Gardner Construction Co.

National Labor Relations Board - Board Decisions

Mar 21, 1961

130 N.L.R.B. 1481 (N.L.R.B. 1961)

GARDNER CONSTRUCTION COMPANY 1481
Paul Miller was a tractor-trailer driver for the Employer. The
Employer has discontinued its tractor-trailer operations for economic
reasons and has advertised this equipment for sale in the newspapers.
Miller was told at the time of his layoff that he had no reasonable ex-
pectancy of reemployment and, in fact, the Employer has hired no
drivers since terminating him.
Floyd Little was laid off on October 5, 1960, after 3 months of work
on a temporary basis. Little was told at the outset of his employment
that he was being hired on a part-time basis, and was later told at
the time of his layoff that there was no reasonable expectancy of his
being reemployed in the foreseeable future. In fact, the Employer has
no order on its books that will require any expansion of its work force
in the near future.
Parsons, Downey, and Eckman worked in the Employer's orna-
mental -iron department. For economic reasons, the Employer
discontinued this department, advertised the business for sale in the
newspapers, and, in fact, sold it to Parsons. The Employer has no
intention of going back into the ornamental iron business and has not
attempted to hire any employees in place of Parsons, Downer, and
Eckman.
We find that all of the above individuals have been permanently
laid off or terminated by the Employer and have no reasonable ex-
pectancy of reemployment in the foreseeable future. Therefore, they
are ineligible to vote in the election.'°
[Text of Direction of Election omitted from publication.]
10 American-Marietta Company, 121 NLRB 912.
Gardner Construction Company and International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Local No. 13. Case No. 27-CA-847 (formerly Case
No. 30-CA-847). March, 21, 1961
DECISION AND ORDER
On January 25, 1961, Trial Examiner Howard ,Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.'
1 The Respondent also requested oral argument . As the record, exceptions, and brief
adequately present the issues and positions of the parties , this request is denied
130 NLRB No. 149.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
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, Gardner Con-
struction Company, Littleton, Colorado, its officers, agents, successors,
and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local No. 13, or in any other labor organization, by discriminatorily
laying off or discharging any employee or by discriminating in any
other manner in regard to their hire or tenure of employment, or any
term or condition of their employment.
(b) Threatening its employees with discharge if they join, become
members of, or otherwise engage in protected activities on behalf of
the Union, or in any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local No. 13, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purpose of mutual aid or protection as
guaranteed in Section 7 of the Act, and to refrain from any and all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(^a) Make whole Robert Duane Moore for any loss of pay he may
have suffered by reason of Respondent's discrimination against him in
the manner set forth in the section of the Intermediate Report entitled
4'The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary and useful to determine the amount of
backpay due under the terms of this Order.
GARDNER CONSTRUCTION COMPANY 1483
(c) Post at its establishment at Littleton, Colorado, copies of the
notice attached to the Intermediate Report marked "Appendix A." 2
Copies of said notice, to be furnished by the Regional Director for the
Twenty-seventh Region, shall, after being duly signed by Respondent's
representatives, be posted 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. Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-seventh Regioii,
in writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
CHAIRMAN MCCULLOCH and MEMBER JENKINS took no part in the
consideration of the above Decision and Order.
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "Decision and Order ." In the event that this Order is en-
forced 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."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on July 6 and on August 4,
1960 ,1 by International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Local No. 13, herein called the Union, the General Counsel of
the National Labor Relations Board, herein respectively called the General Counsel 2
and the Board, through the Regional Director for the Seventeenth Region,3 issued
a complaint, dated September 20, against Gardner Construction Company, herein
called Respondent , alleging that Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8(a) (1)
and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended
from time to time , 61 Stat. 136, herein called the Act.
Copies of the charges , complaint , and notice of hearing thereon were duly served
upon Respondent and copies of the complaint and notice of hearing were duly served
upon the Union.
Specifically, the complaint alleged that (1) on or about July 5, Respondent dis-
charged Robert Duane Moore, and since said date has failed and refused to reinstate
him because of Moore's membership in, activity on behalf, and adherence to the
Union; and (2) on July 6, Respondent, through its officers, supervisors, and agents
threatened its employees with discharge if they did not refrain from becoming or
remaining members of the Union or gave it assistance or support.
On October 5, Respondent duly filed an answer denying the commission of the
unfair labor practices alleged. The answer also averred that Moore was discharged
for cause and that whatever statements Respondent 's officials , supervisors, or agents
made contained no threats of reprisals or promise of benefits and hence said state-
ments were not violative of the Act.
Pursuant to due notice, a hearing was held, on October 11 , before the duly desig-
nated Trial Examiner. The General Counsel and Respondent were represented by
counsel. Full and complete opportunity was afforded the parties to be heard, to
examine and cross-examine witnesses , to introduce evidence pertinent to the issues,
to argue orally at the conclusion of the taking of the evidence, and to file briefs with
the Trial Examiner.
' Unless otherwise noted all dates mentioned herein refer to 1960.
2 This term specifically includes counsel for the General Counsel appearing at the
hearing.
8 This proceeding has been transferred to the newly created Twenty-seventh Region.
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the course of the session of October 11, the General Counsel requested
and was granted a continuance of the hearing until November 14, in order to pro-
ceed in the appropriate United States district court to enforce a subpena which had
been served upon Homer Scales.
On November 1, the General Counsel filed with the Trial Examiner a motion,
copies of which were duly served upon the parties and upon Respondent's counsel,
requesting that the hearing be closed for the reason that he does not desire to call
Scales as a witness.
No response having been received to the aforementioned motion of the General
Counsel, the Trial Examiner, on November 7, telegraphed the General Counsel, Re-
spondent's counsel, and the Union as follows:
RE: GARDNER CONSTRUCTION COMPANY, 27-CA-847 (30-CA-847),
THE GENERAL COUNSEL'S MOTION TO CLOSE THE HEARING IN
THIS MATTER IS HEREBY GRANTED AND THE HEARING IS THIS
DATE CLOSED. BRIEFS DUE ON OR BEFORE DECEMBER 5 NEXT.
Briefs have been received from the General Counsel and from Respondent's coun-
sel which have been carefully considered. Respondent's counsel also filed findings
of fact and conclusions of law which are disposed of in accordance with the findings
of fact, conclusions of law, and recommendations hereinafter set forth.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the'following: _
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Respondent, a Colorado corporation, has its principal offices and place of busi-
ness in Littleton, Colorado, and is, and during all times material was, engaged in
highway construction work. During the 12-month period immediately prior to the
commencement of this proceeding, Respondent performed roadbuilding services of
a value of more than $100,000 in States other than the State of Colorado. During
the same period, Respondent was engaged in the performance of a highway construc-
tion contract with the State of Colorado in the approximate amount of $2,090,000.
On the basis of the foregoing facts, the Trial Examiner finds, in line with estab-
lished Board authority, that Respondent is engaged in, and during all times material
was engaged in, business affecting commerce within the meaning of the Act and that
its operations meet the standards fixed by the Board for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of Re-
spondent.
III. THE UNFAIR LABOR PRACTICES
The Discriminatory Discharge of Robert Duane Moore
A. Prefatory statement
During all times material Respondent was engaged in performing a contract which
it then had with the State of Colorado for the construction of a portion of Highway
87 which, in turn, was part of the so-called Interstate Highway System. The job in
question consisted chiefly of mixing dry aggregate at the batch plant, hauling it to
the part of the highway then being paved, dumping successive parts of the load into
the hopper of the paving train, and then laying it on the highway.
Respondent had an arrangement with Griffin Brothers, Inc.,4 to furnish batches
at the paver for a unit price and the batches were hauled in 10-wheel trucks. Under
the aforesaid arrangement Griffin was furnishing, and did furnish the trucks, which
were of special design, and the fuel, oil, and maintenance. Griffin also furnished
the truckdrivers.
At the hearing and in its brief Respondent contended that the truckdrivers, in-
cluding Homer Scales, the foreman of the drivers, furnished by Griffin were Griffin
employees and not Respondent's.
The undenied credible evidence convincingly establishes that Respondent (1) con-
trolled the retention of the truckdrivers in that it had the absolute right to discharge
them, as it did in the case of Moore; (2) required them to adhere to the discipline
* Also referred to in the record as "Griffin Brothers" and as "Griffin Bros. Incorporated."
GARDNER CONSTRUCTION COMPANY - 1485
and other rules applicable to employees , such as, among other things, not to confer
on the project with representatives of any labor organization without first obtaining
Respondent 's permission ; ( 3) accorded them the same general supervision , privi-
leges, and prerequisites as ordinary employees ; and (4 ) under its agreement with
Griffin, (a) paid the truckdrivers' wages and (b) withheld from the truckdrivers'
wages, the required income taxes , social security contributions , and filed all other
necessary employee reports with the State and Federal Governments . In addition,
in its answer, Respondent admitted paragraph numbered IV of the complaint which
alleged , ". . . the Respondent discharged its employee Robert Duane Moore. .
Under the circumstances , the Trial Examiner concludes and finds, contrary to Re-
spondent 's contention , that the truckdrivers and Scales ,5 were, during all times mate-
rial, Respondent's employees within the meaning of Section 2(3) of the Act.6
B. Pertinent facts
Around June 20, Moore was hired by Scales as a truckdriver and was assigned by
the latter to a "regular dump truck" hauling rock, sand, -and the like for Respondent .7
After working on the dump truck for approximately I week, Scales asked Moore
whether he had ever driven a batch truck. When Moore replied in the negative,
Scales, according to Moore's undenied and credible testimony , "went with me the
first round to see if I could handle it all right, and knew the route to travel, and so
forth." Thereafter, Moore operated the batch truck without criticism. On two
separate occasions Scales told Moore, to quote from the latter's credited testimony,
"to park my truck and ride with (an employee who had been transferred from haul-
ing rock to hauling batch) the first round to make sure that he knew the route and
what to do, and so forth."
On July 5, James W. Salter , the Union 's assistant business agent , accompanied
by another union assistant business agent and others , visited the jobsite in question
while the approximate eight truckdrivers working there were- eating their lunch.
According to Salter's credited testimony, which in the main is substantiated by
Moore's credible testimony, after Salter had asked the truckdrivers "if they were in-
terested in representation by the union involved on the project ," the following ensued:
.. . Mr. Moore identified himself as being a member of my local , and asked
me if I would explain to the gentlemen seated there as to what the difference
would be between a job under a non -union condition and as to what the con-
ditions would be on a union job , which I was explaining , that the hourly rate
would be a difference, there would be a difference in the matter for an eight-hour
guarantee, and there would be a matter of a difference on what the overtime
would be, because on a union job it would be overtime after eight hours rather
than overtime after forty.
Mr. Moore was asking these questions, . Mr. Gardner B had walked
up . . . and said [to Salter and his associates] "Get off this job, you racketeer-
ing
I asked if I had a right to talk to the men, inasmuch as they are on the noon
hour. He said, "Those men are on my payroll, and I defy you to talk to them,
or any other racketeer. Get off this job and do it now."
8 The undenied credible evidence - establishes that Respondent controlled Scales' employ-
ment and his duties, that Scales hired and fired the truckdrivers in question ; exercised
other supervisory powers under instructions from Superintendent Bill Haas and other
Respondent managerial officials ; and that he was on Respondent 's payroll for purposes
of receiving wages, income tax withholdings , social security contributions , and reports to
be filed with the State and Federal Governments.
8 See May Department Stores, etc ., 59 NLRB 976 , 987, enfd. 154 F. 2d 533 (C.A. 8),
cert. denied 329 U . S. 725; Local 911, etc., 122 NLRB 499. Cf. United States v. Silk,
331 U . S. 704, 713; American Broadcasting Company, etc., 117 NLRB 13, -18 ; Serv-Us
Bakers of Oklahoma, 121 NLRB 84, 87, at footnote 3; Southern Shellfish Co ., Inc.,
95 NLRB 957, 962-963; Leslie R. Ben v. United States , 139 F. Supp. 883, affd. 241
F. 2d 127 (C.A. 2).
7 At the time Scales hired Moore the latter was wearing a union ( Teamsters ) button
whereupon Scales "pointed out," according to Moore's undenied and credible testimony,
"that it was a non-union job, and asked me how the union representatives would feel
about me going to work on a non-union job." When Moore informed Scales that the
Union had no objection to his working on Respondent 's project , Scales hired him.
8 Harry Gardner , Respondent's vice president.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Myself and my co-workers ... asked Mr . Gardner if we didn 't have the right
of free speech on the lunch hour. He said no . If we wanted to talk to the men
we would have to do it somewhere else. As long as they are on his payroll we
would [sic ] not talk to them , and he would see to it that the law would protect
his men from us terrible people. So we removed ourselves from the premises.9
Moore testified , and the Trial Examiner finds,10 that after Slater and his com-
panions had left the jobsite , Gardner said to the assembled truckdrivers , to further
quote Moore, "Something to the effect that if we wanted our jobs, to forget about the
Union"; that as tue truckdrivers started "to break up," Gardner approached him,
looked at the union button he was wearing on his hat , and said, "If you are the one
that is doing all the talking then you are not satisfied with your job"; that he replied,
"No, I didn't say that , I only asked them to point out the difference between a union
job and a non-union job. . . I don ' t want to lose my job over it"; that at 3 p.m.,
Scales called him aside and said, "Here is your check, I don't like to do this, but
Gardner came to me with it made out"; 11 that when he asked Scales , "Is it over that
union incident at noon ," Scales replied in the affirmative ; that he then went to Gardner
and asked why he was fired; that Gardner denied firing him, adding, "Whoever gave
you your check fired you"; and that after he had made numerous requests for the
reason for the discharge , Gardner finally said that he did not like his truckdriving,
and that Gardner then ordered him off the jobsite.
C. Concluding findings
It is the General Counsel 's theory and contention that Respondent discharged
Moore on July 5 because of its resentment of the activities of the Union in attempting
to organize the truckdrivers who were then performing work for Respondent and
because of Moore's participation in those activities . The credited testimony, sum-
marized above , plainly establishes Respondent 's resentment of the union activities
and of the fact that Moore was actively engaged in them . Gardner's remark to the
truckdrivers to the effect that if they wanted to retain thheir jobs they had better forget
about the Union coupled with Gardner's remark to Moore, "if you are the one that
is doing all the talking , then you are not satisfied with your job," are clear indications
of Respondent 's resentment and union animus.
It being concluded that the General Counsel made out a prima facie case that
Respondent was discriminatorily motivated in discharging Moore, we turn to the
question whether Respondent 's evidence is sufficient to overcome that case.
A careful examination of Respondent 's evidence that Moore was summarily dis-
charged because he was not careful enough in unloading his batch truck does 'not
stand up under scrutiny, especially when consideration is given to the fact that
Moore had not been criticized about his work, that he had been assigned to instruct
two other employees in the operations of the batch truck, and that he was admonished
by Gardner for "doing all the talking " at the aforementioned July 5 meeting with
Salter.
The foregoing conclusion is reached with full recognition that the reason which
Respondent assigned would have justified Moore 's discharge provided , of course,
that the assigned reason was the real reason for Respondent 's action . But a dis-
charge ostensibly for cause , in order to be protected , must be in reality a discharge
for cause ; a trumped up or synthetic cause cannot protect an employer against a
Gardner 's version of this incident , which the Trial Examiner has read and carefully
considered, is at variance with that of Salter. In the light of the entire record, the
Trial Examiner accepts as substantially correct Salter's version and rejects Gardner's
version.
10 The Trial Examiner accepts Moore's testimony regarding what transpired on the
afternoon of July 5, after the union representatives and their companions left the jobsite,
as substantially in accord with the facts , and rejects Gardner's testimony with respect to
the events of that afternoon mainly on ( 1) a careful scrutiny of the entire record in the
case, all of which has been carefully read, and parts of which have been reread and re-
checked several times; ( 2) the candor with which Moore admitted that he could not be
certain as to the dates or the exact words used by Gardner and others ; and (3 ) the fact
that Moore particularly impressed the Trial Examiner as being a person who is careful
with the truth and meticulous in not enlarging his testimony beyond his actual memory
of what occurred or what was said. On the other hand , Gardner gave the Trial Examiner
the impression that he was studiously attempting to conform his testimony to what he
considered to be to the best interest of Respondent.
11 Moore would have worked until about 6 or 6 :30 p.m. that day.
GARDNER CONSTRUCTION COMPANY 1487
discharge where the real or moving cause is antiunion discrimination . N.L.R.B. V.
C. & J. Camp, Inc., 216 F. 2d 113 (C.A. 5), enfg. 107 NLRB 226.12
Upon the entire record as a whole, which clearly reveals Respondent's unconcealed
union animosity, the Trial Examiner finds that Moore was discharged in violation
of Section 8(a)(3) and (1) of the Act, because of his union membership and not
for the reason advanced by Respondent.13 The Trial Examiner finds that Gardner's
July 5 remark to the truckdrivers to the effect that if they wanted to retain their
jobs they had better forget about the Union, in view of the setting in which it was.
made, to be violative of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation 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 that Respondent has engaged in certain unfair labor practices, it will
be recommended that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act.
It having been found that Respondent discriminated in regard to the hire and
tenure of employment of Robert Duane Moore by discharging him on July 5, 1960,
the Trial Examiner will recommend that Respondent make him whole for any loss
of pay he may have suffered by reason of said discrimination by payment to him
of a sum of money equal to that which he would have earned as wages from the
date of the discrimination against him to the date he took himself out of the labor
market by returning to his studies at Colorado State University or to the date when
the job in question was completed by Respondent, whichever is sooner, less his net
earnings during said period. Backpay to be computed and paid in accordance with
the formula set forth in F. W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by
Respondent in the instant case are such as to indicate an attitude of opposition to
the purposes of the Act generally. In order, therefore, to make effective the inter-
dependent guarantees of Section 7 of the Act, thereby minimizing industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of the Act,
it will be recommended that Respondent cease and desist from infringing in any
manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers, Local No. 13, is a labor organization within the meaning of Section 2(5)
of the Act.
2. By discriminating in regard to the hire and tenure of employment of Robert
Duane Moore, thereby discouraging membership in the Union, Respondent has
engaged in and is engaging in unfair labor practices -within the meaning of Section
8(a)(3) of the Act.
3. By threatening its employees with discharge if they did not "forget about the
Union," Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)( I) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
'a In accord : Wells, Incorporated v. N.L.R.B., 162 F. 2d 457 ( C.A. 9) ; N .L.R.B. v.
Whit in Machine Works, 204 F. 2d 883 ('C.A. 1) ; N.L.R.B. v. Jamestown Sterling Corp.,
211 F. 2d 725 (C.A. 2).
13 Of course, disbelief of the reasons advanced by Respondent does not itself make out
a violation. The burden is on the General Counsel to prove discriminatory motive, not
upon Respondent to disprove it. But -here, the General Counsel more than amply met
that burden.
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT threaten our employees with discharge if they join or remain
members of International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, Local No. 13.
WE WILL NOT interfere with the above -named Union 's efforts to organize our
employees , or in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor organiza-
tions, to join or assist International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Local No. 13, or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection , or to refrain from any and all of such
activities , except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the National Labor Relations Act.
WE WILL make Robert Duane Moore whole for any loss of wages suffered as
a result of our discrimination against him.
All our employees are free to become or remain members of the above-named
Union , or any other labor organization , except to the extent that this right may be
affected by an agreement in conformity with Section 8(a)(3) of the amended Act.
We will not discriminate in regard to hire or tenure of employment or any other
term or condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
GARDNER 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.
Indiana Gas & Chemical Corporation and James L. Watkins
Local 12009 , United Mine Workers of America, Region 40 and
James L. Watkins
District No. 50, United Mine Workers of America and James
L. Watkins . Cases Nos. 25-CA-1138, 25-CB-363, and 25-CB-
372. March 22, 1961
DECISION AND ORDER
On June 23, 1960, Trial Examiner Max M. Goldman issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, but that the Respondent Unions had
not engaged in and were not engaging in certain other unfair labor
practices, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the General Counsel, the Respondent Company,
130 NLRB No. 157. -