Fruin-Colnon Corp.

National Labor Relations Board - Board Decisions

Dec 7, 1976

227 N.L.R.B. 59 (N.L.R.B. 1976)

FRUIN-COLNON CORPORATION 59
Fruin-Colnon Corporation and William E. Miller
Laborers International Union of North America, AFL-
CIO, Local 282 and William E. Miller and Owen
Innis. Cases 14-CA-8891, 14-CB-3066, and 14-
CB-3078
December 7, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND WALTHER
On June 3, 1976, Administrative Law Judge Eugene
George Goslee issued the attached Decision in this
proceeding. Thereafter, counsel for Respondent
Fruin-Colnon Corporation and for Respondent La-
borers International Union of North America, AFL-
CIO, Local 282, each filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority-in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
The Administrative Law Judge, after detailing the
violent and coercive conduct of Respondent Union's
president, Fred Kelley, concluded that Respondent
Union had committed numerous violations of Section
8(b)(1)(A) and (2) of the Act by causing Respondent
Employer to lay off various discriminatees and had
independently violated Section 8(b)(1)(A) through
numerous acts of violence perpetrated by its agent,
Fred Kelley. To remedy such unlawful conduct, the
Administrative Law Judge ordered the posting of a
notice, as well as reinstatement and backpay for the
discriminatees and, to assuage the acts of violence
which Kelley had committed, the Administrative Law
Judge further required that Respondent Union mail
to each of its members a copy of the notice. However,
inasmuch as Kelley has demonstrated a proclivity to
violate the Act in both this proceeding and another,2
we do not believe that the Administrative Law
i Both Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty 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.
With respect to the discharge of employee Leroy Lukefahr, the Adminis-
trative Law Judge found that action proscribed as he concluded that
Lukefahr was let go for activities under the terms of a contract , and which
were both protected and concerted The Administrative Law Judge also
227 NLRB No. 16
Judge's recommended remedy here goes far enough.
Accordingly, in view of the violent means used by
Fred Kelley to restrain and coerce employees in the
exercise of their statutory rights, we shall order, in
addition to those remedies proposed by the Adminis-
trative Law Judge, that Kelley personally sign the
notice required of Respondent Union and read that
notice at assembled meetings of all Respondent
Union's members.
The record in this case reveals that, for all practical
purposes, Kelley had complete authority over the
work performed by Respondent Union's members on
the Respondent Employer's Charmin Paper project.
Pursuant to the provisions of the collective-bargain-
ing agreement between -Respondent Employer and
Respondent Union, Kelley appointed all the foremen
who supervised the employees on the project. Fur-
thermore, Respondent Employer permitted Kelley to
select those laborers to be laid off when conditions
necessitated a reduction in work force. Possessed with
these powers, Kelley clearly had a duty as an elected
union official to administer Respondent Union's
affairs, which here so greatly affected the employees'
working conditions, in an equitable and orderly
manner for the benefit of each and every member of
Respondent Union. Instead, Kelley served as a
virtual dictator while presiding over the affairs of
Respondent Union, brooking no opposition to his
authority. In this regard, the record shows that Kelley
caused the discharge or layoff of seven employees for
reasons personal to him and all in contravention of
the Act. Moreover, when Kelley's efforts failed to
quash the employees' opposition to his position,
Kelley then resorted to violent conduct, including the
throwing of a baseball bat at employees, and later
shooting at union members who were attempting to
secure signatures on a petition for a new election of
union officers, a right clearly guaranteed them by
Section 7 of the Act.
From the evidence herein, it is clear that Fred
Kelley has little or no respect for the various rights
guaranteed employees under the National Labor
Relations Act. As Fred Kelley was the guiding force
in the massive unfair labor practices found herein, the
remedies provided by the Administrative Law Judge
do not sufficiently reach the root of those violations.
We note that Fred Kelley has served as an officer of
found that the discharge was based on irrelevant , invidious , and unfair
considerations. As we adopt the Administrative Law Judge's latter conclu-
sions, we do not pass on his comments that Lukefahr's activities were
protected by the terms of the existing bargaining agreement.
2 We note that Kelley was also a prune mover in Respondent Union's
unlawful actions in Alberici-Fruits-Colnon, 226 NLRB No. 189 (1976).
Although the Administrative Law Judge found therein that Kelley's conduct
in threatening an employee with physical violence violated Sec. 8(b)(l)(A) of
the Act, he there entered only the usual cease-and-desist order against
Respondent Union.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union for approximately 17 years. The
record further shows that he is well versed in the field
of labor relations. Yet, faced with a legitimate
internal union dispute over his authority, Kelley in
order to retain his position - plotted, directed, and
caused discrimination against the employment status
of Respondent Union's members, and used violence
to force their allegiance to him and to dissipate
support for the employees' petition. In effect, Kelley
tried to control - the labor policies of Respondent
Employer for his own personal benefit. Kelley's
attitude towards fair representation of the - union
members is succinctly described by his blatantly
unlawful-remarks (before causing two of the discrimi-
natees to be fired) that "We're getting rid of these
sons of a bitch that's not with us." We conclude that
such deliberate and violent violations ofthe Act by so
informed a labor official as Kelley warrant the
inclusion of additional remedies.
We note that in fashioning its remedies the Board is
authorized by Section 10(c) of the Act "to take such
affirmative action ..: as will effectuate the policies
of the Act." Furthermore, the Supreme Court has
long recognized that the Board's power in the area of
fashioning effective remedies is "a broad discretion-
ary one, subject to limited review." 3 Mindful of these
concepts and under circumstances similar to the
instant case , the Board in The Loray Corporation4
found that its "usual remedies . . . [were] insufficient
to dissipate the effects of the Respondent's extensive
and flagrant unfair labor practices." The Board
therefore required the employer's president there to
personally sign ' copies of the "-Notice to All Employ-
ees" and to read same to the employees to remedy the
egregious unfair labor practices committed under his
specific direction.5 ,
We think the remedies the Board denoted for the
corporation president in The Loray Corporation are
equally suitable for Kelley here, as he was clearly the
principal actor in Respondent Union's outrageous
conduct. We are including these additional remedies
not out of any desire to punish or embarrass Kelley.
However, in the light of the vengeance Kelley has
directed against all union members who oppose him,
we are of the opinion that unless Kelley personally
signs the notice as president and unless members of
Respondent Union hear from Kelley himself that he
will conform his conduct to the requirements of the
Act, the coercive and restraining effects of Kelley's
unlawful activities will not be dissipated.
Accordingly, in view of the violent means used by
Fred, Kelley to restrain and coerce Respondent
Union's members ' in the exercise of their statutory
rights , we will order, in addition to those remedies the
Administrative Law Judge proposed, that Kelley
personally sign the notice required of Respondent
Union and read that notice at an assembled meeting
of all Respondent Union's members.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of - the Administrative Law Judge as
modified below and hereby orders that Respondent
Fruin-Colnon Corporation, Cape Girardeau, Missou-
ri, its officers , agents , successors , and assigns, and
Respondent Laborers International Union of North
America , AFL-CIO, Local 282 , its officers , agents,
and representatives , shall take the action set forth in
the said recommended Order , as modified herein:
1. Substitute the following for paragraph A, 2(e):
"(e) Post at its offices and meeting hall frequented
by its members and employees it represents from
Fruin-Colnon Corporation, copies of the attached
notice marked `Appendix A.'12 Copies of said notice,
on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent
Union's president , Fred Kelley, shall be posted by it
immediately upon receipt thereof, and be maintained
by the Respondent Union for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to its members are customarily posted.
Reasonable steps shall be taken by the Respondent
Union to insure that said notices are not altered,
defaced, or covered by any other material."
2. Add the following as paragraph A, 2(h) and
reletter the subsequent paragraphs accordingly:
"(h) Convene its members and employees it repre-
sents from Fruin-Colnon Corporation at its meeting
hall, where President Fred Kelley shall read at an
assembled meeting of all Respondent Union's mem-
bers and employees it represents from Fruin -Colnon
Corporation the contents of the attached Appendix
A."
3 See, e.g, Fibreboard Paper Products Corp v. N.L.R.B., 379 U.S. 203, 216
(1964); Virginia Electric and Power Company v. N.LR.B., 319 U.S. 533
(1943); N.LR B v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
4 184 NLRB 557, 558 (1970)
5 Previously, in Southern Athletic Co., Inc., 157 NLRB 1051 (1966), the
Board had ordered another corporation president to mail to employees and
personally sign copies of the "Notice to Employees."
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
These consolidated cases came on to be heard before me at
Cape Girardeau, Missouri, on January 12 through 14, 1976,
FRUIN-COLNON CORPORATION 61
and thereafter resumed on February 24 through 26, 1976,
upon a complaint ' issued by the General Counsel of the
National Labor Relations Board and answers filed by the
Respondent Fruin-Colnon and the Respondent Union. The
issues raised by the pleadings relate to whether or not
Respondent Union violated Section 8 (b)(1)(A) and (2) of
the Act, and whether, or not Respondent Fruin -Colnon
violated Section 8(a)(3) and (1) of the Act. Briefs have been
received from the General Counsel , Respondent Fruin-
Colnon , and Respondent Union, and the briefs have been
duly considered.
Upon the entire record in this proceeding , and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
I. PRELIMINARY MATTERS (COMMERCE, JURISDICTION,
AND LABOR ORGANIZATION)
The complaint alleges, the Respondents ' amended an-
swers admit, and I find that ( 1) Respondent Fruin -Colnon
is engaged in the construction industry ; (2) at times
material to these cases Fruin-Colnon was engaged as a
general contractor on a project at Cape Girardeau, Missou-
ri; (3) Fruin-Colnon's purchases of goods and materials in
interstate commerce are sufficient to satisfy the Board's
standard for the assertion of jurisdiction ; and (4) Fruin-
Colnon is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The complaint also alleges,
the answers admit, and I fmd that Laborers International
Union of North America, AFL-CIO , Local 282 , is a labor
organization within the meaning of Section 2 (5) of the Act.
II. THE UNFAIR LABOR PRACTICES ALLEGED
The General Counsel alleges that Respondent Union
violated Section 8(b)(I)(A) and (2) of the Act by causing
employee William E. Miller to be denied a foreman's job,
and Respondent Union violated the same provisions of the
Act by causing Fruin-Colnon to lay off or discharge
employees William E. Miller, Leroy Lukefahr, Joe Sachse,
Owen Innis, Tom Lukefahr, Jim Schoen, and Henry
Durham. General Coun sel also alleges that Respondent
Fruin-Colnon violated Section 8(a)(3) and (1) of the Act by
continuously moving employee William E. Miller from one
undesirable job to another, and violated the same sections
of the Act by laying off or discharging Miller, Leroy
Lukefahr, Sachse, Innis, Tom Lukefahr, Schoen, and
Durham. General Counsel further alleges that Respondent
Union violated Section 8(b)(1)(A) of the Act by acts of
violence committed by its agents at Cape Girardeau on
October 23, 1975. Respondents' answers generally deny all
the 'substantive allegations of the consolidated complaint.
' A consolidated complaint involving these and other cases was issued by
the General Counsel on November 26, 1975, upon a series of charges filed
between the dates of September 22 and November 21, 1975. Respondents
herein admit the filing and timely service of the charges applicable to them
On April 13, 1976 , I granted the General Counsel's motion to sever the
matters of Blount Brothers Corporation , Case 14-CA-8917, and Laborers
International Union of North America , AFL-CIO, Local 282 ( Blount Bros
A. Background
At times material to these cases Respondent Fruin-
Colnon has been engaged in the construction of the
Charmin Paper plant at Cape Girardeau, and employed an
extensive number of laborers represented by Respondent
Union. Respondent Fruin-Colnon is signatory to a collec-
tive-bargaining agreement between-National Constructors
Association and the Building and Construction Trades
Department, AFL-CIO. As a part of National Construc-
tors agreement, Fruin-Colnon is also signatory to a collec-
tive-bargaining agreement with Laborers' International
Union of North America, which in turn incorporates by
reference a collective-bargaining agreement with Respon-
dent General Laborers Local 282.
An essential element in these cases concerns the extent to
which Fruin-Colnon has delegated to the Union certain
authority with respect to personnel matters, including the
imposition of discipline and the right to select employees
for layoff in the event of a reduction in force. The issue is
additionally complicated by the manner in which certain of
Fruin-Colnon's supervisory personnel were selected, and
the question of whether they acted as agents of Respondent
Employer, Respondent Union, or both.
Contrary to the specific provisions of both the National
Constructors agreement and the agreement with Laborers'
International Union, the- local bargaining agreement be-
tween Fruin-Colnon and Respondent Union, authorizes,
Local 282 to select both the labor foremen and the general
foreman on the Charmin project. Article II of the agree-
ment provides, inter alia:
Foremen: One foreman is required for every eight (8)
men. Foremen to be paid at the rate of 45¢ per hour
over highest paid semi-skilled men. General foremen to
be paid 450 per hour over all other labor foremen.
Foremen and General Foremen to be appointed by the
Union on all jobs over $2,500, 000. General Foremen and
foremen to be appointed by Contractor on jobs under
$2,500,000. [Emphasis supplied.]
The record here does not reveal whether the Charmin
project had a dollar volume in excess of $2,500,000, but it
does reveal that the contractual provision relating to the
appointment of foremen and the general foreman was
adhered to and applied. Pursuant to the terms of the
provision, albeit upon a 'name request by Fruin-Colnon,
Respondent Union, through its President and Business
Manager Fred Kelley, appointed Bill Kitchen as general
foreman on the Charmin project. Fred Kelley also appoint-
ed Jim Bollinger as a foreman on the project, and
simultaneously appointed Bollinger as job steward under
the provisions of article IV of-the local collective-bargain-
ing agreement. By its amended answer Respondent Fruin-
Colnon admits' that Kitchen is its agent and ' supervisor
within the meaning of Section 2(11) of the Act. In part by
Corporation), Case 14-CB-3087, for purposes of settlement. Thereafter, by
an Order and Decision (JD-285-76) issued on April 30, 1976, 1 granted the
motion of the several Respondents to sever the above-captioned matters
from the matters ofAlbenci-Frum-Colnon, Case 14-CA-8914 and Laborers
International Union of North America, AFL-CIO, Local 282 (Albenci-
Frum-Colnon), Case 14-CB-3085. [226 NLRB No. 189.1
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
virtue of his appointment by Respondent Union, but in
greater part by virtue of his acts and conduct on behalf of
Local 282 as found below, I also fmd that Kitchen acted as
an agent of the Respondent Union in matters germane-to
the unfair labor practices alleged in these cases.
Contrary to the Respondent Union's denial by answer, I
find on the totality of the record that Jim Bollinger acted as
an agent of the Union within the meaning of Section 2(13)
of the Act. My finding in this respect is predicated not so
much on Bollinger's appointment as foreman and job
steward by Fred Kelley, but rather on the evidence that
Bollinger acted as Respondent Union's conduit to carry out
Fred Kelley's orders to remove certain employees from the
Fruin-Colnon payroll. I further find, on the basis of the
issue as litigated, that Bollinger is a supervisor and agent of
Respondent Fruin-Colnon. As a foreman, even though
appointed by Respondent Union, Bollinger supervised a
crew of eight or more employees, and with Fruin-Colnon's
knowledge he exercised authority to grant time off to other
employees. More important, Bollinger played a significant
part in the selection of employees for termination when
Fruin-Colnon directed a reduction in force, and he played
an equally significant role in effecting the termination of
employees for cause.
The record in these cases reveals that some of the
members of Local 28-2, including members employed by
Fruin-Colnon, were dissatisfied with the manner in which
the affairs of the local union were being conducted. The
dissatisfaction centered in major part on a past election of
union officers and the manner in which Fred Kelley and
Business Manager Paul Menz were elected to office.
Sometime in mid-July 1975,2 Bollinger and employees
Owen Innis, Joe Sachse, and William Miller met at the 61
Club and discussed the possibilities of obtaining a new
election of union officers. Other members of Local 282
employed by other concerns were also present, and either at
the meeting or as a result of the discussions Bollinger
drafted a petition, which was duplicated in about 30 copies
and circulated to members on the Fruin-Colnon and other
projects. The petition expressed dissatisfaction with Kelley
and Menz, and specified six separate reasons why their
election to office was illegal.
Louis J. Ebbesmeyer, superintendent for Frum-Colnon
on the Charmin project, testified that about 3 weeks prior to
September 4 he received a call at his home from Fred
Kelley. Kelley told Ebbesmeyer that he was dissatisfied
with Joe Sachse, Bill Miller, and,Owen Innis, that they were
in a tavern blowing their mouths off, and that the Union
would like to have them laid off. On cross-examination
Ebbesmeyer added to his testimony that Kelley stated that
the employees had been "stirring up bullshit" by shooting
their mouths off at'the tavern about how they didn't like the
way the Union was! being run.
Fred Kelley was also questioned about the conversation
during his appearance as a witness for Respondent Union.
According to Kelley his telephone call to Ebbesmeyer was
prompted by a complaint made by Bollinger that Sachse,
Innis, and Miller ^ were not doing their work and were
creating trouble on the job. On cross-examination, how-
ever, Kelley denied that he asked -Ebbesmeyer to remove
the employees from the job, but admitted that he called
Ebbesmeyer because the three employees had been stirring
up trouble by shooting off their mouths in taverns.
B. The Discharge of William Miller and Leroy
Lukefahr
William Miller, a member of Respondent Union since
1974, was employed by Fruin-Colnon on the Charmin
project on June 10. Miller was hired by Kitchen, and at the
time he reported for work on the project there were seven
laborers, in addition to General Foreman Kitchen and
Steward Jim Bollinger. Miller was assigned as a laborer on
the pipefitters crew, and he continued to work until his
discharge on September 4. Leroy Lukefahr, also a member
of Respondent Union, was employed by Fruin-Colnon on
June 17 as a laborer, and continued to work on the project
until September 4, when he was terminated by Respondent
Employer. During some or all of his tenure on the project
Leroy Lukefahr worked under the supervision of Claude
Kelley, who was appointed to a foreman's job by his
nephew, Fred Kelley.
William Miller testified that about August 25 the laborers
on the Fruin-Colnon job were told by Kitchen to remain in
the change shed after they had finished lunch. Subsequent-
ly, Kitchen explained to the employees that Fred Kelley
had sent subscription cards for the United Fund drive to
the jobsite, and had recommended that each member
contribute a day's wages. Miller told Kitchen that he would
not contribute a day's wages, that he hadn't worked during
3 months of the year, and he could not afford to make that
contribution. Later on the same day Miller told Steward
Bollinger that he would not contribute a day's wages.
Bollinger agreed that a day's pay was rather steep, but that
was what Kelley recommended. When Miller persisted that
he could not afford to contribute a day's wages, Bollinger
cautioned, "You know probably what will happen." Miller
did not contribute to the United Fund drive.
Bollinger testified that he was involved in the subscrip-'
tions for the United Fund drive. Bollinger testified that
Fred Kelley gave him the subscription forms, stated that he
wanted the men to contribute a day's pay because he was
on the United Fund board and wanted to look good.
Bollinger was present at the meeting when Kitchen solicited
contributions, and he corroborated Miller's testimony that
the latter told Kitchen that he could not afford to give a
day's pay. Bollinger also confirmed that he cautioned
Miller to contribute, and told Miller that he wouldn't have
a job if he persisted in his refusal. Subsequently, Bollinger
reported to Kelley that Miller had refused to contribute to
the United Fund drive, and. Kelley replied that he would
run Miller's ass off the job the first chance he got.
In his testimony as a witness for the Respondent, Fred
Kelley admitted that he was active in the United Fund
drive, but denied that any pressures were exerted, or that he
threatened to cause Miller's termination because of his
failure to contribute. I was not impressed with Fred
Kelley's testimony in this, or any other ,respect, and I have
2 All dates hereinafter are in 1975, unless specified to the contrary
FRUIN-COLNON CORPORATION 63
credited him in this decision only to the extent that his
versions of events and circumstances have been corrobo-
rated by other testamentary or documentary evidence.
I do credit Miller's testimony, and I similarly credit the
testimony of Bollinger as it relates to the United Fund
matter, as well as his testimony as it relates to other aspects
of these cases . In arriving at the credibility resolution on
Bollinger I have taken into consideration the evidence that
he initially gave the Board's agent false information
pertaining to Miller's absence from the Charmin project on
September 4. Bollinger, nevertheless, rectified this situation
in subsequent statements given to the Board, and he
voluntarily resigned his job with Fruin-Colnon because of
the dispute between the Respondent Union and its mem-
bers . I find Bollinger credible in all respects.
Up to August 25, Miller 's regular job was grading for the
pipe crew. However , after his refusal to comply with the
request to contribute to the United Fund , Kitchen switched
him from job to job, and gave him the least ,desirable jobs
on the project. There is nothing in the record to refute
Miller's testimony about the change in his assignments after
his refusal to contribute to the United Fund , and I find that
the assignments were made by Kitchen , with the knowledge
and connivance of Fred Kelley, in retribution for Miller's
refusal to comply with Kelley 's demand.
Bollinger testified that he had a request from Lou Payne,
superintendent of a subcontractor 's crew performing piping
work, that ' Miller be appointed foreman for the crew of
laborers assisting the pipefitters . Bollinger passed the
request on to Fred Kelley . Kelley became very -angry, and
replied, "No, I know there's a conspiracy out there .. .
hell, no , he'll never be a foreman out there ." Kelley also
repeated his prior threat that he would run Miller off the
job at the first opportunity.
Bollinger also testified that Fred Kelley appointed his
nephew , Curtis (Skipper) Kelley, to the foreman's job,
notwithstanding Skipper Kelley had been employed on the
project for only a few days . At a later time, Bollinger was
called in by Fred Kelley and interrogated about who had
complained about his nephew and the manner in which he
supervised the crew . Bollinger accompanied Fred Kelley to
the office of Ward Smith , Fruin-Colnon's project manager,
where the discussion continued in the presence of Smith
and Lou Payne . Kelley answered the complaint about his
nephew with the comment that they had- better get along
with Skipper Kelley because that was his nephew and' his
favorite nephew . Fred Kelley added that Skipper Kelley
would continue as foreman and he would not change the
assignment.
On September 4 Miller informed Bollinger that he would
have to leave at noon to obtain some insurance papers to
put his son in the hospital. Bollinger approved and Miller
asked if he should report his intended absence to Kitchen.
Bollinger replied that this would not be necessary, and that
he would take care of the matter. Nevertheless, before
Miller left the jobsite he informed Kitchen of the reason for
his intended absence, and Kitchen replied, "Whatever it
takes to take care of the boy." Bollinger corroborated
Miller's testimony that the latter requested permission to
leave work at noon on September 4, and he also testified
that he informed Kitchen of Miller's intended absence.
Kitchen replied, "It's no problem."
Later on the same day, as he did nearly every day,
Bollinger called Fred Kelley to report who was on the job.
In response to Bollinger 's information that Miller left the
job at noon, Kelley responded , "Get his check." When
Bollinger also informed Kelley that Leroy Lukefahr had
not reported to work that day, Kelley replied , "Get his
check, too." Kelley also directed that Bollinger get final
paychecks for Owen Innis and Joe Sachse . Bollinger
protested , "That's a lot of checks to get , how are we going
to cover for them." Kelley replied that Bollinger was not to
worry, and Kelley would take care of it . However, Bollinger
continued to protest the discharges of Innis and Sachse.
Kelley relented as to those two members ,,but insisted that
Miller and Lukefahr were to be terminated . Kelley added
the reasoning, "We're getting rid of these sons of a bitch
that's not with us." Bollinger, however, continued to
question Kelley on the wisdom of discharging Miller and
Lukefahr, and told Kelley that Miller had permission to
leave the job. Kelley replied, "Just say that Mr. Miller never
told you he was leaving ." When Bollinger insisted that
Miller had informed him he was leaving, Kelley replied,
"Well, we're just going to have to he like a bunch of dogs."
After the telephone conversation Bollinger went to the
office and reported Fred Kelley 's directions to Kitchen,
Bollinger reported that Kelley wanted Miller and Lukefahr
discharged, but that he had changed his mind about Innis
and Sachse. Bollinger told Kitchen that Kelley had directed
he and Kitchen to say that Miller had not reported his
intended absence from the job , and ' Kitchen replied that
they would have to go along with Kelley and he about the
matter.
Bollinger and Kitchen reported to the office of Superin-
tendent Ronquist , and, in the - presence of both Ronquist
and Ebbesmeyer, Bollinger stated that he wanted final
checks for both Miller and Leroy Lukefahr. Bollinger
explained that Fred Kelley wanted the employees laid off.
Ronquist asked how Bollinger and Kitchen were going to
cover for the discharges, and Bollinger replied that Fred
Kelley would take care of the matter through Ronquist.
Ronquist stated that Fruin-Colnon didn't want to get
caught in the middle, but, if Kitchen and Bollinger were
satisfied , "We have to be or we might go down the road
ourselves." Ebbesmeyer also expressed concern about the
proposed discharges of Miller and Lukefahr , and expressed
concern that Fruin-Colnon would be caught in the middle.
Ebbesmeyer also expressed concern that Bollinger and
Kitchen would be run off the job.
After Miller filed a charge with the Board, Bollinger had
a further conversation with Fred Kelley about the discharg-
es. Bollinger asked how they were going to cover for the
discharges, and Kelley answered , "We are just going to
have to lie like a bunch of dogs."
Kitchen testified concerning the discharges of Miller and
Leroy Lukefahr , and generally contradicted the version of
events given by Bollinger . According to Kitchen he
discovered that Miller was absent from the job on the
afternoon of September 4. Kitchen discussed the matter
with Bollinger, and with Bollinger reported the matter to
Ronquist and requested that Miller be terminated. In the
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same conversation Kitchen requested that Leroy Lukefahr
be terminated for excessive absenteeism . Kitchen particu-
larly denied that he gave Miller permission to leave work on
the afternoon of September 4, and denied that Bollinger
informed him of Miller's intended absence. According to
Kitchen , Bollinger had no authority to grant time off, but
other evidence in the record reflects that Kitchen was aware
that Bollinger had exercised such authority in the past
without warning or reprimand.
Ronquist and Ebbesmeyer also testified concerning the
termination of Miller and Lukefahr , and conceded that the
discharges were requested by Kitchen and Bollinger. In
most respects , however, both denied all the salient facts
adduced through the testimony of Bollinger.
I find no compelling reason to credit any of the testimony
of Bill Kitchen. His whole demeanor as a witness in this
proceeding exemplified his dual role as a double agent,
seeking to satisfy his obligations as an agent of his
employer, while at the same - time seeking to protect his
other , master , Fred Kelley . 'Demeanor , appearance, and
responsiveness aside , Kitchen's version of the events
surrounding the discharges of Miller and Lukefahr is
suspect on the facts . If, as he testified , Kitchen discovered
Miller's unauthorized absence from the job , there is no
credible explanation why he felt compelled to discuss the
matter with Bollinger, and there is even less evidence to
explain why he felt compelled to bring Bollinger into the
meeting with Ronquist and Ebbesmeyer . Neither Miller nor
Lukefahr worked under the supervision of Bollinger, and it
is clear that Bollinger was consulted by Kitchen and
brought to the meeting in his capacity as the Respondent
Union's job steward.
Ronquist and Ebbesmeyer3 were somewhat more credi-
ble than Kitchen, and I am inclined to credit their
testimony in some limited extent . It appears from all of the
relevant testimony that Kitchen and Bollinger did not
inform Ronquist and Ebbesmeyer of all the facts concern-
ing Fred Kelley's demand for the discharges. Nevertheless,
even on the version of the facts adduced through Ronquist
and Ebbesmeyer, it is patently clear that both were curious
about the requests for the discharges , and concerned that
Fruin-Colnon would be caught in the middle of a dispute
between the Respondent Union and its members. The
reason for the curiosity and the concern is obvious . About 3
weeks prior to September 4, Fred Kelley had demanded of
Ebbesmeyer that Miller and two other employees be
terminated , and Ebbesmeyer was aware that Kelley's
demand was predicated on the employees' complaints
about how Local 282 was being run. In the light of that
background information , and in the further light of a
demand for the discharges by the Respondent Union's
Steward and the ' Union's appointed general foreman,
Ronquist and Ebbesmeyer had every valid reason to
question whether the demand for the discharges was for the
reasons asserted,
With respect to Leroy Lukefahr , there is no evidence in
the record that he was privy to, or participated in, the plan
to oust Fred Kelley and Paul Menz from union office.
There is evidence, however, that Lukefahr incurred the
wrath of Fred Kelley through other activity, and it was this
activity which motivated Kelley's order that Lukefahr be
terminated on September 4.
Leroy Lukefahr worked as a laborer under the supervi-
sion of Claude Kelley, an uncle of Fred Kelley, and
appointed to a foreman's job by his nephew. On the whole
of the record it is clear that Lukefahr had a history of
absenteeism from work, and he was probably not the most
reliable employee on the project. Approximately a week
before his discharge Lukefahr was criticized by Claude
Kelley for pushing work off on another employee. Lukefahr
protested the accusation, undoubtedly in words unfit for
polite company, and Claude Kelley responded, "If I can't
take care of you, Jim Bollinger [and] Fred Kelley will."
Lukefahr countered, "Well, bring them on, I'm not afraid
of them." During a lunch period break in the change shed,
and in the presence of Bollinger, Kitchen, Fred Kelley, and
several employees, Lukefahr told Bollinger and Fred
Kelley, "I'm not a god damned bit afraid of either of you."
Bollinger confirmed the run in between Lukefahr and
Claude Kelley, and he also confirmed Lukefahr's remarks
to Fred Kelley in the change shed. Bollinger further
testified that when he walked out the door with Kitchen
and Fred Kelley, the latter threatened, "We're getting rid of
that son of a bitch."
There is no dispute that Leroy Lukefahr was not the most
agreeable or cooperative laborer on the Fruin-Colnon
project, and his absenteeism was no doubt cause for
termination by the Company. But Lukefahr's termination
was not brought about by Fruin-Colnon's dissatisfaction
with his job performance. On the contrary, there is no
evidence that the Company contemplated Lukefahr's
discharge until it was directed to do so by Bollinger and
Kitchen. Bollinger and Kitchen were acting at the, express
direction of Fred Kelley and, in the absence of any other
explanation afforded by Respondent Union, the conclusion
is required that the demand for Lukefahr's discharge
stemmed from his conflict and exchange of words with
Fred Kelley in the change shed.
C. The Discharge of Joe Sachse
Sachse, a member of Local 282, was employed by Fruin-
Colnon on the Charmin project from July 14 to the date of
his discharge on September 16. Sachse testified, and his
testimony was corroborated by Bollinger, that he was
present at the 61 Club meeting in mid-July, and there is
other evidence that he helped in distributing the petition
drafted by Bollinger. As found above, Sachse was one of
three employees whose termination was demanded by Fred
Kelley in his telephone call to Ebbesmeyer, and there is
additional evidence that Fred Kelley told Bollinger that he
wanted to get rid' of Sachse because of his criticism about
how the Union was being run.
Sachse admitted in his testimony that he entered the
project site on September 15, with the intent of departing
immediately, that he was asked by the guard to show his
pass and refused to do so. Sachse reported to Kitchen and
Bollinger and told them that he was leaving. Both tried to
3 1 do not credit Ebbesmeyer's demal that he was not present in
Ronquist 's office on September 4, as it is contradicted by both Bollinger and
Kitchen.
FRUIN-COLNON CORPORATION 65
persuade Sachse to remain, but he immediately left and
again refused to show his pass to the guard.
Bollinger testified that Sachse came- up before starting
time on September 15, and reported that he had to leave
because of personal problems. Bollinger attempted to
persuade him to remain, but Sachse refused. The guard
walked up and reported to Bollinger and Kitchen that
Sachse had refused to show his pass. Sachse again refused
Bollinger's order to show his pass, and walked out the gate.
Bollinger reported to work, but shortly thereafter he was
called to the office by Fred Kelley. Kelley asked if Sachse
had shown his pass and Bollinger answered that the guard
reported that he had not. Kelley ordered, "Well, get rid of
him because-we've got to show our passes and he's no better
than we are."
Kitchen testified that he was informed by the guard as he
entered the project site on September 15 that Sachse had
refused to show -his pass. Kitchen agreed that he would
inquire into the matter. While Kitchen was talking to
Sachse the guard came up, and Kitchen told Sachse to show
his pass or pick up his pay. Sachse refused and walked out.
Kitchen then reported the matter to Bollinger and they
went to the office. Kitchen was not sure whether he
reported the incident to Ronquist or Ebbesmeyer, but he
recommended to one or the other that Sachse be dis-
charged.
It is clear in the record that Ronquist did not participate
in the discharge of Sachse. Ebbesmeyer testified, however,
that he was informed by Ward Smith, project manager, that
an employee had refused to show his pass to the guard. As
Ebbesmeyer left his office to make an inquiry Kitchen came
up and reported the incident about Sachse. Ebbesmeyer
told Kitchen that such conduct could not be permitted and
suggested that they go to the office to effect the termination.
According to Ebbesmeyer, Kitchen talked to Ronquist and
it was agreed to discharge Sachse. Fred Kelley's total
testamentary contribution to the defense against the
discriminatory discharge of Sachse consisted of an expres-
sion of awareness that a pass must be shown to the guard as
a condition of entering the Fruin-Colnonjobsite.
I find no conceivable way to credit the testimony of
Respondents' witnesses concerning the discharge of Sachse.
Bollinger testified that Fred Kelley was on the jobsite and
in the office on the morning of September 15. There was no
testimony adduced through Kelley, Kitchen, or Ebbesmey-
er to rebut the fact established by Bollinger, and from the
record as a whole I find that both Respondents carefully
evaded the issue. Kitchen was unsure whether Ronquist or
Ebbesmeyer ordered Sachse's discharge, but Ebbesmeyer
testified that Kitchen reported to Ronquist and Ronquist
approved the termination. Ronquist testified, however, that
he did not participate in the discharge of Sachse.
I do credit the testimony of Fruin-Colnon's witnesses that
all employees on -the project were obligated to show a pass
when entering the jobsite. I-similarly credit Fruin-Colnon's
contention that the failure of an employee to abide by the
rule is grounds for discharge. However, I also find that
Sachse 's adamant refusal to abide by the rule was not the
cause for his termination. -
I-credit Bollinger's testimony that Fred Kelley was at the
jobsite on September 15, and that he directed the discharge
of Sachse. From the findings reviewed above it is clear that
Kelley's motive had nothing to do with Sachse's violation of
the Company's work rules. Ebbesmeyer was apprised of
Sachse's refusal to show his pass, and I find he approved
Kitchen's request for the discharge. Ebbesmeyer was aware,
however, that Sachse was one of three employees on Fred
Kelley's hate list, but he nevertheless approved the dis-
charge without any attempt to independently investigate
the facts. Finally, Respondent Fruin-Colnon's contention
that the aggravated nature of Sachse's conduct mandated
his immediate discharge is completely negated by its
admission that Sachse was rehired on the following day as a
cement finisher. -
The lack of credence attending Respondent Fruin-Col-
non's defense on the Sachse allegation is highlighted by the
testimony of Project Manager Ward Smith. Smith testified
that the guard called and reported that Sachse had refused
to show his pass, and Smith directed Ebbesmeyer to effect
Sachse's discharge. Smith's participation in the Sachse
discharge was not -even alluded to in the testimony of
Kitchen, Ebbesmeyer, or Ronquist. Nevertheless, Smith
admitted in his testimony that on September 16 he
complied with the request of the business agent for the
cement finishers, and, over the objection of his subordi-
nates, put Sachse back on the payroll. The whole of the part
played by Respondent Union in the discharge of Sachse is
highlighted and exemplified by Smith's further testimony of
the telephone call he received from Fred Kelley after he
approved Sachse's rehire. According to Smith, Kelley was
very angry and told Smith he had made a bad and serious
mistake.
D. The Terminations of Owen Innis, Thomas
Lukefahr, Jim Schoen, and Henry Durham
Shortly before October 10, Project Manager Ward Smith
ordered a reduction in force for the laborers on the
Charmin project. Smith passed the order down to Ronquist,
and Ronquist directed General Foreman Bill Kitchen to
make up the list.
Kitchen made up a layoff list, but admittedly consulted
with Bollinger in doing so. Kitchen denied, however, that
the list was shown to Fred Kelley at any time, or that Kelley
participated in the selection process. Insofar as the Respon-
dent Fruin-Colnon's records reflect, seven employees were
selected for termination, including Owen Innis, Thomas
Lukefahr, and Jim Schoen. A second layoff followed on
October 22, and insofar as the record reflects the same
procedures were followed. In the second layoff approxi-
mately 18 laborers were selected, including Henry Durham,
who the General Counsel alleges was selected for reasons
prohibited by the Act.
Owen Innis, a member of Local 282, was hired by Fruin-
Colnon at the Charmin project on July 14, and worked
continuously until terminated on October 10. Innis was a
participant in the July meeting at the 61 Club, and he also
participated in several later meetings devoted to the subject
of a new election of union officers. It is clear from the
evidence and findings above that Innis' activities were
known to Fred Kelley, and Kelley had targeted Innis for
termination upon the first opportune occasion. Innis also
testified that there were discussions on the jobsite about a
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new election for union officers. Innis identified William
Miller and Jim Schoen as participants in these on-the-job
conversations, and he also -testified that Bill Kitchen was
present on some of-these occasions. On one such occasion
Kitchen told the employees that they ought to keep the talk
down, it could cause a lot of trouble, and it would be best to
keep it quiet so it wouldn't cause a bunch of trouble.
Jim Schoen, a member of Local 282 for 12 years, was first
employed on the Charmin project on July 3, and he
continued to work until his termination on October 10. Like
William Miller, Schoen was among those solicited by
Kitchen for a contribution to the United Fund. Schoen told
Bollinger and Kitchen that he would not contribute, but the
record reflects that he subsequently did so.
At the time of his termination Schoen was assigned to a
crew assisting the cement finishers. Prior to that time,
however, Shoen had been assigned as a truck helper, but
suffered an accident and was given light duty on cleanup.
Schoen continued on light duty for approximately a week,
but Fred Kelley came to the jobsite, removed an employee
from duty_as a truck helper, and assigned Schoen to take his
place as a cement finisher. Schoen continued to work on the
cement finishers labor crew for a week or more, until- Kelley
again visited the jobsite. Kelley called'Schoen over to where
he was talking to Kitchen and asked, "What's this man
doing off the truck ... I want him back on the truck."
Kitchen complied, but after 2 or more weeks returned
Schoen . to the concrete crew. None of the foregoing
testimony was rebutted by either Respondent.
Tom Lukefahr, also a member of the Respondent Local
282, was first employed on the Charmin project on July 14
and continued to work until October 10. There is no
evidence that Tom Lukefahr was privy to, or participated
in, the rump movement to oust Fred Kelley and Paul Menz
from union office. However, like his brother Leroy, Tom
Lukefahr incurred the wrath of Fred Kelley, albeit in a less
direct and abrasive manner. On two or more occasions
Lukefahr complained to Kitchen and Bollinger that he was
not being paid the additional 32-1/2 cents per hour when he
operated special tools. Bollinger passed the complaint on to
Fred Kelley, who gave the terse and pointed reply, "To hell
with him."
Henry Durham did not testify in this proceeding, and the
most the record reflects is that he -was hired by Fruin-
Colnon on June 16, and terminated on October 22. There is
no evidence that Durham was a party to the plan to unseat
Fred Kelley and Paul Menz, and no evidence that he
engaged in any other conduct which would incur the dislike
of Kelley or other union officials. There is other evidence,
however, that Durham was selected by Fred Kelley for
layoff, and that Kelley's selection was predicated on
invidious, unfair, and arbitrary considerations.
It is clear from the testimony of Kitchen that Bollinger
participated in the selection of the employees who were laid
off on October 10 and 22. No cogent reason was advanced
by either Respondent to explain why the Union's steward
was consulted in the selection process, and I am unable to
find any thing in the several bargaining agreements that
Frum-Colnon ceded to Respondent Union authority over
the tenure or terms or conditions of employment. In
addition I credit Bollinger's testimony that Kelley partici-
pated in the selection process for the layoffs on October 10
and 22, as he participated in the selection process in all
cases of a reduction in force. The process used was that
Kelley and Bollinger sat down with the roster of laborers
assigned to the job, struck off a sufficient number of
employees to reach the desired figure, and then copied the
names on a separate sheet of paper. Fruin-Colnon simply
accepted the list as a fait accompli, and there is no evidence
that the choices made by Kelley and Bollinger were ever
questioned.
In the selection process for the October 10 layoff, Fred
Kelley immediately picked out the names of Owen Innis
and Jim Schoen, with the comment to Bollinger, "We want
to get rid of them two for sure." Kelley also told Bollinger,
"They'll never work out of the hall again." In the case of the
October 22 layoff, Lou Payne came into the room while
Kelley and Bollinger were making the selections and told
the Union's agents that he wanted to keep Henry Durham
because he was the best guy he ever had to lay grade for
pipe. When Kelley reached the stage in the selection
process where one additional employee had to be included,
and the names of Henry Durham and Lloyd Kelley were
still unchecked, Kelley stated to Bollinger, "Well, I can't lay
my uncle off because he owes money to the bank and I am
on his note." Kelley then added Henry Durham to the list
of employees to be laid off.
There- is no evidence in this record to support a finding
that Henry Durham was less than a completely satisfactory
employee. To the contrary, the request made by Lou Payne
reflects exactly the opposite. The same may not be said for
Lloyd Kelley. Ebbesmeyer testified that there were more
desirable laborers on the job than Lloyd Kelley, and he
acknowledged that he tried on more than one occasion to
have Lloyd Kelley fired. Nevertheless, Lloyd Kelley re-
mained on the Fruin-Colnon payroll until November 14,
long after most of the laborers had been terminated.
Except for a cursory denial by Fred Kelley that he played
any part in selecting the employees to be laid off, which I do
not credit, Respondent Union offered little or no defense to
the allegation of having caused the Company to discrimi-
nate in the October 10 and 22 layoffs. Even if I should
credit Kelley's testimony that Frum-Colnon was solely
responsible for the selections under a delegation from
Smith to Ronquist to Kitchen, the record affords no
explanation of why Bollinger was allowed to participate in
the process.
The only evidence presented by Respondent Fruin-Col-
non as to why certain employees were selected for layoff
was the testimony of Bill Kitchen. Kitchen testified that
employees were selected according to the type of work they
were performing, and that Innis, Tom Lukefahr, and
Schoen were selected because the grading and carpentry
work were in the process of completion. Even if I were to
credit Kitchen's testimony that he made the selections
without input from Fred Kelley and Bollinger, I would be
obligated to reject Kitchen's proffer on why he selected
Innis, Lukefahr, Schoen, and Durham. Lou Payne's request
for the continued services of Durham was predicated on the
employee's skill in performing grading work for the pipe
crew. Schoen was not employed in either grading or
carpentry work, but at the time of his layoff he was, assigned
FRUIN-COLNON CORPORATION 67
as a helper to the cement finishers. Accordingly, I reject
Kitchen's testimony that the employees alleged to have
been discriminated against were selected because there was
no longer any need for the function they performed.
E. The Events of October 23
On the morning of October 23, Joe Sachse and Owen
Innis, accompanied by member Dallas Dover, visited a
construction-project in Cape Girardeau for the purposes of
soliciting signatures for the petition for a new election of
union officers . The three members parked Innis' truck and
entered the jobsite, where they talked to some of the
laborers and obtained some .signatures on the petition.
During the course of the visit, Sachse appears to have had
an exchange with an individual named John Cason, and
Sachse, Innis , and Dover left the site soon thereafter. As
they neared Innis' truck, Fred Kelley started to walk
toward them carrying a baseball bat under his arm. The
members hurried into the truck, but found that one tire was
flat. Nevertheless, they drove off toward a service station,
but as they departed Kelley threw the baseball bat and hit
the top of the truck. As they neared a service station located
at some distance Sachse observed that they were being
followed by a red Cadillac driven by Paul Menz. As Menz
passed Innis' truck, Fred Kelley stuck his hand out from the
Cadillac and fired shots from a revolver at the truck. Sachse
saw Kelley fire two shots, heard three, and later examina-
tion of the truck revealed that it had been hit three times.
The Respondent Union presented no testimony to rebut or
refute the evidence of the assault and violence perpetrated
by Fred Kelley and Paul Menz on October 23 .4
In summary I find and conclude that the Respondent
Union violated Section 8(b)(1)(A) of the Act by the assaults
and acts of violence perpetrated by Fred Kelley and Paul
Menz on the persons and property of Joe Sachse, Owen
Innis, and Dallas Dover on October 23. I also find and
conclude that Respondent Union violated Section
8(b)(1)(A) and (2) of the Act by causing Fruin-Colnon to
discriminate against William Miller, Leroy Lukefahr, Joe
Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and
Henry Durham with respect to their tenure and terms and
conditions of employment. Miller, Sachse, Innis, and
Schoen were participants in the move with other members
of Respondent Union to oust Kelley and Menz from union
office by a petition for a new election. With respect to all of
these employees Fred Kelley threatened retribution, both in
his conversations with Bollinger, and as exemplified by his
earlier demand of Ebbesmeyer that employees Miller,
Sachse , and Innis be removed from their employment on
the Charmin project. The motive of Respondent Union is
even more clearly exemplified by the conduct of Kelley and
Menz on October 23, when they used a baseball bat and a
revolver to deter and dissuade Sachse and Innis from
obtaining signatures on the petition from employees on
4 Kelley and Menz were indicted before the Federal District Court for the
Eastern District of Missouri, for the willful use of force and violence to
restrain, coerce and intimidate members of a labor organization in violation
of 29 U.S.C. §530. At the time the hearing in this proceeding was closed the
convictions of Kelley and Menz were pending on appeal.
5 Miranda Fuel Company, Inc., 140 NLRB 181, 183 (1962), enforcement
denied 326 F.2d 172 (C.A. 2, 1963).
another construction project. The activities of Miller,
Sachse, Innis , and Schoen with -respect to the petition for a
new union election are clearly encompassed within the
scope of employee rights guaranteed by Section 7 of the
Act, and by causing Fruin-Colnon to discharge, and
otherwise discriminate against the employees in retaliation
for these activities, the Respondent Union violated Section
8(b)(1)(A) and (2) of the Act:
I have found no evidence in these cases that Leroy and
Tom Lukefahr and Henry Durham were privy to or
participants in the petition for a new union election. There
is a plentitude of evidence, nevertheless, that both of the
Lukefahrs incurred the vehement dislike of Fred Kelley by
questioning his authority to manage the Fruin-Colnon
project and by complaining about nonpayment of estab-
lished contractual wage benefits. In the case of Henry
Durham, there is no evidence of any overt act on his part to
invoke retaliation by the Union' s agents . Durham was
simply laid off by Fred Kelley as an alternative to the layoff
of one of Kelley's close relatives.
It is well established that the proscriptions of Section
8(b)(1)(A) and (2) of the Act extend beyond the prohibition
on unions and their agents to cause discrimination because
of the -employees' union membership -or activities.5 The
Board has held that, "The privilege of acting as an exclusive
bargaining representative derives from Section 9 of the Act,
and a union which would occupy that statutory status must
assume `the responsibility to act as a genuine representative
of all the employees in the bargaining unit.' "6 By its
selection as the bargaining representative for Fruin-Col-
non's employees Respondent Union became "the agent of
all the employees charged with the responsibility of
representing their interests fairly and impartially." 7 The
collective-bargaining agreement here accords to Respon-
dent Union the right to designate foremen, and it is clear
from the whole record that through the collective-bargain-
ing agreement or otherwise, Fruin-Colnon ceded authority
to the union to discipline employees for alleged infractions
of the Employer's work rules, and to select employees for
layoff in the event of a reduction in'force. Under similar
extension of authority, the Board has held that the varying
treatment accorded to the employees must be related to
"relevant" differences, because Section 7 gives employees
the right to be free from unfair, irrelevant, or invidious
treatment by their exclusive bargaining representative.8
Leroy Lukefahr-questioned the authority of Fred Kelley
to discipline him because of a job-related complaint about
his work performance, and Tom Lukefahr complained of
being deprived of the payscale under the contract. The
activities of the two employees arose under the terms of the
bargaining' agreement, and were both protected and con-
certed. Beyond that, however, Fred Kelley's demand for
Leroy Lukefahr's -discharge and his selection of Tom
Lukefahr for layoff were actions based on irrelevant,
invidious, and unfair considerations. The same finding, on
6 Miranda Fuel, supra citing Die and Tool Makers Lodge No. 113,
International Association of Machinists, AFL (Peerless Tool and Engineering
Co.), 111 NLRB 853 (1955), enfd 231 F.2d 298 (C.A. 7,1956), cent denied
352 U.S 833.
7 The Wallace Corporation v. N LR.B., 323 U.S. 248,255 (1944).
S Miranda Fuel, supra, citing Steele v Louisville & Nashville Railroad Co.,
et al., 323 U.S 192,202 (1944).
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same rationale, is equally applicable to William Miller,
whose discharge was demanded, at least in part, by reason
of his refusal to accede to Fred Kelley's demand for a
contribution to the United Fund. A similar finding is
applicable to the layoff of Henry Durham. Selection of an
employee to continue his employment by reason of rela-
tionship by blood or marriage and the existence of a private
money obligation is an unfair, irrelevant, and invidious
consideration.
As to Respondent Fruin-Colnon, I have found above that
the Company, both by contract and other cessions of
authority, ceded to Respondent Union control over hire,
tenure, and terms and conditions of employment. Upon the
whole of the record it is clear, and I find that Fruin-Colnon
knew that the Union's demands for the discharge of Miller,
Sachse , and Innis were unrelated to their job performance,
and predicated solely on Fred Kelley's hostility. The same
finding and conclusion is required on the Union's failure to
appoint William Miller as foreman and the evidence that
Miller was singled out by General Foreman Bill Kitchen for
assignment to arduous and undesirable jobs. Further,
Respondent Fruin-Colnon had sufficient knowledge, which
any reasonable employer would have exercised, to question
why Leroy and Tom Lukefahr, Jim Schoen, and Henry
Durham were selected for termination. In spite of knowl-
edge, Respondent Employer raised no question, but simply
acceded to the Union's demands. As the Board held in
Miranda Fuel, supra:
The right to hire and fire and to control tenure of
employment is an' employer's alone; and where an
employer does delegate or surrender hiring and firing
and related authority to a labor organization, the
employer is responsible, so far as this act is concerned,
for the unlawful manner in which the union exercises
the delegation.9
THE REMEDY
Having found that the Respondent Union and the
Respondent Fruin-Colnon have engaged in certain unfair
labor practices, I shall recommend that they be ordered to
cease and desist therefrom, and take certain affirmative
actions to remedy the unfair labor practices and to
effectuate the policies of the Act.
As I have found that the terminations of William Miller,
Joe Sachse, Owen Innis, Leroy Lukefahr, Tom Lukefahr,
Jim Schoen, and Henry Durham violated Section
8(b)(1)(A) and (2) and Section 8(a)(3) and (1) of the Act, I
shall order the Respondents to take the following affirma-
tive actions. I shall order Respondent Union to notify
Respondent Fruin-Colnon, in wasting, with a copy to each
employee found to have been discriminated against herein,
that it has no objection to the employment of Miller,
Sachse, Innis , Leroy and Tom Lukefahr, Jiro Schoen, and
Henry Durham, and that Respondent Union simultaneous-
ly request Fruin-Colnon to reinstate the employees to their
former positions of employment. I shall also order that
Respondent Fruin-Colnon offer immediate and full rein-
statement to Miller, Sachse, Innis, Leroy and Tom Lukefahr,
Jim Schoen, and Henry Durham, without prejudice to their
seniority or other rights or privileges previously enjoyed, or,
if their jobs are no longer available, Respondent Fruin-
Colnon is required to offer the employees reinstatement to
substantially equivalent positions.
In the case of William Miller, who I have found was
discriminated against for the additional reason that he was
deprived of a foreman's job, the Union has sole authority
under the collective-bargaining agreement to appoint
foremen. Accordingly, I shall order that Respondent Union
appoint William Miller as a foreman on Respondent Fruin-
Colnon's Charmin project, replacing, if necessary, any
foreman appointed on or after the date Miller would have
been appointed as a foreman except for Respondent
Union's act of discrimination.
With respect to the liability for the employees' loss of
earnings, I shall order that Respondent Union and Respon-
dent Fruin-Colnon, jointly and severally make William
Miller, Joe Sachse, Owen Innis, Leroy and Tom Lukefahr,
Jim Schoen, and Henry Durham whole for any loss of
earnings they have sustained by reason of the discrimina-
tion against them. In addition I shall order that Respondent
Union make William Miller whole for any loss of earnings
he sustained by reason that he was deprived of a foreman's
job. The backpay shall be computed in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and shall bear interest as provided in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Further, because the unfair labor practices committed by
Respondent Union go to the very core of employee rights
protected by the Act, I shall order Respondent Union to
cease and desist in any other manner from restraining and
coercing its members in the exercise of the rights guaran-
teed them by Section 7 of the Act. I shall similarly order
Respondent Fruin-Colnon to cease and desist in any other
manner from interfering with, restraining, and coercing
employees in the exercise of their rights under Section 7 of
the Act.
Finally, in view of the violent means used by Respondent
Union's agents to coerce and restrain its members in the
exercise of their statutory rights, some additional affirma-
tive remedy is required. I have found above that Fred
Kelley and Paul Menz physically assaulted the persons and
property of three of Respondent Union's members on
October 23, using a deadly weapon. A similar finding and
conclusion was made in Laborers International Union of
North America, AFL-CIO, Lgcal 282(Alberici-Fruin-Col-
non), in which f issued a decision (JD-285-76) on April 30,
1976. As it is apparent here, as in the prior case, that the
Respondent has engaged in wholesale acts of restraint and
violence extending beyond the confines of the Fruin-
Colnon construction project, some remedial measure is
required to assure all of the Union's members that such acts
of assault and violence will not be repeated. Accordingly, I
shall order that the Respondent Union mail to each of its
members a copy of the attached notice marked "Appendix
A."
9 Miranda Fuel, supra 188, citing Morrison-Knudsen Company, Inc. v.
NLRB, 275 F.2d 914 (C A. 2, 1960).
FRUIN-COLNON CORPORATION 69
CONCLUSIONS OF LAW
1. Respondent Employer Fruin-Colnon Corporation is
an employer within the meaning of Section 2(2) of the Act,
and is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent Union Laborers International Union of
North America, AFL-CIO, Local 282, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By failing and refusing to appoint William E. Miller
as a foreman under the provisions of its collective-bargain-
ing agreement with Respondent Fruin-Colnon, Respondent
Union violated Section 8(b)(1XA)-and (2) of the Act.
4. By causing Respondent Fruin-Colnon to discrimi-
nate against William E. Miller, Leroy Lukefahr, Joe Sachse,
Owen Innis, Tom Lukefahr, Jim Schoen, and Henry
Durham in violation of Section 8(a)(3) of the Act, Respon-
dent Union violated Section 8(b)(1)(A) and (2) of the Act.
5. By physically--assaulting the persons and property of
Joe Sachse, Owen Innis, and Dallas Dover on October 23,
1975, Respondent Union violated Section 8(b)(1)(A) of the
Act.
6. By jointly, through their dual agent, Bill Kitchen,
transferring William Miller from his regular duties to
onerous and undesirable jobs, Respondent Union violated
Section 8(b)(1)(A) and (2) of the Act, and Respondent
Fruin-Colnon violated Section 8(a)(3) and (1) of the Act.
7. By acceding to Respondent Union's demands to
discharge or lay off its employees William E. Miller, Leroy
Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim
Schoen , and Henry Durham, thereby discriminating
against said employees in the tenure and terms and
conditions of their employment, Respondent Fruin-Cohion
violated Section 8(a)(3) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this proceeding, and pursuant
to the provisions of Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER10-
A. The Respondent Union, Laborers International
Union of North America, AFL-CIO, Local 282, Cape
Girardeau, Missouri,-"its officers, agents, and representa-
tives, shall: -
1. Cease and desist from:
(a) Refusing under the terms of its collective-bargaining
agreement with Fruin-Colnon to appoint William E. Miller
as a foreman because he engaged in activities protected
under Section 7 of the National Labor Relations Act.
(b) Causing Fruin-Colnon to discriminate against Wil-
liam E. Miller by transferring him from his regularly
assigned duties to onerous and undesirable jobs because
10 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. ,
Miller engaged in activities protected by Section 7 of the
Act.
(c) Causing Fruin-Colnon to discriminate against Wil-
liam E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis,
Tom Lukefahr, Jim Schoen, Henry Durham, or any other
member, because said members engaged in activities
protected by Section 7 of the Act.
(d) Through the use of force and violence with deadly
weapons, assaulting the persons or property of Joe Sachse,
Owen Innis , Dallas Dover, or any other member, to restrain
and coerce said members in the exercise of their rights
guaranteed by Section 7 of the Act.
(e) In any other manner restraining or coercingmembers
in the exercise of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action to remedy the
unfair labor practices and to effectuate the policies of the
Act:
(a) Notify Respondent Fruin-Colnon, in writing, with a
copy to each of its members named herein, that it has no
objection to the employment of William E. Miller, Leroy
Lukefahr, Joe Sachse, Owen Innis, Tom Lukefahr, Jim
Schoen, and Henry Durham, and simultaneously request
Respondent Fruin-Colnon to reinstate the said employees
to their former positions of employment.
(b) Pursuant to the terms of its collective-bargaining
agreement with Respondent Fruin-Colnon, appoint Wil-
liam E . Miller as a foreman on Fruin-Colnon's Charmin
project, replacing, if necessary, any foreman on that project
who was appointed on or after the date Miller would have
been appointed foreman in the absence of Respondent
Union's discrimination.
(c) Jointly and severally with Respondent Fruin-Colnon,
make William E. Miller, Leroy Lukefahr, Joe Sachse, Owen
Innis, Tom Lukefahr, Jim Schoen, and Henry Durham
whole for any loss of earnings incurred by reason of having
caused Respondent Fruin-Colnon to discharge or lay off
said employees in violation of Section 8(a)(3) of the Act.
The backpay is to be' computed and bear interest as
provided for in the section of this Decision entitled "The
Remedy," and the liability of Respondent Union for
backpay shall continue until it has complied with the
requirements of paragraph 2(a) of this recommended
Order.
(d) Make William E. Miller whole for any loss of earnings
he may have sustained by reason of Respondent Union's
failure to appoint him as-a foreman under the authority
contained in its collective-bargaining agreement with
Respondent Fruin-Colnon. -
(e) Post at its offices and meeting hall frequented by its
members and employees it represents from Fruin-Colnon,
copies of the attached notice- marked "Appendix A.""
Copies of said notice, on forms to be provided by the
Regional Director for Region 14, after being duly signed by
Respondent Union's representatives, shall be posted by it
immediately upon receipt thereof, and be maintained by
11 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
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Union for 60 consecutive days thereafter,
including all places where notices to its members are
customarily posted. Reasonable steps shall be taken by
Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Mail to the Regional Director for Region 14, addition-
al copies of the attached notice marked "Appendix A" for
posting by Respondent Fruin-Colnon.
(g) Mail to each of its members a copy of the attached
notice marked "Appendix A."
(h) Preserve and, upon request, make available to the
Board and its agents, copies of its current membership
roster, together with the home address for each member.
(i) Notify the Regional Director for Region 14, in writing,
within 20 days of the date of this Order, what steps have
been taken to comply herewith. -
B. The Respondent, Fruin-Colnon, Cape Girardeau,
Missouri , its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) In concert with Respondent Union, removing William
E. Miller, or any other employee, from his regularly
assigned duties and transferring him to onerous or undesir-
able jobs because said employee engaged in activities
protected by Section 7 of the Act.
(b) Acceding to the demand of Respondent Union to
discharge or lay off William E. Miller, Leroy Lukefahr, Joe
Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, Henry
Durham, or any other employee, because said employees
engaged in activities protected by Section 7 of the Act.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action to remedy the
unfair labor practices and to effectuate the policies, of the
Act:
(a) Offer to William E. Miller, Leroy Lukefahr, Joe
Sachse, Owen Innis, Tom Lukefahr, Jim Schoen, and
Henry Durham, immediate and full reinstatement to their
former positions of employment, together with all seniority
and rights and privileges previously enjoyed, or, if those
jobs are no longer available, offer said employees substan-
tially equivalent positions.
(b) Jointly'and severally with Respondent Union, make
William E. Miller, Leroy Lukefahr, Joe Sachse, Owen Innis,
Tom Lukefahr,' Jim Schoen, and Henry Durham whole for
any loss of earnings they may have sustained because of its
discrimination against them, said backpay to be computed
and to bear interest as provided in the section of this
Decision entitled "The Remedy," section hereof.
(c) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and 'reports, and all other records
necessary to analyze and compute the amounts of backpay
due under this recommended Order.
(d) Post at its offices on the Charmin project in the
County of Cape Girardeau, Missouri, copies of the attached
notice marked "Appendix B." 12 Copies of said notices, on
forms provided by the Regional Director for Region 14,
after having been signed by Respondent Frum-Colnon's
representatives, shall be posted by it immediately upon
receipt thereof, and shall be maintained by Respondent
Fruin-Colnon for 60 consecutive days thereafter , in conspi-
cuous places , including all places where notices to employ-
ees are customarily posted . Reasonable steps shall be taken
by Respondent Fruin-Colnon to insure that said notices are
not altered, defaced , or covered by any other material.
(e) Mail to the Regional Director for Region 14 addition-
al signed copies of the attached notice marked "Appendix
B" for posting by the Laborers International Union of
North America , AFL-CIO , Local 282.
(f) Notify the Regional Director for Region 14, in writing,
within 20 days of the date of this Order, what steps-have
been taken to comply herewith.
is See fn. 11.
APPENDIX A
NOTICE To MEMBERS ,
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to appoint William E. Miller, or
any other employee, as a foreman for Fruin-Colnon
Corporation because the said member engaged in
activities protected by Section 7 of the Act.
WE WILL NOT cause Fruin-Colnon Corporation, or
any other employer, to discriminate against William E.
Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom
Lukefahr, Jim Schoen, Henry Durham, or any other
member, because said members engaged in activities
protected by Section 7 of the Act. - .
WE WILL NOT, with deadly weapons, or by any other
means, physically assault the persons or property of Joe
Sachse, Owen Innis , Dallas Dover, or any other
member, to restrain and coerce said members in the
exercise of the rights guaranteed them by Section 7 of
the Act.
WE WILL NOT in any other manner restrain or coerce
our members, or employees we represent for the
purposes of collective bargaining, in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL notify Fruin-Colnon Corporation, in writ-
ing, with a copy to each member named herein, that we
have no objection to the employment of William E.
Miller, Leroy Lukefahr, Joe Sachse, Owen Innis, Tom
Lukefahr, Jim Schoen, and Henry Durham, and we will
simultaneously request Fruin-Colnon Corporation to
reinstate the said employees to their former positions of
employment.
WE WILL, pursuant to the provisions of our collec-
tive-bargaining agreement with Fruin-Colnon Corpora-
tion, appoint William E. Miller as a foreman on Fruin-
Colnon's Charmin project.
WE wn.L make William E. Miller whole for any loss
of earnings he may have sustained by reason of our
failure and refusal to appoint him as a foreman for
Fruin-Colnon Corporation.
WE WILL, jointly and severally with Fruin-Colnon
Corporation, make William E. Miller, Leroy Lukefahr,
Joe Sachse, Owen Innis, Tom Lukefahr, Jim Schoen,
FRUIN-COLNON CORPORATION
and Henry Durham whole for any loss of earnings they
may have sustained by reason that we caused Fruin-
Colnon Corporation to discharge or lay off said
employees in violation of the National Labor Relations
Act.
WE WILL mail to each of our members, at their home
addresses, copies of this notice.
LABORERS INTERNATIONAL
UNION OF NORTH
AMERICA, AFL-CIO,
LocAL 282
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, in concert with Laborers International
Union of North America, AFL-CIO, Local 282, dis-
criminate against William E. Miller, or any other
employee, by removing him from his regular duties and
assigning him to onerous and undesirable jobs because
the said employee engaged in activities protected by
Section 7 of the National Labor Relations Act.
71
WE WILL NOT accede to the request of Laborers
International Union of North America, AFL-CIO,
Local 282, to discharge or lay off William E. Miller,
Leroy Lukefahr, Joe Sachse, Owen Innis, Tom Luke-
fahr, Jim Schoen, Henry Durham, or any other employ-
ee, because said employees engaged in activities pro-
tected by Section 7 of the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
William E." Miller, Leroy Lukefahr, Joe Sachse, Owen
Innis, Tom Lukefahr, Jim Schoen, and Henry Durham
to their former positions of employment or, if those jobs
are no longer available, we will offer employment to the
said employees in substantially equivalentpositions.
WE WILL, jointly and severally with Laborers Inter-
national Union of North America, AFL-CIO, Local
282, make William E. Miller, Leroy Lukefahr, Joe
Sachse, Owen Innis, Tom, Lukefahr, Jim Schoen,_and
Henry Durham whole for any loss of earnings they may
have sustained by reason that we acceded to the
demands of Local 282 to discriminate against said
employees.
FRUIN-COLNON
CORPORATION