Daniel Construction Co., Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1964

145 N.L.R.B. 1397 (N.L.R.B. 1964)

DANIEL CONSTRUCTION COMPANY, INC. 1397
reinstate, or in any other manner discriminating against them in regard to their
hire or tenure of employment, or any term or condition of employment.
WE WILL offer Ozie Perkins immediate and full reinstatement to her former
or substantially equivalent position, without prejudice to her seniority or other
rights and privileges previously enjoyed, and make her whole for any loss of
pay suffered by her as the result of our discrimination against her.
WE WILL NOT in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist both the labor organizations named above, or any other labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of col-
lective bargaining, or other mutual aid or protection, and to refrain from any
or all such activities.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members of either Los Angeles Dress and Sportswear Joint Board,
International Ladies' Garment Workers' Union, AFL-CIO, or Employees' Group
Union, or any other labor organization.
MARK J. GERRY, INC., d/b/a DOVE MANUFACTURING COMPANY,
Employer.
Dated------------------- By----------- -------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. Richmond 9-4711, Extension
1031, if they have any question concerning this notice or compliance with its
provisions.
Daniel Construction Company, Inc. and United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, AFL-CIO. Cases
Nos. 11-CA-1893 and 11-RC-1453. January 31, 1964
DECISION AND ORDER
On July 18, 1963, Trial Examiner George J. Bott issued his Inter-
mediate Report and Report on Objections to Election in the above-
entitled proceeding, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action.
He recommended, further, that the election held on November 16,
1961, in Case No. 11-RC-1453 be set aside and a new election held,
as set forth in the attached Intermediate Report and Report on Ob-
jections to Election. Thereafter, the Charging Party, United As-
sociation of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO, and
the Respondent filed exceptions to the Intermediate Report and sup-
porting briefs.'
1 The Respondent filed a request for oral argument. We hereby deny the request because
in our opinion the record, exceptions, and briefs adequately set forth the Issues and posi-
tions of the parties.
145 NLRB No. 130.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions.2 and recom-
mendations of the Trial Examiner with the following additions and
modifications :
Respondent contends in its brief that it is not responsible for the
action and statements of its foremen which the Trial Examiner found
to be in violation of Section 8 (a) (1) of the Act. Respondent contends
that these foremen, most of whom are members of the Union, fluctuate
between being journeymen and having foreman status, and have a
close personal relationship with journeymen. Therefore, Respond-
ent argues it cannot be held accountable for their interrogation of
employees, threats of loss of employment, and similar conduct. We
disagree with Respondent.
In Case No. 11-RC-1453 the Board excluded foremen from the
unit as supervisors within the meaning of the Act. The record in
this proceeding also establishes their supervisory status. Thus Buck
Mickel testified that foremen hire employees, a fact repeatedly stressed
by Mickel in his preelection speeches. The record shows also that
foremen assign work, determine layoffs, recommend pay raises, and
have 10 or more employees working under them. Further, the fore-
men wear white hats, whereas journeymen employees wear green
hats, suggesting the clear demarcation between them. Also, the rec-
ord shows that Buck Mickel encouraged foremen to speak up on
behalf of the Company. And foremen testified that Respondent's
officials instructed them to ascertain how the employees were going
to vote. Some foremen communicated these instructions to employees.
Further, the conduct of the foremen was the same or similar to other
illegal conduct engaged in by higher ranking management officials.
In our opinion, these facts show that not only were foremen agents
of Respondent when they engaged in misconduct but that they were
acting under the express authorization of management, and that, in
2In his Report on Objections to Election in Case No. 11-RC-1453 the Trial Examiner
considered at length Daniel Construction Company's relationship with the employees on
the payroll of Herndon and Smith, Inc., who worked at Daniel Construction's Statesboro,
Georgia, job at the time of the election, and who were hired by Superintendent Pressly
The Trial Examiner concluded by indicating that he leans strongly to the Union's view
that Daniel Construction exerted sufficient control over these employees to be considered
their employer. In our opinion the record as set out in the Report on Objections does
establish Daniel Construction as an employer, within the meaning of the Act, of the
Herndon and Smith employees at the Statesboro job. We also agree with the Trial
Examiner's conclusions that Daniel Construction's subcontract to Herndon and Smith had
nothing to do with the pending Board election and that the failure to list the Herndon
and Smith employees as eligible voters had no restraining effect on other employees
DANIEL CONSTRUCTION COMPANY, INC. 1399
any event, employees could reasonably believe that they were acting
on behalf of management.'
We disagree, however, with the Trial Examiner's failure to find
that certain conduct of Respondent's foremen violated Section
8 (a) (1) of the Act. Thus, Medlock, credited by the Trial Examiner,
testified that Foreman Drum asked him to talk to employee Harrison
and to warn him that he would be run off the job by Superintendent
Grigsby if he did not stop soliciting for the Union. Respondent
contends that this alleged statement and other statements by its
supervisors to employees were attempts by management to warn
employees about violations of Respondent's no-solicitation rule.
Without passing on the existence of a valid no-solicitation rule, we
find, contrary to Respondent's contentions, that the true reason for
this, and other interrogations and threats which the Trial Examiner
found to be in violation of Section 8(a) (1) of the Act, was to dis-
courage union support rather than to enforce a no-solicitation rule.'
Therefore, we find the above threat of reprisal for union activities by
Foreman Drum to be in violation of Section 8(a) (1) of the Act.
The record also shows that prior to the election Foreman Stringer
conducted three or four periodic secret polls of the employees in his
crew to determine whether they were for or against the Union. The
Trial Examiner found that the poll was not legally improper, be-
cause Foreman Stringer was a union member; Stringer did it for
his satisfaction; the employees participated in it; he was not hostile
to the Union; he was not instructed to take the poll; and he did not
report the result to higher officials. The Trial Examiner made no
mention of the fact that Stringer conducted the poll on three or four
occasions. In our opinion, the pertinent considerations are : Respond-
ent's instructions to foremen to ascertain the union sympathies and
desires of employees ; the hostile atmosphere in which the polls were
conducted; the fact that Respondent committed unfair labor prac-
tices in its attempt to keep the Union from winning the election ; the
timing of the three or four polls just prior to a Board-conducted elec-
tion; and the absence of any legitimate reasons for Respondent's
taking upon itself the function of determining the majority or minority
status of the Union. In these circumstances, we find that the repeated
polls tended to interfere with, restrain, and coerce employees in the
exercise of their right to decide freely whether or not to join a labor
organization.5 Accordingly, we find that Respondent violated Sec-
tion 8 (a) (1) of the Act through the Stringer polls.
8 Cf. Montgomery Ward & Company, Incorporated , 115 NLRB 645, 647. Hendrix Manu-
facturang Company, Incorporated v. NL.R.B., 321 F. 2d 100 (C.A. 5).
* See N L R B. v Idaho Potato Processors , Inc., 322 F. 2d 573 (C.A. 9).
Becker-Durham, Inc., 130 NLRB 1356, 1363.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDERS
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications :
Paragraph 1(e) shall be redesignated paragraph 1(f) .
Paragraph 1 (e) shall then read as follows:
(e) Polling employees to determine their union sympathies and
desires in a manner constituting interference, restraint, and coer-
cion within the meaning of Section 8 (a) (1) of the Act.
The companion notice provision shall be similarly modified.
MEMBER LEEDOM, concurring :
I find it unnecessary to pass upon the question of whether the
speeches by Messrs. Mickel and Johnson violate Section 8(a) (1) or
constitute grounds for setting the election aside. In all other respects,
I agree to the 8(a) (1) violations found and therefore join my col-
leagues in setting the election aside.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
e The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in these cases, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent, its officers, agents, successors, and assigns, shall:
INTERMEDIATE REPORT, RECOMMENDED ORDER, AND REPORT
ON OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
Case No. 11-CA-1893 is before Trial Examiner George J. Batt pursuant to a
charge filed February 8, 1962, by United Association of Journeymen and Apprentices
of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO,
herein called the Union, and a complaint issued by the General Counsel on March 5,
1963, alleging violations of Section 8(a)(1) of the National Labor Relations Act,
as amended, herein called the Act. Case No. 11-RC-1453 began with a petition for
certification filed by the Union on February 24, 1961, upon which the Board issued
a Decision and Direction of Election on September 21, 1961. Subsequently an elec-
tion was conducted which the Union lost. The Union filed objections to conduct
affecting the results of the election held on November 16 and 21, 1961, and the Board,
on February 6, 1963, directed a hearing on some of the Union's objections and
authorized said hearing to be consolidated with the hearing in Case No. 11-CA-1893.
On March 5, 1963, the Regional Director of the Board issued an order consolidating
the cases and set them for hearing. A hearing in the matter was held before me in
Kingsport, Tennessee, on April 22, 23, and 24, 1963, and in Greenville, South
Carolina, on May 7, 8, 9, and 10, 1963. All parties were represented at the hearing
and, subsequent to the hearing, filed briefs which I have considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Daniel Construction Company, Inc., a South Carolina corporation with its principal
office in Greenville, South Carolina, is engaged in the construction of industrial and
commercial plants in the Southeastern United States. Respondent annually receives
revenues in excess of $100,000 from projects located outside the State of South
DANIEL CONSTRUCTION COMPANY, INC. 1401
Carolina. I find that Respondent is an employer engaged in commerce within the
meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Speeches to employees
On the date of the election, November 16, 1961, the Company's Greenville
division, which is the only division involved, had about 800 unit employees working
at its approximately 50 projects. Many of the projects were small, employing only
a few employees , and most of the events in this case took place at the Company's
major jobsites of which there were about six. At the National Aniline project, Irmo,
South Carolina, there were approximately 300 pipefitters at the time of the election,
at the American St. Gobain job in Kingsport, Tennessee, about 140, and at the
C.V.N.P.A. job in Parr, South Carolina, about 100. The Pittsburgh Plate Glass
project, Shelby, North Carolina, the Fibre Industries project, Shelby, North Carolina,
and the Bowaters job at Catawba, South Carolina, each employed between 30 and
50 unit employees, and the rest of the on-site eligible voters were scattered over the
Company's smaller jobs and its warehouse.
Many of the alleged unfair labor practices are asserted to have occurred in speeches
given by Buck Mickel, Respondent's executive vice president, and Theodore John-
son, manager of the mechanical department , to assemblies of employees at the
various jobsites sometime before the election.
Eugene Brock was employed by the Company at the National Aniline project,
Irmo, South Carolina, as a general foreman at the time of the election . He was also
a member of the Union then and at the time he testified . Brock testified that, about
2 or 3 weeks before the election , Buck Mickel and Johnson addressed a group of
employees . Mickel spoke first , and, according to the witness , he described the
method by which the Company had secured the contracts for many of the projects.
Mickel said , so Brock testified , that some of the Respondent 's customers preferred a
nonunion contractor nand Respondent felt that it would not get as many jobs if it were
union. Brock also recalled that Mickel said the Company would tie the election up in
court, whether it won or lost, for a number of years.'
All that Brock remembered of Johnson 's speech was that Johnson described how
employees were hired by the Company.
Johnson, manager of the mechanical engineering department, gave a talk to
employees at the Fibre Industries project, on or about November 7, 1961, accord-
ing to employee James McCowen. Johnson told the employees who had assembled
at company instruction that "industry is coming south to get away from the
union ." and "we are negotiating a lot of jobs now if we vote to go union we
won't get." Johnson added, so McCowen said, that if the Company had been
organized it would not have obtained all the jobs it had. Johnson also said that
if the Company was not kept nonunion it would not be able to keep as many men
employed because the Company operated in many union jurisdictions and the
employees, contrary to present practices, would not be permitted to travel and work
in all those jurisdictions.
McCowen also testified that Johnson said all the men would have jobs when the
present project was over and that company supervisors would make arrangements
to keep the men. Johnson promised, so McCowen testified, that Foreman Love,
who was going to the Bowater job, would hire anyone who wanted to go with him.
Johnson also described the Respondent 's hiring procedures and said , according to the
witnesses, that the Company would never hire through a union business agent.
Johnson said that the Company had been assured by its lawyers that it could keep
"this" in court for 10 years.
Paul Bailey worked at the American St. Gobain job at the time of the election
and heard Buck Mickel, Ted Johnson, and Personnel Manager Barrington King
talk to the employees on or about November 2, 1961. He testified that:
.. . Mr. Mickel made a speech concerning the employment that we had had
previously with -the company and that if Daniel Construction Company would
remain non-union that we could expect continued employment; that they could
bid on contracts for the entire job and not have to sub-contract it; and that they
i Statements about Respondent ' s plans to litigate the Board's Direction of Election are
not alleged to be unfair labor practices but are part of the objections to the election.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could work the job from beginning to end; and that they wanted the men to
consider very closely how they had been treated with the union ; and if they
were union members; and how they had been treated by Daniel Construction
Company; and that when we left Daniel-or when we left this job that we
could expect continued employment , if it remained non-union ; and he also
told us that we would receive our employment through Daniel Construction
Company by calling or contacting our foreman , our superintendents He re-
ferred to Mr. John Denny, Mr. Homer Lane who were foremen on the job at
the time, that we could contact them for jobs . He referred to all the work that
Daniels had, and the pamphlets they had put out on how much work they
had throughout the South ; and that if it went union that they didn't think they
could compete or get as many jobs as they would without being union; and
that regardless of how the election went that they would continue as long as
they were on a right to work state , to hire their employees through the gate,
without coming through a business agent They also said if the union won
this election that they would protest , protest the absentee ballots, and they
thought they could keep it in court for from eight to ten years.
Bailey also said that Johnson made a short statement after Mickel. Johnson re-
peated some of Mickel's points and also said that the Company did not ask a man
if he were union or nonunion when he was hired; that Johnson would dismiss any
superintendent who did; that the Company hired on the basis of ability and not
obligations to a union. He testified that King said the union was not for the work-
ing man; that if the Company were kept nonunion the employees would not have to
pay a business agent to keep their jobs and there would be no loss of work because
of strikes . King also said that as long as the employees wanted to continue working
they could be recommended by their superintendent for employment at another job.
James Medlock, employed at the C.V.N.P A project at Parr, South Carolina,
testified that Mickel , Johnson, and King spoke to the employees before the election
He said that Mickel told the employees that the Company was proud of the me-
chanical department 's record on jobs completed and in process . He testified that
Mickel said if the job went union the Company would lose contracts because of it
and "that quite a few people, the pipefitters in particular would be looking for work
elsewhere " According to the employee , Johnson and King spoke along the same
line as Mickel "concerning the contracts they would lose . The Company's
hiring practice was discussed , and the speakers stated that the Company would con-
tinue to hire as they always had.
Wallace Poe testified that , while he was employed at the Pittsburgh Plate Glass
project before the election, he heard Mickel and Johnson address the employees.
He said that Mickel said if the Union won the election the Company would put the
matter in court and could keep it there for 10 years Mickel added that the Company
had "just as smart lawyers as the union." According to Poe, Mickel said that there
never would be a union contract and that "we would hire just like we've always
hired and fired." Poe could not remember exactly what Johnson had to say but
stated that he said "about the same thing "
Newell Childers was employed at the Bowaters project , Catawba, South Carolina,
during the election . He heard Mickel tell the employees that the Company was
"able to secure work from the north and bring it south ," because the Company could
offer the customers "a package unit." Mickel added that this was also possible be-
cause the customers desired nonunion labor . He also testified that Mickel said
that "regardless of how the election went they'd never be organized."
Leonard Bailey , an employee at the American St. Gobain project in November
1961, testified that Mickel said to a meeting of employees that the Company got
its work through negotiations instead of bids; that the Company did not have to hire
men sent by the business agent of a union; that the employees could look forward
to having work in the future with Daniel Construction and could get hired at the
jobsite.
Jack Drake heard four company officials talk to employees prior to the election
at the National Aniline project but was unable to remember which speaker made a
specific remark . He did recall , however , that it was stated by one of the speakers
that it made no difference to the speaker whether the men were union or not for
they still could be hired by the Company through its hiring procedures The speaker
added that if the Union won the election the Company would still hire at the gate
as it had been doing, because the matter would be tied up in court for years Juris-
dictional disputes and pyramiding of overtime on union jobs were mentioned by the
speakers and their absence at Daniel suggested as reasons why the Company was
DANIEL CONSTRUCTION COMPANY, INC . 1403
able to get work. It was stated that this would not be true if the Company were
unionized, and this would affect employment.
Charles Bugg, employed at National Aniline project at the time of the election,
testified that Mickel told the employees in a speech that the Company was not going
to sign a contract with the Union no matter how ,the election turned out but would
continue hiring as they had in the past.
Harold Free, also employed at the National Aniline project, said that Mickel said
"win, lose or draw that Daniel would never negotiate a contract with the union."
Buck Mickel testified that he and other managerial representatives made a tour
of various company projects, during October and early November 1961, and spoke
to the employees in the unit about the election. Mickel visited about 15 sites and
made between 25 and 30 speeches. He made no talks after November 6, 1961.2
Mickel testified that he had no written speech but attempted to give the same talk
at each site. Asked on direct examination what he said, he stated that he asked
the men for their support. He told the men that it had always been the Daniel
policy to hire at the gate through the foremen and that such policy would always
be maintained whether the Company won or lost the election. He attributed the
Company's success in securing work in part to the competence of the men in the
mechanical field. He emphasized that the men would never have to pay "tribute"
to anyone to get a job, and that they would continue to get their jobs at the gate.
He said he referred to a rumor that the Company would subcontract work if it
lost the election and told the employees that it was not true but, on the contrary,
the Company would work harder to sell its services.
Mickel told the men that he could not threaten them or promise anything, and
that he would not do so anyway, but asked them to support the Company. He said
he told them that no one would know how an individual voted and it was a matter
for their own conscience. Regardless of the outcome of the election, the Company
would keep on trying to get work, he said. He testified that he informed the
employees that the Company felt the order of the Board directing the election was
wrong and that the Company would appeal "win, lose or draw." He told the
employees that an appeal would take as long as 10 years.
Mickel, according to him, told the employees about the amount of work the
Company had and how it was negotiated as a package proposal. He told them that,
in his opinion, the Company was able to sell the package proposal better to customers
"if we did not have a union, because we would not have jurisdictional disputes, we
would not have interruptions, and things of that sort, which could come from having
a union."
Mickel denied various statements attributed to him by employee witnesses. He
denied that he said that there never would be a union contract or that the Company
would never be organized. He said he never said the Company did not have to
hire men sent through the business agent of the Union but rather that be said the
Company hired at the gate through the foremen. He stated that he mentioned the
right-to-work laws and that "tied into the fact that you never had to pay any tribute
for working for Daniel Construction Company [but] we would hire at the gate
and through our foremen, as we had always done, regardless if the union won the
election ...." Mickel denied that he said, as testified to by Medlock, if the job
went union the Company would lose contracts, and quite a few people, the pipe-
fitters in particular, would be looking for work.
Theodore Johnson, manager of the mechanical department of the Greenville
division, accompanied Mickel on his tour of the projects and thought he was present
at each of Mickel's talks. Mickel, however, was not present at all of Johnson's
speeches. Johnson testified that he did not make the same speech on each occasion
but tried to cover the topics that Mickel and he had decided to cover. He said
Mickel always made his speech first and, if Mickel had not covered a point ade-
quately, Johnson would cover it.
Johnson, when asked for as complete a version of his speech as be could recall,
testified that, although "this is not exactly the same as talking to fifty pipefitters"
he would give as close a version as he could. He said he greeted the men after
Mickel finished and referred to the coming election. He mentioned rumors about
subcontracting work and denied their authenticity. Johnson told the men that he
knew many of them had union cards but that was their business. He said, however,
2 Contrary to a union objection, I credit Mickel and Johnson with respect to the date,
and find that no speeches were made after November 6, 1961.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Company wanted to keep on as an "open shop" and asked the men for
their votes. He also stated, however, that the ballot was secret.
According to Johnson, he spent some time on the Company's practice of hiring
at the gate through the foreman and stated that such practice would continue. He
referred to State right-to-work laws and the Taft-Hartley Act, he said, and told the
men the law prevented discrimination against either union or nonunion men.
Johnson stated that he told the employees that some of the Company's clients
preferred open-shop contractors, and that, in his opinion, someone else would get
some of that work if the Company lost the election and became organized. He
added that he told the men at that point, however, that if other companies got the
work they would still need pipefitters to do it, and that pipefitters in the geographical
area would be hired to do it.
Johnson repeated that he asked the men to vote for the Company because it
would help the Company get work but that it would not make jobs for pipefitters
and it "wouldn't lose jobs for them."
Johnson denied that he said that Daniel Construction would not negotiate if the
Union won, or that Mickel said the Company would not sign a contract He stated
that both he and Mickel did say that the election was improper and the Company
intended to resist it by all legal means and that it could "drag out eight to ten years."
As is usual in these cases, particularly after such a long lapse of time, credibility
is a serious problem. I do not credit the testimony of all witnesses for the General
Counsel, or the Union, in their accounts of what Mickel and Johnson said, but, on
the other band, although I find that Mickel and Johnson spoke to the men substan-
tially as they testified, they were not completely candid, particularly in the stress
and emphasis they gave topics, or in their recall of their phrasings.
First, as far as the employee witnesses are concerned, I do not believe the testi-
mony of Harold Free, Charles Bugg, and Wallace Poe that Mickel stated that the
Company would never negotiate a contract with the Union. Not only did these
witnesses appear uncertain in their testimony, but the remark itself is not in character
with the rest of Mickel's speech. Mickel emphasized the Company's hiring prac-
tices and his intention to keep them that way. He also stressed the Company's belief
that the election was improper and its intention to litigate it. Although this might
reasonably have led the listener to conclude that a contract with the Union was
unlikely in the near future, it would be clumsy for Mickel to make the remark
attributed to him. I find that Respondent did not tell its employees that it would
never negotiate a contract with the Union, as alleged in paragraph 13 of the
complaint.
It is clear to me, however, that no matter how Mickel and Johnson attempted in
their testimony to phrase their recall of that phase of their talks which related to
customer reaction to Daniel Construction going union, they, in their speeches, at-
tempted to instill in the minds of employees the belief that Respondent would lose
contracts and there would be less work available if the Union won. I base this
belief on my observation of the witnesses when they testified on this subject as well
as a synthesis of the testimony of the General Counsel's witnesses and Respondent's.
In the first place, there is no essential difference between the witnesses for both sides
on this point. Mickel sparred with counsel about whether he said it would be
"easier" to sell the Company's package deal without a union or "more difficult"
with it, but the idea is the same-employees would run the risk of losing work if
they voted for the Union. In addition, I do not believe Johnson where he testified
that he added to his statement about others getting the work if Respondent were
organized, his opinion that the employees would get work with the other contractors.
One of the principal thrusts of Respondent's appeal to employees was its asserted
ability to get contracts because it operated open shop. I do not believe it likely
that Resondent diluted this appeal by telling the employees that if Respondent lost
contracts the employees would not suffer because they would be employed else-
where. I find, therefore, as testified to by Eugene Brock, James McCowen, Paul
Bailey, James Medlock, and Jack Drake, that Respondent told its employees that
it would lose contracts and there would be less work for employees if they voted
for the Union in the election.
The complaint also alleged that Mickel and Johnson promised employees employ-
ment on future jobs if they voted for Respondent in the election. James McCowen
and Paul Bailey, whose testimony I credit, stated in substance, as set forth in greater
detail above, that Mickel and Johnson described Daniel Construction hiring practices
and said the men would have jobs when the project they were working on was com-
pleted if they contacted their supervisors. This practice would be in jeopardy,
however, according to the witnesses, if the Company did not remain nonunion. I
DANIEL CONSTRUCTION COMPANY, INC. 1405
find that Respondent made statements to the employees as testified to by McCowen
and Bailey , and that, in the context , the remarks were promises of benefits .3
B. Foremen advise employees that Respondent has instructed them
to report on union sympathies of employees
Bayless Long, a foreman at the St. Gobain project at the time of the election,
credibly testified that he was instructed by Mechanical Superintendent McAllister to
talk with the employees and find out how they were going to vote and report the
results to McAllister. Long, a member of the Union at the time, told McAllister
that he would not conduct the poll. Long then called his crew together, told them
what the superintendent had asked him to do and his refusal. He testified that he
never tried to influence his men against the Union.
Jack Eades, a foreman at the St. Gobain job, was asked by General Superintend-
ent Lanning to find out how the men under him felt about the coming election and
report. Eades, who carried a union card, was reluctant. The next morning he
called his crew together and told them that they would have to make up their
own minds about the election, and that if he had said anything in the past to influence
them, he was now retracting it. Shortly thereafter he contacted the men individually
and told them what Lanning had asked him to do and that he had refused.
The above testimony is uncontradicted, and I find, in accord with the allegation of
paragraph 7 of the complaint, that Respondent's supervisors, in October 1961, told
employees that Respondent had instructed them to report the union sympathies and
desires of Respondent's employees.
Employee Dewey Maine also testified that his foreman on the St. Gobain job,
Homer Lane, told him that he had orders to find out how his men were doing to
vote and report it to Superintendent McAllister. Lane had died at the time of the
hearing but I have examined the evidence carefully in the light of the testimony
of other witnesses who worked on the same job and find that Maine was told by
Lane that he had such instructions.
C. Interrogation of employees about the Union
Employee Fred Mottern testified that Foreman Long told him he was asked by
the superintendent to find out how the employees felt. Later , Mottern was asked
by Superintendent McAllister how the election was going . The employee told him
things were very quiet . About a week later, the superintendent returned and again
asked the employee how things were going and how he felt about the election.
Nathan Harrison testified that Superintendent Grigsby interrogated him about
the Union a week or two before the election at the C V.N.P. A: project. According
to the employee , Grigsby told him he had reports he (Harrison ) was talking "strong
union" and wanted to know if it were true. The employee denied it and Grigsby said,
"Look me straight in the eye and tell me you are not talking union on this job."
Jesse Humphreys , employed at the St. Gobain job at the time of the election , testi-
fied that Foreman Jack Denny talked to him about the election in October 1961. He
said Denny told him he wanted to talk with him and asked him how he felt.
Humphreys , a strong union man, gave his reasons for his feelings , and Denny
argued with him. Denny told him that Daniel had given them regular work but
the Union had not. He also told the employee that if the Union won, Daniel would
take the matter to court and keep it there for 10 years and work nonunion during that
period.
Mitchell Daniels testified that Foreman Gilbert talked with him at the National'
Aniline project at the time of the election and asked him how he was going to vote.
He also said Beamon Mills, general foreman, questioned and threatened him.
Harold Free testified that Foreman Beasley asked him how he felt about the
Union and made a threatening remark.
I do not credit the testimony of Daniels or Free but I do credit that of Mottern,
Harrison, and Humphreys . I have previously refused to credit Free in his testimony
about the Company not signing a contract with the Union , and for the same reasons
I cannot accept his testimony here. He was vague about dates , and the statement he
gave the Board contains nothing about the Beasley interrogation or threat which'
Beasley credibly denied . Based upon my observation of Daniels , I think his memory
of past events was not completely reliable. In addition , the testimony itself is
3 I also credit the testimony of Leonard Bailey that Mickel said the men could look
forward to working for Daniel in the future and secure employment at the jobsite, and'
Paul Bailey's testimony that Barrington King said if employees wanted work they could
be recommended by their superintendent for employment at another job.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
somewhat uncertain about the time and the number of conversations he had with
Gilbert and Mills. Gilbert and Mills testified and credibly denied the statements
attributed to them by Daniels. Mills said the only conversation he remembered with
Daniels was when Daniels volunteered that he carried a union book and intended to
keep it. Mills said he told Daniels that it was the employees' own business and did
not ask Daniels how he was going to vote. Finally, Daniels testified that he told
employee Goodman about his alleged conversations with Gilbert. Goodman, called
as Respondent's witness , testified -that Daniels had never told him that either Mills
or Gilbert had threatened him or asked him how he was going to vote. He said
he heard Daniels tell Mills that he carried a union book and Mills reply that it was
Daniels' own business. I have no reason to discredit this witness.
Mottern's testimony, on the other hand, about McAllister' s questioning is undenied.
Foreman John Denny, employed at the American St. Gobain job during the election,
denied that he questioned Humphreys about his views at all. He explained that he
and Humphreys had been friends for years and members of the same local union.
He said he discussed the outcome of the election with Humphreys merely in general
terms, but could not recall particular conversations. He stated that Humphreys was
a strong union man and would try to sell Denny on the Union's cause but Denny
did not see it his way. He added that if he were going to try to influence anyone on
the job it surely would not have been Humphreys for he was president of the union
local at one time. Although there is no question about Humphreys' well-known
position about the Union or Denny's relationship with him, I believe and find that
Denny did interrogate the employee in order to find out what the sentiment on
the job was at the time of the election. Other supervisors at this job had been
asked to find out what the employees were thinking, and it is likely that Denny was
also instructed to do the same. His friend Humphreys would have been an excel-
lent source of information. Finally, Humphreys was the more believable of the
two. He testified in a straightforward and restrained fashion. Denny was evasive
and wary.
Mechanical Superintendent Grigsby denied that he interrogated employee Nathan
Harrison about the Union. He stated that Harrison was a sort of "protege" of his
and admitted that he had stayed at the same trailer camps, hunted, fished, and
socialized with Harrison. He denied, however, that he had any positive evidence
that Harrison was a member of the Union or that he ever discussed the Union, or
union activities, with Harrison at all. In my opinion, Grigsby's account of his aloof-
ness regarding the Union with Harrison, despite their close relationship, is un-
believable. As indicated earlier, I credit Harrison.
Although there is no allegation in the complaint about interrogation by Foreman
Jasper Drum, employee James Medlock testified that Drum asked him how he
would vote in the'election. Drum denied the questioning and the matter was thor-
oughly litigated. As will appear in more detail in section III, E, infra, I find that
Drum was not a credible witness, and I accept Medlock's version.
I find that Respondent interrogated employee Medlock in October 1961 and, as
alleged in the complaint , other employees in October and November 1961, con-
cerning their union activities and desires.
D. The poll of employees
Archie Stringer, foreman at the Bowater job during the election, and a member
of the Union at the time, testified as a witness for the General Counsel. He said
there were about 20 men in his crew and, sometime before the election, he passed
out slips of paper and asked them to indicate their preference "for or against it,"
meaning the Union. The ballot was secret and all employees viewed the count.
Stringer testified that he took this poll for his own "satisfaction." He was not
instructed by the Company to take the poll and he did not report the result to higher
supervision.
I find that Stringer did take the poll as alleged in the complaint but, as explained
later in my analysis and conclusions with respect to the alleged unfair labor practices,
that Respondent was not responsible for his action.
E. Alleged threats and promises by supervisors
The complaint alleged in paragraph 9 that Respondent, by Foreman Denny,
threatened its employees that it would be difficult for them to get another job if
they voted against Respondent in the election. Jesse Humphreys, whose testimony
I have credited above, testified that Denny, after asking him how he felt about the
election, told him that if the Union won the election it would be hard to get a
job with Daniel. According to Humphreys, Denny, in the same conversation, told
DANIEL CONSTRUCTION COMPANY, INC . 1407
him that the Company had a lot of new work coming along and the employees could
continue to work by going from one job to another as they were completed. Denny
denied the conversation or statements , but I credit Humphreys and find that Denny
did make the alleged remarks.
It was alleged in paragraph 10 of the complaint that Foreman Mills made an illegal
promise of future employment . Mitchell Daniels , whose testimony I have previously
discredited , testified on the subject and said that Mills told him he would be taken care
of with work if he voted against the Union. Mills denied the remark , and I credit
Mills.
I also find that there is no evidence of any probative value in the record to support
the allegation in paragraph 10 of the complaint that Mechanical Superintendent
Tommy Taylor promised employees jobs.
Paragraph 11 of the complaint alleged that certain supervisors threatened em-
ployees with loss of their jobs if they did not vote for Respondent in the election.
I find that Foremen Gilbert and Mills did not make the threats alleged and testified
to by Mitchell Daniels for the same reasons which have previously caused me to
discredit his testimony.
Employee Fred Mottern 's testimony about Mechanical Superintendent McAllister's
stating that "if we did vote we 'd know what it would mean" is too ambiguous
to support a finding that McAllister threatened employees with loss of jobs if they
did not vote for Respondent , as alleged in paragraph 11 of the complaint.
Harold McLaughlin was working for another employer at the time of the election
but had worked for Daniel Construction previously and was eligible to vote under
the Board's decision . He received a mail ballot and then telephoned Foreman
Murray, of the Irmo project, at Murray 's home. It appears that he and Murray
had worked together in the past and were good friends. The witness testified that the
conversation was friendly , and, 'after talking for awhile about automobiles, Mc-
Laughlin asked Murray how he was going to vote. According to the employee,
Murray said if he had a man working for him that voted against "Charlie Daniels for
the union . I'd run their ass off." Murray testified that he and McLaughlin
were friendly and that he had attended union meetings with him. He recalled
that McLaughlin telephoned him and asked him about the election . Murray told
the employee, he said, that he knew what he was going to do and changed the
subject . He denied the statement about running employees off the job. I credit
Murray and find the remark attributed to him was not made. Murray appeared
to be telling an honest story with some certainty , but McLaughlin was unsure and
somewhat hostile and evasive . Even if the remark were made obvious questions
about its legal effect arise in view of the close relationship of the parties and
McLaughlin 's raising of the issue.
Paragraph 11 also alleged that Foreman Ray Baker threatened employees with loss
of employment if they did not vote properly in the election , and employee Wallace
Poe testified about the allegation . He testified that he was employed at the Pittsburgh
Plate Glass project in Shelby, North Carolina , at the time of the election in Baker's
crew, and that 2 days before the election, while eating lunch in the company shack,
Baker said , "Boys, you know we got an election coming , you know Pittsburgh
won't put up with the union , if it goes union you boys will be out hunting a job."
The next day Baker, at the same location and to the same group , stated , according
to Poe, "Well , boys, you know tomorrow is the election ; Pittsburgh won't put up
with the union, if the union wins it you boys will be out hunting a job." Poe
admitted under cross-examination that Baker said the men should vote whichever
way they wanted and to make up their own minds.
Ray Baker denied that he had made the statement about Pittsburgh Plate
Glass but said that he had heard employee Lyles make a statement to that effect.
Baker, a union member, testified that he kept out of the discussions in the shack
about the election . Lyles testified that he had not heard Baker, who is also his
foreman, express an opinion either way about the Union or state a preference.
Lyles said that he (Lyles ) had made some remark about Pittsburgh Plate Glass
not liking unions. Baker and Lyles impressed me as truthful . I discredit Poe,
and find that Baker did not make the statements alleged.
The complaint , in paragraph 16, also alleged that Supervisor J. P. Drum warned
employees that they would never work for Respondent again if they served as union
observers at the election. James Medlock testified that his foreman , Jasper Drum,
had a conversation with him in the latter part of October 1961 . Drum asked Med-
lock to talk to employee Harrison and wam him that he would be run off the job by
Superintendent Grigsby if he did not stop soliciting for the Union.
Medlock also testified that, a few weeks after the above conversation , Drum again
came to him and told him that Grigsby had said that Medlock had been talking
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
too much on the job . Medlock saw Grigsby and asked him what he meant and
Grigsby answered that he "thought union men should go to the union job, and that
a non-union man should stay on a non -union job . .
According to Medlock , he was told by Drum a few days before the election that if
he acted as an observer for the Union at the election he would never work for the
Company again.
Foreman Drum testified that he was a member of the Union at the time of
the election and had been for about 20 years. He has worked on all-union jobs
and secured a job with Daniel in Pensacola , Florida, at one time, through the Union.
At the time of the hearing, however, Drum had charges pending against him in
the Union and a fine of $5,000 imposed upon him. He said that Medlock worked
for him, but Harrison did not, and that he recalled that on one occasion Harrison
walked by and Drum said to Medlock that "if that boy don't go to work and do a
lot less visiting why he's gonna get run off." He said this was merely speaking as one
union brother to another and had nothing to do with union activities but only
Harrison 's unauthorized absences from his job.
Drum said that he knew Medlock was a union member and Medlock knew
he was too because the subject had been mentioned when he hired Medlock.
With respect to the alleged threat about the result of being an observer, he
explained that Medlock came to him for advice and talked with him in private
"as a brother Medlock told Drum, so Drum testified, that he had been asked
to act as an observer, and asked Drum what he thought of the idea. Drum told the
employee that he could not tell him what to do but that he thought that the
Columbia, South Carolina, local of the Union should furnish an observer since the
jobsite was in that local's jurisdiction and one of its representatives would be more
familiar with the men on the job. Medlock did serve as an observer , however, and
later, when he left the job for work at another employer, Drum carried him on the
payroll for some time and later he was reemployed by the Company.
Drum denied that he had been told by Grigsby to warn Medlock about his union
activities but said that Grigsby told him he had seen Medlock away from his work
and to speak to him. He did so and told Medlock that he was doing too much
visiting.
Drum also denied that he solicited votes for the Company at a safety meeting of
his employees a short while before the election, as testified to by Medlock.
Mechanical Superintendent Grigsby, who I have found earlier interrogated Har-
rison about the Union, testified that he saw Medlock away from his work and told
Drum about it but made no mention of the Union at the time. According to him,
Medlock came to him the next morning and wanted to know if it was "because he
was talking Union" that Drum had spoken to him. Grigsby said he told Medlock
that what he was talking about was none of his business but his only concern was
that the employee was not at his worksite. He denied the remark about a union
man being on a union job, as testified by Medlock.
Although Medlock's recall of certain detail was not of the best, I credit him over
Drum and Grigsby despite Grigsby's corroboration of Drum in part. Earlier I have
found that Grigsby's account of his lack of knowledge of Harrison's activities was
unbelievable, and his testimony about Medlock also seemed contrived. As far as
Drum is concerned, his account of Medlock's visit to him to ask his advice about
being an observer was implausible. Men on the job came from all sections of the
southeast and Medlock's ability to observe would be as competent as the average
journeyman. In addition, although Drum denied soliciting for the Company at the
safety meeting, as testified to by Medlock, he did admit that employee Small stated
at the meeting that he had heard all the soliciting that he wanted to hear. Small
testified credibly that Drum was doing the soliciting. Finally, Harrison, whose testi-
mony I have credited earlier, corroborated Medlock with respect to Grigsby's con-
cern about Harrison's union activities, as described in more detail below. These
factors, in addition to my recall of the demeanor of Medlock and Harrison, lead me
to believe them.
I find, therefore, that Supervisor Drum told Medlock that he would not work for
Respondent again if he acted as a union observer at the election , as alleged in
paragraph 16 of the complaint.
I also find that Grigsby told Medlock that union men should work on union jobs
and nonunion men on nonunion jobs, implying discrimination against him if he
continued his union activities.
Nathan Harrison credibly testified that, about August 1, 1961, the day before he
went to work at the C.V.N.P.A. project in Parr, South Carolina, Grigsby talked to
him about his union activities. Grigsby warned Harrison that he had been fired at
another job because of his union activities and that if he intended to work for
DANIEL CONSTRUCTION COMPANY, INC. 1409
Respondent he would have to discontinue them. Sometime in October 1961 , Grigsby
asked Harrison to come to his office and there accused him of soliciting union travel
cards for the Columbia , South Carolina, local of the Umon, which the employee
denied . General Foreman Hall, who had been sent for by Grigsby earlier, arrived
about that time and said to Harrison , "If you've got to talk, talk Daniel, Daniel pays
your grocery bills and all the rest of your bills ; that's (the) way I do. If you think
anything of your job that's what you'd better do." Grigsby denied he had ever
discussed union activities with Harrison , and Hall denied being in Grigsby 's office
while Grigsby reprimanded Harrison , or making any statements to Harrison about the
Union in Grigsby 's presence . He specifically denied asking Harrison to talk in favor
of the Company and not the Union . He testified that he had reprimanded Harrison
many times for being away from his work over a period of 8 to 10 months , and that
it was almost an everyday occurrence for Harrison to be away from his work. He
added that Harrison was an habitual loafer and that he had observed this quality in
Harrison when they both worked on another job. Hall wanted the Company to win
the election , he said, but had very little interest in the matter . I do not credit
Hall's testimony . In my opinion his account of Harrison 's alleged absences from
his job is exaggerated and a cover for Hall's denial of his and Grigsby's reprimand
for Harrison 's activities on behalf of the Umon . I find that Grigsby and Hall threat-
ened Harrison with loss of employment if he continued his activities for the Umon.
There is no allegation in the complaint concerning the activities of Foreman
Dale Blevins , but employee H. F. Elledge testified that sometime before the election
an apprentice asked another employee how he could secure a union book , and that
Blevins, who was working nearby, said that if the apprentice cared anything about
his job he had better forget about the union book. Blevins denied the statement. He
said he was a union member at the time and that if an apprentice had asked him
where he could obtain a book , he would have recommended the union hall. I believe
Blevins based on his demeanor compared to Elledge's and the ring of sincerity in
his story. Elledge , on the other hand, had a poor memory and also stated that he
had never mentioned the incident to anyone until about 2 weeks before he testified.
There is also an allegation in paragraph 15 of the complaint that Respondent
threatened to subcontract its work if the Union won the election . There is no
evidence to support this allegation in the record.
F. Analysis and conclusions regarding the unfair practices
Laying aside for the moment the speeches made by company officials to the
employees in,the unit, I have found that foremen told employees that the Company
had instructed them to investigate and report on the union sympathies of their men;
that supervisors interrogated employees about the Union; that employees Medlock,
Humphreys , and Harrison were threatened with loss of employment after being
interrogated , and that one foreman conducted polls of his crew.
Respondent argues that even if these acts occurred , they were isolated and, in the
light of the relationship of foreman to journeyman in this industry , realistically
innocent . I have given full consideration to Respondent 's arguments and tried not
to lose sight of the fact that many of the supervisors involved were union members,
had worked elsewhere with the employees , or were friendly with -them, but I find
that, in the circumstances , the supervisors were expressing Respondent 's views and
position , and employees reasonably believed they spoke for Respondent and not as
"union brother."
Two acts of interrogation took place on the American St. Gobain job , a relatively
large employment site. Superintendent McAllister and Foreman Denny interro-
gated employees , and this is the same job upon which employees were told by
three foremen that higher company representatives had instructed them to report
on the views of the men . These factors indicate that the inquiries were not casual,
and the size of the job prevents the acts from being labeled "isolated." In addition,
employee Free testified without contradiction that he was interrogated by Personnel
Manager Barrington King on the National Aniline project, and Harrison and Med-
lock were interrogated by Superintendent Grigsby and Foreman Drum , respectively,
at the C.V .N.P.A. job. Finally, when it is recalled that Denny , at the American
St. Gobain job, and Drum and Grigsby, at C.V.N.P .A., coupled their inquiries with
statements indicating displeasure with and possible reprisal because of union activity,
the impropriety of the interrogation is apparent . I find that by interrogating em-
ployees as alleged, Respondent violated Section 8(a)(1) of the Act.
I also find that when foremen told employees that they had been asked by their
supervisors to report the employees ' union views but had refused , the employees
734-070-64-vol. 145-90
1410 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
were, nevertheless, coerced, and Respondent was legally responsible for it having set
the chain of events in motion by its instructions to the foremen, even though the
foremen involved may have been friendly with, or sympathetic toward, the men.
By such action Respondent violated Section 8 (a) (1) of the Act.
I find also, despite the fact that the speaker may have been a union member,
Respondent violated Section 8 (a) (1) of the Act by Drum's threats of loss of em-
ployment to Medlock, Grigsby's and Hall's to Harrison, and Denny's to Hum-
phreys, as set forth in my findings of fact.
On the other hand, I find that Foreman Stringer's secret poll of employees was
not legally improper in the circumstances. It seems that all the employees partic-
ipated in it and even helped to count the ballots. Stringer, a union member, testified
that he did it for his own "satisfaction" and I believe hum for he did not appear at
all hostile. He was not instructed to take the poll and did not report the results to
higher officials. No other acts of interference are asserted to have been connected
with the poll. I find that Respondent did not violate Section 8(a)(1) of the Act
by the poll as alleged.
I also find that Mickel's and Johnson's speeches to employees prior to the election,
considered as a whole, but without reference to any other unfair labor practices,
were coercive. Respondent's appeal for employee votes rested on four principal
points, as follows: First, loss of employment if the Company were organized;
second, continued future employment through hiring at the gate through the em-
ployees' supervisors; third, a firm intention to maintain the existing hiring practices
regardless of the results of the election; fourth, interminable delay caused by litiga-
tion of the issues raised by the Direction of Election. Although any one of these
taken alone might be considered to be the expression of views, argument, or opinion,
protected by Section 8(c) of the Act, they, in my opinion, as a cohesive combination
presented to the voters, tended to restrain employees in the exercise of their right
to vote freely by instilling in them a foreboding of damage through loss of employ-
ment if the Union were selected, as contrasted with maintenance of present employ-
ment and securing of future jobs through familiar and friendly foremen if the
Union were rejected, all coupled with consistent stress on the futility of the election
because of Respondent's intention to keep its present hiring practices regardless of
the outcome, and to litigate the issues for a decade, in any event. Respondent's
campaign, as I see it, cannot be viewed as merely a restrained expression of its legal
position, or a prediction of the economic consequences of unionism imparted to
employees in a noncoercive manner. I find in Respondent's speeches a threat to
the economic security of the employees for which Respondent must take the re-
sponsibility even though the loss of employment was attributed to adverse customer
reaction, and implied promises of favorable treatment on future jobs, if the em-
ployees rejected the Union in the election. By such conduct Respondent violated
Section 8(a) (1) of the Act.
G Findings and conclusions with respect to the objections to the election
All of the matters alleged in the complaint as unfair labor practices are also the
subject of objections to the election. I have found that Respondent's supervisors
interrogated employees about their union views; told employees that they had been
instructed to report on their union leanings; and threatened employees with loss of
employment. In addition, higher officials, such as Buck Mickel and Ted Johnson,
in their speeches threatened employees with loss of employment if the Union were
selected in the election, and promised job security if the Union were defeated The
Board has held that conduct violative of Section 8(a)(1) of the Act is, a fortiori,
conduct which interferes with the exercise of a free and untrammeled choice in
an election.4 I shall; therefore, recommend that the election be set aside on that
basis alone. I also conclude that Respondent's four-pronged campaign. as set forth
above, in which it stressed loss of security, present and future full employment, its
inflexibility with respect to present employment policies, and inevitable delay, cre-
ated an atmosphere incompatible with the exercise of a free choice in the election,
regardless of whether the statements made in the campaign are protected under
Section 8(c) of the Act.S
4 Dal-Tex Optical Company, Inc., 137 NLRB 1782; Haynes Stellite Company, 136
NLRB 95.
6 Lord Baltimore Press . 142 NLRB 328; Ideal Baking Company of Tennessee , Inc, 143
NLRB 546; The Trane Company , 137 NLRB 1506.
DANIEL CONSTRUCTION COMPANY, INC. 1411
H. Other objections to the election
In addition to the matters which were alleged as unfair labor practices , the Union
had two other substantial objections upon which the Board ordered a hearing,
namely, the alleged disenfranchisement of voters at the Statesboro job, and voting
by foremen in the election.
1. The Statesboro job and the Herndon and Smith subcontract
Daniel Construction Company was the general contractor for a large job at
Statesboro , Georgia, at the time of the Board election, and had subcontracted the
mechanical work to Herndon and Smith , Inc. No election booth was established
for the pipefitters at the Statesboro project and the Daniel Construction Company
justifies it on the ground that the pipefitters , of which there were about 60, were
the employees of the subcontractor . The Union 's position is that Daniel and
Herndon and Smith were a single employer within the meaning of Board decisions,
and that the employees were eligible to vote. It claims that the Company, in bad
faith , intentionally deprived the Statesboro pipefitters of the right to vote.
The Company signed a contract to build a plant at Statesboro on May 13, 1961,
and, on the same day, signed a contract with Herndon and Smith to furnish labor
and supervision and complete the entire mechanical job. The approximate value of
this labor contract was $85,000, and Herndon and Smith was to receive its payroll
cost plus insurance , social security , taxes, and the like, in addition to a fee of
$10,000.
Some 40 years ago, Mr. Smith and Fred Herndon , of Elberton , Georgia, formed
a partnership and engaged in many businesses , including construction as general
contractors . Smith died and Herndon became the sole owner . By the late forties,
Herndon was concentrating on the building supply business . In the late fifties and
in 1960, Herndon became somewhat active in construction operations to supplement
the building supply operations in which profits were rapidly diminishing . In 1959
or 1960, the building supply end became a financial drain, and Mrs . Minor Herndon
Mickel , Fred Herndon 's daughter and wife of Buck Mickel , executive vice president
of Daniel Construction, invested money in Herndon and Smith . Herndon and
Smith 's problems got worse , however, and it was dissolved as a partnership and
creditors were paid off.
Herndon and Smith gave up its building supply business and incorporated, in
June 1961 , to engage in construction , a phase of its business which had been profitable
from 1959 to 1961 . The incorporators were Peyton Hawes , an attorney, Fred
Herndon, and Mrs. Mickel . Mrs. Mickel owned all the stock in the new company.
Buck Mickel does not have any financial interest in Herndon and Smith and has
never been a stockholder or served on its board of directors. Mrs. Minor Herndon
Mickel has never had any interests in Daniel Construction , has never held an office
or been employed by Daniel or owned any stock in it. This is also true of Fred
Herndon.
Buck Mickel testified that he saw an opportunity of helping Herndon and Smith
and negotiated a labor contract with it at arm's length . Herndon and Smith was
to perform on its own , hire and fire on its own , and satisfy Daniel Construction
Company, he said. Mickel asked Ted Johnson , manager of the mechanical engi-
neering department of Daniel Construction , to supply Herndon and Smith with a
good man, and Lloyd Pressley , a Daniel employee at the time, was supplied to
Herndon and Smith as superintendent.
Pressley had been employed by Daniel since 1949 and, in the last few years,
had been working as a general foreman or mechanical superintendent . Prior to
going to Statesboro , Pressley worked at another Daniel job , and for the first few
weeks that Pressley was superintendent at Statesboro , he traveled back and forth
between the other Daniel job and Statesboro supervising both . During that period
he received checks from Herndon and Smith and Daniel for the work done for each.
When the Statesboro job was phasing out, Pressley was transferred by Thompson,
a Daniel mechanical engineer, to a Daniel job in Louisville , Georgia, and for a
period of weeks Pressley worked at both jobs.
Pressley had not heard of Herndon and Smith before he went to Statesboro, and
he met Mr Herndon only once on the job. He never met another Herndon and
Smith employee.
About a third of the men employed by Pressley on the Statesboro job followed
him from the previous Daniel job, and about the same number went with him to
Louisville . It appears that the pay rates for pipefitters at Statesboro were established
by Daniel for when Pressley arrived at the job he found the rates already posted.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pressley testified that the job was operated like all other Daniel jobs on which he
had been mechanical superintendent, and he used Daniel forms and procedure.
All equipment and tools on the job belonged to Daniel, and Daniel ordered and
shipped all material to the site in its name.
Applicants for employment were hired by Pressley and they were given Daniel
application forms and employment cards. Employees were paid with a Herndon
and Smith check, except on layoff, when they were paid with a Daniel check for
Herndon and Smith had no petty cash fund on the job.
The Daniel timekeeper prepared the payroll for Herndon and Smith employees,
after the foremen turned in the time, and sent it to the Greenville office of Daniel,
together with the Daniel payroll. Daniel processed the Herndon and Smith pay-
rolls, prepared the checks, and, after securing Mrs. Mickel's and Fred Herndon's
signatures, sent them and the checks for Daniel employees back to the jobsite.
Herndon and Smith were reimbursed by Daniel for all expenses in connection
with the job. Each month it submitted a voucher to Daniel for all its costs, includ-
ing the payroll, payroll taxes, insurance, workmen's compensation, and like matters.
All forms filled out by Pressley, such as labor distribution reports and application
forms, were turned over to the Darnel timekeeper. There is evidence that all these
went to the Daniel Greenville office and were mixed with Daniel records.
The labor contract provided that Herndon and Smith were to perform the entire
mechanical job, including sprinkler work. This was not done, however. Pressley
testified that he called Daniel for sprinkler fitters.
Buck Mickel testified that Daniel has similar labor contracts with other employers
and that Daniel itself sometimes performs purely labor contracts where everything
else is supplied by the contractor.
Daniel continues to contract with Herndon and Smith but the contracts are per-
formed like that in the instant case. Mr. Herndon's only office is in his home and,
so far as the record shows, he has no office employees.
I have set forth the facts with respect to this issue in some detail because the Board
ordered a hearing on it and may wish to consider it in deciding eligibility to vote if
a new election is held, and because the parties spent so much time on it at the hear-
ing and in their briefs. Although I lean strongly toward the Union's view that
Daniel Construction, in all reality, was the employer of the men hired by Pressley
at the Statesboro job,6 I find it unnecessary to decide the question since it is clear
to me that whatever motivated Daniel in making such a contract with Herndon
and Smith, the pendency of the Board election had nothing to do with it. Daniel
Construction did not intentionally and deliberately disenfranchise these employees
in order to interfere with the election, as contended by the Union. In addition, even
if every one of the approximately 80 pipefitters at the Statesboro project had voted it
would not have affected the results of the election, and there is no evidence that the
failure to list the employees as being eligible had any restraining effect on other
employees 7
2. Participation by foremen in the balloting
In its direction of election the Board, because of the intermittent nature of em-
ployment in the industry, determined that employees who had worked 30 days for
Daniel in the year prior to the eligibility date, or who had some employment in that
year and had worked for 45 days in the 2 years preceding, were eligible to vote. The
Board, however, after describing the unit, excluded "foremen (working and non-
working), general foremen . .. The Company took the position that those fore-
men who had worked 30 or 60 days as journeymen during the 2 years immediately
preceding the election were eligible to vote, even though they were foremen at the
date of the direction of the election. Representatives of the Regional Director of
the Board were aware that the Company was planning to include such men on its
eligibility list.
Foremen were included on the Company's proposed eligibility list but their names
were stricken by an agent of the Board and identified with a symbol meaning foreman.
The Company's attorney advised the Board that the Company still intended to advise
the foremen that it considered them eligible to vote if they otherwise had the qualifica-
tions. The Company did so instruct its supervisors and, as a result, a substantial
number of foremen at all jobsites cast ballots which were challenged. It is also a
6 Roane-Anderson Company, 95 NLRB 1501, 1503.
7It is not clear how many of the employees were deprived of the right to vote, even if
they had it, for employee Mixon testified that the Statesboro employees voted absentee
ballots.
DANIEL CONSTRUCTION COMPANY, INC. 1413
fact that a few foremen who had not been journeymen in the 2 years preceding the
election voted as did two mechanical superintendents . The great bulk of the fore-
men had worked as journeymen , however, ,as is usual in the industry , but most had
spent the greater part of their time as supervisors.
Buck Mickel testified , and I credit his testimony , that because of ambiguities in
the Board 's direction of election regarding the 30- to 45-day rule , he believed that
the foremen should have an opportunity to vote if they otherwise qualified under
the rule. He told the superintendents to advise the foremen to vote if they wished,
to vote last if possible , to be as inconspicuous as possible and not vote in their identify-
ing white hats. The foremen followed these instructions as far as the record discloses.
I find that the Company acted in good faith in instructing its supervisors as it
did, in the circumstances of this case . In addition , the precautions taken by the
Company to minimize whatever impact the presence of the foremen may have had,
taken with the admitted changes of status of the men in question from journeymen to
foremen and back, leads me to conclude that their presence did not affect the results
of the election.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent 's activities found to be unfair labor practices in section III, above,
occurring in connection with the operations of Respondent described in section 1,
above, have a close, intimate , and substantial relation to trade, traffic , and com-
merce 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 , as set above , that Respondent has engaged in certain unfair labor
practices , it will be recommended that it cease and desist therefrom and take cer-
tain affirmative action, set forth below , designed to effectuate the policies of the Act.
One of the more basic rights conferred upon employees by Section 7 of the Act is
the right to freely, and without coercion or restraint from an employer , express his
choice in a Board-conducted election designed to determine the wishes of the em-
ployees with respect to a collective -bargaining representative. Since it has been
found that Respondent interfered with this right, an order commensurate with the
violation found, and designed to assure to Respondent 's employees the opportunity
to fully and freely exercise the rights guaranteed to them by Section 7 of the Act, is
appropriate.
Upon the basis of the foregoing findings of fact and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. Daniel Construction Company, Inc., Greenville , South Carolina, is engaged in
commerce within the meaning of Section 2(6) and ( 7) of the Act.
2. United Association of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By the conduct set forth in section III which has been found to constitute unfair
labor practices , Respondent interfered with , restrained , and coerced its employees in
the exercise of rights guaranteed to them by Section 7 of the Act , and thereby engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is
recommended that Respondent Daniel Construction Company, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating any of its employees with respect to their views or sympathies
for the Union, or any other labor organization , or about their voting intentions
in any Board election.
(b) Instructing its supervisors to inquire and report on the union views or
sympathies of its employees.
(c) Threatening its employees with reprisals because of their union activities.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) By threat of reprisal or promise of benefit , inducing or encouraging any of
its employees to vote for or against any labor organization in any election con-
ducted by the National Labor Relations Board.
(e) In any like or related manner, interfering with, restraining, or coercing its
employees in the exercise of their rights to self-organization, to form, join, or assist
any labor organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any and all such
activities.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act:
(a) Post at its jobsites in its Greenville division copies of the attached notice
marked "Appendix." 8 Copies of said notice, to be furnished by the Regional
Director for the Eleventh Region, shall, after being duly signed by a representative
of Respondent, be posted by Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted
Reasonable steps shall be taken to insure that such notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for the Eleventh Region, in writing, within 20
days from the date of receipt of this Intermediate Report and Recommended Order,
what steps Respondent has taken to comply herewith.9
It is further recommended that the election held on November 16, 1961, in
Case No. 11-RC-1453, be set aside, and that said case be remanded to the Regional
Director for the Eleventh Region of the Board to conduct a new election at such
time as he deems the circumstances permit the free choice of a bargaining
representative.
8In the event this Recommended Order be adopted by the Board, the words "A Decision
and Order" shall be substituted for the words "The Recommended Order of a Trial
Examiner" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order."
01f this Recommended Order Is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Eleventh Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees with respect to their views or
sympathies for the United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO,
or any other labor organization , or about their voting intentions in any labor
board election.
WE WILL NOT instruct our supervisors to inquire of and report on the union
views or sympathies of our employees.
WE WILL NOT threaten employees with reprisals because of their union
activities.
WE WILL NOT by any threat of reprisal or promise of benefit , induce or
encourage our employees to vote for or against any labor organization in any
election conducted by the National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join,
or assist any labor organization, to bargain collectively through representatives
of their own choosing , to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any
and all such activities.
WE WILL NOT in any manner interfere with the right of our employees to
make a free and untrammeled choice in any election ordered by the National
Labor Relations Board.
CONNECTICUT STATE BOARD OF LABOR RELATIONS 1415
All our employees are free to become , remain, or to refrain from becoming or
remaining members of any labor organization.
DANIEL CONSTRUCTION COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1831
Nissen Building, 310 West Fourth Street , Winston -Salem , North Carolina, Tele-
phone No . 724-8356 , if they have any question concerning this notice or compliance
with its provisions.
Connecticut State Board of Labor Relations and Hartford Build-
ing Maintenance Company, Inc. and Building Service Em-
ployees International Union , AFL-CIO, Local 43-T. Case No.
A 0-69. January 31, 1964
ADVISORY OPINION
This is a petition filed on December 16, 1963, by the Connecticut
State Board of Labor Relations, herein called State Board, for an
Advisory Opinion in conformity with Sections 102.98 and 102.99 of
the National Labor Relations Board's Rules and Regulations, Series
8, as amended. Thereafter, pursuant to its "Response To Petition
and Request for Permission To File Brief," Hartford Building Main-
tenance Company, Inc., herein called Hartford, filed its brief on
December 31,1963.
In pertinent part, the petition including the findings of the State
Board, the response, and brief allege as follows :
1. There is presently pending before the State Board a petition for
an election and certification of bargaining representative (Docket No.
E 1288). The parties to this proceeding are Hartford and Building
Service Employees International Union, AFL-CIO, Local 43-T,
herein called the Union.
2. The Union is a labor organization within the meaning of Sec-
tion 31-101(9), Connecticut General Statutes.
3. Since 1956, when it was first incorporated, Hartford has been
engaged in the business of providing janitorial, cleaning, and waxing
services at Hartford, Connecticut. In 1960, Hartford's officers, who
constitute all its stockholders, acquired by stock purchase Ace Win-
dow and Cleaning Contractors, Inc., herein called Ace, a New Britain,
Connecticut, business performing the identical type of services as
Hartford. Ace's officers who also constitute its sole stockholders are
the identical individuals holding Hartford's offices.
4. The overall operating policies of both Hartford and Ace are the
joint responsibilities of their common officers and stockholders and
145 NLRB No. 140.