G & H Construction Co.

National Labor Relations Board - Board Decisions

Mar 1, 1961

130 N.L.R.B. 923 (N.L.R.B. 1961)

O & H CONSTRUCTION COMPANY 923
CONCLUSIONS of LAW
1. Local 176, International Molders and Foundry Workers Union of North
America, AFL-CIO, is a labor organization within the meaning of Section 2(5)
of the Act.
2. St. Cloud Foundry & Machine Company , Inc., is engaged in commerce within
the meaning of Section 2(6) of the Act.
3. All production employees including working foremen employed in Respon-
dent 's foundry at St . Cloud, Minnesota , but excluding office clericals , managerial
and machine shop employees , guards, and supervisors as defined in the Act , consti-
tute a unit appropriate for the purpose of collective bargaining within Section 9(b)'
of the Act.
4. On February 4, 1959, and at all times thereafter , Local 176 has been and
still is the exclusive representative of the employees in the above -described ap-
propriate unit for purposes of collective bargaining within Section 9(a) of the Act.
5. Respondent has violated Section 8 (a)(5) and ( 1) of the Act by refusing and
failing to bargain in good faith with Local 176.
6. Respondent has violated Section 8 ( a)(3) and (1) of the Act by refusing and
failing on December 29, 1959, and thereafter to reinstate its employees in the
unit who went out on strike April 3, 1959, to wit:
Lloyd Abraham Vernon Moore
Frank Becker Raymond Reinholz
Vernon Belmont Richard Rosenberger
George Boss Leonard Schill
Harold Habiger Aloys Steckel
7. Respondent has violated Section 8 ( a)(3) and (1) of the Act by closing and
ceasing operations on February 6, 1960 , of the foundry portion of its business with
the objective and for the purpose of denying reinstatement to their former posi-
tions of employment to those employees named above.
8. Respondent by the foregoing conduct has interfered with , restrained , and co-
erced its employees in the exercise of rights guaranteed them by Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
G & H Construction Company and John H. Clifton. Case No.
12-CA-1368. March 1, 1961
DECISION AND ORDER
On July 20, 1960, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices alleged in the complaint and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondent had not engaged in certain
other alleged unfair labor practices. Thereafter, the Respondent filed
exceptions to the Intermediate Report together with a supporting
brief. On October 24,1960, the Board remanded the case to the Trial
Examiner for further hearing, and on January 3, 1961, the Trial Ex-
aminer issued his Supplemental Intermediate Report, a copy of which
130 NLRB No. 92.
9,24- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is, attached hereto, affirming the findings and conclusions, and renew-
ing the recommendations, contained in his Intermediate Report.
Thereafter, the Respondent filed exceptions to the Supplemental In-
termediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearings and finds that no prejudicial error was committed.
The.rulings are hereby affirmed. The Board has considered the In-
termediate and Supplemental Intermediate Reports, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, G & H Construc-
tion Company; its officers, agents, successors, and assigns, shall:
1. Cease and desist from encouraging membership in Local Union
308, International Brotherhood of Electrical Workers, AFL-CIO, or
any other labor organization, by discharging employees or discrimi-
nating in' any like or similar manner in regard to hire or tenure of
employment or any'term or condition of employment, to encourage or
discourage membership in the labor organization.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to John H. Clifton immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of pay he may have suffered by payment to him of a sum of
money equal to that which he normally would have earned from the
date of the discrimination against him to the date of the offer of rein-
statement, less his net earnings during said period (Crossett Lumber
Company,. 8 NLRB 440), said backpay to be computed on a quarterly
basis in. the manlier established by the Board in F. W. Woolworth
Company, 90 NLRB 289.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of backpay due and the
rights of John H. Clifton under the terms of this Order.
i Absent exceptions , we adopt pro forma the Trial Examiner 's finding that the Respond-
ent did not violate the Act, as the complaint alleged, by failing to post a copy of the
referral procedure contained in its collective -bargaining agreement with the Union.
G & H CONSTRUCTION COMPANY 925
(c) Post in its office at Winter Park, Florida, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Twelfth Region, shall,
after being signed by Respondent's representative, be posted by Re-
spondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken to insure that said notices are not altered,
defaced, or covered by other material.
(d) Notify the Regional Director for the Twelfth Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps Respondent has taken to comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that :
WE WILL NOT encourage membership in Local Union 308, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, or in
any other labor organization of our employees, by discharging
or refusing to reinstate employees because of nonmembership in
said Local Union, or in any other labor organization, nor. will
we discriminate in any like or similar manner in regard to hire
or tenure of employment or any term or condition of employ-
ment, to encourage or to discourage membership in a labor or-
ganization.
WE WILL offer to John H. Clifton immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay he may have suffered as a result of
our discrimination against him.
All our employees are free to become or refrain from becoming
members of the above Union, or any other labor organization.
G & H CONSTRUCTION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date .hereof,
and must not be altered, defaced, or covered by any other material.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136; 73 Stat. 519), was heard in Orlando, Florida, on
May 11, 1960, pursuant to due notice. The complaint, issued on April 12, 1960,
and based on charges duly filed and served, alleged that Respondent had engaged
in unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by: (1)
terminating the employment of John H. Clifton on February 26, 1960, because he
was not a member of Local Union 308, International Brotherhood of Electrical
Workers, AFL-CIO (herein called the Union); and (2) failing properly to post a
copy of the referral procedure contained in a collective-bargaining agreement be-
tween Respondent and the Union. Respondent answered, denying the unfair labor
practices.
. Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS; THE LABOR ORGANIZATION INVOLVED
I find on facts alleged in the complaint and admitted in the answer that Respondent's
operations substantially affect commerce within the meaning of the Act,' and that
the Union is a labor organization within the meaning of Section 2(5) of the Act.
U. THE UNFAIR LABOR PRACTICES
A. The issues .
The only issue as to the posting of the referral procedure is whether, under the
unusual circumstances of'this case, a posting at"Respondent's office in Winter Park
and at the Union's office at St. Petersburg constituted compliance with the Board's
Mountain Pacific standards (Mountain Pacific Chapter of the Associated General
Contractors Inc., et al., 119 NLRB 883). As to Clifton's termination, the issue as
litigated was whether he was discriminatorily discharged as alleged or whether he
was selected during a reduction in'force because he was less qualified for the job and
because he was not permanently located in the area. Anomalously, that issue, turns
on opposing testimony given' by two witnesses called by the General Counsel-
Clifton, the' dischargee, and P. J. South, Respondent's general foreman, who made
the selection and the discharge.
B.• The evidence'
This case arises out of Respondent's operations in the Florida west coast area
.(which included Clearwater, St. Petersburg, and Tarpon Springs), where Respondent
operated some five. crews . of electrical linemen who were engaged in performing
contracts' for the Florida Power and Light Company. Respondent and Local
308, of St. Petersburg, were parties to a collective-bargaining agreement which pro-
vided in. part. that, the Union should be the exclusive source of referrals for employ-
ment,-tnut referrals' would-be made without discrimination as to union membership
or lack of it, that Respondent retained the right to reject applicants, and that copies
of the referral procedure, should. be posted on the bulletin board in. the. offices of
the Union and -of the Employer. Though the referral agreement required the Union
to maintain a register. of applicants for-employment in priority groups, based on
such factors as experience in the trade, permanent residence in the geographical area,
etc., there was no provision which affected Respondent's right to make layoffs or
discharges either with or,,without consideration of those factors or of the factor of
'seniority on the job. '
At the time.-of Clifton's termination Respondent was operating two crews at
Clearwater, two at Tarpon Springs, and one at St. Petersburg,2 consisting of nine
men each,-including four linemen. The crew members, all referred by Local 308,
'During the year 1959 Respondent performed services in excess of $50,000 each for
Tampa Electric Company and Florida Power and Light Company, each of whom pur-
chased materials -directly -from outside the State in an amount in excess of $50,000
annually.
2 The St. Petersburg crew had been setup In November 1959, by transferring men from
the other crews in the west coast area, to perform a contract for Florida Power Company,
which was being completed around' February 26. .
G & H CONSTRUCTION COMPANY 927
consisted of. its members , members of sister locals ( i.e., permit men), and nonmem-
bers of IBEW. Clifton had been a member of various other locals since joining
IBEW in 1935; he was a permit man who :had worked for Respondent on three
different occasions in the past, beginning in 1952, and-whose-last employment began
May 1, 1958, as a class "A" (journeyman) lineman. At the time of his discharge, he
was assigned to a Clearwater crew under L. W. Stroud.
Respondent's west coast operations were centered around Clearwater, but it had
no office or headquarters there or elsewhere in the area. Communications were by
mail with P. J. South, Respondent's general foreman, who worked in conjunction
with the general foreman of Florida Power, and who made some use of that fore=
man's office at Clearwater. However, Respondent maintained no office there,' and
South had no desk there, though there was a slot in which his work orders were
deposited. Neither did the employees customarily report to or go to that office,
though Clifton testified to one or more occasions when he went there to pick up job
forms.
Respondent parked its trucks'on the property of two service stations in Clear-
water and Tarpon Springs, where- the crew members assemble and report, but that
property was also privately owned. There was no work office of any'kind there or
at the jobsites. The crew members in fact work on a mobile situs, moving from
pole to pole , sometimes as often as every '5 minutes, as the work progresses. No
copy of the agreement was posted at the mobile site, nor on the body of the truck,
though the evidence established that a copy was kept in the glove compartment of
each truck, where it was at all times available for reference. The evidence also
established that posting on the body of the truck was not feasible as a practical
matter, both because of weather conditions and because a posted copy would
be scraped or torn off by the limbs of trees as the truck moved along. There
was no evidence that notices to employees or to applicants were customarily posted
at the office- of the Power Company, at the assembly points, upon the trucks, or else-
where along the mobile jobsites, nor was there evidence. that applications for em-
ployment were made at any of those points.
We turn now to the events surrounding Clifton's discharge. Having heard rumors
around February 17 of an impending layoff at St. Peterburg, Clifton testified he
inquired of South, who verified the rumor and who stated it would be arranged accord-
ing to seniority. When • Clifton asked how, he would fare, South assured him he
had nothing to worry about because he was one of the older linemen working in
his tools. Clifton later discussed the layoff with his foreman, Luke Stroud, on Feb-
ruary- 25, telling Stroud that if. any of the men were to be transferred around,
he would like to go back to the Tarpon Springs crew, to which he.had formerly
been assigned . When Stroud stated he understood Clifton was to be laid off,
Clifton informed him what South had said about Clifton's seniority. Stroud con-
tinued, however, that he had heard a rumor that none of the other foremen wanted
to work Clifton and added that he had to make room on his crew for some of the
Local 308 men on the St. Petersburg crew, who were being laid off and who would
be transferred to Clearwater. -
Clifton then checked with S. , W. Hadley,. Business Agent of Local 308, who
verified both the report-of Clifton's impending, layoff and the report of the. transfer
of the 308 members. Clifton also spoke to Foremen Frank Griffin and James
Sewell, under whom he had previously worked, and they informed him in effect
that they preferred him to some of the -other- men who were being transferred.
Clifton testified further that on February 26, South notified him he was being laid
off and explained that he (South) had to make room for some of the Local 308 men
who were being laid off at St. Petersburg. ' South assured Clifton there was nothing
wrong with his work,3 and stated that he would like to keep Clifton because he
expected that in a month or 6 weeks the Company would be putting one or two
crews back on.
Clifton was replaced by-Jim Hughes, a lineman on the St. Petersburg crew and
a member of Local 308. Hughes had come onto the Clearwater job in late August
1958, which was after Clifton's last hiring. Clifton testified that there were other
linemen working on the job with him who were not discharged, some of whom were
members of Local 308 and .some who were not.
Except for the testimony of Foreman James K. Sewell that Clifton was a "fine"
lineman , the remainder of the General Counsel's case was an uphill struggle with
a Though Respondent's counsel was permitted to cross-examine Clifton concerning his
involvement in certain accidents, after a representation -that they.•entered into the reasons
for his, discharge, the point was not pursued with any of the other witnesses in the case,
and South did not claim to base the-termination on any such matters. •
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unwilling witnesses who had given prior '(favorable) 'affidavits "to Westheimer, during
pretrial preparations but who qualified • or disavowed them on the- stand. Thus,
Frank B. Griffin, another foreman, testified grudgingly that Clifton was an "average"
lineman, evaded questions concerning Clifton's comparative experience in terms
of service on the job, and when confronted with his prior affidavit immediately
disavowed it on the ground that he was- drunk when Westheimer took it from him.
South, the general foreman, who had made the discharge, also gave testimony
which conflicted substantially with two affidavits which he gave Westheimer a few
days after Clifton's discharge, particularly on the crucial points of the cause of the
discharge and what he had told Clifton concerning the cause.
South testified that he 'informed Clifton he was being laid off 4 due to his
"qualifications," and because he preferred a man who lived in the area and had
his home there, available for call at any time.. Qualifications included, South testi-
fied, the ability of a lineman to get along with. the crew, and on the latter point
he referred to complaints from foremen that Clifton was causing "contention" and
"agitation" in the crews. Illustrating the latter complaints, South 'testified that
Clifton raised technical questions about the contract provisions, "trying to be a
little business agent," and cited as an example Clifton's grievance over the point
that the foreman was not supposed to drive a truck. South testified at one point
that Clifton's "agitation" about the contract had no bearing whatsoever on' his
decision, but he admitted later that such agitation "bothered" him and that it entered
"in a way" into his consideration of Clifton's qualifications for the job. -South
testified further that Stroud requested him to transfer Clifton some week and a half
before the discharge because of contention in the crew, and that he "believed"
he talked to Clifton and told him to straighten up. (Clifton emphatically denied
any such conversation.) South also testified that in his estimation Clifton was not
a qualified class "A" journeyman lineman and that Hughes, who replaced Clifton,
was better qualified.
South's testimony was in sharp conflict with the following statements contained
in his affidavits:
The reason that I laid Clifton off was in order to make room for another
Local 308 man. . .
I told Clifton on February 26th that I had to lay him off in order to make
room for some of the home Local 308 men, and Clifton seemed to under-
stand....
When questioned about those statements, South proceeded both to admit and
to deny their truth:
Q. (By Mr. WESTHEIMER.) Well, did you tell [Clifton] ' you- were: doing-it
to make way for a 308 man?
A. No, sir, 1 did not tell him that.
Q. Is that affidavit true and correct or not?
A. To the best of my knowledge, sir, if I said it, I did.
Q. Well, is it true that you laid him off to make room for a 308 man?
A. No, sir, I did not lay the man off for that reason.
* * * * * * *
Q. This is not true, when you told me that?
A. I suppose it is, the best I can do.
* * * * * * *
Q. Mr. South, let me ask you this: In fact, when you gave these affidavits
under oath, were, you telling the truth? .
A. As far as I knew at that time, yes sir.
Although South testified that he realized later, on reading acopy of the affidavits,
that they put things in a different light, he did not notify.'Westheimer at any time
before he took the stand, including the morning of the hearing.
On Respondent's side, Michael Cary, controller, and Herman. G. Grier, president,
testified that Respondent leaves all matters of hiring and- firing.-in the. hands of the
general foreman in the area; that its general policy is to hire and' fire purely on
the basis of qualifications to do the job; that questions of union membership are
not a factor; and that seniority is not a factor. •
'South admitted that he would not rehire Clifton, and a written statement which
Clifton demanded and received read that Clifton's employment was "terminated. Re.
spondent's brief agrees that the action constituted a discharge.
G & H CONSTRUCTION COMPANY 929
L. W. Stroud, -Clifton's foreman , testified that Clifton had worked on his crew
for about 4 months on an earlier occasion and around 3 or 31/2 weeks on the final
occasion. Clifton inquired about the impending layoff several times, and he finally
told Clifton he thought Clifton would be laid off and that there were a lot of men
he would rather work than Clifton. Stroud assumed that Clifton would be laid
off because he had spoken to South a few days before about transferring Clifton
to another crew on the ground that Clifton was causing contention in the crew
and because South's responses gave Stroud the impression that Clifton would prob-
ably be on the next layoff. Stroud admitted on cross-examination that Clifton raised
the point as to his seniority on the job and that he himself agreed with Clifton on
that. He denied emphatically that he told Clifton he would be laid off to make
room for members of Local 308. Stroud cited as an example of the "contention"
which Clifton raised among the men Clifton's complaint that Stroud's driving of a
truck was work which a foreman was not supposed to do. Stroud described Clifton
as a lineman who did fairly good work at times and not so good at others. He ad-
mitted he did not object when Clitfon was put on his crew some 2 or 3 weeks before
the discharge and admitted further that he had no complaint when Clifton was with
him previously. Stroud testified that two other permit men were retained as linemen
on his crew when Clifton was laid off.
S. W. Hadley, business manager of Local 308, testified that Clifton's complaint
to him did not relate to Hughes but to the fact that Respondent had kept a man
on the job who had no union affiliation whatever. Hadley refused to do anything
about it. Hadley made no denial of Clifton's testimony that he confirmed the report
of the-transfer of Local 308 men to Clearwater, and he admitted that he knew that
the St. Petersburg crew was being terminated and that he had received from South
a list of names for layoff.
C. Concluding findings
1. The posting
The General Counsel's position as outlined during oral argument was that the
Mountain Pacific standards (119 NLRB 883, supra)5 required posting of the referral
procedure at the jobsite, which, under the circumstances shown by the record,
meant a posting either in the cab of the truck or on the outside of the truck.
Rejecting as inadequate the depositing of a copy in the glove compartment, the
General Counsel argued that if such a posting as he contends for is physically im-
possible or impracticable, then the employer would have no right to enjoy such an
exclusive hiring hall arrangement as is otherwise licensed by Mountain Pacific be-
cause it cannot comply with all the safeguards of that decision.
As a reference to the "posting" provision in Mountain Pacific will disclose, the
General Counsel's position involves the application to the Board's language of
an administrative gloss by the prosecuting branch of the agency which the Board
has not so far adopted and which is plainly not justified under the circumstances of
the present case. For what the clause requires is that the referral provisions in
the agreement be posted in places where notices to employees and applicants for
employment are customarily posted. Posting at the jobsite as such is not required,
though under normal circumstances the jobsite would constitute a place where such
notices are posted. But- here the General Counsel offered no evidence that notices
of any kind were posted at the jobsite. Indeed, the only bulletin boards referred
to in the evidence were maintained by the Company at its office in Winter Park
and by the Union in its office in St. Petersburg, and there was a posting at those
points. There was also no evidence that prospective employees applied for work
at the mobile jobsites.
Furthermore, were the General Counsel's' position to be adopted by the Board,
the peculiar circumstances here justify the conclusion, and I find, that the depositing
of a copy of the referral procedure in the glove compartment of each truck was as
practicable a compliance with the Board's standard as a posting to the inside or
outside body of the truck, which the General Counsel conceded would be adequate.
5 In its supplemental decision , Jesse Jones Sausage Company, 127 NLRB 1279, the
Board accepted the remand from the Court of Appeals for the Ninth Circuit, but did not
agree with the court's rejection of its holding. The question raised in that case is the
same as that before the Supreme Court - in Local 357, International Brotherhood of
Teamsters, etc. v. N.L.R.B., 363 U.S. 837, cert. granted June 27, 1960. In the mean-
time, of course , the Board 's. decision constitutes a binding precedent on its Trial
Examiners . Insurance Agents International Union, AFL-CIO (The Prudential Insurance
-Company of America), 119 NLRB 768,,772-773.
59725"1-vol . 130-60
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The discharge
As it is clear from the evidence that South made the decision to discharge Clifton,
that he made the actual discharge, and that he assigned the reason or cause for
his action, the crux of the case turns on what South said and did and why he did it.
Clifton testified that. South told him that he was being laid off to make room for
members of Local 308, who had finished the St. Petersburg job. That testimony, if
believed, would plainly establish a prima facie case of discrimination within the
meaning of -Section 8(a)(3), i.e., to encourage membership in Local 308, of which
Clifton was not a member.
Did Clifton correctly quote South? South's testimony furnished the only evidence
which bore on that point, and the weighing of it is complicated by the fact that
South, called to support the General Counsel's case, proved hostile to the extent
that the General Counsel found it necessary to resort to impeachment by prior in-
consistent affidavits. The problem here is one of assigning proper weight to those
prior sworn statements.
Though Wigmore (-Wigmore on Evidence, 3d ed., volume III, section 1018, at
pp. 687-688) argues that prior self-contradictions of a witness should not be treated
as having no affirmative testimonial value and that there is nothing to prevent the
tribunal from giving such testimonial credit to the extrajudicial statement as it may
seem to deserve, he concedes that the contrary view is the orthodox one, stating it
as follows:
It is universally maintained by the Courts that Prior Self-Contradictions are not
to be treated as having any substantive or independent testimonial value.
That rule was followed in N.L.R.B. v. Quest-Shon Mark Brassiere Co., Inc., 185
F. 2d 285, 289 (C.A. 2), cert. denied 342 U.S. 812, where the court added:
Hence prior inconsistent statements are admissible not as affirmative evidence
to prove the truth of what they affirm, but only as matter tending to show that
the witness is not credible, because he has changed his story.
The Board has consistently followed the Quest-Shon Mark case, the most recent
example being in Sealtest Southern Dairies, National Dairy Products Corporation,
126 NLRB 1223, where (citing that case) it"held that:
[T]he pretrial affidavits here adduced in evidence have no independent testi-
monial value and, in accord with the weight of authority, must be looked to
solely as measures of the credit of the individuals who testified at the hearing.
Though in cases where the affiant is a party to the proceedings, the affidavit be.
comes affirmative proof, particularly if it constitutes an admission against interest
(Trafford Coach Lines, 97 NLRB 938, and Supplemental Decision, 99 NLRB 399;
and see Wigmore, supra, volume IV, section 1048, at pp. 2-6). South was, of
course, not a party here.
On the point of credibility, the statements in South's affidavits plainly negate his
testimony both as to what he told Clifton and as to his reasons for making the dis-
charge. When that is coupled with the fact that South both admitted and denied
the truth of his affidavits, it is plain that his testimony can be given no weight in
any respect in which it conflicts with Clifton's. I therefore accept and fully credit
Clifton's testimony concerning his conversations with South, which, unless over-
borne by a preponderance of evidence on. Respondent's side, plainly established that
the basis of South's action was his desire to prefer members of Local 308 over
Clifton. -
Was Respondent's evidence sufficient to overcome that showing? The chief
difficulty with Respondent's case is that its evidence did not directly-reach the dis-
charge incident ;or cover the • question of South's motivation, who alone made the
decision and the discharge. Indeed, Cary and Grier; in testifying to general com-
pany policy, admitted that it left matters of hiring and firing in the hands of the
general foreman. Hadley's testimony that Clifton's complaint to him did not con-
cern the fact that he was being replaced by a Local- 308 member was also wide of
the mark, for Clifton was doubtless unaware of the legal implications of South's
preferring the-Local's member over him. Significantly, also,. Hadley did not deny
Clifton's testimony that he confirmed the report that laid-off members of Local 308
were being transferred to the Clearwater job. .
What remains was Stroud's testimony that he had complained to South that
Clifton was.causing contention in the crew 6 and .that South's responses gave him
0 Though South's testimony has been rejected , it is to be noted that he admitted that
Clifton's stirring up of grievances under the contract ( participated in by the steward)
entered in part into his decision to discharge Clifton . Even were that testimony accepted,
G & H CONSTRUCTION COMPANY 931
the impression that Clifton might be included in the next layoff. That testimony
signally failed to establish, or even to throw direct light on, South' s motivation. In-
deed, so far as Stroud's surmises went , South may have had in mind only transfer-
ring Clifton to another crew. In any case, Stroud's testimony does not reach the
discharge incident and cannot overcome Clifton's credited testimony concerning it.
Though the resolution of credibility as between Clifton and South makes imma-
terial the question whether or not Stroud also told Clifton he would be laid off to
make room for members of Local 308,'the entire evidence. supports Clifton's testi-
mony that Stroud did so. Thus it was not until the time of the actual discharge
that South told Clifton he was making room for Local 308 members. But Clifton
testified that the intimation to that effect had already come from Stroud, and that
that was the reason why he checked with Hadley, who confirmed the report before
South's action made it official.
It is also to be noted that, except for Stroud's complaint, Respondent offered no
evidence that Clifton was in fact an unsatisfactory or unqualified workman. The
history of his employment with it would seem to establish the contrary. Though
South claimed that both Griffin and Sewell had also made complaints about Clif-
ton, Sewell's testimony was, to the contrary, an unqualified endorsement, and
Griffin's a fair one. Respondent made no attack upon, and no effort to refute, their
testimony.
I therefore conclude and find on the basis of the entire evidence that Respondent
discharged Clifton on February 26, 1960, in order to make room for a member of
Local 308, to which Clifton did not belong, and that it thereby engaged in dis-
crimination to encourage membership in said Local.
III. TilE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type conventionally ordered in such cases, which I find necessary to
remedy, and to remove the effects of the unfair labor practices and to effectuate
the policies of the Act. As there is no evidence in this case from which either a
threat or a danger can be inferred of the commission by Respondent of other unfair
labor practices, the recommended cease and desist order will be limited to the
unlawful conduct herein found and to any like or related conduct.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following: t
CONCLUSIONS OF LAW
1. Local Union 308, International Brotherhood of Electrical Workers, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. By discharging John H. Clifton on February 26, 1960, Respondent engaged in
discrimination to encourage membership in said Local Union 308, thereby engaging
in unfair labor practices proscribed by Section 8(a) (3) 'and (1) of the, Act.
3. The aforesaid unfair labor 'practices' having occurred in connection with the
operation of Respondent's business as set forth in section- I, above,- have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6). and (7)
of the Act. .
4. Respondent did not engage, in "unfair labor 'practices in the posting of. the
referral agreement with Local 308.
[Recommendations omitted from publication.]
it would appear that the discharge might still be unlawful (though not on the precise
theory of the -complaint), because Clifton' s actions would have constituted engaging in
protected concerted activities .. H. 3fuehlstein cE Co ., Inc., 118 NLRB, 268; 275; Gibbs
Corporation, 124 NLRB 1320; .Chemieal Construction Corporation, 125 NLRB 593.1
SUPPLEMENTAL INTERMEDIATE REPORT .
On October 24, 1960, the Board issued its order remanding the above case to'the
Trial Examiner for the purpose, of permitting further cross- examination of John H.
Clifton, the Charging Party, concerning inconsistent charges which he filed with the
Regional Office and-for further proceedings consistent with said order. Pursuant to
said order and to the scheduling of a further hearing by the Acting Regional
Director, the hearing was held at Orlando, Florida, on December 9, 1960, at which
Clifton was examined at length concerning the charges which he had filed with the
Board.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The original charge stated that Clifton was terminated by Respondent because
of his membership and-activities in behalf of Local Union 308, International Brother-
hood of Electrical Workers, AFL-CIO, or to discourage membership in that labor
organization, whereas the amended charge, on which the complaint was based,
alleged that Clifton was terminated because of his nonmembership in Local Union
308. The General Counsel represented at the original hearing that the charges had
been drawn by the General Counsel and that the amended charge was drawn because
of a "typographical error" in the original.
It developed at,the supplemental hearing that Clifton's schooling extended only to
the third grade and that he could read only such things as his name, the name of his
Employer, and other such things which he memorized. Clifton testified that he
signed the original charge in blank at the direction of the Board's representative as
a condition to opening his case and that the contents were not read to him. He testi-
fied further, however, that a written statement was also prepared and read to him
and that, though he was not .sworn; he signed the statement after affirming that it was
true. A week or 10 days later Westheimer called him in, read him the contents of
the original charge, and asked him if it was true. Clifton replied that it was not true
that he was terminated because he was a member of Local Union 308 and denied that
he told anyone at dny time that he was terminated for that reason. Westheimer
thereupon prepared the amended charge and read it to Clifton, who signed it under
oath. -
The written statement which Clifton gave originally squared with the amended
charge as well as with Clifton's testimony at the original hearing. Thus the following
paragraphs in Clifton's statement are in substantial accord with his testimony as
summarized at lines 19 through 47. at page 3 of the Intermediate Report:
5. I was working on the job as usual on Wednesday, Feb. 24, when the
general foreman, P. J. South, brought the pay checks. I asked him the pro-
cedures for 'layoffs-how he was going to arrange it. He said on the seniority
basis; "That. is the only way we can do it, and do it legally." He added,
"John, you don't have anything -to worry about." I replied that I shouldn't
have, because I'm the oldest man still climbing and working in my tools." He
agreed with me.
6. Thursday, Feb. 25, the line foreman, L. W. Stroud, told me that he thought
my name was listed to be laid off. I said , "Well, it shouldn't be; I'm the oldest
man left on the job climbing." He said, "That doesn't matter; that doesn't
have anything to do with it." 'I said, "Well, maybe it does have something to
do with it." He said that South, however, had stated I was to be laid off.
"None of the other foreman want to work you; we got to make room for some
of our own members." Stroud is a Local 308 member.,
7. That night I called Skip Hadley, B.A. for Local 308, and asked him if he
were going to lay off according to seniority; and he said they could not. He
also informed me that my name was on the layoff slip. He said that I was
being replaced with one of the members of his own local... .
It is plain from the foregoing , and I hereby find, that the inconsistency in the
charges was due to the improper drafting of the original by the Board's representative
and that Clifton 's written statement , made contemporaneously with the original
charge, was consistent . with the amended charge and with his testimony at the original
hearing.' Accordingly, I adhere to my-former action in crediting Clifton's testimony
and in discrediting' the testimony, of South and Stroud where it conflicted with
Clifton's.
I therefore readopt the findings of fact and conclusions of law and renew the
recommendations contained in my Intermediate Report.
1 Though at the original hearing it appeared , or was assumed , that Clifton could read,
he was not asked whether he could and made no claim that he could . For example, in
identifying the agreement between Respondent and Local 308, he specifically denied that
he had read it and testified that all he saw was "Just the name on it," as it lay on a
desk in the Local's office.
. Respondent points to .certain confusions in Clifton 's testimony on direct examination at
the supplemental hearing. Those confusions were cleared up on cross-examination, and
Clifton's ' testimony as clarified is as summarized above.