George C. Foss Co.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 232 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George C. Foss Company and National Association
of Independent Unions. Case 20-CA-16875
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 April 1983 Administrative Law Judge Jay
R. Pollack issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order.
The judge concluded that the Respondent violat-
ed Section 8(a)(3) and (1) of the Act by discharg-
ing employees William E. Merrow, Dan Brown,
Doyle Graham, Richard Harris, Roger Stevens,
John Francis Moore, Jurgen Ulbrich, Dale Young,
John Doolittle, and Matthew Burnley. In so con-
cluding, the judge found that the Respondent un-
lawfully applied the union-security clause of its col-
lective-bargaining agreement so as to require these
employees to join International Brotherhood of
Electrical Workers, Local Union 340, AFL-CIO
(Local 340) without affording them the full statuto-
ry grace period guaranteed them by Section 8(a)(3)
and Section 8(f)(2) of the Act. We adopt the
judge's conclusion, but we modify his rationale as
set forth below.
The pertinent facts are as follows. The Respond-
ent executed a collective-bargaining agreement
with Local 340 on 12 February 1982, which cov-
ered all the Respondent's electrical employees in-
cluding the above-named individuals. Since the Re-
spondent was engaged primarily in the building
and construction industry, Section 8(f)(2) of the
Act permitted the Respondent to enter into an
agreement with a labor organization requiring, as a
condition of employment, membership in the labor
organization "after the seventh day following the
beginning of such employment or the effective date
of the agreement, whichever is later." The Re-
spondent's agreement with Local 340 so provided. 1
I Thus, the Respondent's collective-bargaining agreement with Local
340 contained the following union-security clause:
All employees covered by the terms of this agreement shall be re-
quired to become and remain members of the union as a condition of
employment from and after the eighth day following the date of
their employment or the effective date of this agreement, whichever
is later.
The Respondent discharged the 10 discriminatees
about 2:30 p.m. on 19 February 1982. At the hear-
ing, the Respondent contended that the discharges
were lawful because the 10 discriminatees had re-
fused to comply with the union-security clause in
the Respondent's collective-bargaining agreement
with Local 340.
As noted above, the language of Section 8(f)(2)
expressly provides that union membership can be
required of employees "after the seventh day fol-
lowing the beginning of such employment or the
effective date of the agreement, whichever is
later." In construing the statutory grace period
under Section 8(f)(2), the Board has held that em-
ployees are entitled to a full 7-day grace period fol-
lowing employment to become union members pur-
suant to a union-security provision and that requir-
ing employees to become union members on the
seventh day following employment is unlawful. J.
W. Bateson Co., 134 NLRB 1654, 1655 (1961). Simi-
larly, the Board has held that a union hiring hall
fee is not collectible until the eighth day following
employment, Carpenters Local 2375 (AGC of Cali-
fornia), 192 NLRB 314, 317 (1971), and that a col-
lective-bargaining agreement clause requiring mem-
bership "on the seventh day" following employ-
ment or the effective date of the agreement clearly
fails to provide the full 7-day grace period required
by the Act, Tri-W Construction Co., 139 NLRB
1286, 1292 (1962).
In the present case, the collective-bargaining
agreement was executed 12 February 1982 and the
employees were discharged about 2:30 p.m. on 19
February 1982, i.e., on the seventh day following
the execution of the agreement. Therefore, apply-
ing the above principles, it is clear the Respondent,
prior to discharging these employees, had not af-
forded them the full 7-day statutory grace period
to which they were entitled following the effective
date of the Respondent's collective-bargaining
agreement with the Union. Accordingly, we con-
clude that the Respondent's discharge of these 10
employees violated Section 8(a)(3) and (1) of the
Act. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, George C.
Foss Company, Sacramento, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
2 In view of our finding that the discriminatees were not afforded the
full 7-day statutory grace period, we find it unnecessary to pass on the
judge's conclusion that the union-security clause in the Respondent's col-
lective-bargaining agreement extended the statutory grace period.
270 NLRB No. 42
232
GEORGE C. FOSS CO.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. I heard
this case in trial at Sacramento, California, on December
7 and 13, 1982. National Association of Independent
Unions (the NAIU) filed an unfair labor practice charge
and an amended charge on January 29 and February 22,
1982, respectively, against George C. Foss Company
(Respondent). On April 30, 1982, the Regional Director
for Region 20 of the National Labor Relations Board
issued a complaint and notice of hearing against Re-
spondent. The complaint was amended on November 29
and again at the trial on December 7, 1982. The com-
plaint, as amended, alleges in substance that Respondent
engaged in certain violations of Section 8(aXl) and (3) of
the National Labor Relations Act, 29 U.S.C. § 151 et
seq., herein called the Act.
All parties t were given full opportunity to appear, to
introduce relevant evidence, to examine and cross-exam-
ine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, the NAIU, s and Re-
spondent. Based on the entire record and from my obser-
vation of the demeanor of the witnesses, I make the fol-
lowing
FINDINGS OF FACT AND CONCLUSIONS
1. JURISDICTION
At all times material herein, Respondent, a California
corporation with an office and place of business in Sacra-
mento, California, has been engaged as an electrical con-
tractor in the building and construction industry. During
its last fiscal year, Respondent purchased and received at
its Sacramento facility goods and materials valued in
excess of $50,000 from firms which directly purchased
those goods and materials from outside the State of Cali-
fornia. Accordingly, it admits, and I find, Respondent to
be an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The NAIU is now, and has been at all times material
herein, a labor organization with the meaning of Section
2(5) of the Act.
Prior to the hearing, National Electrical Contractors Association,
Sacramento Valley Chapter (NECA) made a motion to intervene, which
motion was denied by the Regional Director. At the hearing, NECA re-
newed its motion to intervene. NECA sought intervention on the ground
that the legality of its collective-bargaining agreement with NAIU, to
which it claimed Reapondent was bound, would be litigated in this pro-
ceeding. I ruled that I would allow intervention only if the legality of
NECA's contract or whether Respondent was bound by said contract
became issuea in the case. However, neither the General Counsel nor Re-
spondent litigated the case on any theory which placed the NECA-
NAIU contract at issue. Thus, I did not permit NECA to inject addition-
al issues into the case. NECA was invited to file an amicus curiae brief,
but no brief was filed on its behalf.
' The NAIU's brief was filed I day late but was considered as if timely
fired.
International Brotherhood of Electrical Workers,
Local Union 340, AFL-CIO, herein called Local 340 or
the IBEW, is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
As mentioned earlier, Respondent is an electrical con-
tractor in the building and construction industry. Re-
spondent has a history of bargaining with Local 340 as
part of the NECA multiemployer bargaining unit. Re-
spondent was party to the 1978-1981 NECA-Local 340
bargaining agreement, which expired May 31, 1981. On
June 10, Local 340 commenced a strike against NECA
and its employer-members, including Respondent. Re-
spondent continued to operate during Local 340's strike
by employing replacement employees. On September 15,
Local 340 sent a letter disclaiming interest in the NECA
multiemployer bargaining unit. Thereafter, on September
25, Local 340 filed 17 representation petitions with the
Board seeking to represent employees of 17 employers
formerly in the NECA bargaining unit in 17 separate
single employer units. Respondent was one of the 17 em-
ployers for whose employees Local 340 petitioned to
represent. On or about September 28, Local 340 agreed
to permit its striking employees to return to work for
Respondent. However, the Local 340 employees did not
work on the same jobsites as the employees whom Re-
spondent had hired during the strike.
On October 1, NECA signed a collective-bargaining
agreement with the NAIU, which agreement purported
to cover the employees of the employers involved in the
NECA-Local 340 negotiations, including Respondent.
For some time thereafter, Respondent applied the
NECA-NAIU collective-bargaining agreement to its re-
placement employees. Respondent's IBEW employees
worked pursuant to the terms of the previously expired
IBEW bargaining agreement. On February 12, 1982, Re-
spondent and Local 340 executed a collective-bargaining
agreement covering all of Respondent's electrical em-
ployees.
Within this factual background, the General Counsel
contends that Respondent discharged 10 of its employees
on February 19, 1982, because the employees were mem-
bers of the NAIU.8 Respondent denies the commission
of any unfair labor practices. In addition, Respondent
contends that the employees were discharged pursuant to
a lawful union-security clause in its collective-bargaining
agreement with Local 340. Finally, Respondent contends
that William E. Merrow, alleged by the General Counsel
to be an employee, was a supervisor within the meaning
of Section 2(11) of the Act and, therefore, that the dis-
charge of Merrow cannot be violative of the Act.4
' The 10 employees are William E. Merrow, Dan Brown, Doyle
Graham, Richard Harrir, Roger Stevens, John Francis Moore, Jurgen Ul-
brich, Dale Young, John Doolittle, and Matthew Burnley.
' In the original complaint the General Counsel alleged that Merrow
was a supervisor and that Merrow's discharge violated Sec. s(aXI) as an
Continued
233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Supervisory Status of William E. Merrow
1. The facts
Merrow was hired by Glen Sutton, Respondent's esti-
mator, in late August or early September 1981 as the
senior working foreman at Respondent's State Capitol
project. On the State Capitol project, Merrow corrdinat-
ed work with the representative of the general contrac-
tor, Chappick Construction. Merrow's responsibility was
to read the blueprints, lay out the work, distribute the
work, give assignments to the men, and order parts.
Merrow did not have authority to hire or fire employees.
In October, after Respondent added men to Merrow's
crew, he received a 15-percent pay increase. John Fran-
cis Moore, also designated foreman, received a similar
pay differential. Sutton and Merrow approved over-
time. Merrow did not discipline employees, although he
did tell employees that they were taking too much time
on their scheduled breaks.
In assigning work to his crew, Merrow would first
meet with Chappick's superintendent on the job. Then
Merrow would meet with his working foremen and
decide the job assignments for that day. While Merrow
could assign workers to various locations on the jobsites
according to Chappick's needs, he could not transfer em-
ployees to other jobsites. On one occasion, Merrow
asked that certain of the workmen not be sent to another
jobsite to help Local 340 members familiarize themselves
with a particular job in progress. The workmen were
sent to the jobsite notwithstanding Merrow's request to
the contary. Merrow did make a recommendation to
promote an employee from apprentice to journeyman.
The record does not reflect whether the recommenda-
tion was followed. Moore and John Doolittle were pro-
moted from journeymen to foremen after a recommenda-
tion by Merrow. However, the record indicates that
Sutton and Merrow fully discussed the subject. The
record does not indicate whether the promotion was
based on Merrow's recommendation or on an independ-
ent judgment of Sutton. Employees were laid off on a
last-in, first-out basis. The determination to lay off was
made by Sutton after consulting with Merrow. Merrow
on occasion allowed employees to leave work early.
However, he called Respondent's office for permission to
do so. On one occasion, an official of Chappick com-
plained about one of Respondent's electricians. Merrow
called Sutton and reported Chappick's complaint.
Merrow recommended that the electrician be given an-
other chance and Sutton agreed. About a week later,
Chappick again complained about the employee and
Merrow reported the complaint to Sutton. Sutton told
Merrow to lay off the employee and Merrow followed
those instructions.
integral part of a pattern of conduct directed towards employees because
of their membership in the NAIU. On November 29, 1982, the complaint
was amended to delete these allegations. At the opening of the trial, the
General Counsel again amended the complaint to allege that Merrow was
an employee and to include Merrow with the nine other alleged discri-
minatees.
6 There is no contention that Moore was a supervisor within the mean-
ing of the Act.
The above account of Merrow's job responsibilities is
based on Merrow's testimony. Sutton, Elwyn Simard,
Respondent's president, and Carl (Bud) Beerman, field
superintendent, all testified in this proceeding but none
was questioned concerning Merrow's job responsibilities
or duties.
2. Analysis
Section 2(11) of the Act states:
The term "supervisor" means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or re-
sponsibility to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in
connection with the foregoing the exercise of such
authority is not of a merely routine or clerical
nature, but requires the use of independent judge-
ment.
The possession of any one of the authorities specified
in Section 2(11) is sufficient to plaqe an employee in the
supervisory class. Ohio Power Co. v. NLRB, 176 F.2d
385, 387 (6th Cir. 1949), cert. denied 338 U.S. 899 (1949);
Fair Lady, Inc., 211 NLRB 189 (1974). On the other
hand, the legislative history of Section 2(11) indicates
that Congress intentionally distinguished between "straw
bosses, leadmen, set-up men, and other minor superviso-
ry employees, on the one hand, and the supervisor
vested with such genuine management prerogatives as
the right to hire, or fire, discipline, or make effective rec-
ommendations with respect to such actions." Thus, a
"leadman" or "straw boss" may give "minor orders to
directives or supervise the work of others, but he is not
necessarily a part of management and a 'supervisor'
within the Act." Black Kettle, Ltd., 263 NLRB 380
(1982); NLRB v. Doctor's Hospital, 489 F.2d 772, 776 (9th
Cir. 1973).
In the instant case, it appears that Merrow was Re-
spondent's choice as a skilled electrician to run the State
Capitol job. However, the running of the job appears
routine in nature and not requiring independent judg-
ment in view of the supervision and instructions received
by Merrow from Sutton, the general contractor, and the
job blueprints. Iron Workers Local 28 (Virginia Contrac-
tors), 219 NLRB 957 (1975); Electrical Workers IBEW
Local 915 (Borrell Bigby), 225 NLRB 317 (1976). While
Merrow made work assignments, it appears that he was
acting as a conduit of orders from Sutton and Chappick's
superintendent and not that he exercised substantial inde-
pendent judgment. General Thermo, Inc., 250 NLRB
1260 (1980). Merrow's recommendations to Sutton re-
garding personnel were in the nature of relaying infor-
mation to Sutton from which the latter could make a de-
termination rather than effective recommendations. Ca-
blevision Systems Co., 251 NLRB 1319, 1323 (1980). The
ultimate effects of Merrow's recommendations are not
clear from the record. Sutton, the witness best able to
testify as to Merrow's authority in general, and the effec-
tiveness of his recommendations in particular, did not
testify regarding Merrow's alleged supervisory author-
234
GEORGE C. FOSS CO.
ity. 6 From the failure of Respondent to offer Sutton's
testimony regarding Merrow's authority, I draw the in-
ference that Sutton's testimony would have been adverse
or unfavorable to Respondent's case. See Martin Luther
King Nursing Center, 231 NLRB 15 fn. 1 (1977), and au-
thorities cited therein. Thus, for all of the above reasons,
I find that Merrow acted as a leadman or strawboss on
Respondent's State Capitol jobsite but was not a supervi-
sor within the meaning of Section 2(11).
C. The Alleged Unfair Labor Practices
As mentioned earlier, beginning approximately Sep-
tember 28, 1981, Respondent's striking Local 340 mem-
bers returned to work. On or about October 1, NECA
and the NAIU signed a collective-bargaining agreement
and, shortly thereafter, Respondent began applying the
NECA agreement to its non-IBEW employees, including
the employees at issue herein. The Local 340 employees
were working under the terms and conditions of the
NECA-Local 340 agreement, which had expired on May
31. Although Respondent had crews of IBEW and
NAIU employees, none of its jobsites had a mixed crew.
In the first week of October, Beerman visited Respond-
ent's non-IBEW jobsites and informed those employees
of the NAIU agreement. The NECA-NAIU agreement
contained a union-security clause, which clause Beerman
read to the employees. The 10 employees at issue in this
case joined the NAIU during October 1981 sometime
after Beerman notified them of the union-security clause.
On February 12, 1982, Respondent signed a collective-
bargaining agreement with Local 430. At the time of the
signing of this contract, Respondent had two NAIU jobs,
the State Capitol project (with eight employees) and the
Gasafire Building (with two employees). Respondent em-
ployed one other NAIU member, John Reichert, a mate-
rial handler, who worked at Respondent's shop and de-
livered materials to jobsites. On the date that it signed
the agreement with Local 340, Respondent employed 23
IBEW member electricians. Respondent's collective-bar-
gaining agreement with Local 340 contained a union-se-
curity clause which provided in pertinent part:
All employees covered by the terms of this agree-
ment shall be required to become and remain mem-
bers of the union as a condition of employment
from and after the eighth day following the date of
their employment or the effective date of this agree-
ment, whichever is later.
All workmen who may be accepted into member-
ship shall thereby paying [sic] regular monthly
union fees uniformly paid by other members of the
same classification in the union in order to defray
the cost of the collective-bargaining agreement in
accordance with its rules. In the event that a work-
man fails to tender the full and uniform admission
As mentioned earlier, the General Counsel amended the complaint at
the outset of the hearing to put Merrow's status in issue. At that time, I
overruled Respondent's objection to the amendment but instructed Re-
spondent that I would permit it sufficient time to prepare to defend that
issue. The General Counsel put on his case on that date and Respondent
put on its defense 6 days later. No motion for further time to prepare a
defense was made.
fees or to maintain his membership in accordance
with the provisions of this section, the union shall
notify the employer to discharge this individual
workman within 48 hours (Saturdays, Sundays, and
holidays excluded) for failure to maintain continu-
ous good standing in the union in accordance with
its rules above referred to in this paragraph.
Carl "Bud" Beerman, Respondent's field superintend-
ent, testified that on the afternoon of February 16 he told
Matthew Burnley and John Doolittle, Respondent's only
employees on the Gasafire project, that a contract had
been signed with Local 340 and that the two employees
had until Friday, February 19, "to go over to IBEW."
Burnley said that he could not "go over to IBEW" be-
cause he did not get along with Lee Frith, Local 340's
business manager. Doolittle said that he "might go over
to IBEW" but that he had had problems in the past with
an IBEW local union in Los Angeles. Doolittle said he
did not think the IBEW would accept him. Beerman
said, "Well, the only one way to do it is to try." Doolit-
tie answered that "[he] thought [he] had best stay where
[he] was."
Later on the afternoon of February 16, after the con-
clusion of work, Beerman spoke to the eight employees
on the State Capitol project. According to Beerman, he
told the employees that a contract had been signed with
Local 340 and "according to the law and the way the
contract was written legally . .. [the employees] would
have to join IBEW by the 19th." One of the employees
said, "You mean if we don't join, Friday will be our last
day?" and Beerman answered, "Yes." Merrow asked if
he had to quit the NAIU and Beerman answered that it
was up to Merrow. Merrow said that the employees
could not belong to two unions. Beerman answered that
at one time Respondent had an employee who belonged
to two unions. Employee Dan Brown asked what would
happen to the employees if they joined the IBEW when
the State Capitol project ended. Beerman answered that
if Respondent had work the employees would be kept
on, otherwise the employees could return to Local 340's
hiring hall. Brown said that if the employees went to
Local 340's hiring hall they would never get referred to
any jobs. Beerman answered that was a matter between
the employees and the IBEW and that he had no control
over that. Beerman told the employees that they had
done a good job. There were several questions concern-
ing Local 340 to which Beerman answered that he did
not know. According to Beerman, the conversation
ended with Merrow saying that the employees would
talk it over and let Beerman know.
Beerman returned to Respondent's office and called
Frith. Beerman told Frith that there was a possibility
that Ffith would be hearing from Respondent employees
from the State Capitol and Gasafire projects. Beerman
next told John Reichert, material handler, that Respond-
ent had signed a contract with Local 340 and that Rei-
chart had until Friday "to go out to IBEW if he wanted
to stay." Reichert, no longer employed by Respondent,
testified that on February 16 Beerman asked if Reichert
"would like to run down and get on the books over at
IBEW." Reichert replied that he would. The following
235
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day, Reichert went over to Local 340's offices and
joined Local 340 as a material handler. Reichert waited a
few hours and then was given a dispatch to Respondent
as a material handler. Reichert did not work alongside
the alleged discriminatees but rather worked in the shop.
There were no other employes present when Reichert
was asked by Beerman to join Local 340.
All of the nine discrminatees who testified in this pro-
ceeding denied receiving such information from Beer-
man.7 John Francis Moore, a foreman under Merrow on
the State Capitol jobsite, testified that on February 16
Beerman told him that "it looked as if Foss was going to
sign with Local 340, IBEW." Beerman said "he wasn't
sure whether or not or when they would, but ... that's
the way it looked like it was coming down." Beerman
asked Moore to keep it quite. On the morning of Febru-
ary 18, Beerman told Moore that Respondent had been
advised by its attorneys to sign with Local 340 and that
the employees on the job would be terminated. Beerman
told Moore that Merrow had been offered a management
position so that Merrow could remain on the job and su-
pervise the new crew. Beerman offered Moore the posi-
tion if Merrow decided not to stay with the job.
Merrow testified that the first conversation he had
with Beerman regarding this subject was on the morning
of February 18. According to Merrow, Beerman told
him that Respondent's attorneys had advised the Compa-
ny "to go back with the IBEW" and as a consequence
the employees were going to be terminated. Beerman
asked Merrow not to tell the other employees yet. Beer-
man told Merrow that Merrow could remain on the job
as a supervisor over the IBEW crew. Merrow answered
that he (Merrow) had a job prospect in Alaska and
would give Beerman an answer that evening. Approxi-
mately 6 o'clock that evening, Beerman called Merrow
to ask about Merrow's decision. Merrow said that he did
not think that being an NAIU member and supervising a
crew of Local 340's members would work out particular-
ly since he was earning less than the Local 340 members.
Beerman said that Merrow should not worry about that
because Merrow could get general foreman's pay and be
part of management. Merrow said that he "would pass
on the offer." The next morning Beerman made another
offer to Merrow to stay on as a supervisor with Moore
as estimator. Merrow turned down this offer as well.
On the afternoon of Thursday, February 18, when
Beerman returned to the State Capitol jobsite, the em-
ployees had been forewarned by Moore that Beerman
had something to say about their job status. According
to the employees, Beerman told the eight employees on
that job that Respondent's attorneys had advised the
Company to sign with Local 340 and that Respondent
was going to do so. Beerman said he was sorry to have
to let the employees go because they had done a good
job but that the matter was not in his hands. All seven
employees that testified concerning this conversation
7 Alleged discriminatee Dale Young had moved from the State and did
not testify in this proceeding. The parties stipulated that Young was an
employee of Respondent on February 19 and was terminated along with
the other employees and for the same reasons.
denied that there was any mention of their joining Local
340.
On Friday, February 19, Beerman returned to the
State Capitol job in the morning and made another offer
to have Merrow remain on the job as a supervisor and
Moore remain as estimator. Merrow and Moore each re-
jected the offer. That afternoon, Beerman returned to the
job and gave the eight employees their final paychecks.
Beerman told the employees that he was sorry and
hoped that there were no hard feelings. He told the em-
ployees that Respondent's lawyers had advised the Com-
pany to "go back to IBEW."
Beerman visited the Gasafire project on February 18
and spoke with the two employees on that job, Matthew
Burnley and John Doolittle. 8 According to Burnley and
Doolittle, Beerman told the two employees that he was
sorry to have to let them go and that they had done fine
work, but that Respondent's attorneys had advised the
Company "that it [would] be better to go with IBEW"
and therefore the employees had to be terminated. Doo-
little asked if the employees would continue working on
the job if they joined Local 340. When Beerman did not
answer, Burnley answered that "it wouldn't do any good
because Lee Frith [Local 340's business manager] didn't
care for [Burnley] and would not accept [Burnley]."
Doolittle also volunteered that Local 340 gave them the
option of joining Local 340. The next day, Beerman re-
turned to the jobsite and gave Burnley and Doolitle their
final checks.
D. Respondent's Defense
As mentioned earlier, Respondent contends that it law-
fully discharged the instant 10 employees due to their re-
fusal to comply with the union-security clause in Re-
spondent's collective-bargaining agreement with Local
340.9
In January 1982, Respondent engaged Dennis R.
Murphy to represent it for purposes of collective bar-
gaining with Local 340. On or about January 25, 1982,
Murphy and Local 340's negotiating committee reached
tentative agreement on a collective-bargaining agree-
ment. However, the membership of Local 340 turned
down the proposed agreement during the ratification
process. Further negotiations resulted in an accepted
agreement which was signed by Elwyn Simard, Re-
spondent's president, on Friday, February 12.
Murphy testified that on February 12 he had a discus-
sion with Frith concerning Respondent's NAIU employ-
ees and that the employees had through Friday, Febru-
ary 19, to join Local 340. Murphy told Frith to expect
the NAIU employees to come over and join Local 340
and that Respondent did not want any disruption on its
8 Although both Burnley and Doolittle were receiving foremen's pay,
there is no contention that either was a supervisor within the meaning of
the Act.
a The General Counsel's complaint does not attack the legality of the
collective-bargaining agreement or the union-security clause. Rather, the
General Counsel simply contends that the employees were discharged
without being given an opportunity to comply with the union-security
clause.
236
GEORGE C. FOSS CO.
jobs or Murphy would not submit Respondent's signed
agreement. Frith said that he understood.' 0
On Tuesday, February 16, Murphy spoke with Toni
Potter, Respondent's office manager, and told Potter that
he had spoken to Frith and that all Respondent had to
do was to tell the NAIU employees to sign up with
Local 340 and that Local 340 was expecting the employ-
ees. Murphy testified that in later discussions that week
with Potter he was told that most of the employees did
not want to join Local 340. Murphy, in answer to a
question from Potter, advised Potter that certain employ-
ees could be retained as management if they did not
work with the tools of the trade and did not do any of
the work covered by the agreement. Thus, Murphy ad-
vised Potter that members of management were not re-
quired to join Local 340 and that certain employees
could, in that manner, be retained without joining Local
340. Murphy advised Potter that the employees had
through the end of the working day on Friday, February
19, to join Local 340 and that if the employees did not
join they had to be terminated and paid all the moneys
then due them. I I
During the late afternoon of February 12, Simard,
who was recuperating at home from surgery, called Re-
spondent's offices and spoke by conference phone to
Potter, Sutton, Beerman, and Jack Sheldon, an estimator.
Simard advised these managers that Respondent had
signed an agreement with Local 340.12 Simard told the
managers that Respondent "had to make an offer to the
present employees, that they go out to the local union
and sign up and continue to be our employees."
As mentioned earlier, Beerman testified that on Tues-
day, February 16,' s he spoke to the employees at both
the State Capitol and Gasafire jobsites. According to
Beerman, he told the employees that Respondent had
signed a contract with Local 340 and that the employees
would have to join Local 340 by February 19. As men-
tioned earlier, all nine employees denied having such a
meeting with Beerman.
According to Beerman, he had a conversation on
Wednesday with the owner of Chappick, the general
contractor on the State Capitol job, who told Beerman
that he wanted to keep at least the foremen, Merrow and
Moore, on the job even if it meant offering them more
money. Beerman then made an offer of a management
position to both Moore and Merrow but both men de-
clined his offers. On Friday, February 19, Beerman made
'O On or about January 25, Murphy spoke to Frith regarding Simard's
desire to continue the NAIU employees on the two jobs then in progress.
Murphy told Frith that Respondent did not want any problems on its
jobs and that the NAIU employees had a right to join Frith's union.
" The NAIU objected to testimony by counsel for Respondent on the
ground that such testimony by an attorney constitutes a breach of the
Canons of Ethics. The Board has held that it is not its function or respon-
sibility to pass on the ethical propriety of a decision by counsel to testify
in one of its proceedings. When, as here, the testimony is otherwise
proper and competent, it should be accepted in evidence. Operating Engi-
neers Local 9 (Frontier Sand), 210 NLRB 129 fn. I (1974). Even consider-
ing Murphy's dual role in this proceeding, I credit his testimony.
Is The regular workday was over by the time Simard notified the
managers of the signing of the agreement with Local 340.
I" Monday, February 15, was a holiday and Respondent's offices were
closed on that date. However, Respondent's employees on the State Cap-
itol project worked on the holiday.
two visits to the jobsite. First, Beerman learned that the
employees had decided not to join Local 340. Secondly,
Beerman returned to the jobsite and paid the employees
their final paychecks. Beerman made two similar trips to
the Gasafire Building.
E. Later Events Bearing on Credibility
On June 22, Beerman met with Moore and Roger Ste-
vens concerning Respondent's offer of reinstatement. Ac-
cording to Beerman and Sheldon, during this conversa-
tion, Beerman commented to Stevens and Moore that it
was too bad that the two employees had not accepted
Respondent's "offer to stay on with the IBEW" at the
time of the discharges. Both Stevens and Moore agreed
that they should have accepted Beerman's offer, but at
the time they were concerned about being kept on for a
week or so and then let go. This account of the conver-
sation is based on the credited testimony of Beerman and
Sheldon, which Stevens and Moore did not effectively
deny.
On June 30, Merrow visited Respondent's office and
spoke with Beerman. According to Potter and Beerman,
Beerman said, "If you remember, at the time you were
laid off [February 19, 1982] I tried to get you guys to
stay and told you we would work on trying to get you
into 340. We offered to keep you on." Merrow replied,
"yeah, I remember, but we thought the new union
[NAIU] was a better deal." The above account of this
conversation is based on the credited testimony of Potter
and Beerman, which testimony Merrow did not effec-
tively deny.
In June, Doolittle called Beerman in response to Re-
spondent's offer of reinstatement. Beerman credibly testi-
fied that in the conversation Doolittle offered to testify
favorably for Respondent if the Company secured mem-
bership for him in the IBEW in the Los Angeles area.
Beerman did not accept Doolittle's offer. Doolittle ad-
mitted asking Beerman to help him get into the IBEW
but could not adequately explain how the subject was
raised. I credit Beerman's testimony regarding this con-
versation.
F. Credibility Resolutions
Initially I must determine whether Beerman told the
employees of the union-security clause in Respondent's
agreement with Local 340 and of their obligation to join
Local 340. Beerman's testimony is contradicted by nine
employees. However, credibility is not determined by
the number of witnesses but rather by their trustworthi-
ness.'4 Former employee Reichert testified in harmony
with Beerman to the extent that he was given an oppor-
tunity to join Local 340 and took advantage of that op-
portunity. Further, Beerman's testimony is in harmony
with the instructions given Respondent's management by
its attorney Murphy and its president Simard. Most im-
portantly, employees Stevens, Moore, and Merrow ad-
mitted in June 1982 that they had previously been given
an opportunty to join Local 340 and to keep their jobs.
While I am cognizant of the fact that Beerman was pos-
i' Testes ponderantur non numerantur.
237
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turing for the upcoming trial when he reminded the em-
ployees of the opportunity he had given them to join
Local 340, 1 find the employees' responses most telling.
The employees did not simply accede to Beerman's state-
ments but rather gave convincing and logical reasons for
their having chosen not to join Local 340 in February.
Employee John Doolittle was effectively impeached by
his attempt in June to trade favorable testimony for Re-
spondent's assistance in obtaining membership for Doolit-
tie in a Los Angeles local of the IBEW. Finally, on one
other point where the employees' testimony was in con-
flict with Sutton's testimony regarding their employment
interviews, Alvin Richards, no longer employed by Re-
spondent, testified contrary to the employees and consist-
ent with Sutton's testimony. Accordingly, based on their
demeanor on the stand, the logical probabilities, and the
corroboration by disinterested witnesses, I credit the tes-
timony of Beerman and Sutton where their testimony
conflicts with that of the alleged discriminatees.
G. Analysis and Conclusions
Section 8(aX3) of the Act provides in pertinent part:
(a) It shall be an unfair labor practice for an em-
ployer-
(3) by discrimination in regard to hire or tenure
of employment or any term or condition of employ-
ment to encourage or discourage membership in
any labor organization: Provided, That nothing in
this Act, or in any other statute of the United
States, shall preclude an employer from making an
agreement with a labor organization (not estab-
lished, maintained, or assisted by any action defined
in section 8(a) of this Act as an unfair labor prac-
tice) to require as a condition of employment mem-
bership therein on or after the thirtieth day follow-
ing the beginning of such employment or the effec-
tive date of such agreement, whichever is the later,
(i) if such labor organization is the representative of
the employees as provided in section 9(a), in the ap-
propriate collective-bargaining unit covered by such
agreement when made, and (ii) unless following an
election held as provided in section 9(e) within one
year preceding the effective date of such agreement,
the Board shall have certified that at least a majori-
ty of the employees eligible to vote in such election
have voted to rescind the authority of such labor
organization to make such an agreement: Provided
further, That no employer shall justify any discrimi-
nation against an employee for nonmembership in a
labor organization (A) if he has reasonable grounds
for believing that such membership was not avail-
able to the employees on the same terms and condi-
tions generally applicable to other members, or (B)
if he has reasonable grounds for believing that
membership was denied or terminated for reasons
other than the failure of the employee to tender the
periodic dues and the initiation fees uniformly re-
quired as a condition of acquiring or retaining mem-
bership.
Working in conjunction with Section 8(bX2), Section
8(a)(3) outlaws a closed shop while allowing a union
shop with a 30-day grace period."s Section 8(b)(2) pro-
vides that it shall be an unfair labor practice for a labor
organization:
(2) To cause or attempt to cause an employer to
discriminate against an employee in violation of sub-
section (aX3) or to discriminate against an employee
with respect to whom membership in such organi-
zation has been denied or terminated on some
ground other than his failure to tender the periodic
dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership.
In the building and construction industry, Section 8(f)0
6
reduces from 30 days to 7 the minimum grace period
before which an employee may be required to join the
union.
Thus, under the statutory scheme it is discriminatory
for an employer to discharge an employee for nonmem-
bership in a labor organization, but the discrimination is
excused if the conditions of the proviso to Section 8(aX3)
are satisfied. The burden placed on an employer to
excuse such discrimination is less than that on a labor or-
ganization.' 7 Conductron Corp., 183 NLRB 419, 427
(1970). However, there can be no doubt that an employ-
er must give an employee the statutory grace period
prior to discharging an employee for nonmembership in
a union. Versatile Services, above.
The Board has construed the language of the grace
period in Section 8(a)3) to mean 30 calendar days not
counting the first day of employment or 31 days includ-
ing the first day. Granite City Steel Co., 169 NLRB 1009,
1011 (1968); States Packing Co., 137 NLRB 1420, 1422
(1962). The Board has found unlawful an agreement or
practice that required an employee to state his intent to
join before 30 days was worked. Argo Steel Co., 122
" A closed shop is one where an employee must be a union member
as a condition of hire. A union shop is one where an employee must
become a union member in order to retain employment. However, under
Sec. 8(aX3) an employee may satisfy the union membership requirement
simply by paying initiation fees and dues; full membership is not required.
"Membership" as a condition of employment is whittled down to its ti-
nancial core." NLRB v. General Mors Corp., 373 U.S. 734, 742 (1963).
16 Sec. 8(f) provides:
(f) It shall not be an unfair labor practice under subsections (a) and
(b) of this section for an employer engaged primarily in the building
and construction industry to make an agreement covering employees
engaged (or who, upon their employment, will be engaged) in the
building and construction industry with a labor organization of
which building and construction employees are members (not estab-
lished, maintained, or assisted by any action defined in section 8(a) of
this Act s an unfair labor practice) because ... (2) such agreement
requires as a condition of employment membership in such labor or-
ganization after the seventh day following the beginning of such em-
ployment or the effective date of the agreement, whichever is later
. . Provided, That nothing in this subsection shall set aside the final
proviso to section 8(aX3) of this Act.
7 The law is well settled that before a union may seek an employee's
discharge for failure to comply with union-security provisions it must
afford the employee a reasonable opportunity to comply with such provi-
sions and also inform the delinquent employee of the amount owed, the
method used to compute such amount, and the manner in which the obli-
gation may be satisfied. ersatile Services, 258 NLRB 810, 815 (1981);
Teamsters Local 150 (Delta Lines), 242 NLRB 454 (1979).
238
GEORGE C. FOSS CO.
NLRB 1077, 1092 (1959); Philadelphia Sheraton Corp.,
136 NLRB 888 (1962). The Board's reasoning is that the
Act gives employees 30 days of employment before they
can be compelled to make a choice. Further, the Board
has held unlawful a retroactive agreement which short-
ens the statutory grace period even where the economic
benefits of the contract are retroactive. Associated Ma-
chines, 114 NLRB 390 (1955), enfd. 329 F.2d 858 (6th
Cir. 1956); Teamsters Local 25 (Tech Weld), 220 NLRB
76 (1975); Typographical Union 53 (Plain Dealer), 225
NLRB 1281 (1976); Newspaper Guild Local 86 (Peoria
Journal), 248 NLRB 88 (1980). Although union-security
clauses need not necessarily be reduced to writing, if no
written document exists to be judged on its face the par-
ties must satisfy a stringent burden of proof in establish-
ing the existence and precise terms of the agreement.
Further, the parties must establish that the affected em-
ployees had been fully and unequivocally notified of the
requirement. Pacific Iron & Metal Co., 175 NLRB 604
(1969).
Applying the above principles of law to the instant
case, it appears that the employees were not given the
statutory grace period prior to having to join Local 340.
Local 340 gave the employees no notice of their obliga-
tion to tender dues and fees. Respondent notified the em-
ployees on the afternoon of February 16 that they had
until February 19 to join Local 340 in order to retain
their jobs. The employees were clearly not given the
statutory minimum grace period of 7 days in which to
decide whether to join Local 340 and retain their jobs.
Apparently, Respondent calculated the 7-day grace
period from the date of the execution of the contract on
February 12, 1982. However, even if the effective date
of the contract rather than the first day of notice applied,
Respondent would still be in violation of the Act. Under
the terms of the collective-bargaining agreement's union-
security clause, the employees would have had until Sat-
urday, February 20, to join Local 340. If the contractual
grace period is greater than the statutory minimum, the
employees are entitled to the greater period of time
before they can be required to join the Union. Cf. Alcoa
Construction Systems, 212 NLRB 452 (1974). Respond-
ent's apparent determination that permitting the employ-
ees more time would have been futile is speculation not
permitted by the Act.
In sum, I find that Respondent unlawfully applied the
union-security provision so as to limit the less than 7
days, the grace period before which the employees could
be required to join Local 340. Accordingly, I find that
Respondent's discharge of the 10 employees for non-
membership in Local 340 was discrimination in violation
of Section 8(a)(3) and not excused by the proviso to Sec-
tion 8(aX3) or Section 8(f).18
1' As mentioned earlier, the complaint alleged that the employees
were discharged because of their membership in NAIU. However, incon-
sequential or technical variances between the phraseology or character-
ization of the violation charged and the violation found are not a valid
defense where it is clear the respondent "understood the issue and was
afforded full opportunity to justify [itsl actions." NLRB v. MacKay Radio
d Telegraph Co., 304 U.S. 333, 350 (1938); Soule Glass & Glazing Co v.
NLRB, 652 F.2d 1055, 1074 (Ist Cir. 1981).
CONCLUSIONS OF LAW
1. Respondent George C. Foss Company is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. National Association of Independent Unions and
International Brotherhood of Electrical Workers, Local
Union 340, AFL-CIO are now, and have been at all
times material herein, labor organizations within the
meaning of Section 2(5) of the Act.
3. By discharging William E. Merrow, Dan Brown,
Doyle Graham, Richard Harris, Roger Stevens, John
Francis Moore, Jurgen Ulbrich, Dale Young, John Doo-
little, and Matthew Burnley prior to the grace period
before which said employees could be required to join
Local 340, Respondent has engaged in and is engaging in
unfair labor practices within the meaing of Section
8(aX3) and (1) of the Act.
4. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent violated Section 8(aX3)
and (I) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Respondent
shall be ordered to offer immediate and full reinstate-
ment, to the extent that it has not already done so, to
William E. Merrow, Dan Brown, Doyle Graham, Rich-
ard Harris, Roger Stevens, John Francis Moore, Jurgen
Ulbrich, Dale Young, John Doolittle, and Matthew
Burnley to their former jobs or, if their jobs no longer
exists, to substantially equivalent jobs, without prejudice
to their seniority and other rights and privileges previ-
ously enjoyed. Additionally, Respondent shall be re-
quired to make Merrow, Brown, Graham, Harris, Ste-
vens, Moore, Ulbrich, Young, Doolittle, and Burnley
whole for any loss of earnings they may have suffered
by reason of their unlawful discharges on February 19,
1982, with backpay to be computed on a quarterly basis,
making deductions for interim earnings, and with interest
to be paid on the amounts owing, to be computed in the
manner prescribed in F. W Woolworth Co., 90 NLRB
289 (1950), Florida Steel Corp., 231 NLRB 651 (1977),
and Olympic Medical Corp., 250 NLRB 146 (1980). See
generally Isis Plumbing Co., 138 NLRB 716 (1962).
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended' 9
ORDER
The Respondent, George C. Foss Company, Sacra-
mento, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
"9 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Encouraging membership in International Brother-
hood of Electrical Workers, Local Union 340, AFL-
CIO, or any other labor organization, by discharging em-
ployees under union-security provisions without afford-
ing them the statutory period provided by Sections
8(a)(3) and 8(f)(2) of the Act before such provisions are
invoked.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) To the extent it has not already done so, offer Wil-
liam E. Merrow, Dan Brown, Doyle Graham, Richard
Harris, Roger Stevens, John Francis Moore, Jurgen UI-
brich, Dale Young, John Doolittle, and Matthew Burn-
ley immediate and full reinstatement to their former posi-
tions of employment or, if such jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights and privileges previ-
ously enjoyed.
(b) Make whole Merrow, Brown, Graham, Harris, Ste-
vens, Moore, Ulbrich, Young, Doolittle, and Burnley for
any loss of earnings they may have suffered by reason of
Respondent's discrimination against them in the manner
set forth in the section of this decision entitled "The
Remedy."
(c) Expunge from its files any reference to the dis-
charges of Merrow, Brown, Graham, Harris, Stevens,
Moore, Ulbrich, Young, Doolittle, and Burnley and
notify them in writing that this has been done and that
evidence of their discharges shall not be used as a basis
for future personnel action against them.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facilities in Sacramento, California,
copies of the attached notice marked "Appendix." 2 0
Copies of the notice, on forms provided by the Regional
Director for Region 20, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board has found that we violated the
National Labor Relations Act, as amended, and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT encourage membership in International
Brotherhood of Electrical Workers, Local Union 340,
AFL-CIO, or any other labor organization, by discharg-
ing employees under union-security provisions without
affording our employees the statutory period provided
by Section 8(a)3) and Section 8(f)(2) of the Act before
such provisions are invoked.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, to the extent we have not already done so,
offer William E. Merrow, Dan Brown, Doyle Graham,
Richard Harris, Roger Stevens, John Francis Moore,
Jurgen Ulbrich, Dale Young, John Doolittle, and Mat-
thew Burnley immediate and full reinstatement to their
former positions of employment or, if such jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights and privi-
leges previously enjoyed.
WE WILL make whole Merrow, Brown, Graham,
Harris, Stevens, Moore, Ulbrich, Young, Doolittle, and
Burnley for any loss of earnings they may have suffered
by reason of our discrimination against them, plus inter-
est.
WE WILL expunge from our files any reference to the
discharge of Merrow, Brown, Graham, Harris, Stevens,
Moore, Ulbrich, Young, Doolittle, and Burnley and
notify them in writing that this has been done and that
evidence of their discharges shall not be used as a basis
for future personnel action against them.
GEORGE C. FOSS COMPANY
,0 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
240