G.v.R., Inc.

National Labor Relations Board - Board Decisions

Jan 10, 1973

201 N.L.R.B. 147 (N.L.R.B. 1973)

G. V. R., INC. 147
G. V. R., Inc. and Danny D. Glace. Case
19-CA-5526
January 10, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 16, 1972, Administrative Law Judge' )r.
Don Wilson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
combined with a brief, and the General Counsel filed
an answering brief.
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,2 and conclusions,3 of the Administrative
Law Judge and to adopt his recommended Order,4 as
modified below.
Contrary to our dissenting colleague, we are
persuaded that the Administrative Law Judge's
finding of concerted activity is supported by the
record. Thus, although it was not mentioned by the
Administrative Law Judge the record shows that
Glace and Curry discussed the individual interviews
they had with Martinez, the labor compliance
inspector; that Glace and Curry, who rode to work
together, discussed the Army questionnaires which
both were asked to complete (and did) on the way to
and from work; and that they also discussed the
kickback situation between August 3 and 18, the date
they were both discharged. In addition after Curry at
first refused to give back to Bodily the money due
Curry for back wages, Glace told Curry that he had
given back the money due him for back wages under
threat of loss of his job. The next day Curry also gave
back the money to Bodily. It is thus clear that Glace
and Curry were united in their determination to
obtain the wages to which they were entitled. We
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
' The Administrative Law Judge found , in substance , that even in the
absence of concerted activity, "Public policy would be frustrated if
employees ... could not , with full protection of the Act , make complaints
to public agencies about wages , hours, etc , without fear of reprisals." We do
not adopt this improper extension of our enunciated principle that it would
be contrary to public policy to hold that the making of complaints to public
authorities in the course of concerted activity removes the protection of the
Act from the concerted activity . Thurston Motor Lines, Inc., 159 NLRB
1265.
3 We find without merit Respondent 's allegations of bias on the part of
the Administrative Law Judge There is no basis for finding that bias or
partiality existed because the Administrative Law Judge resolved important
factual conflicts against Respondent . ". . . Total rejection of an opposed
also find, in addition to these reasons, that an
employee covered by a federal statute governing
wages , hours, and conditions of employment who
participates in a compliance investigation of his
employer's administration of a contract covered by
such a statute, or who protests his employer's
noncompliance with the contract, is engaged in
concerted activity for the mutual aid and protection
of all the employer's employees similarly situated.
Further, since no exceptions have been filed to the
Administrative Law Judge's findings of concerted
activity, we cannot, in accordance with our well-
defined procedures, entertain the merits of this issue
as our dissenting colleague would have us do.
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 and
hereby orders that Respondent, G. V. R., Inc.,
Bellevue , Washington, its officers, agents, successors,
and assigns , shall take the action set forth in the said
recommended Order, as so modified:
1. Modify paragraph 2(a) of the recommended
Order to read as follows: Make Glace whole for loss
of earnings in the manner set forth in the section
herein entitled "The Remedy."
2. Substitute the attached notice for the recom-
mended notice.
CHAIRMAN MILLER, dissenting:
It is not easy, nor, I am sure, will it win me
popularity, to dissent from the holding of the
Administrative Law Judge and my colleagues here.
All of the equities are on the side of the Charging
Parties, and Respondent appears to be a dishonest,
unscrupulous violator of the rights of his employees
and applicable Federal laws.
The problem is, however, that the employee rights
which were violated are not rights stemming from
our Act, and the law which was violated was not the
National Labor Relations Act.
It is not our law which protects employees against
illegal wage payments, nor against kickback require-
view cannot of itself impung the integrity of a trier of fact ." N.LR B v
Pittsburgh Steamship Co, 337 U S. 656, 659 . Moreover , it is the Board's
established policy not to overrule an Administrative Law Judge's resolu-
tions as to credibility except when the clear preponderance of all the
relevant evidence convincingly shows that the resolutions are incorrect.
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A.
1). We have carefully examined the record and find no basis for disturbing
the credibility findings herein.
4 Contrary to the Administrative Law Judge , the record clearly shows
that Respondent has offered to reinstate Glace without prejudice, that
Respondent had no work available at the time it made its offer , and that its
reinstatement offer provided that it would place Glace on a preferential list.
The record does not show, however, when the offer was made , or that Glace
failed to respond to its offer, as Respondent contends . Accordingly , we shall
leave this aspect of the case to the compliance stage of this proceeding.
201 NLRB No. 2
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments by an employer, nor against employer retribu-
tion for making a complaint to another Government
agency against such illegal practices.
Our law does protect employees from employer
discrimination against concerted activity for mutual
aid or protection. If employees, acting in concert,
include in their concerted activity protest or com-
plaint to other agencies , it is true that we will act to
prevent employer interference with, or discrimina-
tion caused by, the concerted activity. But an
individual making a complaint to another agency
does not thereby accrue per se rights under our Act.
I cannot find in this record substantial evidence of
concerted activity. The occasional conversations
between the two employees about their problem,
upon which my colleagues rely, is insufficient, in my
view, to show that they were acting in concert. And it
seems abundantly clear that each was discharged for
his independent act of cooperating with another
Government agency, not because they did so
concertedly.
Thus, outraged though we may be about the illegal
and immoral conduct of this Respondent, we are
neither God nor the Attorney General, and we are
not empowered to correct either all immorality nor
all illegality arising under the total fabric of Federal
law. No violation of our Act having been established
here, we have, therefore, no alternative but to dismiss
the complaint.5
5 Respondent 's rather inartistically drawn exceptions are sufficient, in
my view, to raise the fundamental issue of whether the General Counsel
established a prima facie case, and I cannot overlook this basic question
because of the absence of technically perfect exceptions
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL pay Danny Glace for wages lost by
him together with interest at the rate of 6 percent,
because we discriminatorily discharged him from
our employment on August 18, 1971, in violation
of Section 8(a)(1) of the National Labor Relations
Act.
WE WILL NOT discriminate against any employ-
ee because he has been interrogated by any
governmental agency concerning his hours of
work, rate of pay, or any other conditions of
employment or because he has given information
to, or cooperated with, or complained about any
such matters to a governmental agency having
jurisdiction of such matters.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of any of their rights protected by Section
7 of the National Labor Relations Act.
G. V. R., INC.
(Employer)
Dated By
(Representative ) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Republic Building, 10th Floor, 1511
Third Avenue, Seattle, Washington 98101, Tele-
phone 206-442-5692.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
E. DON WILSON , Trial Examiner : Upon a charge filed by
George P. Curry, Sr., an individual, herein Curry, on
September 14, 1971, in Case 19-CA-5452; and upon a
charge filed by Danny D. Glace, an individual , herein
Glace, on November 15, 1971, the General Counsel of the
National Labor Relations Board, herein the Board, issued
an order consolidating cases , consolidated complaint, and
notice of hearing on November 18, 1971, and on January
11, 1972, issued an order severing Case 19-CA-5452 from
Case 19-CA-5526 and dismissing that part of the consoli-
dated complaint which referred to the discharge of Curry,
who had withdrawn his charge after he had been offered
reinstatement and had received certain monies as backpay.
The complaint herein alleges that G. V. R., Inc., herein
Respondent and sometimes Bodily , violated Section 8(axl)
of the Act by discharging Glace for concerted activities
protected by the Act.
Pursuant to due notice , a hearing in this matter was held
before me at Seattle , Washington , on January 25, 26, and
27, 1972. Almost nothing of consequence occurred at the
hearing on January 25, 1972, because of the occurrence of
an exceptional blizzard. The parties fully participated
excepting on the first day when it was impossible for
Respondent or its counsel to appear because of the
aforementioned blizzard . General Counsel and Respon-
dent filed briefs which have been considered.
G. V. R., INC. 149
Upon the entire records in the case and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Since August 30, 1971,2 Respondent has been a de jure
Washington corporation with its principal office in
Bellevue, Washington , where it is engaged in the building
and construction industry as a painting contractor. Prior to
August 30, 1971, Respondent was a de facto Washington
corporation located at and engaged in business as
described above. Both as a de facto and dejure Washington
corporation, Respondent is a successor to, or alter ego of,
G. V. R., Inc., a Kansas corporation , whose corporate
charter was cancelled on June 16, 1971. During the last
fiscal or calendar year , Respondent and its predecessors or
alter egos as described above performed services valued in
excess of $200,000 in Washington, California, and other
States for various agencies of the United States engaged in
national defense . At all times material , Respondent has
been an employer engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION
There is no labor organization involved in this case.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues involved herein are whether Glace and Curry 3
were discharged by Respondent because they were
interviewed by and gave information to the United States
Army and Department of Labor about their wages and
hours of employment, while employed pursuant to a
contract between Respondent and the Army, and because
they reported to the Army that Respondent, through its
President, Gwen Bodily, had made them "kick back" the
monies Respondent paid to them because Respondent had
deprived them of their rightful wages, after the Army had
ordered that such wages be restored to Glace and Curry.
As noted, the instant matter involves only Glace, as a
discriminatee.
Earl Atterton and Bodily were Respondent's only
witnesses. The demeanor of each impressed me very
unfavorably. Bodily, to the knowledge of Atterton, not
only unlawfully underpaid Glace and Curry, and perhaps
other laborers, at the Madigan Hospital job, under the
requirements of the Davis-Bacon Act, but also fraudulent-
ly maintained Respondent's books so as to conceal the
violations, and reveal rather that they were paid more
money an hour than was the fact, and that they worked
less hours than they actually worked. He blandly explained
that with respect to laborers "we let them donate a couple
of hours." The actual rate of pay for Glace and Curry was
$3. (Glace started at $2.50.) It should have been more than
$5.50. "They would end up donating at the $5.52 rate." This
applied at least to Glace and Curry, and probably a few
others. The testimony of Atterton and Bodily was
frequently uncertain . Bodily frequently said "I think", or
"to the best of my knowledge" or "as I remember" instead
of a simple and direct "Yes" or "No" when I am certain he
had clear and certain knowledge of what were the facts.
Bodily and Atterton, from time to time, deviated from the
obvious substance of their pretrial affidavits. Atterton gave
much confusing and contradictory testimony as to when
and whether Curry and Glace had told him about their
conversation with Army Investigator Martinez . He testified
that when Glace and Curry worked at Madigan their work
was satisfactory. Only once, when Glace and Curry were
working at the Jane Addams School, he made a "mental
note" that Glace wasn't working fast enough. He apparent-
ly never warned or caused either Glace or Curry to be
warned about poor work. This "mental note" would have
been about August 13. (Glace and Curry were discharged
on August 18.) From what he observed and from what the
other employees told him, Glace was dogging and slowing
down on the job. He allegedly reported this to Bodily
though no disciplinary action of any kind was taken with
respect to Glace until August 18, and almost simultaneous-
ly with a wages and hours investigator named Backer
questioning Bodily about the kickbacks he was reported to
have demanded and received from Glace and Curry. Note
that though according to Atterton he and Foreman Willie
White thought Glace and Curry were doing a poor job at
the School and although he allegedly told Bodily that
foreman White was concerned over the attitude of Glace
and Curry and didn't know what to do with them and their
slowing down , Atterton made no recommendation to Bodily
even though he frequently communicated with him, at least
by phone. He apparently never told White to take any
action. Atterton testified he had confidence in Foreman
White. Glace and Curry were kept on the job for some
days, at least, after Atterton allegedly told Bodily they were
performing badly, yet Atterton testified, "We never keep
men who don't perform." Compare this with Bodily's
testimony that Glace had a completely bad "attitude for
the last umpteen days" and that Backer's investigation of
August 18 was just "another complaint that come in." I
particularly find Bodily's alleged lack of memory, without
reasonable explanation , as to the times of activities he
allegedly engaged in on August 17, to be incredible. He
never told the NLRB investigator, as revealed by his
affidavit, about his alleged trip to Madigan and dealings
with Atterton on the 17th. Although he produced a
telephone record showing one call to his home from
Vacaville, California, on August 16, he did not produce a
phone company record of another alleged second call to
his home from the home of one of his foremen for
corroboration. Bodily testified he didn't decide to dis-
charge Glace until he got an adverse report about Glace
from Mrs. Bodily while he was in Vacaville, California, on
August 16. Yet he testified he had had complaints from
practically everybody on the School job, including the
inspector from the school district about Glace. (He never
testified.) If this were true, and if Atterton told the truth
when he swore Respondent didn't keep men on the job
i General Counsel's unopposed motion to correct transcript is granted 3 As previously noted, Curry's case has been severed from the instant
2 Hereinafter all dates refer to 1971, unless otherwise stated. matter, his charge having been withdrawn.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who did not perform, why would Bodily wait until August
18, and immediately after Wages and Hours Investigator
Backer questioned him about kickbacks Glace and Curry
were supposedly forced by him to make? Before Glace and
Curry were hired, Bodily admittedly knew he was obligated
under his contract with the United States to pay them more
than $3 per hour; yet he did not, until Glace and Curry
reported the factual situation to Martinez. Bodily did not
impress me as being trustworthy in any way. Atterton's
memory, particularly for times and details, was much too
undependable to lend credence to his testimony.
Mrs. Bodily was present at the hearing each day. Yet
she did not testify even in an attempt to corroborate the
testimony of Bodily even with respect to events on August
16, 17, and 18. Atterton's was poor corroboration of
Bodily's movements on August 17, espi cially when one
considers Atterton's poor memory of dates. The available
Mrs. Bodily, who allegedly was present with Bodily from
the time he returned from San Francisco on August 17,
never testified . Foreman White was never called as a
witness by Respondent. He could have corroborated much
of the testimony of Bodily and Atterton, if it were true. I
find their failure to testify detracts considerably from
Respondent's case and adds weight to the testimony of
General Counsel's witnesses. Note that I have found much
of Bodily's testimony vague and uncertain and often
generalized when particulars should have been given. Note
that Atterton only made one "mental note" of poor work
by Glace. Yet Bodily testified he received complaints
about Glace from Atterton and White, who never testified,
about Glace "for quite some time." He then swore he had
received such complaints for "two or three months." (Bear
in mind Atterton's testimony that Respondent didn't keep
nonproducers on the job, and Glace's work on the
Madigan job was satisfactory.) According to Bodily, the
nontestifying foreman , Willie White , complained about
Glace "many times." Bodily swore that White and
Atterton complained to him that before Glace finished a
job he would have to be taken somewhere else and Glace
"would throw the tools on the ground, kick the furniture,
and mumble under his breath and stomp off down the
hall." This, Bodily swore, was, "As much as to say, `To hell
with you.' " Yet there is no credible evidence that Glace
was even reprimanded. Bodily swore Glace was quite
unresponsive and demoralized Bodily's crew. It was
reported to Bodily that Glace had no desire to put out a
good job. Yet it was not until Backer questioned him about
the kickbacks that he discharged Glace and Curry. Under
these facts as testified to by Bodily, I do not believe that he
waited until right after the Labor Department investigator,
Backer, questioned him about Glace's and Curry's claims
that Bodily forced them to make unlawful kickbacks to
Bodily, or Respondent, and that such report from Wages
and Hours influenced him not at all in his decision to fire
Glace and Curry. (Glace honestly and frankly admitted
that he "dogged" and "slowed down" on the job for a week
or 10 days before he was discharged. He believed he was
going to be fired because of his complaints.)
I was most favorably impressed by the respective
demeanors of Glace and Curry. They were honest and
forthright and appeared, at all times, honestly to be
endeavoring to tell the truth as they knew and remembered
it. I have already noted where Glace frankly testified as to
his slowdown although such might well have been
considered by him to be against his best interest. They
were subjected to strong and intelligent cross-examination
and their testimony stood up well. I find they were
mutually corroborative when testifying about similar
matters . James Martinez , procurement agent for the
procurement division in Fort Lewis , was disinterested,
intelligent , and honest . I credit his testimony in its entirety.
I make the same findings with respect to the testimony of
Delmett M . Hatche , bank teller for the First National
Bank.
Mrs. Sandy Glace was Glace 's wife . Her demeanor im-
pressed me most favorably . I credit her testimony.
B. The Facts
1. Prior to the kickbacks
In early 1971, Respondent began a painting contract
with the United States Army at Madigan Army Hospital,
Fort Lewis , Washington. Conditions of employment were
to be subject to the Davis -Bacon Act. Bodily, Respondent's
president, appointed Earl Atterton as job foreman. The
hourly pay rate for laborers was supposed to be $4.90 plus
$0.62 in fringe benefits , under the terms of the contract.
Atterton hired Danny Glace as a laborer, or so-called
painter's helper, at $2.50 per hour on April 27, and raised it
to $3 per hour in a week . Atterton hired George Curry as a
laborer at $3 per hour on May 13. There were five or six
other laborers on the job, some "boys," and some were
related to Atterton.
Martinez , at that time a labor compliance inspector, in
late June or early July was assigned by the Army to spot
check Respondent 's wage practices because it had not been
properly filing payroll records. Martinez found a lack of
cooperation from some employees , but Glace and Curry
gave him their cooperation . Glace gave such cooperation in
spite of the fact that when he was hired , Atterton told him
not to discuss his wages with anyone. Atterton had told him
he should have been receiving $4.81 but would start at
$2.50, with an increase to $3.4
In July, Martinez appeared at the job and interviewed
Glace and did so several times thereafter. It was about the
same time that Martinez interviewed Curry. Each cooper-
ated with Martinez. Atterton admitted he learned that
Martinez had interviewed Glace in the first 7 days of July.
He advised Bodily . I find such admission to be the fact
although Atterton tried his best to "wiggle" out of it and
testified he "assumed" such to be the fact after being lead
by Respondent's Counsels Atterton was also interviewed
by Martinez . Curry told Atterton about his dealings with
Martinez. He told him Martinez had taken the social
security number and questioned "us" about "their" rate of
pay. Martinez told him he was supposed to be getting more
pay.
4 Glace had cerebral palsy.
5 1 find Atterton was frequently vague and evasive
G. V. R., INC. 151
Atterton admittedly knew that Martinez talked to all the
employees involved.6 He so advised Bodily. After Atterton
learned Glace had spoken to Martinez, he asked Glace if
he had said anything to Martinez. Glace admitted he had
told Martinez'he was being paid $3 per hour. Atterton told
Glace he shouldn't have said that. Glace asked Atterton
what he thought would happen and the latter replied they'd
probably have to hire all new men or put on skilled
workers because "we're not supposed to have you guys
under scale around here." He again told Glace not to talk to
Martinez.
Subsequently, Martinez told Atterton that in his opinion,
and that of his superiors, Respondent was violating the
Davis-Bacon Act and certain employees should be paid
"back wages." This was toward the end of July. Before July
30, Respondent reached an understanding with the Army
that it would pay certain employees for "back wages,"
including fringe benefits.
It was about the same time that Glace and Curry, as well
as some other employees, were transferred from the
Madigan job to a Jane Addams Junior High School job in
Seattle.
On August 2, Atterton spoke of how "this money deal
got mixed up" and said Respondent shouldn't have hired
Glace and Curry at a low pay scale. He told Glace that
Bodily was going to make out a couple of checks which
Glace would just sign "and give the money back."
Curry also testified credibly that on August 2, Atterton
told him that he would have to turn back the money he
would get from Respondent. Atterton had explained that
Bodily would be out the next day with a check for Curry.
Curry made no answer when he was told he'd have to kick
back the money.
Foreman Farlo had told him that if he took the back
wages or wanted the money he would be fired.?
2. The kickbacks
On August 3, Bodily showed up at the School. He had
with him the backpay checks for Glace and Curry and two
documents he called "releases." 8
After Martinez' investigation, Bodily had made an
agreement with the Army to recompense at least some
employees for their lack of all the pay due them on the
Madigan job.
On July 30, Mrs. Bodily9 made out checks payable to
Curry and Glace for backpay and fringe benefits.
Bodily, at the School on August 3, first asked Curry to go
to the Bank with him; Curry left with him and on the way,
Bodily told Curry he would have to sign the checks and
return the cash to Bodily. Curry said he did not want to do
so because he would have to pay the government income
tax on monies he had never received. Bodily returned
Curry to the School.
Glace had seen Curry leave with Bodily. He had in mind
Atterton's warning of the day before, and a good guess as
6 1 credit Martinez' testimony that Glace and Curry cooperated with him
but that some of the other laborers did not.
7 Farlo did not testify
8 Bodily's pretended difficulty in identifying photocopies of the
"releases" was singularly artificial to me
9 Also an officer of Respondent.
to what was about to happen. Bodily, on the way to the
Bank , in the car with Glace, showed Glace the release
Bodily wanted him to sign . They arrived at the Bank.
Bodily took Glace to a bank officer who was a notary.
Glace signed the "release" before the notary.10 Bodily gave
Glace two checks to endorse and Glace did so. Glace and
Bodily then walked with the checks to the teller's window.
Bodily, not Glace, asked the teller to cash the checks. She
did so after Glace gave them to her and after counting out
the money. Bodily took the money, placed it with some papers
he had, and they both left the Bank. Glace never even touched
the money. They returned to the School.ii
Later, in the afternoon, Bodily tried Curry again. He told
Curry he'd have to let Curry go because Curry was
reluctant about signing the checks. In response to inquiry
by Curry, Bodily said, Curry had been talking with
Martinez and added, "How do I know you won't go back
to him and tell what has happened here." Curry then
agreed to sign the checks. Bodily said Curry soon would be
able to make up for the money Curry "kicked back."
They got in the car and arrived at the Bank, where Curry
also signed a release 12 before the notary for Bodily. Bodily
gave him the checks, saying he needed the release and copy
of the check stub to show to the Army that he had made
payment. Curry endorsed the checks at the teller's window,
Bodily being present. This time, Curry got the cash. Bodily
then told Curry he could keep the money until "we got to
the corner." At the corner, Curry gave Bodily the money
because he feared losing his job.13 I place no credit
whatsoever in Bodily's denials of the testimony of Curry
with respect to the just narrated facts.
I do not credit Bodily's affidavit or any other evidence
that Curry did not cash the checks at the Bank in question.
Hatche's testimony makes this clear. Bodily was not
"mistaken" about what happened to the money after Glace
and Curry cashed their checks. I find he deliberately and
wilfully falsified his testimony in this regard. He didn't
even testify that Glace cashed the checks. He evasively
testified, "I think so," and he thought Glace cashed it. He
didn't recall if Glace was in his vision. When asked by me
if Glace returned the money, he did not give a simple
"No." He answered, "To my knowledge he didn't." Then
he said, "Not that I know of."
With respect to the proceeds of the checks to Glace and
Curry, Bodily testified, "Basically I don't know what
happened to the money after they got it. I really don't
know. What they did with it I can 't testify to, I don't know
what happened to it." Bodily couldn't even give a
straightforward denial that the kickbacks were made, at
least in this instance . He testified he had no personal
knowledge, or hearsay knowledge, and nobody ever told
him what they did with the money.
3. After the kickbacks
Glace and Curry had received "questionnaires" from the
19 He had never even seen the money . G. C. Exh. 3.
11 1 credit Bodily 's denials of these events not at all.
12 G C. Exh. 2.
13 Curry had been told by Atterton , on the previous day, he would have
to return the money to Bodily.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Army about late July or early August. Glace filled out G.
C. Exhibit 5 and Curry filled out G. C. Exhibit 10, which
Martinez had sent to them. Item 40 in Glace's question-
naire was expanded by Glace to expatiate upon the
kickback. Glace's wife delivered G. C. Exhibit 5 to
Martinez' office on August 6. Curry also made clear
reference to the kickback in his questionnaire, which was
received by the Army on August 6 after Curry sent it.
The Department of Labor became involved in this
matter about this time. Its investigator was Dick Backer.
Backer interviewed Glace about 1 week before the
latter's discharge on August 18. Backer wrote down a
complaint. Subsequently, at lunch, in front of fellow
employees and Foreman Willie White, Glace said he "was
going to get a ton of money back." He also made similar
statements at various times. It was then that he began to
slow down in his work because he felt he had been cheated
out of his money and "I knew I was going to get fired
anyhow." 14 Curry did not engage in a slowdown. Glace
admitted frankly that he engaged in a slowdown, and "did
goof off quite a bit." His superiors just let him go his
"merry way." They told him what to do. He did it. They
didn't come around checking. Note that Foreman White
was not called to testify. During the last week of his
employment, Mrs. Bodily asked Glace to help her move
dropcloths. Glace did so. He did not "sass her back." I
ignore Bodily's hearsay testimony to the contrary as
incredible. Mrs. Bodily, though at the hearing, did not
testify in this or any other regard. Other than Glace's own
forthright admission that he slowed down and goofed off, I
find no credible evidence that he did so, to Respondent's
knowledge. At most, on August 13(?), Atterton made a
"mental note" that Glace was slow. He had confidence in
Foreman White 15 and it was Respondent's policy not to keep
men who can't perform.16 Glace was kept on, and he must,
so far as Respondent knew, have been performing satisfacto-
rily until August 18.17
Even Atterton conceded he did not tell Bodily of his
"mental note" for several days.
When Bodily first testified under Rule 43(b) he left the
stand, and left me with the impression that he had had but
one phone conversation with his wife on August 16. His
pretrial affidavit provides little help. When testifying for
his own counsel, on direct, he said there were two such
calls. Again, Mrs. Bodily did not corroborate him and
telephone records of only one call were introduced. I have
no reason given why records of the alleged second call
were not produced or were unavailable. Note that Bodily
first testified that his wife, in the phone call of August 16,
14 He had been so warned by Foreman Farlo.
is Who did not testify.
1e Atterton.
17 It is noteworthy that Atterton , in his pretrial affidavit , after relating an
alleged conversation he had with Willie White on August 1, about Glace
and Curry, wherein White allegedly told him Glace and Curry were very
poor workers , swore "The next time at which I had occasion to discuss with
anybody Glace's and Curry's performance was on the day Mr. Bodily fired
them." He swore it was on this day that Bodily came out to Madigan to see
him and complained of the work of Glace and Curry. Bodily then said he
himself rather than Atterton would fire them so as to save Atterton a 120-
mile round trip . This shoots the works out of Bodily's poorly contrived story
that his meeting with Atterton was on August 17. Again note White's
absence as a witness even though he was the foreman of Glace and Curry
prior to and at the time of their discharges . Note well also that Mrs. Bodily
complained of the lack of work performed by Glace and
Curry and further complained Glace spoke rudely to her.
Bodily first told her, vice president and secretary, to make
out their checks and fire them. She obviously had authority
so to act. If, she didn't want to because she was a lady, as
Bodily testified, he or she could have directed Atterton or
White so to do. Bodily, under the circumstances, had no
need to wait from August 16 to August 18, if he believed
Glace had been rude to or had "insulted" his wife. I find
his entire story of the August 16 and 17 events was just
that-a story-made out of whole cloth. Had Mrs. Bodily
reported to Bodily on the 16th, as he claimed, and after
hearing bad reports about Glace and Curry for "two or
three months" and receiving bad complaints about them
"umpteen times," as president, and as a presumably loving
husband, if he couldn't do it himself, and if his wife didn't
want to, he would have made certain on August 16 that
Atterton or White discharged Glace and Curry early on
August 17. The Company just didn't keep such men on the
payroll. 18 It is ridiculous to believe Bodily would have kept
such poor employees, as they were allegedly reported to be,
on his payroll for so long, or would have paid them two
cents for August 17, when according to his incredible
hearsay testimony, all they did was stand idly in a corner,
and Glace, in particular, spoke rudely to his wife. The
alleged grounds for the termination of Glace and Curry are
mere pretexts . The real reason is abundantly clear. He
discharged them on August 18, immediately after Backer
interviewed him, because he knew from Backer that Glace
and Curry had "spilled the beans" and had revealed to an
Agency of the United States that Bodily had unlawfully
demanded and received kickbacks from Glace and Curry.
No time was lost by Bodily in ridding himself of these
employees because they exercised rights protected by
Section 7 of the Act. When he discharged them he could
not even be direct and forthright. Instead he resorted to
self-damning ambiguities and threats.19
On August 18, Mr. Backer, from the Wage and Hour
Division of the Department of Labor, came to Bodily's
house,ZO in the morning. Bodily testified, "He told us then
of the alleged kickback violation." He was with Mr. and
Mrs. Bodily "for a couple of hours and we were discussing
the settlement of the problem." Backer told them he had
complaints about kickbacks from Glace and Curry. He
reported to the Bodilys that Glace and Curry had
complained they had given the money back to Bodily
which was the cash from the checks arising out of the
Davis-Bacon violations. Bodily was somewhat "angry."
never testified as to a meeting between Atterton and Bodily on August 17
is See Atterton , supra.
19 Bodily's stated reasons for not having his wife or Atterton or White
fire Glace and Curry on August 17 are spurious . He admitted that he
himself intended to fire them, personally, on that date. The reasons he gave
for not doing so impress me as incredible . I have already referred to his
vagueness as to times on that date. I find he was intentionally vague so as to
cover up the genuine reasons for the discharges on August 18. He didn't, for
example, "recall" the time he arrived in Seattle on August 17. Timetables
would be available. Since he had been on a business trip to Vacaville, one
would properly expect his expense account or other books or record to
reflect the time. The silent Mrs. Bodily might have refreshed his
recollection.
20 He maintained his office there.
G. V. R., INC. 153
Bodily again , didn't "recall" whether Backer showed him
anything in writing.
When Backer left, Bodily drove to the School and
promptly fired Glace and Curry.21
He told Glace and Curry he was tired of "these games"
and told them that if they were going to play "games" to
do it on somebody else's time. He told Curry not to take
anything with him.22 He told Glace, "Your little game is
up." He plainly had the kickbacks in mind at the time of
the discharges because he told Glace he had the "cancelled
checks" and the "releases ." He threatened Glace that his
attorney would sue Glace for taking things off the job.23
He told Glace to "get the hell out." Bodily at no time
explained what "games" he was referring to. I find he had
in mind only Glace's and Curry's reports to Martinez
about Davis-Bacon violations and their cooperation with
him as well as their telling all to the Wages and Hours
Division about being required to and making the kickbacks
of the backpay due them. Bodily threatened Curry that he
would get Curry for "perjury."24
Concluding Findings
Based upon my observation of the witnesses throughout
the hearing, my diligent study of the transcript, my careful
analysis of the parties ' briefs , and the entire record as a
whole, I conclude Bodily discharged Glace and Curry on
August 18, because they were interrogated by and gave
information to and otherwise cooperated with personnel of
the United States Army and with a representative of the
Wages and Hours Division with respect to unlawful
kickbacks Bodily unlawfully required them to make to him
in early August. While Glace admittedly had been slowing
down and goofing off in his work for a week or two before
his discharge , I find no credible evidence that Bodily was
even aware of it. As Glace testified, they told him what to
do and he did it. They let him go his "merry way." The
timing makes the unlawful reasons for the discharges
evident. At 8 a.m. and for 2 hours thereafter, on August 18,
Backer revealed all to President Bodily, the man who
pilfered the lawful wages of two poor working men, Glace
and Curry. Forthwith, with Backer's departure, Bodily set
forth to rid himself of those who believed in and
cooperated with the Law of the United States. He fired
Glace and Curry, in violation of Section 8(a)(1) of the Act,
because they concertedly made complaints to United
States Agencies about their wages , hours , and working
conditions, and reported truthfully that Bodily had forced
them to kickback to him monies which were lawfully theirs.
Bodily and Atterton admitted that they started the
Madigan job with shady , indeed unlawful, wage practices.
Bodily unlawfully discharged Glace and Curry who stood
up for their legal rights . The decision to discharge Glace
and Curry coincided with and was the result of Backer's
early morning visit to the Bodilys on August 18.
Public policy would be frustrated if employees such as
Glace and Curry could not, with full protection of the Act,
make complaints to public agencies about wages and
hours, etc., without fear of reprisals . The unlawful acts of
Bodily concerning which Glace and Curry complained to
public agencies , involved their wages , hours and working
conditions and the unlawful kickbacks.
I note that I am here concerned only with the Act. Title
18 U.S.C. 874 is not, as such , within my purview. I make no
finding that Respondent or anyone connected with it
committed any crimes.25
Curry has already received backpay, has been offered
reinstatement , and has withdrawn his charge . I make no
findings of unfair labor practices with respect to him.
I find General Counsel has established by a preponder-
ance of the credible and probative evidence that Respon-
dent violated Section 8(axl) of the Act by discharging
Glace on August 18. Respondent's asserted reasons for
discharging Glace were concocted pretexts and underscore
the illegality of the discharge.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent 's opera-
tions described in section I, above, have a close , intimate
and substantial relationship to trade , traffic and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found Respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and
desist therefrom and that it take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that on August 18, Respondent discharged
Glace in violation of Section 8(axl) of the Act, I shall
recommend that Respondent offer him immediate and full
reinstatement to his former job, or, if such job no longer
exists, to a substantially equivalent position.26 Further,
Respondent is to make Glace whole for any loss of
earnings he may have suffered by reason of the unlawful
discrimination against him by paying him a sum of money
equal to the amount that he would have earned as wages
from August 18, to the date of a bona fide unconditional
offer of reinstatement by Respondent , less his net earnings,
F. W. Woolworth Company, 90 NLRB 289, plus interest at
the rate of six percent to be computed as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
The discharge of Glace, for the reasons, and in the
circumstances found herein, strikes at the heart of rights
guaranteed to employees by the Act. There is reasonable
ground to anticipate that Respondent will infringe upon
other rights guaranteed employees by the Act, unless
appropriately restrained by a broad order that it cease and
21 I do not credit testimony that their paychecks were made out before 24 Obviously refemng to Curry's complaint about the kickbacks
Backer appeared . 25 See par . 5 of the complaint.
22 Implying Curry had been stealing , of which there is not a hint of 26 The transcript and record, in my opinion , is not sufficiently clear to
credible evidence . establish that such offer has already been made . If it has not, it must be
23 Again , no credible evidence . made. I leave this for compliance
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desist from infringing in any manner upon the rights
guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. By discriminatorily discharging Glace as found
above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record herein, it is
recommended that the Board issue the following:27
ORDER
Respondent , its agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discharging any employee because he, alone, or in
concert with others, complains to Governmental agencies,
or has interviews with or cooperates with any of such
Agencies' representatives, where the subject matter of such
complaints involves the hours of employment, wages, or
other working conditions of employees;
(b) In any other manner interfering with, restraining, or
coercing any employee in the exercise of his right to engage
in or refrain from engaging in any employee activities
protected by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to Glace, unless it has already appropriately
done so, immediate and full reinstatement to his former
job, or if such job no longer exists , to a substantially
equivalent position, without prejudice to his seniority or
27 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 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.
28 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
other rights or privileges and make him whole for loss of
earnings in the manner set forth in the section herein
entitled "The Remedy";
(b) Preserve and make available to the Board, or any of
its agents , upon request, any and all records necessary to
analyze the amount of backpay due Glace under the terms
hereof ;
(c) Respondent maintains its offices in its president's and
vice president's home . It would be entirely ineffectual and
futile to order Respondent to post the notice marked
"Appendix" at such place. Employees would be most
unlikely to have any awareness thereof. Also, some of its
jobs may last considerably less than 60 days and little
would be accomplished by ordering the posting of notices
at such places of employment. Properly to effectuate the
policies of the Act, Respondent is ordered to mail copies of
the notice attached hereto and marked Appendix28 to all
employees it has had in the last year. To assure that said
mailing is done , Respondent is ordered to furnish the
names and most recent addresses in its possession, of all
employees it has had in the last year, to the Regional
Director for Region 19, who will prepare necessary and
sufficient copies of the Appendix attached hereto for such
mailings . An authorized representative of Respondent is to
duly sign each notice to be mailed by the said Regional
Director to each and all of the employees of Respondent,
during the past year. The Regional Director is authorized
to take any necessary or proper steps to insure that
Respondent provides him with a full complement of names
of employees together with their most recent addresses.
The aforesaid Regional Director will mail such Appendix
when signed as ordered herein to each such employee;
(d) Upon being advised by said Regional Director of the
reasonable costs involved in effectuating such mailing,
Respondent shall reimburse the Regional Director for such
costs within 30 days of such advice;
(e) Notify the Regional Director for Region 19, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.29
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
29 In the event this Order is adopted by the Board after exceptions have
been filed , this provision shall be modified to read . "Notify the Regional
Director for Region 19, in writing , within 20 days from the date of this
Order, what steps Respondent has taken to comply herewith.