Giasgow, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 1977

233 N.L.R.B. 126 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glasgow, Inc. andJimmy F. Connor
International Union of Operating Engineers, Local
132, AFL-CIO and Jimmy F. Connor. Cases 9-
CA-10646 and 9-CB-3371
October 28, 1978
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
On June 21, 1977, Administrative Law Judge
Abraham Frank issued the attached Decision in this
proceeding. Thereafter, both Respondents filed
exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Glasgow Inc., Clendenin, West Virginia, its
officers, agents, successors, and assigns, and Respon-
dent International Union of Operating Engineers,
Local 132, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order as so modified:
1. Substitute the following for paragraph A,2(a),
insert footnote 13, and renumber the subsequent
footnotes accordingly:
"(a) Offer Jimmy F. Connor immediate and full
reinstatement to his former or substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges, and, jointly and severally
with the Respondent Union, make him whole for all
losses he may have suffered by reason of the
discrimination against him, in accordance with the
formula set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest to be computed as
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977).13
"13 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)."
233 NLRB No. 26
2. Substitute the attached notice for that of the
Administrative Law Judge marked "Appendix A."
I The Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We are attaching a revised notice to employees to conform to part A of
the Administrative Law Judge's recommended Order.
Appendix A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United Sates Government
WE WILL NOT encourage membership in Inter-
national Union of Operating Engineers, Local
132, AFL-CIO, by discharging or otherwise
discriminating against our employees because of
their failure to abide by union rules, practice,
policy, contract, or the obligations of union
membership, except to the extent such employees
may be required to tender periodic dues and
initiation fees uniformly required as a condition
of acquiring or retaining membership in the
Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL offer Jimmy F. Connor immediate
and full reinstatement to his former position and,
if such position no longer exists, to a substantially
equivalent position.
WE WILL make Jimmy F. Connor whole for any
losses he has suffered as a result of the discrimina-
tion against him, plus interest.
WE WILL expunge from Jimmy F. Connor's
employment record any notation that he was
discharged for violation of safety rules.
GLASGOW, INC.
DECISION
STATEMENT OF THE CASE
ABRAHAM FRANK, Administrative Law Judge: The
charges in this consolidated case were filed on September
20, 1976,1 and the complaint, alleging violations of Section
8(a)(3) and (1) with respect to Respondent Employer and
Section 8(b)( I)(A) and (2) with respect to Respondent
i All dates are in 1976 unless otherwise indicated.
126
GLASGOW, INC.
Union, issued on November 12. The hearing was held on
January 13, 1977, at Charleston, West Virginia.2 All parties
filed briefs, which have been duly considered.
Respondent Employer is a Pennsylvania corporation
engaged in the heavy and highway construction business in
various States of the United States. During the past 12
months, a representative period, Respondent Employer
purchased goods and products in interstate commerce
valued in excess of $50,000, which goods and products it
caused to be shipped from points outside the State of West
Virginia directly to its construction site located near
Clendenin, West Virginia. Respondent Employer is en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
Respondent Union at all material times has been the
exclusive collective-bargaining representative of Respon-
dent Employer's operating engineers and is a labor
organization within the meaning of the Act.
The principal issue in this case is whether an employee
was unlawfully discharged by Respondent Employer in
violation of Section 8(aX3), at the request of Respondent
Union, in violation of Section 8(b)(2); subsidiary and
related issues involve alleged 8(b)(1)(A) threats by Respon-
dent Union.
My findings of fact are based upon a composite of the
testimony of all witnesses. In reaching my conclusions, I
have relied upon the demeanor of the witnesses as they
appeared before me, their ability to recall events, and their
willingness to testify fully and without apparent evasion. I
have also taken into account contradictions and inconsis-
tencies in the evidence presented and I have given weight
to testimony which has the ring of truth. In so doing, I have
been aware of a witness' self-interest in the outcome of this
proceeding.
Jimmy F. Connor, a heavy equipment operator for about
12 years, was first employed by Respondent Employer in
mid-June. He was discharged on August 26. Prior to the
incident which precipitated his discharge, Connor had
voiced a vigorous protest with respect to two work-related
issues. In mid-July his immediate superior, Grade Foreman
Charles Brown, directed Connor to wear his "hard hat."
Connor replied that he did not believe some of the
employees on the job should be required to wear hard hats
while others were not wearing theirs. Connor refused to put
his hat on until he had talked to James Smith, the assistant
job superintendent. Later in the day Connor informed
Smith that Bobby Lowe, the head master mechanic on the
day shift, and another mechanic identified only as "John"
were not wearing hard hats and if they did not wear theirs
Connor would not wear his. Smith promised to take care of
the problem by morning and Connor then put his hat on.
The next morning Connor noticed that Lowe and John
were not wearing hats and complained to Smith. Connor
said, "If they're not going to wear theirs, I'm going to take
mine off. You'll have to fire me if that's what you have to
do." Smith told Connor that every man on the job would
have to wear a hard hat.
Later that day Connor spoke to Iverson V. Linger, Jr.,
Respondent Union's steward on the day shift. Linger told
2 Errors in the transcript have been noted and corrected.
3 "Bump" hats were cheap, plastic hard hats that could be purchased
Connor that Linger would appreciate it if Connor did not
say any more about the hard hats. Linger pointed out that
if Connor kept pushing the issue they would all have to
wear the company-type hard hats, which were heavier than
the "bump" hats that some of the employees wore.3 Linger
said, "I'd just take it as a personal favor if you'd drop the
issue about the hard hats." Connor agreed, noting that the
mechanics were wearing their hats. Connor asked Linger to
do Connor a favor. Connor said, "Bobby Lowe, he won't
throw his hand up to me. He hasn't spoke to me since this
took place. How about telling him it ain't no personal
matter." Linger promised to take care of it.
About a month later when Connor received his weekly
check on August 13 he noticed that he had received
straight pay for 43 hours of work. Connor believed he was
entitled to overtime for all hours over 40 hours per week.
Connor took the matter up with Brown. Brown told
Connor his check was legally correct. At Connor's
insistence they inspected the Union's contract with the
Company and Brown pointed to page 28, paragraph 3,
which specified that time not worked shall be paid for at
straight time and not used in computing overtime. Brown
explained that Connor had been called to work on a
Saturday, but had only worked I hour and was sent home.
That accounted for I hour's overtime and 3 additional
hours of straight time on his paycheck. Connor was not
satisfied with this explanation and sought out Linger later
in the morning. Linger confirmed Brown's interpretation of
the contract; Linger informed Connor that Linger had
checked it with Russell Barnett, the Union's business
agent; that Barnett had been on the jobsite and had said it
was all right. Still not persuaded, Connor called the
Federal wage and hour division and was referred to the
state wage and hour office. Connor requested that
somebody from that office come to the jobsite to check the
matter out. Connor also discussed the question with Smith,
who told Connor that Connor "ought to just drop it."
Sometime about August 16, William A. Johnson, the job
superintendent, addressed the employees on the subjects of
nondiscrimination and safety. Connor brought up the
matter of his wages. Johnson agreed to check the matter
out more thoroughly. On August 24 several state wage and
hour representatives came to the jobsite and informed
Connor that the Company's practice of paying straight
time for hours over 40 not worked was legal.
On the same day Connor had a conversation with Lowe.
Lowe asked Connor if Connor was ready to apologize to
Johnson, as Connor had agreed to do if he was wrong on
the wage question. Connor said he was not ready to
apologize until the question was checked out a little more.
About this time Johnson drove up to bring Connor an
advance wage check. Again, Lowe suggested that Connor
apologize. Johnson said it was not necessary. Connor said
he would apologize if he was wrong whether it was
necessary or not. After Johnson left, Lowe told Connor a
story about a man and a dog. The dog would not hunt. The
man brought the dog home. When it came time to be fed,
the dog went to the place where he always ate. The man
walked over to the dog and said, "Now, hunt your own."
locally for 97 cents each. Light in weight, these hats would appear to have
little or no safety value.
127
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Connor told Lowe Connor knew what Lowe was talking
about. It was about Connor being referred out of the union
hall and being referred to other jobs and "this business
here." Lowe did not dispute Connor's interpretation of the
dog story, but told Connor that Connor had embarrassed
the Union and that the Union's business agent would be
"real pissed" about it. Connor suggested that the business
agent be called to the jobsite. Lowe said he had already
called the business agent and that the latter would try to be
at the site in 2 days.4
About this time Connor was called away to meet his
Uncle Raymond and his uncle's friend, a boy identified as
"Dave." Connor met his uncle and told him to go back to
Route 53 and wait for Connor because the Company did
not like outside people in the working area. Dave asked if
he could ride with Connor. Connor's uncle left the jobsite
in his truck. Dave climbed up on the grader and sat on the
shifting lever. Connor operated the grader in that manner
for about 10 minutes. A scraper operator, Butler, came
alongside Connor's grader and Connor suggested that
Butler take Dave for a couple of rounds on the scraper so
that Dave could learn how to run a scraper and go down to
the union hall and apply for a job. Butler agreed to let
Dave hang onto the side of the scraper. Dave climbed up
on the scraper and clung to the roll bar and the steering
column. Butler made two trips with Dave and then went to
Route 53 to park his scraper.
Connor testified that thereafter he secured permission
from Respondent's night superintendent and the night
foreman to take Dave out on the scraper and show him
how it worked. Connor also testified that, pursuant to their
instructions, Connor had a mechanic check the scraper
before using it. John Harney, Respondent's night superin-
tendent on August 24, denied that he had given Connor
permission to allow a nonemployee on the scraper. Harney
testified that he had to ask who Connor was on the day of
the hearing in this case. In crediting Connor over Harney, I
have taken into consideration the fact that Connor told
Bruce Smith, the Union's night steward, who accosted him
that evening, and Lowe, who questioned Connor on
August 26, that Connor had permission of the above
company officials for his conduct on August 24. His
assertion could easily have been checked by the union
agents on those occasions, and Connor knew it. Neither the
night foreman nor the mechanic testified. The incident, for
Connor, was a matter of importance, which he would likely
remember. For Harney, the incident, 5 months past, could
not have loomed large, particularly since he had shunted
final responsibility to his night foreman to give Connor
permission to train Dave on a scraper.
These preliminaries out of the way, Connor showed
Dave how to crank up the engines on a scraper and how to
operate it. At first, Connor put Dave in the seat, but Dave
was nervous so Connor sat in the seat and let Dave hang
on the bars, the same procedure Dave had followed with
Butler. Connor loaded a load of dirt and then put Dave in
the seat, showing him how to operate the shift levers. Dave
4 Lowe denied that he had ever made a statement to Connor that Connor
had embarrassed the Union. However, Lowe was not asked and did not
testify with respect to Connor's interpretation of the dog story or Connor's
testimony that Lowe had said the business agent would be "real pissed" and
that Lowe had called the business agent to the jobsite. I credit Connor.
put the scraper in first gear and moved the load of dirt to
the waste pit. He unloaded and returned for another load.
When they reached the dump area, they were met by Night
Shift Steward Smith. Connor was on the side of the scraper,
holding on the left bar and the steering column. Smith
asked Connor if Connor and Dave had a union book.
Connor conceded that Dave did not have a book or a
permit. Connor told Smith that Connor had checked with
the night shift superintendent and foreman. Smith told
Connor that Connor was supposed to clear any new
employee through the union steward and that Connor
could not run the scraper anymore unless he cleared the
man through the hall. Smith said that in the future if
Connor brought a new man on the job Connor would have
to clear it either through the steward or the master
mechanic if the steward could not be found. Smith did not
pursue the matter further because Connor dumped his load
and parked the scraper.
Smith mentioned the incident to the master mechanic on
the night shift. The following evening Smith told Lowe
what Smith had witnessed the night before. Smith testified
that he reported the incident to Lowe because Connor
worked on Lowe's shift and Smith believed that Lowe
should be informed so that he could be on guard against
another such occurrence.5
On August 26, when Connor reported for work in the
morning he was accosted by Lowe and Linger, who
overtook him in a company truck. Lowe asked Connor
who told Connor to put a man on the scraper for training.
Connor said he had secured permission from the night shift
superintendent and the night foreman. Lowe said, "One
more time of that and I'll get your money for you." Lowe
told Connor that Connor knew better than to do it. Connor
agreed, but repeated that he had checked with the
Company and if anyone was at fault it was the Company,
not Connor. Lowe replied, "You let it happen one more
time and I'll get your damn money." Connor said he would
try to do better. With respect to this incident, Linger
testified that he and Lowe talked to Connor about
"running the pan" with someone who was not out of the
union hall.
About noon on the same day Connor met Henry
Shearer, a laborer performing the duties of a grade checker.
While Connor was getting his lunch, Shearer climbed up on
the grader and idly fingered the controls. When Connor
returned, Connor climbed up next to Shearer. Shearer
started to dismount, but Connor told Shearer to sit in.
Shearer protested that Connor would get them both in
trouble or they would both get in trouble. Connor said,
"Go ahead. I'm all messed up anyway." Connor sat on top
of the shifting levers and put the grader into first gear.
Shearer remained in the seat fingering the controls. In this
manner they moved the grader about 150 yards. About that
time Lowe and Linger came by in a company truck.
Connor told Shearer to get off the grader. Connor turned
the grader around, parked it, and walked over to Lowe and
Linger. Lowe said, "Now, I told you this morning. That'll
5 Smith testified that he had two concerns. His first concern was
Connor's failure to clear Dave through the union hall. His second concern
was the safety factor. However, Smith mentioned only the former concern to
Connor.
128
GLASGOW, INC.
do it. I'll get your damn money over this." Connor replied,
among other comments, "If you want to fire me, I'll meet
you down at the office if that's what you want." Lowe
looked over at Linger and Linger said, "Get it." With
respect to this incident, Linger testified that Connor was
going "up across the fill" with another man in the cab,
contrary to union rules or the union book.
Connor got in his car and drove off. While driving, he
met Johnson and flagged him down. Connor told Johnson,
"Bobby Lowe and Linger just fired me up there." Johnson
asked, "What for?" Connor answered, "Because Henry was
up in my grader. I'm going down here to lunch and I'll be
back up to the office when I come back."
Prior to meeting Connor, Johnson had met Lowe and
Linger. Lowe told Johnson about the scraper incident on
August 24 and the incident with the grader that morning.
Lowe said that something had to be done. From these or
other words Johnson understood that Lowe wanted
Connor fired. Johnson said he would take care of it. About
15 minutes later Johnson returned to the office. He
approached Lowe and Linger, who were standing outside,
and asked them if they wanted to reconsider. Linger
replied, "Hell no. Get his money. We don't want the man
on the damn job." Johnson walked over to Connor, who
had overheard the conversation, and told Connor that
Johnson's hands were tied. Johnson had to terminate
Connor or have problems with the Union.6 They went into
the office and Connor was terminated.
CONCLUSIONS OF LAW
As I view the evidence, the two protagonists in this case
are Lowe and Connor; Connor, vociferous and stubborn;
Lowe, less given to words, but equally stubborn; both
strong, independent, and prideful men.
Connor, with a penchant for causes, incurred Lowe's
hostility by pushing the issue of the hard hats and
specifically calling to management's attention the fact that
Lowe was not wearing his.7 Connor next questioned the
Union's contractual provision that the Company need not
pay overtime for hours not worked over 40 per week.
Connor's activity in pursuing both issues is protected by
Section 7 of the Act. The wearing of hard hats, a condition
of employment, and the wage issue, included in the
contract, are issues affecting all employees.
Lowe did not challenge Connor openly with respect to
the latter's hard hat campaign. When, however, Connor
boldly disputed the Union's contract agreement on wages,
Lowe taunted Connor with having lost out on this issue
and threatened him with loss of referral rights because
Connor had "embarrassed" the Union.
Shortly thereafter, Lowe was informed by Smith that
Connor had permitted an individual not cleared through
the union hall to ride on and operate a scraper, contrary to
6 As to these conversations. I have credited Connor over Johnson and
Lowe. Johnson. a man over 62, conceded that he had difficulty remember-
ing exact words. Moreover, for him, the conversations relating to Connor's
discharge were not as significant at the time as they eventually became. On
the other hand, Connor was personally and emotionally involved. He would
be likely to recall these conversations and in specific detail. Lowe did not
impress me as a witness.
I Connor's testimony that Lowe would not hold his hand up or speak to
Connor after the hard hat incident is undenied.
union rules and Connor's obligation as a union member.
Lowe confronted Connor with this information and
threatened to have Connor discharged if it happened again.
On the same day Lowe and Linger observed Connor
permitting a laborer, a nonmember of Respondent Union,
to ride on Connor's grader and help operate it. Lowe again
threatened to have Connor discharged for this second
infraction of union rules. Connor was, in fact, discharged
immediately thereafter by Johnson at the insistence of
Lowe and Linger for "unsafe operation of equipment."
Section 8(bX2) forbids a union to cause or attempt to
cause an employer to violate Section 8(a)(3) on some
ground other than the employee's failure to tender periodic
dues and initiation fees uniformly required as a condition
of acquiring or retaining membership.
The record is clear that both Lowe and Linger are agents
of Respondent Union within the meaning of Section 2(13)
of the Act, as alleged in the complaint. With respect to
Linger, there is no issue. With respect to Lowe,8 the
contract requires that he be a union member and receive 25
cents per hour in addition to the highest hourly rate paid
on the job. He has virtually exclusive authority to call the
union hall whenever an operating engineer is needed on the
job. In exercising this function, he acts for the Union.
Moreover, the record shows that employees bring their
grievances to him or to the union steward. Respondent
Union's answer admits the agency status of Lowe and
Linger. I find Respondent Union is responsible for the
conduct of these agents.
Both Respondents contend that Connor was discharged
by Johnson solely for the reason that he had violated
Respondent Company's safety rules; that Lowe and Linger
merely called the matter to Johnson's attention; and that
Johnson acted independently in reaching this decision to
discharge Connor. The record, in my opinion, does not
support this conclusion.
This is not a case where the Union's motivation in
seeking an employee's discharge is unrelated to union
membership or the performance of a union obligation.9
While I am satisfied that Connor's conduct, at least with
respect to the scraper incident, was not a safe practice, I am
not persuaded that his violation of the Company's safety
rule was the reason Lowe and Linger sought his discharge.
In the scraper incident the only concern voiced to Connor
by Smith was Connor's failure to clear Dave through the
union hall or the union agents. Smith's second concern,
safety, was mentioned by him only during cross-examina-
tion. Connor testified that his method of teaching a new
employee how to operate heavy equipment was not an
uncommon practice. Linger admitted that it had been
done, although he did not like to see it. He could not
remember whether it had been done at other times on
Respondent Company's jobsite. Certainly, it was done by
a No party contends that Lowe is a supervisor within the meaning of the
Act and I make no finding on this point.
s Cf. Studebaker Corporation, 110 NLRB 1307 (1954); Daugherty
Company, Inc., 112 NLRB 986 (1955). The application of the rule of those
cases has been affected, to an extent not yet clear, by the Board's decision in
Miranda Fuel Company, Inc., 140 NLRB 181 (1962), cited by the General
Counsel. I find it unnecessary to discuss or rely upon the doctrine of the
latter case in view of my decision herein and the cases cited below.
129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Butler, who voiced no concern about safety when Connor
asked Butler to show Dave how to operate the scraper.
Butler did, in fact, operate the scraper while Dave clung to
its side. I note that Shearer, who participated with Connor
in the grader incident, received no discipline or even
warning for his part in that activity. Moreover, it does not
appear that Respondent Company enforced its safety rules
otherwise with the stringency that the Connor discharge
suggests. As indicated above, some employees wore
relatively unsafe "bump" hats rather than the heavier
company-type hard hats. Indeed, as Connor noticed early
in his employment, some employees at one time wore no
hats at all in defiance of company safety rules.
I am persuaded that the motivating and primary reason
that Lowe, joined by Linger, sought Connor's discharge
was the fact that Connor had violated the Union's
jurisdictional rule that only employees cleared through the
union hall or union agents were permitted to operate heavy
equipment traditionally operated by operating engineers. It
may well be that they were concerned with the safety
factor, but, if so, I find this concern was secondary and of
minor significance. Lowe, the prime mover and spokesman
for Connor's discharge, was also motivated, I find, by his
hostility to Connor as a result of the hard hat incident and
Connor's effrontery in questioning the Union's contractual
provision relating to straight time for overtime hours.
The evidence is overwhelming that the Respondent
Company would not have discharged Connor but for the
demand of Lowe and Linger. A request for a discharge
need not be stated in any specific words or particular form
so long, as here, the Union is responsible for the
Employer's action.to Although Johnson liked Connor and
the two had had friendly conversations, Johnson dis-
charged Connor summarily, making the decision within 15
minutes after Lowe requested that Johnson do so. Johnson
made no investigation other than to speak a second time to
Linger. Johnson gave Connor no hearing. Surely. if, as
Connor testified, he had secured permission from two
company officials to train Dave on the scraper, those
officials should at least have shared the blame for his
conduct on August 24. Yet Johnson made no attempt to
ask any of his subordinates if they knew anything about the
incidents or whether Connor had received company
permission to train an employee on a scraper. This
evidence lends weight to Connor's testimony that Johnson
said he had no choice but to discharge Connor at the
insistence of the union agents.
On the basis of the foregoing, I find that Respondent
Union violated Section 8(b)(l)(A) and (2) of the Act and
Respondent Company by acquiescing in the Union's
demand violated Section 8(a)(3) and (1) of the Act.'
I find that Respondent Union further violated Section
8(b)(l)(A) by the following conduct:
I. Lowe's implied threat to Connor on August 24, 1976,
that Respondent Union would not refer Connor from
Respondent Union's hiring hall because of Connor's
'o Falstaff Brewing Corporation, 128 NLRB 294 (1960).
1i Mid-States Metal Products, Inc., 156 NLRB 872, 899 (1966); Emma-
dine Farms, Inc., 138 NLRB 1098 (1962): Air Conditioning, Refrigeration and
Steamfitters Local Union No. 725, Plumbers (Bechtel Corporation), 194 NLRB
1089 (1972).
12 In the event no exceptions are filed as provided by Sec. 102.46 of the
protected activity in questioning the legality of Respondent
Company's practice, sanctioned by the collective-bargain-
ing agreement, to pay straight time over 40 hours for hours
not worked.
2. Lowe's threats to Connor on August 26, 1976: (a)
that Lowe would secure Connor's discharge if he permitted
a nonemployee, not cleared through the Union's hiring
hall, to operate a scraper one more time; (b) that Lowe
would secure Connor's discharge because Connor had
permitted an employee, not cleared through the Union's
hiring hall, to assist in operating a grader; both threats
motivated primarily by Respondent Union's rule and
Connor's obligation as a union member to require all
employees operating heavy equipment on Respondent
Company's jobsite to be cleared through the union hall.
THE REMEDY
In addition to the remedy usual in these cases, the
General Counsel requests that I order the Respondent
Company to expunge from Connor's employment record
any notation that Connor was discharged for safety
reasons; and that I order Respondent Union not to state to
prospective employers seeking referral from Respondent
Union's exclusive hiring hall that Connor had a poor safety
record with past employers.
Inasmuch as I have found that Connor's discharge was
unlawfully motivated, Connor is entitled to be put in the
position he would have enjoyed but for the discharge.
Accordingly, I shall order Respondent Employer, as
requested by the General Counsel, to expunge from its
records any notation that Connor was discharged for
violation of safety rules. I shall also order Respondent
Union not to state to prospective employers, seeking
referral from its hiring hall, that Connor had a poor safety
record with respect to Respondent Employer.
ORDER 12
A. The Respondent, Glasgow, Inc., Clendenin, West
Virginia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in International Union of
Operating Engineers, Local 132, AFL-CIO, by discharging
or otherwise discriminating against employees because of
such employees' failure to abide by union rules, practice,
policy, or contract, or the obligations of union member-
ship, except to the extent employees may be required to
tender periodic dues and initiation fees uniformly required
as a condition of acquiring or retaining membership in the
Union.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
130
GLASGOW, INC.
(a) Offer Jimmy F. Connor immediate and full reinstate-
ment to his former or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and, jointly and severally with the Respondent
Union, make him whole for all losses he may have suffered
by reason of the discrimination against him with interest at
6 percent in accordance with the formulas set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due the
discriminatee under the terms of this recommended Order.
(c) Post at its construction site near Clendenin, West
Virginia, copies of the attached notice marked "Appendix
A."1 3 Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly signed by
its representatives, shall be posted by the Respondent
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 by
Respondent to insure that said notice is not altered,
defaced, or covered by any other material.
(d) Post at the same places and under the same
conditions set forth in paragraph 2(c), above, and as soon
as they are forwarded by the Regional Director, copies of
the Respondent Union's notice marked "Appendix B."
(e) Furnish to said Regional Director signed copies of the
notice marked "Appendix A" for posting by Respondent
Union as hereinafter directed.
(f) Expunge from Jimmy F. Connor's employment record
any notation that he was discharged for violation of safety
rules.
(g) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
B. The Respondent, International Union of Operating
Engineers, Local 132, AFL-CIO, its officers, agents, and
representatives, shall:
I. Cease and desist from:
(a) Threatening employees with discharge because of
their failure to conform to union rules, practices, policies,
or contracts, or obligations of union membership, except to
the extent that such employees may be required to tender
periodic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership in the
Union.
(b) Threatening employees that they will not be referred
from the Union's exclusive hiring hall because of their
protected activity in questioning the application of a
provision of the Respondent Union's collective-bargaining
agreement.
(c) Causing or attempting to cause Respondent Glasgow,
Inc., to discharge or otherwise discriminate against any of
its employees in violation of Section 8(a)(3) of the Act.
(d) In any other manner restraining or coercing employ-
ees in the exercise of their rights guaranteed in Section 7 of
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Notify Jimmy F. Connor and Respondent Glasgow,
Inc., in writing, that it withdraws its objections to the
employment of Connor and requests his reinstatement.
(b) Jointly and severally with Respondent Company
make Jimmy F. Connor whole for all losses suffered by him
as a result of the discrimination against him in the manner
set forth in paragraph A,2(a), above.
(c) Post at its offices copies of the attached notice
marked "Appendix B." 14 Copies of said notice on forms
provided by the Regional Director for Region 9, after
being duly signed by the Respondent Union's representa-
tive, shall be posted immediately upon receipt thereof, and
be maintained by the Respondent Union for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent Union
to insure that said notice is not altered, defaced, or covered
by any other material.
(d) Post at the same places and under the same
conditions as set forth in paragraph B, 2(c), above, as soon
as they are forwarded by the Regional Director, copies of
the Respondent Company's notice marked "Appendix A."
(e) Forward signed copies of "Appendix B" to the
Regional Director for posting by Respondent Company at
its construction site near Clendenin, West Virginia.
(f) Refrain from stating to prospective employers seeking
referral from Respondent Union's hiring hall that Jimmy
F. Connor has a poor safety record at Respondent
Company's construction site near Clendenin, West Virgin-
ia.
(g) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps
Respondent Union has taken to comply herewith.
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
14 See fn. 13, supra
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with discharge
because of their failure to conform to union rules,
practice, policy, contract or the obligations of union
membership, except to the extent that such employees
may be required to tender periodic dues and initiation
fees uniformly required as a condition of acquiring or
retaining membership in the Union.
WE WILL NOT threaten employees that they will
not be referred from our exclusive hiring hall because
of their protected activity in questioning the application
of a provision in our collective-bargaining agreement.
WE WILL notify Jimmy F. Connor and Glasgow
Inc., in writing that we have withdrawn our objections
131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the employment of Jimmy F. Connor and request
that he be reinstated.
WE WILL make Jimmy F. Connor whole for any
losses suffered by him as a result of the discrimination
against him, which we caused.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of their rights
guaranteed in Section 7 of the Act.
INTERNATIONAL UNION OF
OPERATING ENGINEERS,
LOCAL 132, AFL-CIO
132