Delcon Corp.

National Labor Relations Board - Board Decisions

Mar 29, 1976

223 N.L.R.B. 457 (N.L.R.B. 1976)

DELCON CORP. 457
Delcon Corporation and R. Kenneth Armstrong, Billy
G. Moye, James David Jones, Donald W. Stewart,
and Herman M. McCall . Cases 15-CA-5724, 15-
CA-5727, 15-CA-5752, 15-CA-5784, and 15-
CA-5786
March 29, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO,. AND WALTHER
On December 15, 1975, Administrative Law Judge
David E. Davis issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed a brief in support of the Administrative Law
Judge's Decision.
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,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
leging that Delcon Corporation, herein called Respondent,
engaged in certain unfair labor practices within the mean-
ing of Section 8(a)(1) and (3) of the Act in that Respon-
dent, by and through certain persons, alleged to be supervi-
sors within the meaning of Section 2(2) and (11) of the Act,
threatened various employees with loss of their jobs be-
cause they were not members of Local -Union No: 443,
International Brotherhood of Electrical Workers, herein
called the Union; urged and solicited the Charging Parties
to quit their jobs because they were not members of the
Union; threatened such employees with-layoffs if they did
not voluntarily quit; advised such employees that Respon-
dent could not protect them from reprisals by the Union if
they did not quit their employment, and by these acts and
conduct constructively discharged the following persons on
the dates set opposite their names:
R. Kenneth Armstrong Mar. 4
Billy G. Moye Mar. 4
Donald W. Stewart Mar. 6
James D. Jones Mar. 7
Herman M. McCall Mar. 12
Respondent in its answer admitted certain allegations of
the complaint, but denied it had engaged in any unfair
labor practices.
Upon the entire record,' my observation of the witness-
es, and upon consideration of the briefs filed by the Gener-
al Counsel and Respondent, I make the following:
FINDINGS
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, Delcon Corporation,
Dothan, Alabama, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judger This case
was heard on September 30 and October 1, 1975, at Do-
than, Alabama, pursuant to a consolidated complaint,' al-
1. THE BUSINESS OF THE COMPANY
The consolidated complaint alleged and Respondent's
answer admitted that Respondent, a Kansas corporation
with its principal place of business located in Dothan, Ala-
bama, is engaged in the electrical contracting business;
that. during the past 12 months, it has in the course of its
business in the State of Alabama performed services val-
ued in excess of $50,000 for Daniel Construction Company
of Alabama which, in turn, purchased and received goods
and material valued in excess of $50,000 directly from
points located outside the State of Alabama.
I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. I further
find that it would effectuate the policies of the Act to
assert jurisdiction herein.
II. THE LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find
that the Union is, and has been, at all times material here-
Case 15-CA-5727 was filed on June 23; and the charge in Case 15-CA-
5752 was filed on July 15. An order consolidating these cases , a consolidat-
ed complaint , and notice of hearing was issued by the Regional Director for
Region . 15 of the National Labor Relations Board on August 5. The charge
in Case 15-CA-5784 was filed on August 12 and the charge in Case 15-CA-
5786 was filed on August 14. The consolidated complaint referred to in this
proceeding combined all of the above cases and was issued by the Regional
Director for Region 15 on September 8. Respondent in its answer admits
1 All dates hereafter refer to the calendar year 1975 unless otherwise spec- timely service of the charges listed above.
ified . The charge in Case 15-CA-5724 was filed on June 20 ; the charge in 2 Certain errors in the transcript have been hereby corrected.
223 NLRB No. 64
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in, a labor organization within the meaning of Section 2(5)
of the Act.
Ill. THE ISSUES
The principal issues may be summarized as follows:
1. Did management representatives by unlawful means
induce each of the dischargees or any of them to quit their
employment?
2. If the above is answered in the affirmative, do the
circumstances warrant a conclusion that each or any of the
dischargees were in fact constructively discharged and or
discriminately discharged?
3. If both of the questions above are answered in the
affirmative, the further question is posed whether the fail-
ure of the dischargees to file charges against the Union and
the absence of the Union as a party respondent precludes a
finding against Respondent.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Proceedings
At the outset of the hearing the General Counsel moved
to strike the first and second defenses pleaded by Respon-
dent in its answer, the motion was granted with respect to
the first defense on the ground that it goes to the heart of
the complaint by arguing that the complaint fails to state a
cause of action. Having read the complaint, I found that
the complaint clearly set forth a cause of action warranting
adjudication. With regard to the second defense, it is clear
that the Act permits the Board to enter into a controversy
only after the filing of a formal charge. The failure of the
Charging Parties to file a charge against the Union cannot
serve as the basis for dismissal of the complaint against
Respondent. The Board clearly cannot compel or coerce
the Charging Parties into filing formal charges against their
will. Respondent, at the close of the hearing, renewed its
motion to dismiss on the basis of its second defense. I reit-
erate my denial of the motion for the reasons stated above
and for other reasons discussed in this Decision . Accord-
ingly issue no. 3 is hereby answered in the negative.
B. Background Evidence 3
The evidence shows that, some time in 1974, Respondent
succeeded Little Electrical Company as the electrical sub-
contractor for Daniel International Corporation on the
construction of the Farley Nuclear Plant for Alabama
Power and Light Company. Respondent, at all times mate-
rial herein, was party to a labor agreement with the
Union 4 which designated the Union as the exclusive
source of applicants for employment with Respondent by
requiring all applicants to secure a referral from the Union.
3 The findings under this section reflect, on the whole , the credited testi-
mony of Wallace L. Sycora, vice president and general manager of Respon-
dent . Initially he was called as a witness by the General Counsel under Rule
61 I-C. Respondent, in presenting its defense recalled Sycora for further
testimony.
4 See G .C. Exh. 2 which was effective in 1974 and expired July 1, 1975.
when the parties entered into a new agreement.
Membership in the Union was not a condition of employ-
ment or for securing a referrals All foremen and general
foremen employed by Respondent on the project are mem-
bers of the Union. The evidence shows that superinten-
dents are or have been members of the Union. The labor
agreement governs the working conditions of foremen and
general foremen.
During the winter of 1975, commencing January 1, a
freeze on further employment was imposed by Alabama
Power and Light on Respondent. The freeze was lifted
about July 1. During the fall no new employees could be
hired nor could replacements be hired for those who quit
or were discharged. The evidence shows that the freeze was
strictly enforced by Respondent and that all employees
had knowledge of it.
Records introduced in evidence showed that Armstrong
was terminated on March 4 as a voluntary quit;6 Moye was
terminated on March 4 for excessive absenteeism;' Stewart
was terminated on March 6 for excessive absenteeism;8
McCall was terminated on March 12 for excessive absen-
teeism ;9 Jones was terminated on March 7 for refusal to
work.10
C. The Evidence
Armstrong testified that he commenced his employment
at the project in 1972 as a field engineer doing surveying;
that he commenced his employment as an electrician in
September 1973 for the Little Company when he was em-
ployed as a journeyman wiring electrician upon referral by
the Union. His work consisted of work with a crew install-
ing conduit and cable tray. When Respondent replaced
Little, Armstrong continued to work in the same crew un-
der Foreman H. L. Forester. In February, Forester spoke
to Armstrong on three or four separate occasions, the first
time on February 18. Forester stated that he knew Arm-
strong was interested in joining the Union; however the
situation was "rather tight" and there were a number of
union members on the "bench." I1 Forester then said that it
would look well for Armstrong if Armstrong could show
that he quit his job to make room for a member out of
work. After discussing the possibilities of getting into the
Union, Armstrong told Forester that his financial situation
was such that he needed to work 2 or 3 weeks longer. After
some further discussion Armstrong said he would think it
over and let Forester know in a day or two. Forester when
departing told Armstrong not to discuss the matter with
anyone else. The next day Forester approached Armstrong
again. Moye was present at this time. Forester remarked
that he had not previously talked to Moye about this mat-
ter. He then suggested to Moye that he also quit to make
room for union members. In this conversation Moye and
Armstrong said that they desired to become union mem-
bers and Forester discussed with them the possibility of
s Alabama law prohibits a union-shop clause.
e G.C. Exh. 3.
G.C. Exh. 4.
s G.C. Exh. 5.
9 G.C. Exh. 6.
10 G.C. Exh. 7.
11 An expression meaning out of work.
DELCON CORP. 459
more jobs for electricians in the future . Some time later
that day Forester asked Armstrong if he and Moye had
made up their minds . Armstrong then inquired if they
could work the rest of the week . Forester replied that he
did not know whether "they would let you do that, but I
will see what we could do about it." Forester returned
somewhat later and said that Moye and Armstrong could
work the rest of the week . Armstrong before closing the
conversation assured Forester that Moye said he would
leave on Friday but then asked , "What will happen, if we
decide that we are not going to quit just to hell with it, we
are going to stay here and work ." Forester replied , "Well, I
can tell you they will go around and they will find some
little something to fire you for. If they fine you , you will
not be eligible for rehire out here , and you will probably
not be able to get into the Union , nor will you be able to
work in this Union 's jurisdiction."
Armstrong then testified that he then contacted Andrew
Estes , the general foreman , and had the following conver-
sation with him:
Estes : Hilton has explained what we are doing to
you. Yes, he has explained it to us.
Armstrong : We will be eligible for our unemploy -
ment?
Estes : Yes, looks like that you will be eligible for
your unemployment.
Armstrong : Well, the next thing for us to do then is
to go on and put our application in up at Montgom-
ery.
Estes : Yes, Why don' t you go on up there first thing
Monday morning after you leave here Friday and put
in your application.
Armstrong further testified that he worked Friday but
did not report to work the following week . On the follow-
ing Monday , Moye and Armstrong went to the union of-
fice and filed their applications for membership , informing
Broadway , the Union 's business agent, that they had quit
their jobs to make room for union membership . Broadway
replied that he was aware what they had done but added,
"I just want to make it clear to you , that you are doing this
on your own."
On cross-examination Armstrong acknowledged that he
had received a masters of art degree in Entomology and
Environmental Controls from Clemson and that he was
currently employed as an instructor in this field; that he
had received no formal instruction as an apprentice electri-
cian but had worked for private contractors doing rewiring
of houses . Armstrong also acknowledged that at his hear-
ing for unemployment compensation he stated that he had
voluntarily quit his job at Delcon . Asked whether he knew
about the freeze , he replied in the affirmative but added
that he did not know it was in effect when he quit. He
learned later that the freeze was still in effect.
Forester , called as an adverse witness by the General
Counsel , denied that he requested Moye or Armstrong to
quit at any time ; he stated that he knew about the freeze;
that at the present time he has two "white" ticket 12 em-
ployees in his crew; that he and Armstrong were personal
friends who visited one another and still continue to do so;
that the only reason for Armstrong's termination was his
absence in excess of 3 days.
Moye testified that he commenced his employment on
the project in September 1973 as a journeyman electrician
for Little; that he obtained a referral from the Union; that
he was not then a member of the Union and was not suc-
cessful in obtaining such membership to the present time;
that he applied to the Albany, Georgia, local in September
1973 and to the Union (Local 443) in February and that
the Albany local rejected him but he has not heard from
the Union. Moye in his recitation of the conversation be-
tween Armstrong, Forester, and himself, which occurred
on February 19, substantiated Armstrong's testimonial ac-
count. Moye added that Forester said that all white ticket
men would either have to quit or they would be fired.
Moye, in- accordance with the understanding that Arm-
strong and he arrived at with Forester, worked Friday,
February 21, but did not report to work thereafter. On
February 24, Monday, Moye accompanied Armstrong, to
the union hall where he filed an application for union
membership; Moye acknowledged that he knew about the
freeze and that Broadway, the Union business agent, told
Armstrong and himself that, while he appreciated what
they were doing, nevertheless they were doing it on their
own.
On cross-examination Moye admitted that he knew
about Respondent's rule that absences of 3 dztys or more
were grounds for discharge and that under the circum-
stances he expected to be terminated. Moye also acknowl-
edged that, at his unemployment compensation hearing, he
testified that he quit his job. Moye further testified that on
June 16 he talked to Broadway about work and that
Broadway told .him that as of that date no one had been
sent to Delcon for a job.
Robert McGowan, a witness called. by the General
Counsel, testified he was a member of the Union and in the
employ of Respondent as a journeyman wireman electri-
cian ; that in February he was in Forester's crew; that on or
about Friday, February 24, he asked Forester whose idea it
was to ask Armstrong and Moye to quit. Forester replied
that he did not want to get involved as he was a traveler. 13
McGowan further testified that he and Forester discussed
whether the men benefited themselves for future jobs by
quitting at that time. Contrary to Forester's testimony, Mc-
Gowan stated that white ticket welders currently employed
are not classified as electricians but are classified as weld-
ers. No documentary evidence was presented to resolve
this question. I credit McGowan over Forester. .
Donald Stewart testified that he commenced his employ-
ment at the jobsite in September 1973 as a journeyman
electrician after obtaining a referral from the Union; that
he worked on the crew of Foreman R. T. Williams; that he
applied for membership in the Union on two occasions but
was turned down each time; that about February 15, For-
ester asked him if his foreman, R. T. Williams, had asked
13 Forester although a union member was not a member of Local Union
12 A white referral card is given by the Union to a prospective employee No. 443, the Local having jurisdiction on the project. Forester was therefore
who is not a member of the Union. a traveler.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him to quit. When Stewart replied in the negative , Forester
said that Stewart would be asked to quit and that all white
ticket nonunion men were going to be asked to quit in
order to make room for union men on the bench. Stewart
asked what would happen if he did not quit; Forester re-
plied that it would be made rough on him. As a result of
this conversation , Stewart contacted Foreman Williams
who told him he did not know anything about it. A few
days later Stewart had another conversation with Foreman
Williams at which time Williams told Stewart , "Don-I
hate to have to say this to you, because you have been a
buddy of mine." Williams then went on to say that he had
been told to ask Stewart to quit in order to make room for
union men waiting for a job . After Stewart discussed with
Williams whether he could receive unemployment benefits,
Stewart said he would quit . Stewart also asked Williams to
help him get into the Union or save his job.
Stewart then contacted his cousin, Foreman Paul Gris-
sit.14 Grissit told Stewart there was no way he could help
him as all white ticket men were being asked to quit. Stew-
art then talked with Forester once more asking him was
there any way that he could save his job. Forester replied
that he could not help him in any way. Forester again said
that if Stewart wanted to get into the Union it would look
better for him if he voluntarily quit to make room for
union people . Replying to Stewart 's question what would
happen if he did not quit, Forester said they would ignore
him on the job, and possibly damage his automobile such
as cutting the tires . Stewart then went to Ed Ciriello.15 Af-
ter informing Ciriello that R. T. Williams had asked him
to quit, Ciriello said he had already heard about nonunion
men being asked to quit . Ciriello then told Stewart not to
quit, saying, "as long as I am here you got a good job. You
done a good job since you have been here." The following
day Stewart talked with Williams several times inquiring if
he could stay on until he could get into the Union. Ciriello
returned to talk to Stewart on the following day and told
Stewart that he was obligated to inform him that he (Ciriel-
lo) was leaving his position in 30 days and therefore he
would not be around to back up Stewart as he had said he
would . Stewart then asked Ciriello what would happen if
he did not quit. Ciriello said he knew that the Union could
make it rough for him if he did not quit; Stewart then said
that it seemed he had no other choice but to go ahead and
quit . Accordingly Stewart did not report to work after Feb-
ruary 28.
On Monday, March 3, Stewart talked with Broadway at
the Union's office. Broadway told him that he did the right
thing; that it would help him to get into the Union and that
there would be more work available in the area and he
would try to get Stewart back on the job within 90 days.
On cross-examination Stewart testified that he did not
contest the penalty imposed by the Unemployment Com-
pensation Commission ; that under these circumstances no
hearing was held and he received his unemployment com-
pensation after the penalty period.
14 Stipulated by the parties to be a supervisor within the meaning of the
Act.
James D. Jones testified that he commenced his employ-
ment at the jobsite in October 1973 after securing a referral
from the Union. Jones became a member of IBEW, Local
846, IBEW Chattanooga in April 1974.16 In February,
when he was on the crew of Foreman J. T. Fountain, he
was called into Fountain's office. Fountain told him that
they were getting rid of all permit men and those working
out of classification, that he (Jones) was out of classifica-
tion and that Local Union No. 443 had men on the bench
who wanted to go to work on this project; that they wanted
Jones to quit, that Jones was not to say anything because
they did not want Alabama Power Company to know
about it; that if they got enough men to quit the Power
Company would then allow it some additional hires from
the Union to replace those that quit. Fountain said that he
was told by General Foreman Ralph Straut to ask Jones to
quit. Jones said that he would answer him later. He saw
Fountain later that day and told him that he would quit as
soon as they got rid of the white ticket men. Fountain said
he would inform Straut. Jones testifying further said he
contacted the union steward on the job and asked him
whether white ticket men and out of classification people
were being asked to quit. The steward replied that he knew
nothing about it and that Jones could work as long as he
did not do anything for which he could be fired legally.
The following week Straut approached Jones and asked
him what he had decided to do. Jones replied that he had
decided to stay on, whereupon Straut said:
The best thing you can do is drag up and leave, be-
cause you know when you get a bunch of men out
here pissed off at you then they can make it hard on
you.
Jones continued to work until March 7. Jones testified that
on that day he was at work when he was told that Foun-
tain and Straut wanted to see him in the office. When
Jones arrived Straut asked him what he had decided to do.
Jones then said that he had heard he would be fired that
day and if that was so he would take both his checks right
then. Straut then said that Jones was wanted in the office
and Jones said "Let's go." After arriving at the office of the
general foreman, Jones was told to wait. About 15 or 20
minutes later the timekeeper came out with two checks and
a termination slip reading, "Refused to work." Jones asked
to see the steward but could not find him as no one knew
where he was. Jones thereafter left the premises.
On cross-examination Jones conceded that of the 300
electricians employed by Respondent about half were
either "traveling" men or "white ticket" men. Jones also
stated that he made no complaint to the Union thereafter
about his discharge.
Herman W. McCall testified that he commenced work-
ing at the project in 1971 as a security guard, that after
about a year he transferred to a laborer's job, and then in
1973 went to work as an electrician securing a referral from
the Union. He worked since January on the crew of David
Jones 17 cutting bracket for cable tray, end caps, end plates,
and hauling steel. McCall testified that on Tuesday, March
4, Foreman Jones took him aside and said that he hated to
Is Respondent's answer admits that Ciriello is a superintendent and a 16 How he managed this is unexplained on the record.
supervisor within the meaning of the Act. 17 A foreman unrelated to Jones, one of the alleged dischargees.
DELCON CORP. 461
say what he was about to tell him. After Foreman Jones
continued to hesitate, McCall said "Well, David, I will
make it easy on you. I know what it is, I have heard about
it." Jones asked, "You have?" McCall replied "I heard us
white ticket men are being laid off." Jones affirmed that
they were laying off all ticket men except the welders.
Jones then asked McCall if he would like to finish the week
as it was rather short notice to tell a man "all at once to
go." McCall said he would like that and they went to Fore-
man Jones' office. There Jones called the union steward on
the telephone and asked him if McCall could work the rest
of the week. After a pause Jones turned to McCall and told
him to go back to work saying, "you got the rest of the
week." The next morning McCall talked with Superinten-
dent Morey remarking "it still looks like the white ticket
men have to go." Morey agreed that it looked that way.
During the ensuing conversation McCall said that if they
had laid him off he could secure unemployment compensa-
tion. Morey said he did not understand why they were not
laid off.ls McCall on this Thursday, March 6, felt so "dis-
gusted" that he did not report Friday, March 7, which
would have been his last day of work, and did not report to
work thereafter. Conceding on cross-examination that he
was not an electrician, McCall stated that his primary du-
ties while on the job consisted of preparing things for other
electricians. 19
Sycora, recalled as a witness for Respondent , testified
that from November 15 to January 1976, approximately 68
employees were laid off by Respondent 20 The lists did not
include any of the Charging Parties. Respondent also in-
troduced a list of 43 persons terminated by Respondent
from February 21 to June 27.21 Sycora testified that he had
been associated with the project for approximately 3-1/2
years ; that about 1,200 electricians have been "through"
the payroll; that approximately 380 electricians have been
employed at any one time; that the 43 terminations from
February 21 to June 27 was less than average because there
has been less work in the area and therefore men tended to
hold onto their jobs. Concluding his testimonial account,
Sycora disclaimed any knowledge that supervisory person-
nel had talked to any employees urging them to quit.
Donald Ellsworth , electrical project manager for Re-
spondent, testified that prior to June he was the general
electrical superintendent on the project and signed the
General Counsel's Exhibits 3 through 7 in behalf of Re-
spondent; that he did not know the union status, of any
individual when he approved a termination; that he did not
institute a policy regarding layoff of nonunion employees
or encourage the discharge of such employees; that he did
Is Morey in his testimony denied talking about these matters , admitting
only that something about unemployment compensation was mentioned
and that he stated that he knew nothing about it . As appears. later L credit
McCall.
19 I allowed counsel for Respondent to probe into the qualifications and
work background of the alleged dischargees . However, I stated on the rec-
ord the capabilities and qualifications seemed irrelevant. I cautioned coun-
sel for Respondent that unless he made an affirmative showing as to the
relevance of such testimony it would be ignored. As there is no evidence to
show that lack of ability, etc. figured in the quits or discharges, I find such
evidence immaterial.
20 Resp . Exh. 1, 2, and 3.
21 Resp . Exh. 4.
not circulate such a policy in writing or verbally and that
he had no knowledge of such a policy; that he recalled
being approached by Straut with regard to giving Jones
two checks; that he told Straut that the Company would
pay the man in full only when he was fired, that this was a
requirement of the union contract.
Ed Barns testified that he was the business representa-
tive for the Union; that he was recently elected to that
position in July;, that he workedon the project on two
different occasions; that there were no union members
on Respondent's. Exhibit 2, one union member on
Respondent's Exhibit 1, and four union members on
Respondent's Exhibit 3; that he reviewed the roster of elec-
tricians currently employed at the project and estimated
that there were 125 Local union members, 130 travelers,
and about 30 white ticket employees, 16 of whom were
welders. Barns testified that no agent of Delcon had ever
communicated to him a policy that white ticket men or
travelers were to be eliminated.
Andrew Estes testified that he was an electrical general
foreman employed by Respondent; that he supervised ap-
proximately 35 employees divided into three crews; that
daily attendance records are posted in the office by the
timekeeper; that if a man is absent 3 consecutive days he is
automatically terminated unless he calls and presents a le-
gitimate excuse; that Armstrong was terminated for being
absent in excess of the 3-day limit; that he did not at any
time tell Armstrong that he would have to quit because he
was not a union member; that he did not tell Armstrong
that he would be fined if he did not quit; that he discussed
Moye's absenteeism with Forester; that he made no threats
to Moye; that Stewart was also terminated because he ex-
ceeded the 3-day limit in successive absences; that he
checked with Foreman Williams concerning Stewart's ab-
sences; that he did not at any time threaten Stewart with
loss of employment because he was not a member of the
Union; that the majority of the men in his crew are travel-
ers and that five or six of his crew are white ticket men. On
cross-examination Estes admitted he was a member of the
Union but denied that any employee discussed-with him
that white ticket men were being asked to leave; that no
supervisor discussed that with him; that he did hear a ru-
mor about it; that he did not call the rumor to the attention
of his immediate supervisor; that he attends union meet-
ings infrequently; that he could not recall any conversation
between Moye, Armstrong, Forester, and himself about
February 21 in which he or Forester, told Moye and Arm-
strong that they would be better off if they quit; that nei-
ther did he have such a conversation with Armstrong
alone.
. Forester, recalled as a witness by Respondent, testified
that he had never. been Stewart's supervisor; that he never
told Stewart to quit; that he never threatened to damage
Stewart's automobile.
Ralph V. Straus, an electrical general foreman employed
by Respondent, testified that he had been working on the
project for about 4 years; that he supervised four crews,
each crew consisting of 10 men; that Jones was in one of
his crews; that on March 7, the date of Jones' termination
Foreman Fountain called him into the turbine building;
that when he arrived there Fountain told him a guy in his
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crew wanted to get his money; that Fountain told Straut
that Jones could not get his money unless he was fired;
that Straut asked if the guy (Jones) still wanted his money;
Jones came in and said he wanted his money ; that he told
Jones the only way he could get his money would be if he
were fired ; that he asked why he wanted his money; that
Jones said he had a job at TVA (Tennessee Valley Authori-
ty) and did not want to take a chance that his check would
be lost in the mail; that the following conversation then
took place:
Straut : Okay, If I fire you I have got to have some
reason for firing you.
Jones : What kind of a reason?
Straut : Anything such as refusing to work or any-
thing of that nature.
Jones : Well, I refuse to work, then.
Straut : Well, If you are refusing to work then I am
going to have to fire you.
Straut then took Jones to the office where the checks were
made out. Straut denied that he told Fountain to ask Jones
to quit or that he himself asked Jones -to quit. Specifically
he denied having a conversation with Jones in which he
said to Jones that if he did not leave he would "piss a lot of
people off." Straut further testified that 85 percent of his
crew were travelers and that he never asked anyone to
leave because they were travelers . Straut then testified that
on one occasion he had interceded in Jones' behalf when
Jones was about to be laid off and was successful in having
Jones' name removed from the layoff list. On cross-exami-
nation Straut testified he was not at this time a member of
the Union but about 2 or 3 years earlier had been on the
Union's executive board (1971).
J. T. Fountain testified that he was a foreman in
Respondent 's employ; that he did not tell Jones that Straut
instructed him to ask Jones to quit; that he did not tell
Jones all white ticket men or men working out of classifica-
tion would be run off the job, and denied that he had
talked to Jones about quitting before Jones was dis-
charged. Fountain then testified that, on March 7 about
8:30 a .m., Jones came to him and asked him for both of his
checks. He told Jones that : "The onlyest way you can get
checks-is the company policy that you have to be fired."
Jones asked for a few minutes to think about it, then said,
"Get those checks" and Fountain replied "I got to fire
you." Fountain , at Jones' request, called General Foreman
Straut and asked Straut to come down. When Straut ar-
rived he told Jones that the only way he could receive his
two checks was to be fired . Straut then said , "What do you
want me to put on it? Refusal to work or something like
that?" Jones replied, "that's it refused to work." Asked if
he or Straut questioned Jones as to why he wanted both
checks, Fountain testified as follows:
A. Something was brought up about Ed-was
going to the T.V.A. to work for something, I didn't
remember the exact words.
Q. That was the reason he gave you?
A. That's the reason I understood it to be.
man putting pressure on white ticket men to leave their
jobs.
On cross-examination Fountain admitted that he joined
the Union (Local 443) about 1-1/2 years ago; that he at-
tends union meetings as regularly as he is able ; and that he
knew nothing of Jones ' intention to leave until the morning
of March 7.
Ronald Ratchford testified that he was an apprentice
wireman in Respondent's employ since February; that he
worked on the same crew with Armstrong; that, about I
month prior to the time Armstrong quit, Armstrong told
him that he was thinking of quitting but made no mention
of any pressure being put on him. Ratchford also testified
that, in a conversation with Jones prior to his discharge,
Jones said he was thinking of quitting because he was
trying to get into a sheet metal union in Tennessee. On
cross-examination Ratchford admitted that his conversa-
tion with Armstrong may have been a week before Arm-
strong quit.
Neil Simpson testified that he was a journeyman wire-
man employed by Respondent; that he was a member of
Local 1531, Albany, Georgia; that he was a traveler; that
he worked with Armstrong for a period of 5 months; that
he and Armstrong talked about being admitted into the
Union. He told Armstrong that the easiest way was to
work in the Pascagoula shipyard and if he showed that he
was capable of doing the work the local there would talk to
him about membership. Armstrong inquired as to what
were chances of being hired at Pascagoula and Simpson
recommended that he go there. Simpson also spoke to the
local union there about Armstrong in a telephone conver-
sation. He was told that if Armstrong came down he would
be referred to the shipyard as they were hiring at the time.
Simpson informed Armstrong about this conversation
about 1 week before Armstrong quit. Simpson talked with
Armstrong on Thursday, February 20, the day before Arm-
strong quit. At that time Armstrong informed Simpson that
if he did not show up for work the next day he would no
longer be around. Asked where he was going, Armstrong
replied that he did not know . Simpson further testified that
he had been working out of classification for Respondent
from July 1973 to February.
On cross-examination Simpson stated that Armstrong
appeared to be interested in securing membership in any
IBEW local and that Armstrong did not tell him that he
actually was going to go to Pascagoula.
R. T. Williams testified that he was employed as a fore-
man electrician by Respondent since September 1973; that
his crew consists of 11 persons ; that Stewart had been one
of his crewmen when discharged; that he signed General
Counsel's Exhibit 5; that the reason for discharge, "exten-
sive absenteeism," was accurate; that Stewart informed
him that someone asked him to leave the job, that Stewart
told him that was Stewart's cousin 22 or someone else on
the job; that Stewart told him about it 2 or 3 weeks before
his discharge; that he told Stewart "if I felt unwanted in
any way, that I would go, that I would leave." Williams
denied telling Stewart that if he did not leave, he would be
Fountain further testified that he knew of no other fore - 22 Grissit- it was stipulated that Grissit was a foreman.
DELCON CORP. 463
fired but did tell him that it would be best for him to quit.
Williams , on cross-examination , stated he was a member of
the Union and attends meetings whenever he is able.
Joe C. Dunkin, employed by Respondent,as an electri-
cian for the past 11 months, testified he was employed on
Fountain's crew and talked with Jones on March 7. Jones
said that he thought he could get his money and leave that
morning. Initially denying that Jones gave a reason, when
asked again, Dunkin said that Jones said that he would
take his money and quit because he had a friend in Chatta-
nooga who was in the sheet metal local who would try to
get him in. Dunkin also testified that he was a traveler out
of the . Birmingham local.
Clayton D. Morey, an electrical supervisor, testified that
he supervised four crews consisting of 10 men in each
crew; that in February he had McCall under his supervi-
sion ; that he was familiar with General Counsel's Exhibit
6; that the reason for termination stated was accurate; that
he talked frequently with McCall; that McCall never
talked with him about a problem relative to his union
membership but did talk with him about some unemploy-
ment problem; that he told McCall he knew nothing about
it. McCall never mentioned to him that he was going to be
run off the job. On cross-examination Morey stated that at
the time of McCall's termination he was not under his su-
pervision; he testified that the reason for termination was
accurate because after 3 days' absence a man is terminated.
Wade Meadows, a general foreman for Respondent, tes-
tified that McCall was :under his supervision in February
and March and he terminated McCall after he was absent
3 days. Meadows further testified that he had a conversa-
tion with McCall about union meembership; never asked
him to quit or threaten him with loss of employment; that
McCall was not a qualified journeyman electrician; that
McCall did laborer's work not electrical work; and that
McCall was a good man who was hired because he was
needed. On cross-examination Meadows testified that he
was a member of the Local; that all of the white ticket men
remaining on his crew were welders.
Called in rebuttal Jones denied that he had a conversa-
tion with Dunkin on the date he was terminated and did
not recall any discussion with him. Jones stated he knows
of no sheet metal union locals in Chattanooga and never
contacted any, that when he left Respondent's employment
he was not interested in changing his job 23
D. Analysis and Conclusions
Initially this case demands a determination of credibili-
ty. That determination is not too difficult to arrive at as the
demeanor and testimonial account of the dischargees was
not only impressive but was corroborated in some essential
elements by witnesses for Respondent. Particularly out-
standing was the testimony of Stewart and McCall. Ac-
cordingly I find that Armstrong, Moye, Stewart, Jones, and
McCall were coerced into quitting their jobs because they
were not members of the Union by promises of benefits,
threats of reprisals, threats of discharge, and threats to
their future employment. Compulsory resignations induced
23 1 credit Jones rather than Dunkin.
by Respondent's supervisors by these means constitute dis-
criminatory and constructive discharges in violation of
Section-8(a)(1) and (3) of the. Act.
As I have noted above, the question of credibility was
resolved in some degree by the demeanor of the witnesses.
I took special note of the manner in which Forester testi-
fied when called as a witness by the General Counsel. For-
ester fixed his gaze on the floor about 4 feet from the wit-
ness stand and answered all questions of mine, the General
Counsel, and Respondent's counsel, without raising his
head or facing the questioner at any time. In addition his
testimonial account displayed a lack of candor when
weighed against the admissions of other supervisors and
the evidence as a whole. At the very outset he denied that
he knew the reason Armstrong and Moye were terminated;
he also denied any prior knowledge of their mention to
quit, or that any employees talked to him about quitting.24
As the evidence unfolded it seems clear that Forester
with the knowledge of, if not at the direction of, the Union
instituted a program to induce white ticket employees to
quit their employment in order. to make room for union
members out of work. This plan or program spearheaded
by Forester soon. became known to other supervisory per-
sonnel employed by Respondent at the project. The cred-
ited evidence shows that cooperation of these supervisors
was widespread.
Having outlined the overall conclusions that I have
reached, discussion in more detail of the individual cases
would seem to be in order.
Armstrong apparently was the first white ticket employ-
ee approached. Armstrong, like the other dischargees in-
volved herein, did not possess the qualifications nor experi-
ence to qualify as a journeyman electrician. Nevertheless
they were referred to Respondent by the Union as journey-
men and were hired as journeymen.25 Armstrong, also like
the other dischargees, was extremely desirous of obtaining
union membership as that would automatically give them
access to similar job opportunities when work was avail-
able. Thus, the evidence showed that Armstrong discussed
with other employees including Forester how he could se-
cure union membership. It was this factor which Forester
used as bait to induce Armstrong and Moye to quit their
jobs. I credit Moye's, Armstrong's, and Stewart's testimony
that Forester told them that by quitting they would make a
good impression on the Union and thus facilitate their
membership.- Armstrong promised, Forester that he -would
quit; he asked Forester's permission to speak to General
Foreman Estes. Receiving permission, Armstrong ap-
proached Estes who told him at once that he knew what
Forester was doing. Armstrong asked Estes if he would be
eligible for unemployment compensation and, Estes said
that he would be. Armstrong then said that the next thing
was to put in his application in Montgomery and. Estes
replied that Armstrong should do that the first thing Mon-
24 McGowan 's credited testimony amply demonstrates Forester's knowl-
edM
s
e.
Respondent , even though it classified these men as journeymen and
paid them journeymen wages, employed them in jobs which they could
quickly learn and perform. The evidence shows that they were good and
satisfactory workers.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day moming.26 I credit Armstrong's testimony that Forest-
er said that if they did not quit it would be made hard on
them and some excuse would be found to discharge them.
In view of my findings above , I find that Armstrong and
Moye were constructively discharged and discriminated
against because they were not members of the Union, in
violation of Section 8(a)(l) and (3) of the Act. I further find
that the inducement of membership held out by Forester
and Estes and the threat of discharge made by Forester
were each independent violations of Section 8(a)(1) of the
Act.
I now come to the discharge of Stewart . In my view
Stewart was an outstanding , forthright witness whose testi-
monial account from the very outset conveyed a conviction
that a truthful story was being unfolded . Suffering from a
slight speech impediment , Stewart nevertheless, on the
whole , was clearly articulate and demonstrated that he had
an orderly and accurate memory of events and conversa-
tions . I fully credit Stewart 's testimony.
Stewart, although on Williams ' crew , was first ap-
proached by Forester who asked him if his foreman Wil-
liams had asked him to quit . Receiving a negative reply,
Forester explained to Stewart that all white ticket men
were going to be asked to make room for union members
out of work . Forester further asserted that it would be
made rough on him if he did not quit . Stewart sought out
Williams who said he knew nothing about it. However,
Williams apparently soon received the "word" from some-
one as a few days later he told Stewart that, despite Stewart
having been a "buddy," he was told to ask Stewart to quit.
Stewart, although promising Williams that he would quit,
nevertheless , made a determined effort to continue to work
on the job . He asked Williams to help him get into the
Union . He then contacted his cousin, Foreman Grissit, in
an attempt to secure his assistance . Grissit, candid and
knowledgeable , told Stewart that there was no way he
could help him as all white ticket men were being asked to
quit .27 Stewart then sought out Forester in an attempt to
enlist his assistance . At this time Forester told him that it
would help him get into the Union if he quit the job. For-
ester also told Stewart that, if he did not quit, his car possi-
bly would be damaged such as cutting the tires. As Stewart
was still determined to keep his job he contacted Ed Ciriel-
lo.28 Stewart informed Ciriello that he was being told to
quit and Ciriello said that he had heard that nonunion men
were being asked to quit . Ciriello then told Stewart not to
quit, saying, "as long as I am here you got a job ." About 2
days later Ciriello met Stewart and told him that he (Ciriel-
lo) was being transferred within 30 days and that he could
no longer protect Stewart .29 In my opinion , Ciriello had
also got the "word" and found it expedient to withdraw his
promise to Stewart . It seems to me that his position in the
hierarchy should have led to an investigation of the situa-
361 credit Armstrong and Moye and do not credit Forester 's and Estes'
denials. Estes, however, unlike Forester, admitted to having heard a rumor
that white ticket employees were being asked to leave their jobs.
27 Grissit did not testify.
2s Ciriello who did not testify was somewhat higher in Respondent 's hier-
archy . being a superintendent . Apparently Ciriello had friendly feelings to-
ward Stewart.
29 The record does not show how long Ciriello remained on the project
after that day.
tion. It is obvious that Ciriello at this time had enough
information to cause Respondent to do something if it
were so. inclined, that Respondent deliberately closed its
eyes may be presumed from Ciriello's acknowledgment to
Stewart that if he did not quit the Union would make it
rough on him. Stewart's remark to Ciriello that under the
circumstances he had no other choice than to quit was not
answered by Ciriello.
McCall impressed me as a witness without guile who
looked upon life with a cheerful disposition and was ready
to accept whatever came his way. It is plain that he lacked
the skills of an electrician, nevertheless the testimony
shows that McCall was an efficient worker in whatever
tasks that were assigned to him. On March 4, after having
worked and been classified as a journeyman electrician
since 1973, his foreman, David Jones, approached him,
saying "Mr. Mack, I have got something I have got to tell
you, that I hate to worst than anything I have ever done."
After Foreman Jones continued to hesitate, McCall inter-
vened and said, "Well, David, I will make it easy on you, I
know what it is . I have heard about it." Thus relieved,
Foreman Jones confirmed McCall's information that all
white ticket men except the welders were being asked to
quit. Thereupon the two went into the office where Fore-
man Jones called the union steward and secured permis-
sion for McCall to finish out the week 3° McCall then con-
tacted Superintendent Morey on Thursday morning.
McCall remarked to Morey "It still looks like us ticket men
have to go"; Morey replied, "yes, that's what it looks like."
McCall then said that he did not understand why they
would not lay him off so he could receive his unemploy-
ment compensation . Morey replied, "I don't see why in hell
they don't." Thereafter McCall did not report for work and
he was discharged for excessive absenteeism like the other
dischargees discussed above. Morey in his testimonial ac-
count admitted that he was asked about unemployment
insurance by McCall but testified that he said that he knew
nothing about it. In his other testimony he denied any
knowledge of the circumstances leading to McCall's failure
to report for work. As I fully credit McCall, I do not credit
Morey's disavowal of knowledge of the program or his de-
nial that McCall was told that he had to quit.
Accordingly I find that McCall was constructively dis-
charged because he was not a member of the Union. It
follows that McCall's discharge was discriminatory and in
violation of Section 8(a)(1) and (3) of the Act. I further find
that Foreman Jones' conversation with McCall was an in-
dependent violation of Section 8(a)(1) of the Act.
The last remaining case presents some difficulty in that
of J. D. Jones unlike the other dischargees was a member
of IBEW. However, Jones was not a member of Local
Union No. 443. Jones was employed on the project in Oc-
tober 1973 as a white ticket electrician upon referral by the
Union. Through some fortuitous circumstance undisclosed
on the record, Jones was able to secure membership in
Local 846, Chattanooga, Tennessee, in April 1974. Upon
30 1 fully credit McCall's testimony . Foreman David Jones did not testify.
neither did the union steward . Despite the union steward 's denial to J. D.
Jones that he knew anything about the program to eliminate white ticket
holders. I conclude that the foregoing incident strengthens my conclusion
that the Union knew about and acquiesced to the program.
DELCON CORP. 465
securing membership Jones' status on the project was
changed from "white ticket" to "traveler." Apparently this
did not exempt Jones from being considered for elimina-
tion. Jones' credited testimony shows that Foreman Foun-
tain toward the end of February told him that they were
getting rid of all men "out of classification" and that Local
Union No. 443 had men out of work who were seeking jobs
on the project. According to Jones, Fountain went on to
caution Jones not to. say anything about the matter so Ala-
bama Power and Light would not hear about it. Fountain
further asserted that, if enough men quit, then Alabama
Power would terminate the freeze and hire the local men to
replace those who quit. Fountain told him that Straut had
instructed him to contact Jones and he wanted an answer
that day. Jones saw Fountain later that day and informed
him that he would quit as soon as they got rid of the white
ticket men. Fountain said he would inform Straut. Jones
contacted the union steward who told him that he knew
nothing about the program to eliminate white ticket men or
men working out of classification. 1
About 1 week later Straut, the general foreman, contact-
ed Jones and asked him what he had decided to do. Jones
replied he had decided to stay on. Thereupon Straut said:
The best thing you can do is to drag up and leave,
because you know when you get a bunch of men out
here pissed off at you then they can make it hard on
you.
Having said this Straut walked away. On March 7, Jones
was told that Fountain and Straut wanted to see him in the
office. When Jones appeared Straut once more asked Jones
what he had decided to do. Jones replied, "Let me ask you
a question. I have heard that I would be fired today.32 Now
if I'm going to be fired today I will take both my checks
right now." Following this statement, Straut told Jones to
go to the timekeeper's office where after a short wait he
was given two checks with a termination slip which read
that he was terminated because he "refused to work."
Fountain and Straut in their testimonial account stated
that Jones suddenly contacted Fountain on March 7 and
said he had a job at TVA and wanted both his checks that
day so that they would not be lost in the mail. Both Foun-
tain and Straut informed Jones he could not receive his pay
that day unless he was fired. According to their account it
was only after Jones' continual insistence and agreement
that Straut put "refused to work" on the termination notice
so that Jones would receive his two checks that day.
I have found Fountain and Straut unreliable witnesses in
other regards. I look upon their account of their dealings
with Jones as a concocted tale in an attempt to mislead me.
On the other hand, Jones was quite impressive in his frank-
ness . As I find that there was a scheme to eliminate white
ticket men and as I believe Jones, although a "traveler,"
was not regarded as a white ticket man as he was hired as
a white ticket man but had obtained membership in a dis-
tant local while working on the project, I conclude that
under all the circumstances the weight of the credible evi-
dence favors Jones' version of the events. I so find. Ac-
cordingly, I find that Respondent violated Section 8(a)(1)
and (3) by the constructive discharge of J. D. Jones. I fur-
ther find that Fountain's conversations with Jones and
Straut's conversations with Jones each constituted inde-
pendent violations of Section 8(a)(1) of the Act.
In concluding this section of the Decision, I consider the
deficiency in skills of the dischargees as irrelevant inas-
much as they were hired as journeymen electricians, paid
as such, and the quality of their work had nothing to do
with their discharge. I further find that the testimony of
some witnesses that various dischargees, Armstrong and
Jones particularly, were inquiring about other jobs and
other unions is-likewise irrelevant. The fact remains they
were induced by overt acts of intimidation to quit their
employment. I am convinced that departure of the dischar-
gees was not voluntary under any fair interpretation of the
word. Rather they were intimidated and coerced into tak-
ing this action.
Having carefully read the memoranda submitted by the
General Counsel and Respondent's counsel, I must com-
mend the high quality of their research and arguments.
However, I am convinced that, once the resolution of cred-
ibility in this case has been determined, the violations
found herein consist of basic and rudimentary principles
long established by Board law. The doctrine of respondeat
superior clearly binds Respondent and establishes its re-
sponsibility for the acts and conduct of the supervisorial
employees named in the proceeding. Several supervisors
had 30-40 men under their supervision and none had less
than 10;- Thus, the case does not involve straw bosses or
leadmen engaged in routine supervision.33
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The acts and conduct of Respondent set forth above,
occurring in connection with its operations set forth above
in section I, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several
States and tends to lead to labor disputes burdening and
obstructing commerce and obstructing the free flow of
commerce.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, it will be recommended that it be ordered to
cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the purposes of the Act.
Having found that on or about February 21 Respondent
discriminatorily discharged R. Kenneth Armstrong and
Billy G. Moye and that on or about February -28, it dis-
criminatorily discharged Donald W. Stewart; and that on
or about March 7, it discriminatorily discharged James D.
3; Cf. J. A. Utley Company 108 NLRB 295, 301 (1954), and cases cited.
Note comment of Administrative Law Judge Winkler, "The answer provid-
ed by the Act . . . is not to excuse an employer whose supervisors may feel
31 As noted above , I believe the union steward knew about the program more strongly toward their union obligation than to their management in-
but refused to admit such knowledge to Jones. structions , but for employers to engage supervisors who have no overriding
32 Friday, March 7 . union allegiance."
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones, and that on or about March 7, it discriminatorily
discharged Herman M . McCall, and that since then has
failed and refused and continues to fail and refuse to rein-
state Armstrong, Moye, Stewart, Jones, and McCall to
their former employment because each of them were not
members of Local Union No. 443, International Brother-
hood of Electrical Workers, I shall recommend that Re-
spondent offer each of the above-named dischargees full
and complete reinstatement to their former positions or, if
such positions no longer exist , then to substantially equiva-
lent positions , without prejudice to their seniority and
other rights and privileges.
I shall also recommend that Respondent make each of
the above-named dischargees whole for any loss of pay any
or all of them may have suffered by reason of their dis-
charges, in violation of Section 8(aX3) and (1) of the Act,
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest on backpay computed in
the manner described in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), from the date of their discharge to the
date that they receive a valid offer of reinstatement.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of the Act.
3. At all times material herein the Union has been the
exclusive collective-bargaining representative of its electri-
cal employees and has been the exclusive source of referral
of applicants for electrical employment at Respondent's
project involved herein.
4. In violation of Section 8(aX3) and (1), Respondent
did constructively and discriminatorily discharge the fol-
lowing employees on or about the dates set by their names
because they were not members of the Union:
Armstrong Feb. 21
Moye Feb. 21
Stewart Feb. 28
Jones Mar. 7
McCall Mar. 7
5. All foremen , general foremen , and superintendents
employed by Respondent on the project involved herein
are supervisors within the meaning of Section 2(2) and (11)
of the Act.
6. Respondent, through certain supervisors identified in
this Decision, at the times and places described above un-
der section IV, engaged in the following acts and conduct
in violation of Section 8(a)(l) of the Act.
(a) Threatened each of the above-named dischargees
with discharge because they were not members of the
Union.
(b) Solicited each of the above-named dischargees to
quit their jobs to make room for union members out of
work.
(c) Threatened Stewart with injury to his automobile if
he did not quit to make room for union members out of
work.
(d) Threatened each of the dischargees with more oner-
ous working conditions if they did not quit to make room
for union members out of work.
(e) Promised the dischargees named above easier admis-
sion into membership in the Union if they quit their jobs to
make room for union members out of work.
7. The aforesaid unfair labor practices and the others
found herein affect commerce within the meaning of the
Act.
Upon the entire record, including the foregoing findings
and conclusions of law, I hereby issue the following:
ORDER 34
Respondent, Delcon Corporation, Dothan, Alabama, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or causing employees to quit or other-
wise discriminating against any of its employees because
they are not members of Local Union No. 443, IBEW.
(b) Soliciting or urging employees who are nonmembers
of the Union to quit in order to make room for members of
the Union who were out of work.
(c) Threatening an employee with injury to his automo-
bile, or threaten employees with more onerous working
conditions or promise to facilitate membership in the
Union if employees would quit their employment to make
room for members of the Union who were out of work.
(d) In any other manner, interfering with, restraining, or
coercing any employee in his or her right to join, assist, or
support the Union herein, or any other labor organization,
or engage in any activity protected by the Act, or to refrain
from so doing.
2. Take the following affirmative action which, I find,
will effectuate the policies of the Act:
(a) Make Armstrong, Moye, Stewart, Jones, and McCall
whole for any loss of earnings any one or all of them may
have suffered by reason of Respondent's unlawful discrim-
ination against them in the manner set forth in the "Reme-
dy" section of this Decision, and reinstate each of them to
his former or substantially equivalent position, should their
former positions no longer be in existence , with all their
prior existing rights and privileges, including seniority.
(b) Preserve and, upon request, make available to au-
thorized agents of the Board or its agents, for examination
and copying, all payroll records, social security payment
records, timecards, personnel records and reports, and all
other records necessary to determine the amount of back-
pay due under the terms of this recommended Order.
(c) Post at its place of business in Dothan, Alabama,
copies of the attached notice marked "Appendix." 35 Cop-
14 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
15 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
DELCON CORP. 467
ies of said notice, on forms provided by the Regional Di-
rector for Region 15, after being duly signed by
Respondent's representative, shall be posted by the Re-
spondent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 15, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or induce employees to quit,
or otherwise discriminate against any of our employ-
ees because they are not members of Local Union No.
443, International Brotherhood of Electrical Workers.
WE WILL NOT threaten our employees who are not
members of the Union
(a) Injury to their automobiles
(b) More onerous working conditions
(c) Keeping them out of the Union if they do quit
their jobs to make room for union members who are
out of work.
WE WILL NOT promise our employees who are not
members of the Union that we will facilitate their ad-
mission to membership in the Union if they quit their
employment to make room for union members who
are out of work.
WE WILL NOT in any other manner, interfere with,
restrain, or coerce any employee in the right to join,
assist, or support the Union herein, or any other labor
organization, or to engage in any activity protected by
the Act, or to refrain from so doing.
WE WILL make R. Kenneth Armstrong, Billy G.
Moye, James D. Jones, Donald W. Stewart, and Her-
man W. McCall whole for any loss of earnings of any
or all of them may have suffered by reason of our
unlawful discrimination against them in the manner
set forth in the Remedy section of this Decision and
reinstate each of them to their former or substantially
equivalent employment should their former positions
not exist, with all their prior existing rights and privi-
leges including seniority.
-DELCON CORPORATION