Columbia Building Materials, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1979

239 N.L.R.B. 1342 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Columbia Building Materials, Inc., and Laborers' Dis-
trict Council of the State of Arizona and its affiliate
Local 479, affiliated with Laborers' International
Union of North America, AFL-CIO. Case 28 ('A
4588
January 16. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND) MEMBE-RS PI NI .LO
AN[) TRItlES)AI I
On August 25. 1978. Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The General Coun-
sel filed a cross-exception and a brief in support
thereof and in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions ' and briefs
and has decided to affirm the rulings, findings,2 and
The General Counsel has excepted to the Administrative Law Judge',
failure to find that Davis. Jr., was a supervisor For the reasons stated in the
Administrative L.ai Judge's Decision. we find it unnecessary tih decide that
issue
2Respondent has excepted to certain credibility findings made bh the
Administrative Law Judge It is the Board's established polhcs not tor ,ver-
rule an Administrative L aw Judge's resolutions with resrect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dr , Wall Prodmsl Isnc. 91
NLRB 544 (1950), enfd 188 F. 2d 362 (3d. Cir. 1951t. We have carefull,
examined the record and find no basis for reversing her findings.
In sec nll. E. of her Decision. the Administrative Law Judge found that
only one employee was hired in 1973 at less than the contractual wage scale
However, the exhibit from which she derived the numbers of employees
hired in the years after 1973 indicates that in fact 25 employees were so
hired in 1973. Thus, we hereby correct this inadvertent error. which for the
reasons stated below does not affect our adoption of the Administratise
Law Judge's Decision.
The Administrative Law Judge's finding that the Union had not agreed to
Respondent's practice of hiring employees at less than the contractual wage
scale was based on the credited testimony of the (General ('Counsel's witness-
es. That there were more employees hired in 1973 at less than the contractu-
al wage scale than the Administrative Law Judge found in her I)ecision
does not specifically contradict the credited testimony that the Lnion did
not agree to Respondent's hiring practice. Thus, in view of the sufficient
basis in the record for relying on the General Counsel's witnesses. we see no
reason to disturb the Administrative Law Judge's findings.
With respect to the Administrative Law Judge's finding that Respondent
had failed to prove that the Union had knowledge of Respondent's pr.actice
of hinng at less than the contractual wage scale, our correction here. if
anything. tends to support her conclusion The Administrative Law Judge
found that the rapid turnover of employees did not warrant an inference
that the Union had knowledge of Respondent's practice and thereby, c-
quiesced in it. Of the 25 employees hired in 1973 at less than the contract
scale. 16 were terminated within approximately 2 months or less. 8 between
2 and 8 months, and only I employee was still employed at the time of the
hearing. Moreover. any inference of knowledge on the part of the L nion
which may be drawn from the gross number of employees hired in 1973 at
less than the contractual wage scale is mitigated by the evidence that in the
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Columbia Building Ma-
terials, Inc., Tucson, Arizona. its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
years 1974 through 1976 only 18 employees were hired it less than the
contractual wage scale, I' of whom were terminated In approximatels 2
months or less.
Accordingly. notwithstanding our correction made abohe, for the rea',on,
stated in her Decision. we adopt the Administrative l.aw Judge's finding
that Respondent violated Sec. 8(a(5) and 111 of the Act bs Its practice of
hiring employees at less than the contractual wage ,c.le
DECISION
STATEMENT OF tHE CASE
EARLDEAN V S ROBBINS. Administrative Law Judge: This
case was heard before me in Tucson, Arizona, on various
dates in April and May 1978. The charge was filed by La-
borers' District Council of the State of Arizona and its
affiliate Local 479, affiliated with Laborers' International
Union of North America, AFL IO, herein collectively
called the Union, and served on Columbia Building Mate-
rials, Inc., herein called Respondent, on November 3, 1977.
The complaint, which issued on January 31, 1978, alleges
that the Respondent violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act, as amended.
The principal issues herein are:
1. Whether Bruce Davis, Jr., and Sylvester Torres are
supervisors within the meaning of Section 2(1 I) of the Act.
2. Whether Respondent violated Section 8(a)(1) and (5)
of the Act by bypassing the Union and dealing directly
with employees, by permitting and assisting employees to
circulate a petition seeking to decertify the Union, by soli-
citing the revocation of dues-checkoff authorizations, and
by refusing to meet and negotiate with the Union.
3. Whether Respondent violated Section 8(aXI), (3), and
(5) by unilaterally changing the wage rate of certain of its
employees.
4. Whether Respondent violated Section 8(a)(1) of the
Act by interrogating job applicants as to their union mem-
bership and informing said applicants that they would be
hired if they did not join the Union.
Upon the entire record,' including my observation of the
demeanor of the witnesses,2 and after due consideration of
I Upon the mohtion iof the General Counsel. the official transcript herein is
corrected as set forth in Appendix B. (Omitted from pubhication.)
I he facts found herein and the credibility resolution are based on a full
consideration of the entire record and upon my observation of the de-
meanor of the witnesses. As to those witnesses testifying in contradiction of
342
COLUMBIA BUILDING MA'TERIALS
briefs filed by the General Counsel and the Respondent. I
make the follcwing:
FINmIN(;S oF FA( 1
I J RIS DIC)l( rl
Respondent, an Arizona corporation with its principal
office and place of business in Tucson. Arizona. is engaged
in the manufacture and nonretail sale of concrete blocks.
Respondent. in the course and conduct of its business op-
erations. annually purchases and receives goods and mate-
rials valued in excess of $50,000 directly from points out-
side the State of Arizona.
The complaint alleges, Respondent admits. and I find
that Respondent is, and at all times material herein has
been, an employer engaged in commerce and in operations
affecting commerce within the meaning of Section 2(2). (6),
and (7) of the Act.
11 LABOR OR(ANIZATION
The complaint alleges, Respondent admits. and I find
that the Union is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UINFAIR IABOR PRA('CI. ES
A. Background
Respondent maintains two facilities in Tucson, referred
to herein as the Jacinto plant and the Alvernon plant. The
plants are about 10 miles apart, and Respondent's offices
are located at the Jacinto plant. There are approximately
35 employees at the Alvernon plant and 7 or 8 at the Jacin-
to plant. Jack Stewart is president of Respondent. Bruce
Davis, Sr. is plant supervisor at the Alvernon plant. Sylves-
ter Torres is supervisor at the Jacinto plant.1
Since at least 1967. 4 Respondent and the Union have
been signatories to successive collective-bargaining agree-
ments covering a unit of:
All laborers, industrial fork-lift operators, automatic
cuber operators, mixer operators, automatic block ma-
chine operators, working foremen, maintenance me-
chanics, welders and electricians employed by the Re-
spondent at its Jacinto and Alvernon plants. Tucson,
Arizona; excluding truck mechanics, truck drivers, of-
fice clerical employees, guards and supervisors as de-
fined in the Act.
The last such agreement expired on October 15, 1977. 5
my factual finding herein. their testimon) has been carefull) weglhed and
has been discredited, either as having been in conllict with the tesimirnx of
credible witnesses or because the testimony was intrnsicall Incrediblc.
3Torres credibly testified that he hires and fires employees and directs
their activities. Accordingly. I find that he is a supervisor slthin the mealn-
in4 of Sec. 2(11 of the Act.
Prior to 1973. Respondent was owned h (Carl Shurt,
All dales herein will he In 1977 unles, otherlse indilacd
B. 7he .Al/egied 8(a)(1) liolations
Prior to October 9. Wayne Beck, who had previously
been discharged by Davis. Sr., requested reemployment.
According to Beck. .)n October 9, at Respondent's employ-
ee picnic, Davis, Sr.. told him. "I'Ill see you Tuesday." Beck
asked if he had a job. Da is. Sr. said Beck would have a job
if he stuck with him. but if he went with the Union, he
probhably would not have a job. Beck said he would stick
with Davis, Sr. Davis. Sr., further said they were going to
try and get the Union thrown out, but if the) were unsuc-
cessful and the union employees went on strike, he would
need some backup help to run the machines. Davis. Sr.,
then asked if Beck would cross a picket line, Beck said he
would. Davis, Sr., said if Beck repeated this conversation.
he would dens it.
Davis. Sr.. admits that he had a conversation with Beck
at the picnic. However. he contends that no more than a
dozen words were exchanged. Hle testified that he does not
recall exactly what was said, but that it was all in regard to
Beck's reemployment. He denies making any statement re-
garding a strike or sticking with him or denying the conver-
sation. He also denies asking Beck if he would cross a pick-
et line. According to Davis, Sr., he told Beck he would give
him another opportunity to work and he would have a job
so long as he did his work. Beck was rehired the following
'Tuesdas.
According to Richard Verdugo. he and Frank Martinez
went to the Alvernon plant on October 12 seeking emplos-
ment. Together they spoke to Davis, S:., and Jack Stewart.
Either Davis. Sr., or Stewart asked if they were union.
When they replied in the negative, Davis. Sr., asked if they
would cross a picket line if there was a strike. Verdugo said
yes. Davis, Sr., asked what he thought about unions. Ver-
dugo said he didn't think anything about unions, he just
wanted to work. Davis, Sr., said that was all he wanted to
know and they should check the next day to see if they
would be hired.
Martinez testified in essential agreement with Verdugo.
He testified that Davis. Sr., asked if there was a strike,
would thev cross a picket line. Stewart asked if Martinez
was union. Martinez said no. Davis, Sr.. said he would hire
them on the condition that they remained nonunion. Both
Vergudo and Martinez testified that Davis. Sr., said the job
would not be permanent.
Davis, Sr., denies that he asked Verdugo and Martinez if
thev would cross a picket line, or what they thought about
unions. According to him. Verdugo and Martinez asked for
a job. He told them he had openings, but it would be only
temporary because they were negotiating for a union con-
tract and there had been talk around the plant about a
strike. He further said if there was a strike, the job would
be only temporary.
Stewart also denies that Davis, Sr.. asked if they would
cross a picket line or that either he or Davis, Sr.. asked
what they thought of unions. According to him, one of the
applicants said he already had a job. Davis, Sr. said they
were in contract negotiations, there was a lot of talk about
a strike and in the event of a strike the plant might shut
1343
I)ECISIONS OF NATIONAI. I.ABOR REI.A1 IONS BOARD
down so he should take this into consideration before leav-
ing his present job. Stewart further testified that theN were
seeking temporary employees because two machines were
being placed on double shifts. However, there is no testi-
mony that two shifts were initiated. Stewart admits Re-
spondent had no intention of shutting down the plant in
the event of a strike.
I credit Martinez. Verdugo, and Beck, all of whom im-
pressed me as honest and reliable witnesses. The testimony
of Martinez and Verdugo is mutually corroborative. Marti-
nez is still in Respondent's employ. Their testimony tends
to corroborate that of Beck in that they all testified that
Davis, Sr., was interested in whether he could depend upon
them to work in the event of a strike. On the other hand.
both Davis, Sr., and Stewart displayed a tendency to tailor
their testimony to Respondent's advantage.
I also note that no strike was in progress. there is no
evidence that there was talk of a strike around the plant.
and Respondent's employees had never gone on strike.
even during the 1976 negotiations, when Respondent re-
fused to grant a wage increase. In the circumstances, there
appears to have been no legitimate purpose for inquiring
regarding crossing a picket line, and no assurance against
reprisals was given.
In these circumstances, I find that Respondent violated
Section 8(a)(1) of the Act by the interrogation of Beck.
Martinez, and Verdugo as to their union sentiments and
whether they would cross a picket line in the event of a
strike. York Division, Borg-Warner Corporation, 229 NLRB
1149 (1977); F. M. Broadcasting Corp., 211 NLRB 560
(1974); Maintenance Contractors of Kings Countv, 228
NLRB 1182 (1977). I also find that Respondent violated
Section 8(aXI) of the Act by conditioning the employment
of Beck, Verdugo, and Martinez on their withholding their
support from the Union. Orlando Paper Co., Inc., 197
NLRB 380 (1972), and by Davis, Sr.'s statement to Beck
that Respondent was trying to oust the Union. Dust-Tex
Service, Inc., 214 NLRB 398 (1974).
C. The October 10 Meeting
On October 10, immediately following the end of the
workday, Stewart held a meeting of Jacinto plant unit em-
ployees at his home. Employees Danny Torres, Isidro Tor-
res, Rudy Dominguez, John Law, and Gilbert Benitez were
present. Sylvester Torres was also present. Jesus Benitez,
the union steward, and his son, Ramon Benitez, were not
invited.
Sylvester Torres testified that shortly before October 10
he gave the employees at the Jacinto plant a booklet de-
scribing the profit-sharing plan available to Respondent's
nonunit employees. 6 Thereafter, employees began asking
him questions regarding fringe benefits available to nonun-
it employees which he allegedly could not answer. He
asked Stewart to meet with the employees to explain these
benefits. Stewart said it was against the law to hold such a
meeting. Torres suggested that they refrain from calling it a
6 Torres admits that he told Stewart he was showing the pamphl.t to
employees. Stewart did not object. It is unclear if other benefits were men-
tioned in this pamphlet.
meeting. Torres repeated his request several times.
I inally, on October 10, according to Stewart, he told
I orres that there wa:, a keg of beer left over from the pic-
nic, so he would meet with the employees after work and
answer ani questiors they had. Later that day. Sylvester
Torres asked all of the Jacinto unit employees, except the
union steward and his son. to attend a meeting at Stewart's
house.
Gilbert Benitez testified that Sylvester Torres told him
there would be a meeting at Stewart's house regarding the
Union and that the meeting was against the law and Stew-
art could go to jail because of it.
Isidro Torres, son of Sylvester Torres, testified that on
October 10 his father told him that Stewart wanted to talk
to the employees to explain Respondent's insurance plan
and profit-sharing plan and to answer any questions they
had.
I. Iestimon' of witnesses for the General Counsel
Dominguez, Benitez,7 and Isidro Torres testified in sub-
stantial agreement. Stewart said you all want to know what
this meeting is all about. If you have any questions to ask,
go ahead. Benitez asked what kind of offer Respondent
had that was better than the Union. Stewart said he did not
want to tell them which way to go, union or nonunion, he
just wanted to explain Respondent's insurance plan and
profit-sharing plan. Stewart said Respondent had a medi-
cal plan which was similar to the Union's, but it paid more
on glasses, prescriptions, doctors, and surgery. He further
said that the Union's plan cost too much. He said Respon-
dent's insurance plan paid everything-doctors, eyeglasses,
etc. whereas with the Union, employees had to pay union
dues and 10 percent of the medical bills.
Stewart said he didn't want to sign a union contract, that
Respondent was going nonunion. It was costing too much
for insurance, wages were high enough, and he didn't think
Respondent could afford to go any higher. Benitez asked
what assurance was there that they would not be dis-
charged or laid off or that their wages would not be lower
if they repudiated the Union. Stewart said if they went
nonunion wages would remain the same plus a 25- to 35-
cent cost-of-living increase. He further said that the em-
ployees could go to some bureau but did not mention the
name of the bureau.
Benitez asked if Respondent would put it in writing.
Stewart said he couldn't do that, that he felt he didn't have
to, that his word was good enough and not even the Union
could do that. An employee mentioned that they had paid
union dues for the last year but had not received a raise.8
'Resptondent argues thall Benitec should not be credited because in his
prehe;lring affidavit he stated. "[Stewartl didn't say something about signing
or not signing a contract with Ihe Jnlon" and "I do not recall if Stewart
said anything to emploiees about a strike" Benitez testified that although
he did not recall the statements at the time he gave his affidavit in Decem-
her. upon reflection he did recall, and he has a present recollection that
Stewart made the statenment about strikes and said he was not going to sign
a union contract In this regard. I note that Stewart admits that he made a
stalemrent regarding replacement of strikers and that Benitez' testimony as
to not signing a co ntratt is corroborated by Isidro l'orres and Dominguez.
K Ihe 1976 77 collective-barg;ning agreement does not provide for a
wage Intcrease.
1344
COLUMBIA BUILDING MATERIALS
Stewart said what it would probably boil down to is there
would be an election and it would be up to the employees
if they wanted to go union or nonunion. Danny Torres
asked if Respondent was getting new machines. Stewart
did not answer.
Someone asked how union negotiations were going and
if Respondent would sign a contract. Stewart said they
were negotiating, that he hoped they would come to an
agreement and not have any problems, but if there was a
problem, Respondent intended to operate. Isidro Torres
asked what would happen if the Union went on strike.
Stewart said Respondent would continue operations. He
would send the strikers a written notice to return to work
or they would be replaced.
There was some confusion as to whether he said they
would be temporarily replaced or permanently replaced.
When Dominguez was asked on cross-examination if Stew-
art mentioned the words "permanent strike replacement."
Dominguez testified that his present recollection was that
Stewart said if there was a strike he could keep the plant
going temporarily with strike replacements. Benitez testi-
fied that he said he would send the strikers a notice saying
they were temporarily out of a job.
Stewart also said that the employees would be better off
without the Union and that if he did sign a union contract
wages and the price of blocks would increase, their work
hours would decrease, and they would work only 3 or 4
days out of the week.9
2. Testimony of witnesses for Respondent
Stewart testified that the meeting began with Benitez
asking questions. Stewart immediately replied, "Gilbert, I
want you to understand this and I want all of you to under-
stand it, that I'm here strictly to answer your questions. I
am not here to persuade you either way. I am not here to
convince you which is better. I am not here to talk about
union or nonunion anything. I just want to answer the
questions that you might have." Benitez said we have been
hearing about a profit-sharing program that s;ome of the
other employees have, and we would like to know what it's
all about. Stewart replied that Respondent did have a
profit-sharing program, that Respondent put an amount
equal to 10 percent of an employee's wages into a trust
fund specially for the employee. so that Respondent can-
not touch it. At the end of 10 years, properly vested, an
employee could have a large amount of money, maybe
$30,000 or $40,000, depending upon the employee's wage.
Stewart further said that if Respondent had a good profit
year it could, at its option, contribute 15 percent. Stewart
also said, according to him. that he wanted them to under-
stand that he was only explaining to them what the profit-
sharing plan was for other employees, he was not offering
it to them.
Stewart also testified that Benitez, asked how the plan
compared with the union program. Stewart said he did not
know, that all he knew was what he read in the newspaper
and if that was true, he sincerely hoped that there would be
9 This account of the meeting is a composite of the testirmon , of Isidro,
Torres. Benirez. and Dominguez.
money left in the union fund when the employees retired.
Isidro Torres asked about Respondent's hospitalization
program. Stewart said it was one of the best in the State.
that it covered 100 percent of the hospital bills and 80
percent of the prescriptions with an eye clinic and a dental
clinic. Isidro asked what the plan cost. Stewart said it cost
Respondent $80 a month. Isidro asked what the union plan
cost, and Stewart replied that the union plan cost Respon-
dent $150 a month. ° According to Stewart, he then said
that they were not to construe what he said to mean that he
was saying Respondent's plan was better than the Union's
plan or that the employees should take Respondent's plan.
Stewart further testified that Benitez inquired regarding
negotiations. Stewart said they were negotiating then and
would continue to negotiate, and he hoped they settled
because Respondent could not afford to shut down. Isidro
asked what if there'; a strike and pickets. Stewart said if
there were pickets he would have no choice but to send a
letter to employees who refused to cross the picket line
giving them 24 hours' notice that they would be perma-
nently replaced if they did not report to work.
Someone asked how the wage negotiations with the
Union were progressing. Stewart said he considered the
employees well paid for what they did, that the Union has
proposed a cost-of-living increase which would net em-
ployees between 25 and 35 cents.
Stewart asked if there were any more questions. There
were none. Stewart said they should not construe the meet-
ing as anything but a social meeting for him to answer their
questions, and they were not to say or think that he was
trying to coerce them or ask them or persuade them to go
union or nonunion. That was not the purpose of the meet-
ing. Stewart denies saying he would not sign a union con-
tract or that Respondent was going nonunion or that work
opportunities would be reduced if they remained union.
Employee John Law testified on Respondent's behalf in
general corroboration of Stewart's testimony. However, on
cross-examination, it became rather clear that Law recalls
very little of what was said at that meeting. Rather, on the
day before Law testified, Stewart read to him the account
of the meeting contained in Stewart's prehearing affidavit,
and his recollection principally came from Stewart's affida-
vit.
There is no dispute that Davis, Sr., and Davis, Jr., ar-
nved shortly before the employees left Stewart's house.
Stewart and the Davises contend that their sole purpose in
coming to Stewart's home was to pick up the keg of beer
left over from the picnic. Dominguez. Benitez, and Isidro
Torres testified that Davis, Jr., said they should have an
election to vote to get the Union out, that he could use the
$14 or $15 he paid for union dues. Davis, Jr., admits that
he said he did not care for the Union and that for what
they were getting from the Union he could find better
things to do with the $14 or $15 union dues. He denies that
he said anything concerning an election.
i' I.idro I ,rre, les.Irled that he does not recall an\one asking a question
1345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Conclusions
As discussed elsewhere herein, I do not find Stewart to
be a reliable witness. On the other hand, Dominguez, Isi-
dro Torres, and Benitez testified in an open, candid man-
ner and appeared to be endeavoring to answer questions
truthfully. Further, their testimony is mutually corrobora-
tive. As indicated above, I found Law's testimony to be
absolutely unreliable. Sylvester Torres was not questioned
by counsel for Respondent as to this meeting. The infer-
ence is that his testimony would not have been favorable to
Respondent. In the circumstances, I discredit Stewart's tes-
timony to the extent that it differs from that of Benitez,
Dominguez, and Isidro Torres.
I further find that Stewart's purpose in holding the meet-
ing was to denigrate the Union and to encourage the em-
ployees to abandon the Union, notwithstanding any state-
ments made by Stewart that he was not trying to tell them
what to do. I also find that, essentially, what Stewart did
was to outline in glowing terms what their terms and condi-
tions of employment as to wages, profit sharing, and health
insurance would be if they were not represented by the
Union and tell employees that these terms and conditions
were better than what they would receive with union repre-
sentation. Accordingly, I find that Respondent violated
Section 8(aX)(1) and (5) of the Act by denigrating the Union
and by dealing directly with employees and offering them
better terms and conditions of employment in order to en-
courage their abandonment of the Union.
Lehigh Lumber Company, 230 NLRB 1122 (1977); Towne
Chevrolet, 230 NLRB 479 (1977); Parts, Jobbers, Ware-
house, Inc., 216 NLRB 1093; Edward R. Rude Carrier Cor-
poration, 215 NLRB 883 (1974); Texas Electric Coop, Inc.--
Treating Division, 197 NLRB 10 (1972); Daisy's Originals,
Inc., of Miami, 187 NLRB 251 (1970).
I also find that Respondent violated Section 8(a)(1) and
(5) of the Act by Stewart's statement that Respondent was
going nonunion and would not sign a contract with the
Union. Gary Maughan and Michael Walsh, d/b/a The Hold-
ing Company, 231 NLRB 383 (1977); Leggett and Platt.
Inc., 230 NLRB 463 (1977); St. Anthony's Center, 227
NLRB 1777, 1785 (1977); Dust-Tex Service, Inc., supra. Re-
spondent further violated Section 8(aX1) and (5) of the Act
by Stewart's threatening to reduce the employees' hours of
work if he did sign a collective-bargaining agreement and
by Torres' distributing the pamphlet describing nonunion
benefits. Winn-Dixie Texas, Inc. d/b/a Foodway, 234
NLRB 72 (1978); Towne Chevrolet, supra.
D. The Circulation of the Petition Repudiating the Union
On October 12 and 13, Davis, Jr., obtained signatures
from 26 employees, including his own and that of Sylvester
Torres, to a petition which states: "We the employees of
Columbia Building Materials no longer wish to be repre-
sented by Laborers Union #479." Twenty-two employees
signed on October 12, three on October 13. and one on
October 16. Davis, Jr.'s was the third signature and Sylves-
ter Torres' was the eighteenth. Most of the Jacinto employ-
ees signed after Sylvester Torres signed.
Wayne Beck testified that on October 12 Davis, Jr..
asked him to sign the petition, which he did. Davis, Jr.,
then asked Beck if lie would go to the hospital where
Beck's father, Harold, was a patient so Davis, Jr., could
secure Harold Beck's signature on the petition. En route to
the hospital, accordng to Wayne Beck, they began discuss-
ing getting rid of the Union, and Davis, Jr., told him he
had asked his father for assistance, but his father did not
know the procedure and referred him to Rick Findley at
Columbia Rock and Mining, another subsidiary of Re-
spondent's parent company, who had initiated a successful
drive the previous year to oust a union from Columbia
Rock and Mining. Davis, Jr., denies making any statement
regarding any assistance or information he received from
his father or anyone in prepanng the petition. He admits,
however, that he did receive assistance from Rick Findley
as to the procedure to follow.
Davis, Jr., has worked for Respondent for 8 years. Ini-
tially he worked part time after school. His first full-time
job was as forklift operator. After about 2-1/2 years, he
began work as a cuber, a job he held for about 4 years.
Thereafter he has worked as a maintenance man. As main-
tenance man, he does overall repair and upkeep of the ma-
chinery at the Alvernon plant. He has the additional re-
sponsibility of maintaining an inventory of parts and
ordering parts as required to replenish stock. According to
both Davis, Jr., and Davis, Sr., he only orders parts upon
the specific approval of Davis, Sr.
Both Davis, Jr., and Davis, Sr., deny that Davis, Jr.,
hires, fires, or responsibly directs employees, and consider-
able evidence was adduced with regaid to Davis, Jr.'s su-
pervisory status or lack thereof. However, in the circum-
stances herein, I find that the circulation of the petition is
attributable to Respondent, even assuming that Davis is
not a supervisor. American Door Company, Inc., 181 NLRB
37 (1970); Sprouse-Reitz Co., Inc., 199 NLRB 943 (1972).
He certainly occupied a status different from that of other
employees. Thus, he was paid more, and he was not re-
quired to utilize the timeclock. He was responsible for the
parts inventory, he conferred with salesmen, he initialed
timecards in his father's absence, he was used by Davis,
Sr.. as a conduit for instructions to other employees, and a
number of the employees, reasonably under the circum-
stances, considered that he was in charge in the absence of
Davis, Sr.
Furthermore, his activity conformed to Respondent's ex-
pressed intention to oust the Union under circumstances
which could reasonably lead employees to assume that the
circulation of the petition was sponsored by Respondent.
Thus, on October 9, Davis, Sr., told Beck Respondent
was going to try to oust the Union. On October 10, Stewart
told employees that Respondent was going nonunion and
would not sign a union contract. He further stated that
what would probably happen is there would be an election
and the employees would decide whether to go union or
nonunion. Then Davis, Jr., arrived and said, in Stewart's
presence, that they should have an election to vote to get
the Union out. On October 12 and 13, Davis, Jr., circulat-
ed, during worktime, a petition repudiating the Union and
took a day off thereafter to file the petition. In these cir-
cumstances, I find it incredible that Stewart and Davis, Sr.,
had no knowledge of this activity. Furthermore, Supervisor
1346
COLUMBIA BUILDING MATERIALS
Sylvester Torres signed the petition and thereafter permit-
ted Davis to circulate it during working hours at the Jacin-
to plant.
Accordingly. I find that Respondent violated Section
8(a)(I) of the Act by the circulation of the petition repudi-
ating the Union. Mavvwood Plant of Grede Pla.stics. a Divi-
sion of Grede Foundries, Inc.. 235 NLRB 363 (1978). Dell/-
ridge Associates, Inc. d/b/a Dellridge Nursing Home. 234
NLRB 595 (1978). I further find that by the same conduct
Respondent violated Section 8(a)(5) of the Act. The Rogers
Manufacturing Company. 228 NLRB 882 (1977): The Roval
Himmel Distilling Companyr 203 NLRB 370 (1973): u ahoo
Packing Company. 161 NLRB 174 (1966).
E. The Failure To Pay Contractual Wage Rates to C'ertain
Employees
Respondent has operated under its present ownership
and management for about 5 years. The collective-bargain-
ing agreement effective during most of this period has been
one effective from October 15, 1973, through October 15,
1976, and the most recent one effective from October 15,
1976, through October 15, :977. Respondent's parent com-
pany Columbia Consolidated, has three other subsidiaries:
Columbia Rock & Mining. Columbia Sand and Gravel,
and Columbia Insulation. Within the last year. the Union
has been ousted from one of these other companies.
During at least the past 5 years, Respondent has em-
ployed certain employees at less than the contractual wage
scale. One such employee was hired in 1973, 6 in 1974, 5 in
1975, 7 in 1976, and 22 in 1977.
The complaint alleges that Respondent has violated Sec-
tion 8(a)(1) and (5) of the Act by unilaterally altering the
wages of unit employees and has violated Section 8(a)(1).
(3), and (5) of the Act by paying employees who are mem-
bers of the Union higher wages than it pays employees who
are not members of the Union. Respondent contends that
it is merely continuing a 20-year practice to which the
Union agreed or in which it at least acquiesced. Accord-
ingly, Respondent argues, no change has been effected.
and continuation of the practice does not discriminate be-
tween employees on the basis of union membership.
In support thereof Respondent's former owner. Carl
Shurtz, testified that in about 1967, following the dispatch
from the union hall of several unsatisfactory employees, he
told Union Representative Bert Hall that he would hire
employees at a lesser wage. Then if they proved satisfac-
tory, he would pay them union scale and send them to the
Union. Hall made no comment. Thereafter, during the fol-
lowing 5 or 6 years, very few employees were hired at lower
than the contractual wage rate. Shurtz further testified that
by very few he meant "not over several." Hall denies that
Shurtz ever made such a statement to him.
Shurtz also testified that he instructed Davis, Sr.. to hire
employees at the lower rate and if they proved satisfactory
to convert them to the contractual rate. Davis, Sr.. agrees
that Shurtz gave him such instructions, which he has fol-
lowed throughout his employment as supervisor. However.
he testified that he has only been supervisor for about 4-
1/2 years. Thus, he apparently was not a supervisor under
Shurtz.
Davis. Sr., further testified that whenever newly hired
employees became "qualified." he sent them to the Union
for referral in accordance with the collective-bargaining
agreement, which provides, inter alia, that if employees are
obtained from a source other than the Union the employer
is to immediately notify the Union and make arrangement
for proper referral. However, he admits that the only time
he sent any employee to the Union for referral was whien a
union representative questioned that employee's presence
at the plant.
According to Davis. Sr., this occurred on one occasion in
1977 when Larry Johnstone, assistant business agent for
the Union, discovered employees Don Davis, John Woost-
er, Harold Beck, and Gene Oberholtzer working at the Al-
vernon plant. According to Davis, Sr.. Johnstone asked if
theN were qualified. Davis. Sr., replied yes. Johnstone
asked that theN be ;ent to the union hall and Davis. Sr..
agreed.
Johnstone testified that he visits Respondent's facility
probabl) three or four times a year. On one occasion in
October or November 1976. these four employees were
pointed out to him by the shop steward. He then ap-
proached Davis, Sr., and said, "I understand you have
some guys picked up." Davis, Sr., said, "Yes, we have
four." and pointed out two employees working around the
machines and two working with broken block at a dump at
the end of the machines. According to Johnstone, he said.
"Well, look, we're going to have to get these guys squared
away and get them properly referred." Davis, Sr., said.
"You guys can't furnish us qualified people." Johnstone
admitted that was sometimes true but suggested that one
did not have to be qualified to work with broken blocks at
a dump. Davis said he did not think he was going to retain
those two. Johnstone said there was a dispatching proce-
dure. If thev needed employees, there were people at the
hall qualified to work as laborers, and they could be dis-
patched for several days, several hours, whatever Respon-
dent required. Davis, Sr., said he would send the four in for
referral, which he did.
Respondent also offered other evidence in support of its
position that the Union agreed to, or acquiesced in. its
practice of hiring employees at below contract rate. In this
regard, Stewart testified that during the 1976 contract ne-
gotiations Respondent took the position that business was
down and it could not afford a wage increase. During a
discussion of this position, Fred Brown, union business
agent, said:
Well, you know, we have a five cent an hour deduc-
tion from the men's wages to go into a fund to pro-
mote this business. and he says, I have to have some-
thing to give my people, my regular people, because
you're hiring people at below the contract rate now,
and my union people, I need some money to show
them to get through this negotiations.
Respondent's Counsel Fred Long testified that Brown
said he had to get something for his union employees be-
cause the other employees had been getting increases as
they became more qualified and that his employees were
upset with him.
Stewart also testified that in October 1977, during a con-
1347
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract negotiation session, he asked Brown how the checkoff
clause happened to be in the old contract. According to
Stewart, Brown replied:
Back when Carl Shurtz was the manager of the com-
pany and the Union could not furnish qualified peo-
ple, we got-had an agreement that Mr. Shurtz would
hire his own people off the street. He would train them
to-until they could do the job properly and then he
would send them down to the hall for a referral, and at
that time, I would sign them up on the checkoff list to
assist these people in paying-make sure they paid
their dues and assist them in the initiation fee which
was quite a sum of money, and most of the employees
were not able to come up with it all at one time.
Nelson Umble, a consultant who was representing Re-
spondent during negotiations, testified:
. . . [Brown] went into brief detail, saying that it
was an item that was negotiated previously when it
was generally recognized that the Union was not able
through its union hall to provide qualified, trained
personnel, and then went on to indicate that the -the
untrained personnel were hired at typically lesser rate,
and Mr. Stewart then replied, well, this is something
that's been going on for many years previous.
Brown denies making either statement. According to
him, in 1976, he received prior agreement of the employees
to accept a contract without a wage increase and also se-
cured a waiver from another employer-signatory of a
"most favorcd nation" clause so that the Union could ac-
commodate Respondent's plea for a contract without a
wage increase.
Brown further testified that he would not have made a
statement, under any circumstances, that the Union had
agreed to hiring employees for a wage rate less than that
set forth in the contract. All of the Union's contracts con-
tain most favored nations clauses,] l and such an agreement
would jeopardize the wage rates in other contracts.
As to the 1977 negotiations, Brown testified that when
Stewart inquired as to the history of the checkoff clause he
answered, saying that it was agreed to several years before,
mainly for the convenience of employees who did not have
the money to join the Union. Johnstone testified in sub-
stantial agreement.
It is undisputed that Respondent has hired employees at
less than the contractual wage rate. Respondent admits
that it has done so for several years. Contrary to Respon-
dent's arguments, I find that Shurtz' testimony fails to es-
tablish the existence of an oral agreement to this effect.
Also, I do not credit the testimony of Stewart. Long, and
Umble that Brown acknowledged the existence of such an
understanding. I find it incredible that Brown would re-
spond to a question regarding the origin of checkoff with a
The clause in the contracts involved herein provides in art 11
(h) It is provided further that should any terms or conditih,, otlcer
than those contained herein be made available tol als oilher conetrcic
block or brick manufacturer or manufacturers in the 1 ucsoull aT;e. theCI
such more favorable terms or provisions of such agreement or ;lrec-
menrits shall immediately be made available to ian) companns or conmpa-
nies signatory hereto.
statement containing no logical relation to the question.
The testimony of Brown and Johnstone as to Brown's re-
sponse is inherently more credible. Furthermore, it appears
unlikely, considering the "most favored nations" clauses,
that Brown would admit to such an agreement, particularly
when it was not even in issue. Also, Brown's undenied tes-
timonv. which I credit, is that in the 1976 negotiation ses-
sion he had previously secured the consent of the employ-
ees to waive a wage increase; so the alleged statement by
Brown seems somewhat unlikely. Furthermore, at the time
of the 1976 negotiations, there do not appear to have ex-
isted these employees who allegedly had been receiving
more and more wage increases. Only one of the employees
hired in 1973. 1974, and 1975 at the lower wage rate sur-
vived until 1976. That was George Vaccaro, who was hired
in December 1974 aid terminated January 6, 1976. Of the
seven hired in 1976. mnli two remained more than a month
and one stayed only 54 days and was terminated on Sep-
tember 28. John Wooster, who had previously been in Re-
spondent's employ, was the only one to remain and receive
substantial raises. and at the time of the negotiations he
still received wages more than $1 an hour lower than other
employees. Thus, there appears to have been no reason for
Brown to make the alleged statement that his people were
unhappy because of the wage increases the others were
getting.
I also do not credit Davis, Sr's. account of the conversa-
tion with Johnstone. As set forth above, I have found Da-
vis, Sr.. to be an evasive and unreliable witness. He first
testified that he hired persons at below contract rate pur-
suant to Shurtz' instructions. Then he testified that he had
been a supervisor for only 4-1/2 years, a period that began
after Shurtz left. He also contended that it was his practice
to hire employees at this lower rate and then when they
became qualified to send them to the union hall for refer-
ral. Upon closer questioning he admitted that the only per-
sons he sent for referral were the four that Johnstone found
working on the job. Three of these were hired at contract
rate.
Accordingly, I conclude that there existed no arrange-
ment between Respondent and the Union that certain em-
ployees would be hired at less than contract rates. Further-
more, considering the rapid turnover, no inference can be
drawn that the Union must have known of the practice and
acquiesced in it. Thus, the only question is whether this
breach of the contractual wage rate is a violation of the
Act. It is well established that, though a breach of contract
is not per se an unfair labor practice, where an employer
unilaterally effects a change which has a continuing impact
on a basic term of employment, such as wages. more is
involved than a simple breach of contract. Such a change
constitutes a modification within the meaning of Section
8(d) of the Act, and if done unilaterally it is in derogation
of the employer's statutory obligation under Section 8(d)
and is thus violative of Section 8(a)(5) of the Act. C & S
Industries., Inc., 158 NLRB 454 (1966).
Here. Respondent. without the prior agreement of the
Union, has hired employees throughout most of the term
of the 1976-77 collective-bargaining agreement at a wage
rate less than that provided in the contract. I find that such
conduct is a continuing violation of Respondent's obliga-
! 348
COLUMBIA BUILDING MATERIALS
tions under Section 8(d) of the Act and is. therefore, viola-
tive of Section 8(a)(1) and (5) of the Act.
General Counsel also argues that Respondent is thereby
maintaining a separate wage structure for nonunion mem-
bers in violation of Section 8(a)(3) of the Act. I find the
evidence is insufficient to establish that Respondent hired
certain employees at less than contract rate for any reason
other than to save on labor cost. In this regard. I note that
employees were hired at the contractual rate who were not
union members. Accordingly. I find that Respondent did
not violate Section 8(a)(3) of the Act by paying certain
employees at a wage rate lower than that provided for in
the contract.
F. Other Refusal-To-Bargain Conduct
It is undisputed that on October 20 Respondent notified
the Union that it doubted its majority and since then has
refused to meet ard bargain with the Union. A presump-
tion of majority flows from the recently expired collective-
bargaining agreement. Sierra Development Companm dbh a
Club Cal-Neva, 231 NLRB 22 (1977). Furthermore, a ma-
jority of the employees had executed dues checkoff author-
izations and were members in good standing of the Union
in October 1977.
Respondent argues that it doubted the Union's majority
status based on the objective consideration of the decertifi-
cation petition filed on October 17, 1977, in Case 28 RD-
290 and the petition repudiating the Union signed by a
majority of its employees. Accordingly, it filed a represen-
tation petition in Case 28-RM-365 and refused to continue
bargaining with the Union.
I find Respondent's argument unpersuasive. For a doubt
of majority based on objective considerations to overcome
the presumption of majority flowing from the recently ex-
pired contract, the asserted doubt must be raised in a con-
text free of unfair labor practices. Guerdon Industries, I/nc.
Armor Mobile Homes Division, 218 NLRB 658 (1975): Alai-
wood Plant of Grede Plastics, a Division of Grede Foundries.
Inc., 235 NLRB 363 (1978). Such is not the case here. Also,
the objective consideration is a petition which I have found
was sponsored by Respondent.,2 Accordingly, I find that
Respondent violated Section 8(a)(1) and (5) of the Act b>
refusing to meet and bargain with the Union since October
20.
The complaint, as amended at the hearing, alleges that
since about March 23, 1978. Respondent has urged unit
employees to cease paying union dues to the Union and
has assisted them to cancel their dues checkoff authoriza-
tions.
About March 23. 1978. Respondent distributed the fol-
lowing memo to employees:
TO: ALL BLOCK PLANT EMPLOY II S
C(OI.L.ElC VE BARGAINING AGREEMENT EXPIRED ON 10. 1577. WE
ARE ND)ER NO I.E(iAI OB llATION TO HONOR THE CHECK-OFF
PROVISION IN TIN AI ('ONRACT THIS MEMORANDUM IS TO A)-
VISE YOl OF IIAI FA(CF
THFREFORE, IF YOU WISH TO (ONTINUE TO PAY YOUR UNION
Di ES TO TIlE UNION. YOt' MAY DO SO DIRECTLY TO THE UNION
SEVERAI. EMPLOYEES HAVE RAISED THE QUESTION. "DO I HAVE
TO PAY UNION DUES TO WORK AT COLUMBIA BUILDING MATE-
RIALS?" ARIZONA HAS A "RIGHT-TO-WORK" LAW, AND YO() D
NOT HAVE TO PAY UNION )DUES TO THE INION TO KEEP YOUR
JOB WITH US.
WE ARE NOI ENCOL RA(ING YOU 10 CONTINUE TO PAY UNION
[)L ES. OR TO DISC ONTINULE PAYING UNION DUES. THAT IS TOTAL-
LY UP TO YOU. THIS MEMORANDUM IS WRITTEN ONLY TO AD,
VISE YOU THAT OUIR COMPANY WILL NO LONGER BE CHECKING
OFF UNION DUES FROM YOUR PAYCHECK, AND TO ANSWER
YOUR QUESTION ABOUT WHETHER OR NOT YOU MUST PAY
UNION DUES TO HOLD YOUR JOB HERE.
A day or two thereafter. a stack of dues checkoff revoca-
tion forms were placed by the timeclock which read:
I I tF L N[)ERSIGNED MEMBER OF LiABORERS' LOCAL * 479 HERE-
WITH CilVE NOFI(F OF CANCELLING MY CHECK-OFF AND PAY-
ROl 1 DEDUC;(TION ACREFMENT WITH COLUMBIA BL ILI)ING MA-
II RIAIS. IN(' ((OLLIMBIA BI OCKI AND LABORERS' LOCAL V 479
Signature
Address
Soc. Security No.-
Date of Birth --
There is no direct evidence linking Respondent to the
checkoff revocation forms. However. they remained by the
timeclock. Davis, Sr.'s timecard is kept by the timeclock, so
he must have been aware of the documents. Davis, Sr.. was
not questioned in this regard. Stewart did testify that he
had not seen the revocation slips prior to the hearing
herein, but he did not deny Respondent's responsibility for
the distribution thereof.
In view of the timing immediately following Stewart's
memo regarding checkoff. the placement by the timeclock,
the context of Respondent's efforts to rid itself of the
Union. and its continuing refusal to meet and bargain with
the Union. I conclude that Respondent was responsible for
placing the documents by the timeclock. Furthermore. in
the circumstances I conclude that Respondent had knowl-
edge that the documents were there and should have
known that the employees would attribute them to Re-
spondent. Yet Respondent did nothing to disavow this
conduct. In the circumstances, I find that Respondent
thereby encouraged its employees to revoke their dues
checkoff authorizations in violation of Section 8(a( I) and
(5).1
FROM JACK STEWART C (I Si)NS o LAW'FROM JACK C STEWV.ART
SUBJECT: CHECK-OFF OF UNION DUiS
TODAY WE NOTIFIED LABORERS' I(K AI # 4?9 TH AI SIN( I OI R
12 The mere filing of an RD peitioln does not. in the oi.cunlotanlccc. _in-
stitilie sufficient objective considerations Idalh, fre'nh-P'iA In .2 N I.R IB
676 1974).
I. Respondent. Columbia Building Materials. Inc.. is an
employer encaged in commerce within the meaning of Sec-
tion 2(2), (6). and (7) of the Act.
le rn.mplilln llccv thils nonlduct ,Inls as al siolatlon of Sec 8(al i)
I-cs.er. It in pelrt of the xrlmc cnursc Af cnoiducl wIhich I find herein Io be
,iollntic 4f S.c XSo}i') of the A5l
1349
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. All laborers, industrial forklift operators. automatic
cuber operators, mixer operators, automatic block machine
operators, working foremen, maintenance mechanics,
welders, and electricians employed by the Respondent at
its Jacinto and Alvernon plants, Tucson, Arizona, exclud-
ing truck mechanics, truckdrivers, office clerical employ-
ees, guards, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been and
is now the exclusive representative of the employees in the
aforesaid appropriate unit for purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing to meet and negotiate with the Union
concerning a collective-bargaining agreement to succeed
the one which expired on October 15, 1977: by unilaterally
modifying the wage rate paid to certain employees: by b,-
passing the Union and dealing directly with employees: by
denigrating the Union in an effort to persuade employees
to repudiate the Union; by offering employees better terms
and conditions of employment in order to encourage them
to abandon the Union; by telling employees that it is going
nonunion, that it will not sign a contract with the Union.
and that if it does sign a contract with the Union work
opportunities would be reduced: by distributing pamphlets
describing nonunion benefits in order to encourage em-
ployees to abandon the Union; by soliciting employees to
repudiate the Union; and by encouraging employees to re-
voke their union dues checkoff authorizations, Respondent
has violated Section 8(a)(l) and (5) of the Act.
6. By interrogating job applicants concerning their
union membership and sympathies; by telling job appli-
cants they will be hired if they do not join or support the
Union; and by informing job applicants that Respondent
is going to attempt to oust the Union, Respondent has vio-
lated Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. Respondent did not violate Section 8(a)(3) of the Act
as alleged in the complaint.
TniE REMFI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by paying certain of its employees at a
rate lower than that provided in the collective-bargaining
agreement without the prior agreement of the Union. I
shall recommend that Respondent be ordered to revoke the
unilateral changes made in the wage rate and to pay to all
unit employees the wage rates set forth in the collective-
bargaining agreement effective from October 15, 1976. un-
til October 15, 1977, until such time as the said wage rates
are changed in a manner consistent with Respondent's
obligations under Section 8(d) of the Act, and make em-
ployees whole for any loss of pay they may have suffered
by reason of its unlawful modification of their rates of pay
with interest thereon, commencing from May 3, 1977. Flor-
ida Steel Corporation, 231 NLRB 651 (1977).I4
Upon the basis of the foregoing findings of fact and con-
clusions of law, upon the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER '
The Respondent. Columbia Building Materials, Inc.,
Tucson. Arizona, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to meet and negotiate with the Union con-
cerning a collective-bargaining agreement to succeed the
one which expired on October 15, 1977: or unilaterally
modifying the wages of employees; or bypassing the Union
and dealing directly with employees; or denigrating the
Union in an effort to persuade employees to repudiate the
Union: or offering employees better terms and conditions
of employment in order to encourage them to abandon the
Union: or telling employees that it is going nonunion, that
it will not sign a contract with the Union, and that if it did
sign a contract with the Union work opportunities would
be reduced: or distributing pamphlets describing nonunion
benefits in order to encourage employees to abandon the
Union: or soliciting employees to repudiate the Union: or
encouraging employees to revoke their union dues checkoff
authorizations.
(b) Interrogating job applicants concerning their union
membership and sympathies; or telling job applicants they
will be hired if they do not join or support the Union; or
informing job applicants that Respondent is going to at-
tempt to oust the Union.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sarD to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the Union as
the exclusive representative of the employees in the appro-
priate unit regarding wages, hours, and other terms and
conditions of employment and embody in a signed agree-
ment any understanding reached.
The appropriate unit is:
All laborers, industrial fork-lift operators, automatic
cuber operators. mixer operators, automatic block ma-
chine operators, working foremen, maintenance me-
chanics, welders and electricians employed by the Re-
spondent at its Jacinto and Alvernon plants, Tucson.
Arizona: excluding truck mechanics, truck drivers. of-
S4 ec. vcncrall. 14 I, Ptbunf rI. a Hcatci,n ( ,, 138 NlRB 716 ( 1962)
I' Iln e cvict t oll n txcptllln ar. filed a.s pro'ided bh Sec 102 46b f Ihe
RLdc's .id RceuLl;ln, of the Nilonalll I hor Relations BHard. the findings.
ou,,.lulnll,) .td [c,;,llrllnldcd Oricr herein ,hail. as provided in Sec
102I48 of Ithl Rule, .iand Rcgula;lilons he adopted hb the Board and hecmrne
i it , nlldig. conlulih n,. and Order and a111 ohetlions thereto shall be
dlercined.l ;l',ic\d fr a.ll pulip-cs
1350
COLUMBIA BUILDING MATERIALS
fice clerical employees, guards and supervisors as de-
fined in the Act.
(b) Revoke the unilateral changes made in the wage rate
and pay to all unit employees the wage rates set forth in the
collective-bargaining agreement effective from October 15,
1976, to October 15, 1977, until such time as the said wage
rates are changed consistent with Respondent's obligations
under Section 8(d) of the Act.
(c) Make whole employees for any loss of earnings suf-
fered by reason of Respondent's unlawful modification of
the contractual wage rate in the manner set forth herein in
the section entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records and reports and all other records required to
ascertain the amounts, if any, of any backpay due under
the terms of this recommended Order.
(e) Post at its place of business in Tucson. Arizona. cop-
ies of the attached notice marked "Appendix A." 16 Copies
of said notice, on forms provided by the Regional Director
for Region 28, after being duly signed by its authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter. in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 28. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I" In the event that this Order is enforced hb a judgment of a t nired
States Court of Appeals. the words in the notice reading "Posted hb Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing in Order of the
National i ahor Relations Board"
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELAtIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act and has ordered us to post this notice, and we intend
to carry out the order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain as a group through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any and all of these things.
WE WILL NOT do anything that interferes with, re-
strains, or coerces you with respect to these rights.
More specifically.
WE WILL Not refuse to bargain collectively in good
faith with Laborers' District Council of the State of
Arizona and its affiliate Local 479, affiliated with La-
borers' International Union of North America, AFL-
CIO, as the exclusive bargaining representatives of our
employees. The appropriate unit is:
All laborers, industrial fork-lift operators, automatic
cuber operators, mixer operators, automatic block
machine operators. working foremen, maintenance
mechanics, welders and electricians employed by
the Respondent at its Jacinto and Alvernon plants,
Tucson, Arizona: excluding truck mechanics, truck
drivers. office clerical employees, guards and super-
visors as defined in the Act.
WE WILL NOT during the term of a collective-bargain-
ing agreement and following the expiration of such
agreement pay our employees at a wage rate less than
that provided in such agreement.
WE WiLL NOT change said wage rates without bar-
gaining collectively with the Union concerning such
changes.
WE WILL NOt deal directly with our employees con-
cerning rates of pay, wages, hours of employment, and
other terms and conditions of employment in deroga-
tion of their exclusive bargaining representative.
WE WiiL NOT encourage our employees to abandon
or repudiate the Union by' offenng them better terms
and conditions of employment, by denigrating the
Union, or by distributing pamphlets descnbing bene-
fits available to our employees who are not repre-
sented by the Union.
WE WILL NOt solicit our employees to repudiate the
Union.
WE WA11. NOT encourage our employees to revoke
their union dues checkoff authorization.
W'E .ILL NOT tell our employees that we are going
nonunion, that we will not sign a contract with the
Union, or that if we do sign a contract with the Union
work opportunities would be reduced.
WE WUli Noi interrogate job applicants concerning
their union membership and sympathies.
Wt '.ll l NOt tell job applicants they will be hired if
they do not join or support the Union.
WF Wi 1l NOt inform job applicants that we are going
to attempt to oust the Union.
WF witl. Nor in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights set forth above. which are guaranteed by the
National Labor Relations Act.
Wu uiti forthwith revoke the unilateral changes in
wage rate and pay all of our employees at the wage
rates provided in our collective-bargaining agreement
with the Union effective from October 15, 1976, to
October 15. 1977. until such rates are changed through
collective bargaining with the Union or otherwise in
accordanrce with our obligations under the National
Labor Relations Act.
WE Wi.t make our employees whole for any loss of
earnings the 3 may have suffered because we unilater-
1351
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ally modified the wage rate provided in our collective-
bargaining agreement with the Union commencing
May 3, 1977.
WE WILL bargain in good faith, upon request, with
the Union as the exclusive representative of the em-
ployees in the aforesaid appropriate unit and embody
in a signed agreement any understanding reached
COL.UMBIA BUILDING MATERIALS. INC,
1352