for and received
union cards or evidence of union membership from some
of the employees Despite the lack of specific evidence as
to the timing of such telephone call to Short, I place the
timing thereof as after July 7 and before July 12 There is
no indication that there was a discussion with Short about
the July 12 layoff of Gray and Capps If such telephone
call were made after the July 12 layoff, I am persuaded that
the facts would have indicated a discussion of said layoff
also
As indicated previously, I am persuaded that Foreman
Jones' interest in obtaining the evidence of union member-
ship was legitimately connected with the July 7 job
stoppage problem I note that Gray and Capps appear to
be close friends I note further that Gray cannot read or
write and cannot "read" numbers on a calendar I am
persuaded that Gray and Capps were concerned over the
fact that they did not have their union cards in their own
possession and not from fear of reprisal from the
Respondent
There is no evidence to reveal that Respondent obtained
any knowledge of the referred-to telephone call made by
Mrs Capps to Union Representative Short
2 As previously indicated, Capps was absent from
work because of illness or a doctor's appointment on July
7 Capps was also absent from work on July 8 and 9 for
medical examination and treatment Foreman Jones was
aware of the fact that Capps' absences on such dates was
purportedly because of illness
3 The facts are not clear whether Gray worked on
Thursday (July 8) and Friday (July 9) or only worked on
Friday (July 9) 16
4 On Thursday or Friday (July 8 or 9) Gray spoke to
Foreman Jones about his need to be off from work for a
court appearance during the next week 17
5 On Sunday, July 11, 1971, Partner Douglas Horth
and Foreman Jones discussed the status of work for Jones'
crew for the coming week Respondent had either finished
or was finishing the Newport job, did not need Foreman
Jones' crew on the Newport job for the next week, was
moving Jones' crew to a 3-day job for the Fisher Company,
and then was moving Foreman Jones' crew to what was
called the Marion Job Partner Douglas Horth was of the
opinion that he did not need Foreman Jones' crew at full
strength Whether this was because he had employed two
men from the local union for several days is not clear In
any event Partner Horth was of the opinion that a full crew
16 Exhibits relating to time accredited for work indicate that Gray did
not work on Thursday Gray s testimony was to the effect that he worked on
July 8 1971 As to Gray s testimony it is sufficient to say that the questions
directed to Gra) and his answers thereto revealed a witness of extremely
questionable reliability upon this point
i7 As indicated Gray was a confused and difficult witness It appears
that counsel was also confused as to the sequence of events By leading
questions counsel elicited answers to the effect that Gray attended court for
one half day during the week of July 7 Gray however clearly later testified
to the effect that he was not working on the Newport job when he went to
court The evidence clearly reveals that Respondent worked on the Newport
job for the entire week July 6 7 8 and 9 1971 Considering the logical
was not needed During the discussion , Foreman Jones
mentioned that Capps had been off ill for several days, and
that Gray wanted to be off for a court appearance on July
14, 1971 18
Partner Douglas Horth told Foreman Jones that he had
seen Capps riding a motorcycle that day Since Capps had
been off for several days with doubt as to the validity of
the "illness reason" and since Gray was to be off for a
court appearance , Respondent decided to lay off Capps
and Gray for the 3-day Fisherjob 19
That evening Capps telephoned Foreman Jones about
the work assignment for Monday, July 12, 1971 Foreman
Jones told Capps in effect that he was going to lay off
Capps and Gray for 3 days Capps asked Jones to tell him
why they were being laid off Jones told Capps in effect
that they were being laid off because Doug Horth had seen
him (Capps) on a motorcycle that day and because Gray
had asked on Thursday or Friday to be off during the next
week
Capps thereupon went to Gray's home Gray was not at
home Mrs Gray telephoned Partner Douglas Horth and
inquired about the layoff Partner Douglas Horth told Mrs
Gray in effect that the layoff was temporary, was economic
in nature , and that Capps and Gray would be back at work
in several days Mrs Gray told Partner Douglas Horth that
Capps had been in the hospital Partner Douglas Horth
indicated that he did not know this
6 Thereafter Capps and Gray were recalled to work
and Capps and Gray worked from July 14 to 22, 1971,
without any problems
7 Much of the testimony of witnesses Capps, Gray,
Short, and Curry was directed to the question of com-
plaints and contacts by Capps and Gray with the Union
As indicated, Gray, as a witness, presented an appearance
of confusion as to timing of events and further appeared to
have confused what occurred in events The questioning of
the aforesaid witnesses was of such a nature that it may be
said that there is a lack of clarity and probativeness of such
evidence so as to establish that any complaints or contacts
were made to the Union or Company prior to the events of
July 22, 1971 It is sufficient to say that the facts only
establish that Respondent had knowledge of this one
telephone call by Mrs Gray about layoffs or related matter
prior to the events of July 22, 1971
Excepting for the purpose of establishing that Mrs Gray
made the above-described telephone call, it is not clear
why so much detail, imprecise and confused as it was, was
presented Perhaps it was intended to reveal some
discriminatory motivation in the layoff of Capps and Gray
on July 12 and 13, 1971 Nevertheless, the General Counsel
in his complaint, in his statements at the hearing, and in his
consistency of all the facts I find the facts as indicated
18 The facts were presented in a loose and confused fashion It is clear
that Gray s court appearance did not occur while on the Newportjob It is
clear however that Gray s court appearance occurred while he was
working The contemplated layoff was to cover the period of time when
Gray was to be in court Gray and Capps returned to work 1 day earlier
than originally scheduled Accordingly I find that the day of the scheduled
court appearance was July 14 1971
19 The facts are based on logical inference from all the evidence in the
record A finding however that Respondent merely laid off Capps and
Gray as a continuation of Capps absence and Gray s contemplated absence
would not affect the results in this case
CENTRAL ENGINEERING & CONSTRUCTION CO
brief, does not appear to be contending that the layoff was
discriminatorily motivated The facts clearly do not reveal
that Respondent, prior to the July 12 and 13 layoff, had
knowledge of any complaints to it or the Union by Capps
or Gray In sum, the preponderance of the facts reveal that
the July 12 and 13 layoff of Capps and Gray was for
economic and nondiscriminatory reasons
8 During the week of July 22, 1971, Foreman Jones'
crew was working for Respondent on a job for Guide
Lamp During the period of time prior to July 22, 1971,
most of Respondent's employees working on said job
clocked in a few minutes later than was the scheduled
starting time Foreman Jones spoke to one of Guide
Lamp's supervisors about this problem and inquired as to
whether this could cause him any trouble The Guide
Lamp supervisor indicated that Jones would have no
trouble from him, but that the auditors checked the time
records and that this might cause trouble for Respondent
The facts are clear that on July 21 Foreman Jones warned his
employees about reporting late for work
Events of July 22
On the morning of July 22, 1971, Capps and Gray went
by Foreman Jones' home prior to going to work Capps
indicated to Foreman Jones that he was going to eat
breakfast before going to work Jones indicated that this
was all right The question is whether Jones indicated that
this was all right for Capps and others to eat breakfast and
to report late to work In my opinion, the facts do not
reveal that Foreman Jones was telling Capps that it was all
right to be late but was merely indicating that he had no
objection to his eating breakfast It appears to have been a
normal conversational answer to someone indicating
agreement that they could do what they had a right to do
Capps, Gray, and employee Hubbard rode to the job
together The employees stopped for breakfast before
getting to the jobsite Capps, Gray, and Hubbard arrived at
the jobsite a few minutes late Foreman Jones met Capps,
Gray, and Hubbard at the gate and complained about their
being late Capps and Gray argued to Jones that he had
given them permission to have breakfast Foreman Jones
told Capps, Gray, and Hubbard in effect that he had work
for them to do Foreman Jones indicated to Capps, Gray,
and Hubbard where the job was and where the gate was
What occurred is best revealed by the following credited
excerpts of Hubbard's testimony 20
A George said, it is about the third or fourth time
you have been late and I told you this was time and
material job and it is very important that you get here
on time There ain't no way possible that you-Capps
said, one of the guys said, I've got to have my breakfast
and the other one said, I just can get here on time and
go by home and I still didn't say anything I didn't say
a word
Q What did George say them
A George looked at them and he said, that is kind
of a poor excuse, something like that, he said I don't
20 I credit Hubbard s testimony to these events I also credit Asher s
testimony to the events he testified to I discredit Capps and Gray s
testimony inconsistent with the facts found
21 Hubbard on direct examination testified to the effect that he told
569
know exactly what but he said something about it being
a poor excuse
Q Did he say anything else?
A Yeah, Gray said, let's go home and George said,
okay there's the job or there's the gate It is up to you
He said again, there's the job or there's the gate He
said it twice So Gray said, let's go home So, me and
Ronnie looked at each other and Gray started walking
off and we stood looking at each other for a second and
we went with him to the shack and signed out and left
Considering all of the foregoing , it is clear and I
conclude and find that the Respondent did not discrimina-
tonly lay off or discharge Gray and Capps on Jul), 22,
1971
Events-July 22-25, 1971
After leaving the jobsite on the morning of July 22, Gray,
Capps, and Hubbard proceeded back to Indianapolis
Either on the way to Indianapolis, or in Indianapolis,
Capps telephoned Union Representative Short Union
Representative Short told Capps in effect that he would
have to contact Union Representative Curry, that the
matter did not arise in his (Short's) jurisdiction Thereafter,
Capps telephoned Union Representative Curry An ap-
pointment was set up for Capps and Curry on July 23
Capps, Gray, and Hubbard proceeded on July 22 to
where they thought Partner Robert Horth would be They
ultimately located Partner Robert Horth and told him in
effect that Foreman George Jones had laid them off It is
clear that Capps, Gray, and Hubbard were indicating their
desire to be placed back to work Partner Robert Horth
told them in effect that he would have to talk to Pat tner
Douglas Horth about the matter 21
Later that day, at "Bud 's" garage, Capps and Gray
stated in presence of an employee named May that they
had walked off the job
On July 23, 1971, Capps and Gray went to the Union
hall and spoke to Union Representative Curry Capps and
Gray told Curry that they had been laid off, that
Respondent had men working who had been hired after
they had been hired, that such men wei a nonunion men,
and that they thought it was wrong for Respondent to lay
them off and keep the nonunion men working Union
Representative Curry told Capps and Gi ay that he would
check into the matter
On July 25, 1971, Partner Douglas Horth and Foreman
Jones discussed the problem of pending work and the fact
that Capps, Gray, and Hubbard had walked off the job on
July 22, 1971
Dennis Hubbard went to Foreman Jones' home to see
Foreman Jones about getting his job back What occurred
is revealed by the following credited excerpts from Jones'
testimony
THE WITNESS He talked to me and he said, George, I
am sorry that I even walked off the job I am sorry that
I did I would appreciate it if you would let me go back
to work and I said, Dennis, if you think you can work
Partner Robert Horth that Foreman Jones had said in effect that there was
the fob and there was the gate On cross examination Hubbard revealed
that he did not tell Partner Robert Horth that Foreman Jones had indicated
that there was the Job
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without walking off the job, I've got nothing against
you I will talk to Douglas and see what he says and if
says you can go back to work, fine, its fine with me
Later, Capps and Gray went to Foreman Jones' home to
see Foreman Jones about getting their jobs back What
occurred is revealed by the following credited excerpts of
Jones' testimony
A A very short time after Hubbard had left Mr
Capps and Mr Gray drove up in front of my house and
blew their horn I came out on the porch and I said,
come on in, boys, and they said, no, come on out here,
we want to talk to you so I went on out into the street
where they were at, and talked, and they asked me
about could they get their jobs back and I said, well,
Dennis was here and I'll tell you the same thing I told
Dennis I'll have to talk to Mr Doug Horth and if its
all right with him, its okay with me and dunng this
conversation at the same time, Jimmy Gray said, let's
go Ronnie, let's go We don't have to work for him
anyhow I will go and call Doug Horth and I know I
can go to work for Homer Sizemore So there wasn't
anything else said They drove off
Following the above, Capps telephoned Foreman Jones
to inquire as to whether he could go back to work Jones
told Capps that he had a few things to say to him, to come
to his house Capps went to Foreman Jones' home What
occurred there is revealed by the following credited
excerpts from Jones' testimony
A Well, Mr Capps came in my front room and I
asked him apparently the same question I asked Mr
Hubbard I don't know why you walked off, but do you
think you can work, then I'll talk to Mr Douglas Horth
and if he says its all right with him, its all right with me
because I've got nothing against you whatsoever, and
he said, well, I don't know why I walked off
Following the above, Capps telephoned Partner Douglas
Horth The discussion centered around whether the
employees had walked off the job or had been sent away
by Foreman Jones Capps expressed a strong desire to be
returned to work Capps told Horth that he had not walked
off the job, that Foreman Jones had sent him home
Partner Douglas Horth told Capps that he would take the
matter up with Foreman Jones, that Jones was the one who
would have to rehire him if he were satisfied with him
After the foregoing conversation, Partner Douglas Horth
telephoned Foreman Jones Horth and Jones discussed the
question as to whether Jones wanted to put Capps, Gray,
and Hubbard to work Foreman Jones indicated that he
wouldn't mind it if the men came back to work Partner
Douglas Horth told Jones that they should give the three a
try
It appears that Foreman Jones thereafter notified Capps,
Gray, and Hubbard to report to work the next day 22
22 The testimony as to the events July 22-25 was presented in piecemeal
fashion It is sufficient to say that considering all of the testimony and
logical consistency of the evidence I find the facts as set forth The overall
facts reveal no evidence that the Union had contacted Respondent about
the July 22 walkoff until during the week of July 26 I discredit Gray s and
Capps testimony to the effect that Foreman Jones spoke about wanting to
know who had contacted the Union I discredit testimony of all witnesses
inconsistent with the facts found
Events of July 26-30, 1971
Capps and Gray reported to work on Monday, July 26,
1971, at the Guide Lamp job in Anderson, Indiana
Without awaiting specific instructions, Capps and Gray
commenced work doing some shoveling Foreman Jones
later asked the two to help some other employees move
some rail Capps and Gray promptly followed his instruc-
tions The events for the rest of the day may be said to be
uneventful
Capps and Gray testified to the effect that Foreman
Jones spoke to them individually and in effect threatened
them because they had gone over his head to the Horths
and to the Union Foreman Jones denies such threats It is
noted with respect to this question that all witnesses to this
issue have factors weighing adversely to their credibility
Thus Gray and Capps, as to prior events, have appeared to
try to build their case as to alleged remarks by Respon-
dent's agents concerning threats about going to the Union
Jones' testimony and prior affidavit casts doubt as to his
veracity as to the "overtime" refusal defense Further, it is
noted that there is no evidence to establish that the Union
(Curry) contacted Respondent prior to the alleged threats
referred to Thus, Curry was contacted by Capps and Gray
on July 23, a Friday Curry testified to the effect that a day
or two later he contacted Respondent Foreman Jones'
testimony revealed that at sometime during the week of
July 26 Union Agent Curry contacted him about the July
22 walkoff by Gray, Capps, and Hubbard In sum, the
evidence as to the timing of the contact by Union
Representative Curry with Respondent is of insufficient
clarity as to have probative value in connection with a
consideration of logical consistency of facts as regards the
credibility issue presented Considering Gray's, Capps',
and Jones' testimony, I am persuaded that Jones' testimo-
nial denial of the alleged threats should be credited I
credit Jones' denial that he made the threatening state-
ments
Capps and Gray reported to work on July 27 Around
8 30 am, Foreman Jones noted that Capps appeared ill
and sent him to his truck Later, around 10 a in Foreman
Jones had employee Hubbard drive Capps home Hubbard
indicated upon his return to work that Capps appeared to
be feeling better when he got home Around 1 p in,
Foreman Jones notified the crew that there was overtime
work on "Delco" job if they wanted it Later Foreman
Jones spoke to Gray about the overtime work as is revealed
by the following credited excerpts from Gray's testimo-
ny 23
A He asked me if I wanted to work overtime and I
said, yes, if the other men did, and he said I really don't
need you, I've got enough men to do the job, but I was
willing to work anyway and he said you know what I've
got over there, I've got a hole full of water and oil and
23 Gray s testimony had the ring of truth about this incident Foreman
Jones denied any statement about acid Gray had to remain at the site
while the work was finished before going home I find it hard to believe
under such circumstances that Gray would not have worked the overtime
absent compelling reason It is clear that Jones either jokingly or
intentionally took advantage of Gray s innocent fear I credit Gray s
testimony over Jones testimony as to this incident
CENTRAL ENGINEERING & CONSTRUCTION CO
acid and I asked him what kind of acid it was in the oil
and he said he did not know, he said it may eat your
feet off if you get in it and I said I would not work in it
I sat in the car while they did two hours work
Foreman Jones' crew worked on Wednesday, July 28,
1971 Jones' crew, including Gray and Capps worked 2
hours' overtime on this date 24
On Thursday, July 29, 1971, Foreman Jones spoke to
Partner Douglas Horth Jones indicated to Horth that
Gray and Capps had refused to work overtime as
requested Partner Douglas Horth indicated in effect that
Jones could lay off Capps and Gray when he wanted to
On Friday, July 30, Foreman Jones' crew, including
Capps and Gray, reported to work What occurred is
revealed by the following credited excerpts from Capps'
testimony 25
A He got out of the truck and he said, its raining
today, George said, its raining today and I think he said
the names of the man at Guide Lamp who told him
they didn't want us to work that day and if we wanted
to work out in the rain, to go over to Delco-Remy and
work for a few hours, and at that point I don't
remember whether it was me or whoever exactly it was
said this, but said, George we don't have nothing to
work out in the rain with over there, no boots or
anything because its all in water and so at that point
most of us-well there were four of us there, three of us
didn't want to go The fourth man did want to go to
work out in the rain so George said you go and work in
the rain at that point and he said I want you to go sit in
the truck with Bill, and he told me I had an opportunity
to fire you, but I am not going to fire you, I am just
going to let you withdraw, and at that point Mr Gray
said, do you have any intention of putting us back to
work at anytime and he said, as far as I know, no, I am
not going to take you back He said that you have
agitated yourselves right out of ajob
The General Counsel contends that the overall facts
including the facts relating to Gray's conversation with
Douglas Horth concerning the dropping of charges in
return for reemployment, reveal that the July 30 layoff was
discriminatorily motivated The Respondent's contention
is in effect that Foreman Jones was not satisfied with the
cooperative nature of Gray and Capps as employees
Foreman Jones testified that he did not like the fact that
Gray and Capps commenced work on July 26 without
awaiting instructions, and that they attempted to work by
themselves Foreman Jones' pretrial affidavit reveals that
he complained to Partner Douglas Horth about Capps' and
Gray's refusal to work overtime Jones' testimony at the
trial herein as to his reason for the layoff of Capps and
Gray was very unimpressive In short, I do not believe or
credit the reasons he testified to Rather, I am persuaded
from the overall facts that Foreman Jones became irritated
by Capps' and Gray's contacts with the Horths and with
the Union, that after Union Agent Curry contacted Jones
24 Gray had ascertained from another employee that there was no acid
in the holes
25 Gray s testimony was corroborative of Capps Jones testimony was
corroborative of Capps excepting Jones version of the event contradicts
that he told Capps and Gray that they were agitators As indicated
previously Gray Capps and Jones as witnesses all present some problem
571
during the week of July 26, Foreman Jones decided to get
rid of Capps and Gray, and that Foreman Jones utilized a
pretextuous contention of refusal to work overtime to
persuade Partner Douglas Horth to authorize his layoff of
Capps and Gray
I am persuaded that Partner Douglas Horth believed
that Foreman Jones was honestly presenting the facts and
so authorized the layoff of Capps and Gray The ultimate
motivating reason for Foreman Jones' layoff of Capps and
Gray on July 30, however, was Jones' irritation at Capps'
and Gray's contacting the Horths and tht Union about the
July 22 walkoff In sum, the evidence reveals that
Respondent discnminatonly discharged Capps and Gray
on July 30, 1971, in violation of Section 8(a)(1) and (3) of
the Act 26
On August 5, 1971, Ronald Capps filed an unfair labor
practice charge in Case 25-CA-4466 In effect that charge
averred that Respondent had discriminatorily discharged
Capps and Gray on July 30, 1971, in violation of Section
8(a)(3) and (1) of the Act
The General Counsel also adduced evidence relating to
meetings and conversation between Gray and Capps and
Partner Douglas Horth that occurred after July 30, 1971
This evidence was adduced to reveal improper motivation
by Respondent as to the July 30, 1971, layoff/discharge of
Capps and Gray The complaint did not allege , nor has it
been contended that Respondent, by Douglas Horth,
violated the National Labor Relations Act by such
conduct
I note the following excerpts from the credited testimony
of Douglas Horth
Q Did Mr Capps then call you after approximate-
ly a week9
A Yes he did
Q And what did he say to you and what did you
say to him
A Well, in the meantime, Ron had filed the action
with the Labor Relations Board against us and, of
course, I dust got in on the weekend again and I think I
learned of it that day and I was upset So, the
conversation wasn't friendly He said, what about
going back to work and I said, do I understand that
you filed a complaint against us with the Labor
Relations Board and he said, yes, and I said, for being
involved in Union activity, for discrimination and I
said, I don't think I gave him much of an opportunity
to talk I simply told him that they were a pack of lies
and he knew it, that Central Engineering had n< ver
discriminated against him
A I let him know my frustration and feeling of ill
will by trying to explain to him what it would mean to
all of us in time and money and taking business away,
of belief it suffices to say that I found Grays and Capps testimonial
demeanor on this incident to appear more truthful in appearance than I did
Jones I so credit the facts
26 Although the term layoff was used it is clear that the layoff was
in fact a discharge of such employees
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in effect, and told him that at this time, we had nothing
further to discuss It would have to come out in court
I note the following excerpts from the credited testimony
of Douglas Horth as to a conversation with James Gray on
November 30, 1971
A As nearly as I can remember, he said, hello, this
is Jimmy Gray and I said, oh, hello, and he said, is
there any chance to go back to work and I said, do you
want to go back to work and he said, yes, I would like
to drop this whole mess and go back to work and I said,
how does Capps feel about this and he said, I don't
know I haven't seen Capps in a long time and I said,
had you been working and he said, no, I looked this
town over and I haven't been able to find a job and I
said, under what arrangements would you go back to
work and he said, just go back to work and I said, then
he said, do you have work and I said, yes, I've got a lot
of work now but I really don't know what to tell you
because we are in a problem of litigation We are now
faced with a legal question This is a matter in the
hands of the attorneys and I don't know whether it is
proper for us to talk together about this, although I
don't want to seem curt to you or close the door, I want
you to understand that I am going to our attorney with
this information and I suggest you go to your people
They can choose to call me back and I'll be here and
that terminated that conversation
A In about 15 minutes the phone rang again Mr
Capps was on the phone and he said rather, what about
going back to work and I said, have you talked to Gray
and he said, yes, he called me and I said, do you want
to go back to work and under what basis9 He said, oh,
we could make a settlement and go back to work and I
said, I have only ajob here and he said what about my
back pay and I said, I know nothing about any back
pay I'll make no arrangements and then I went into
this situation that we were in litigation and that, as I
had told Gray, I would turn this over to our attorneys
and felt that he should talk to his people as to what I
said and that terminated that conversation except for
some minor chit chat about business things
It is sufficient to say that I am persuaded from the
overall facts in this case that Partner Douglas Horth
honestly believed that Respondent had not discrimmaton-
ly laid off or discharged Gray and Capps on July 30, 1971
I am persuaded from the overall facts that the Horths, up
to the filing of unfair labor practice charges, have tried to
abide by Federal law I am persuaded, however, that the
filing of the unfair labor practice charges on August 5,
1971, by Capps, pushed the patience of the Horths too far,
resulting in the attitude as indicated by Douglas Horth's
testimony Although this latter conduct is not alleged nor
contended to be a separate violation of the Act, it has been
litigated Such conduct is violative of Section 8(a)(1) of the
Act I note, however, that the remedy for such conduct is
essentially encompassed in the remedy provided for the
unlawful discharge of Capps and Gray on July 30, 1971
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above , have a close,
intimate , and substantial relationship 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
Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act
It having been found that Respondent discriminatonly
discharged James Gray and Ronald Capps in violation of
Section 8(a)(3) and (1) of the Act, the recommended Order
will provide that Respondent make an offer of reinstate-
ment to and make each whole for loss of earnings within
the meaning and in accord with the Board's decisions in F
W Woolworth Company, 90 NLRB 289, and Isis Plumbing
& Heating Co, 138 NLRB 716, excepting as specifically
modified by the wording of such recommended Order
Because of the character of the unfair labor practices
herein found , the recommended Order will provide that the
Respondent cease and desist from the specific unfair labor
practices found, and that it cease and desist from in any
other manner interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following
CONCLUSIONS OF LAW
1 Robert J Horth, Donald A Horth, and Douglas R
Horth, a partnership d/b/a Central Engineering and
Construction Co, the Respondent, is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 Local 716, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, and
Local 274 and Local 204, Laborers' International Union of
North America, AFL-CIO, each are, and have been at all
times material herein, labor organizations within the
meaning of Section 2(5) of the Act
3 By discharging James Gray and Ronald Capps the
Respondent discouraged union membership by discnmi-
natmg in regard to tenure of employment, thereby
engaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act
4 By interfering with, restraining , and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
CENTRAL ENGINEERING & CONSTRUCTION CO
the Act, the Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act
5 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended 27
ORDER
Respondent, its officers, agents, successors, and assigns,
shall
1 Cease and desist from
(a) Discharging, laying off, or otherwise discriminating
against employees in regard to hire or tenure of employ-
ment, or any term or condition of employment, in order to
discourage membership in any labor organization
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed in Section 7 of the Act, except for the extent as
may be permitted by a lawful agreement in accord with
Section 8(a)(3) of the Act
2 Take the following affirmative action which it is
found will effectuate the policies of the Act
(a) Offer James Gray and Ronald Capps immediate and
full reinstatement to their former positions or, if such
positions are no longer available, to substantially equiva-
lent positions, without prejudice to their seniority or other
rights previously enjoyed, and make them whole for any
loss of pay suffered by reason of violative conduct directed
toward them, in the manner described in the section of the
Trial Examiner's Decision entitled "The Remedy "
(b) Notify James Gray and Ronald Capps if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order
(d) Post at its place of business at Indianapolis, Indiana,
copies of the attached notice marked "Appendix "28
Copies of said notice, on forms provided by the Regional
Director for Region 25, after being duly signed by
Respondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith 29
IT IS FURTHER ORDERED that the allegations of the
complaint not specifically found herein to constitute
violations of the Act be dismissed
573
27 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
28 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall be changed to read
Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board
29 In the event that this recommended Order is adopted by the Board
after exceptions have been filed this provision shall be modified to tead
Notify the Regional Director for Region 25 in writing within 20 days
from the date of this Order what steps the Respondent has taken to comply
herewith
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer James Gray and Ronald Capps
immediate and full reinstatement to their former
positions or, if such positions are no longer available, to
substantially equivalent positions , without prejudice to
their seniority or other rights previously enjoyed, and
make them whole for any loss of pay suffered by reason
of the conduct violative of the Act directed against
them
WE WILL NOT discharge, layoff, or otherwise discrim-
inate against employees in regard to hire or tenure of
employment, or any term or condition of employment,
in order to encourage or discourage me mbership in any
labor organization
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights guaranteed in Section 7 of the Act, except to the
extent as may be permitted under lawful agreements in
accord with Section 8(a)(3) of the Act
All our employees are free to become or remain, of to
refrain from becoming or remaining , members of any other
labor organization except to the extent as may be
permitted under lawful agreements in accord with Section
8(a)(5) of the Act
ROBERT J HORTH, DONALD
A HORTH, AND DOUGLAS
R HORTH, A PARTNERSHIP
D/B/A CENTRAL
ENGINEERING AND
CONSTRUCTION CO
(Employer)
Dated By
(Representative) (Title)
We will notify James Gray and Ronald Capps if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act, as amended, after discharge
from the Armed Forces
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced by directed to the Board's Office, 614 ISTA Center, 150 West
anyone Market Street, Indianapolis, Indiana 46204, Telephone
This notice must remain posted for 60 consecutive days 317-633-8921
from the date of posting and must not be altered, defaced,
or covered by any other material Any questions concern-
ing this notice or compliance with its provisions may be