Globe Construction Co., Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1967

162 N.L.R.B. 1547 (N.L.R.B. 1967)

GLOBE CONSTRUCTION CO. 1547
Globe Construction Co., Inc. ' and Local 826, International Union
of Operating Engineers , AFL-CIO. Case ^?8-CA-1801. Febru-
ary 9, 1967
DECISION AND ORDER
On September 29, 1966, Trial Examiner E. Don Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor practices alleged in the
complaint. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a brief and a supplemental brief in
support thereof.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire rec-
ord in this case, including the Trial Examiner's Decision, the General
Counsel's exceptions and briefs, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
[The Board dismissed the complaint, insofar as it alleges unfair
labor practices not found herein.]
' The name of the Respondent appears as amended at the hearing
2 A motion to correct the transcript of the hearing was attached to the General Counsel's
brief in support of exceptions , and copies were served upon the parties . In the absence of
objection , the General Counsel ' s motion is hereby granted
On November 18, 1966. the General Counsel filed a motion for leave to file a supplemental
brief in support of his exceptions The brief was attached to the motion and copies had
been served upon the parties In the absence of objection , the General Counsel ' s motion is
hereby granted and the supplemental brief has been duly considered.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Pursuant to due notice, a hearing was held before Trial Examiner E. Don Wil-
son on May 11, 12, and 13 at Hobbs, New Mexico . The parties fully participated.
Upon a charge filed by Local 826, International Union of Operating Engineers,
AFL-CIO, herein the Union , the General Counsel of the National Labor Relations
Board, herein the Board , issued a complaint dated February 25, 1966, alleging that
Globe Construction Company, herein Respondent , violated Section 8(a) (1) and
(5) of the National Labor Relations Act, as amended, herein the Act.
162 NLRB No. 147.
1548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Briefs of General Counsel and Respondent have been received and considered.
Upon the entire record 1 in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all material times, Respondent has been a New Mexico corporation contin-
uously engaged in the oil field construction industry in Hobbs, New Mexico, and
in the year ending February 25, 1966, sold or performed to customers outside of
New Mexico services having a value equal to $50,000, and during the same period
of time sold or performed services equal to $50,000 to firms which in turn made
sales to customers outside New Mexico. During 1965, Respondent purchased
goods and materials worth more than $50,000 from firms which had purchased
them outside New Mexico. Respondent is an employer engaged in commerce
within the meaning of the Act.
H. THE LABOR ORGANIZATION
At all times material the Union has been a labor organization within the mean-
ing of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
(1) Did Respondent violate Section 8(a)(1) of the Act by granting an across-
the-board, 10-cent-per-hour wage increase on September 2, 1965,2 after a repre-
sentation petition was filed on August 26 and before an election was held on Octo-
ber 12? (2) Did Respondent violate Section 8(a)(1) of the Act by polling and
unlawfully soliciting its employees on September 14? (3) Did Respondent violate
Section 8(a) (1) of the Act by advising two employees through its superintendent,
immediately after the election the Union lost, that if the Union had won the elec-
tion, Respondent would have sold its dump trucks and discharged the dump truck
drivers? (4) Did Respondent unlawfully refuse to bargain with the Union on or
after May 29
B. The wage increase
Shortly before September 2,' employee A. D. Willis asked Respondent's Superin-
tendent W. G. Brown to set up a meeting between Respondent's employees and
J O. Williams, Respondent's president.3 An election petition had been filed by
the Union on August 26. Willis said the men wished to discuss their complaints
that they were receiving 10 cents an hour less than the employees of Respondent's
competitor, New Mex. Willis told Brown the men wanted a raise to bring them up
to New Mex. Brown told Williams the men wanted a meeting about a raise Wil-
liams spoke to his attorney, Theodore R. Johnson, and told him the employees
wanted a meeting to discuss a wage increase. Johnson advised Williams a raise
could not be granted unless New Mex had granted a raise and it had been Re-
spondent's policy to pay wages equal to or better than its competitors. Williams
and Johnson held a meeting with about 12 of Respondent's employees on Septem-
ber 2? Substantially all of the employees were heavy equipment operators who
wanted a raise from $2.25 to $2.35 per hour. Spokesmen for the employees advised
Johnson and Williams that New Mex was paying 10 cents an hour more than
Respondent. Johnson told the ' employees Respondent could grant a raise only to
meet competition and Respondent would have to check with New Mex. Johnson
asked the employees whether they understood that Respondent had a policy of
paying wage rates equal to those of its competitors. The employees stated that New
Mex was paying 10 cents an hour more, than Respondent and they wished a 10-
1 Two sets of the 3 days' transcripts were received from the reporter. General Counsel
and Respondent have stipulated that the correct transcript relied upon by them and the
one to be considered official consists of volume I, pp 1-232 , volume II, pp. 233-617 ;
and volume III, pp. 618-804. This stipulation is marked TX Ex #1 and is made a part
of the record. I accept the stipulation and have'relied upon the transcript stipulated to'be
correct.
2 All dates herein'are 1965, unless otherwise specified.
'The request expressed the desires of the operators.
4 No employee was excluded from the meeting.
GLOBE CONSTRUCTION CO. 1549
cent raise for all employees . Johnson stated that-if an increase were -given it would
only be for the purpose of meeting competition and would have nothing, to do
with the Union.5
It had always been Respondent 's policy to equal , competitive wages 6 and give
across-the -board raises . Immediately after the meeting, Williams called an official
of New Mex, and found that New Mex was paying its employees 10 cents an hour
more than Respondent and had been doing so for some time. Respondent , in line
with its policy , granted all but one of its employees 7 a 10-cent-an -hour wage
increase effective September 1.
I find insufficient substantial evidence that Respondent granted this wage increase
for the purpose of influencing its employees in -their .voting for or against the
Union. The raises were given pursuant to the request of the employees to keep
Respondent in line with its policy of paying wages equal to a competitor . I do not
believe an employer is obliged to withhold a wage increase, which is in order,
merely because a representation petition has been filed. Without regard to the peti-
tion Respondent raised its employees ' wages in conformity with its policy of at least
meeting a competitor 's wages. There is insufficient probative evidence that by so
acting, Respondent violated Section 8(a)(1) of the Act.
C. Polling and unlawful solicitation
Johnson testified that this entire matter was his first labor case . When he exam-
ined the petition , he found no information as to the showing of interest . He testi-
fied he was unaware that a 30 percent showing was purely an administrative matter
reserved to the Board. He directed the preparation of memoranda signed by Wil-
liams and distributed to each of about 30 employees at a meeting called by
Respondent on September 14. Johnson addressed the employees and told them he
understood some did not understand what they had signed for the Union . He added
that he considered it to be his duty to investigate and determine whether the Union
had a sufficient showing of interest . He said he wished the information only to
show to the Board attorney . The memoranda were distributed to every employee
reporting to work on September 14. The name of each employee was typed in on
each memorandum . Williams signed each memorandum . Each employee was re-
quested to state whether he had signed an authorization card for the Union and
if he answered the question in the affirmative , then he was asked to state if he
wished to revoke the authorization . Each of the approximately 30 employees
received a memorandum with his name on it . The memoranda were returned to
Johnson after they were filled out . The distribution of these questionnaires to all
employees violated Section 8(a)(1) of the Act. Respondent unlawfully sought to
assume the Board 's function of determining administratively whether there was a
sufficient showing of interest by the Union to warrant the holding of an election
by the Board . Respondent was plainly not seeking to determine whether the Union
had a majority card showing. Particularly reprehensible here is Respondent's at-
tempt to obtain revocations of union authorizations from its employees . Respond-
ent infringed upon its employees ' right to privacy in their union affairs. Such a
right is essential to the full and free exercise of rights guaranteed by Section 7 of
the Act.8 Respondent unlawfully required its employees to state whether they had
been for the Union or, if they had, whether they wished to repudiate the Union.
These memoranda were permanent records. Johnson's claimed good -faith igno-
rance does not alleviate the essentially coercive effect of Respondent 's polling and
unlawful solicitation and invasion of employees ' privacy as to union matters.
Respondent had no right systematically , to investigate the Union's showing of
interest.
D. Brown's statements to two employees on October 12
Shortly after the polls closed on October 12, Respondent 's Superintendent William
Brown spoke to Respondent's employees Deaver and Wright . Having considered
their respective demeanors I credit the testimony of Deaver and Wright and do
not credit the testimony of Brown where it conflicts with that of Deaver and
5 Respondent did not limit attendance at the meeting to operators
8 There is no substantial evidence that Respondent knew New Mes was paying higher
wages before the meeting.
7 He had been employed a very short time - -
8 Respondent by Its memoranda successfully obtained information that several of its
employees by name wished to revoke their designations of the Union as representative
1550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wright. Brown told the two employees that if the Union had won the election,
Respondent would have sold its dump trucks and terminated the dump truck driv-
ers. He referred to union supporters by an unprintable epithet, stating that this was
the way Respondent's president regarded union supporters. Brown's statements were
threats of reprisal should the employees again exercise their rights to vote in a
union election. They were violative of Section 8(a)(1) of the Act.
E. The alleged refusal to bargain
Thomas L. Booth, a part-time business representative of the Union, Harold Hen-
ley, a business representative of the carpenters, W. H. Frazier, an International'
representative of the Union, Johnson, and Williams, each, testified concerning the
alleged unlawful refusal to bargain. In making the following findings I have con-
sidered their respective demeanors and have had due regard for the inherent prob-
abilities in the particular situations. I believe that at times the various participants,
in conversations, were talking at cross-purposes and particular witnesses did not
have clear recollections as to what was said to whom. I am convinced that what
follows is an accurate recitation of the substance of what took place between
Respondent and the Union as to bargaining requests and "refusals."
On March 9, Booth told Williams he represented a majority of Respondent's
employees. Williams said he would not discuss the matter further without Johnson.
Arrangements were made for another meeting. It must be here noted that the
charge herein was not filed until November 2. The Section 10(b) cutoff date is.
May 2.9 Booth met with Williams and Johnson on March 17. Henley was present.
Booth asked for recognition and presented authorization cards, asking if Respond-
ent's representatives wished to examine them. Johnson said he was not familiar
with labor law and would like further time to study the matter. He did not exam-
ine the cards. There was some discussion that Respondent was one of the best pay-
ing contractors in the business and Booth told Johnson the Union was attempting
to organize Respondent's competitors. The parties agreed to meet again after John-
son had an opportunity to scan the law.
They met again on March 31. This time Henley was not present. Johnson said
he had familiarized himself with the law and felt the democratic process of a Board'
election was in order. Booth said he did not wish an election because of the dis-
tance and time involved.10 Johnson replied that when the Union got Respondent's
competitors' wages raised to those of Respondent, Respondent would consider
recognizing the Union. Booth replied the Union couldn't wait that long but would
forgo wage demands and needed Respondent's recognition so the Union could
work "on the other thirty-three contractors." Subsequently Johnson said Respond-
ent might recognize the Union if he (Johnson) represented the four dirt contrac-
tors in Hobbs. Again, at this meeting, authorization cards were made available to
Respondent. They were bundled together inside a rubberband. Johnson insisted
that the NLRB procedure of an election was the proper course to follow. There
was further discussion that maybe Booth could have put in writing an understand-
ing that there would be no request for an increase in wages if Respondent would
recognize the Union. There was also some vague and inconclusive conversation
about the possibility of Booth bargaining with Johnson as the representative of-
the four dirt contractors in Hobbs. This request for bargaining and failure to com-
ply were also weeks before the 10(b) period.
Frazier, the Union's International representative, was very vague in his testi-
mony. He went to Johnson's office without an appointment and after a 20-minute
wait saw Johnson, who was very busy. Frazier told Johnson he was picking up,
where Booth had left off. Frazier and a busy Johnson then had a pleasant chat
about how busy Johnson was, Booth's present occupation, and wage scales paid
in Texas as compared with those paid in New Mexico. Recognition or bargaining
were not mentioned as such. Johnson and Frazier had a nice talk but there was
no demand for recognition. In any event, and even were it found that Frazier was
requesting recognition from Respondent as distinct from the possibility of dealing
with Johnson as the representative of four Hobbs dirt contractors, or putting some-
thing or other in writing, this meeting between Frazier and Johnson was still
beyond the 10(b) period. Frazier fixed the date of his meeting with Johnson as May 6
or 7 "if my memory serves me right." On the other hand, Johnson and Williams
testified with certainty and I find that Johnson could not have had the meeting-
9 A copy of the charge was served on Respondent's superintendent on May 2
10 Booth was located a considerable distance from Hobbs.
GLOBE CONSTRUCTION CO. 1551
with Frazier on either of those dates. Beginning the morning of May 6 and con-
tinuing for some days, Johnson was hundreds of miles from Hobbs. In evidence is
a customer draft on an Oklahoma City clothing store drawn by Johnson in Okla-
homa City on May 6. Circumstantially, Johnson established through his testimony
and office records that his meeting with Frazier occurred in Apiil and not after
May 2. Williams' testimony corroborated Johnson's. Certainly, prior to the filing
of the petition herein, which I shall discuss hereinafter, there was no demand for
bargaining or refusal to bargain within the 10(b) period.ii
Following Frazier's meeting with Johnson in April (beyond the 10(b) period)
the Union did nothing but file a petition on August 26. There is no suggestion that
Respondent did anything relating to recognition of the Union during this period.
About 4 months after Frazier met with Johnson, the Union filed a petition
for an election, on August 26. There is insufficient probative evidence that then
or any time thereafter, the Union represented a majority of Respondent's employ-
ees. On September 15, Respondent agreed to a consent election. On October 12,
the Union lost the election by a vote of 14 to 10 The Union having filed objec-
tions, the election was set aside because of the September 2 wage increase 12 and
the September 14 meeting 13
I find insufficient substantial evidence that the Union, while representing a major-
ity of employees, has requested Respondent to recognize the Union within the
10(b) period. What happened in March and April is ancient history and does not
establish a majority in August or September.
The evidence establishes that on September 15, when the consent election was
agreed to by Respondent and the Union, the Union did not have a card showing
of a majority. It further establishes that at no time after May 2, did the Union
request recognition when it had a majority General Counsel urges that I find the
requests made in March and allegedly in April were "continuing" so that some
refusal made in the 10(b) period was an unlawful refusal. He relies particularly on
International Union, United Automobile, Aerospace and Agricultural Implement
Workers (Aero Corporation), 149 NLRB 1283, enfd 363 F.2d 702. I find no con-
tinuing demand or request to bargain after Booth left the scene. I find Frazier did
not request or suggest bargaining. At best, he was expressing a desire to talk to
Johnson, and, having observed Johnson, I am satisfied they could have talked about
many things other than those limited to recognition of the Union by Respondent.
This Respondent did not, as did the Respondent in the Aero case, commit unfair
labor practices extensively before, during, and after the election and while the
demands were being made. There is here no suggestion of an 8(a)(3) violation. I
find no reasonable ground to find that a request for recognition and bargaining
within the 10(b) period and particularly between May 2 and August 26 "would
have been useless." This is a case of "mere company inaction" for months follow-
ing a request for bargaining rather than an absolute refusal to bargain. Here,
Booth dropped the matter and Frazier, even beyond the 10(b) period, did not pick
it up. Here, it cannot be said as in the Aero case, that "the Company's determina-
tion to refuse to bargain was actively implemented in the months following its
letter by its efforts to undermine the Union." This Union could have requested or
demanded or insisted upon recognition day after day while it possessed a majority.
It chose to be quiescent. Unlike the company in Aero, this Respondent interfered
with its employees rights not in the slightest until immediately before it agreed to
a consent election. This Respondent expressed its legitimate doubt to the extent
that as early as March it requested an election. The Union did nothing until it filed
its petition months later. I cannot and do not find that it continued to demand
recognition particularly when it did nothing between March 31 and August 26 but
permit Frazier to be its emissary. There were no unfair labor practices committed
by Respondent between March 31 and September 14. This Union during those
times was entirely free to request or demand recognition or bargaining It refused
so to do. It apparently had no concern. I cannot find a refusal to bargain where
there has been no request or refusal to bargain within the 10(b) period, especially
where there is no substantial evidence of majority representation within the 10(b)
lx There is no suggestion that prior to the 10(b) period, Respondent committed any
unfair labor practice other than the possible refusal to bargain
131 have considered the Regional Director's decision in this regard and having con-
sidered it as having some persuasive relevance, I do not, as this Decision indicates, con-
sider myself bound by it especially since I have had the benefit of testimony under oath
before me
1-3 I am advised, by the brief of Respondent, that on June 3, 1966, after this bearing
closed, the Union withdrew its petition for an election.
1552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period . I cannot and do not find that a demand to bargain when - the Union repre-
sented a majority , within the 10 ( b), period , would have been useless . Such a :find-
ing would be speculation . It is clear that there is no evidence in this case that at
any time the Union represented a majority of Respondent's employees , did Respond-
ent engage in "efforts to undermine the Union ." Here there is no occasion to refer
to previous acts to shed light on the true character of matters occurring within
the limitations period. Here the basic employer approach was at least innocent.
There was here no underlying refusal to bargain but rather a request for an elec-
tion or a willingness to meet on perhaps broader terms, if again , perhaps, such
were possible.
Particularly after the pleasant chats that Respondent 's representatives had with
the Union 's representatives in March and April, before the 10 ( b) period and long
before Respondent 's 8(a)(1 ) violation on September 14, I find it would not have
been a futile gesture for the Union to have demanded recognition within the 10(b)
period, at such time as it had a majority. It never did so.
I find insufficient probative evidence that Respondent violated Section 8(a) (5)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of Respondent , described in section I, above, occurring in con-
nection with the unfair labor practices described in section III, above , have a close,
intimate , and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices of
a very serious nature, I shall recommend that it cease and desist therefrom and
from any other invasions of its employees ' rights under Section 7 of the Act, and
take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
the Act.
2. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above , Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a)(1) of the Act.
3. The unfair labor practices affect commerce within the meaning of Section
2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, and conclusions of law it is
recommended that Respondent, its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
( a) Polling or interrogating its employees concerning their union activities, or
unlawfully seeking to assume the Board 's functions in administratively discharging
its duties , or seeking to obtain revocations of union authorizations, or infringing
upon its employees' rights to privacy in their union affairs, or threatening reprisals
should Respondent 's employees again exercise their rights to vote in a union
election.
(b) In any other manner interfering with, restraining , or coercing employees
in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
( a) Post at its plant or place of operations in Hobbs, New Mexico, copies of
the attached notice marked "Appendix." 14 Copies of such notice, on forms pro-
"In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
J. C. PENNEY COMPANY (STORE #134) 1553
vided by the Regional Director for Region 28, after being duly signed by an
authorized representative of Respondent , shall be posted immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter,
in conspicuous places including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 28, in writing, within 20 days
from the receipt of this Decision , what steps Respondent has taken to comply
herewith.15
15 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT poll or interrogate our employees about their union activities
or try by such means to assume the functions of the National Labor Rela-
tions Board in its discharge of its duties , or seek to obtain from our employ-
ees revocation of union authorization cards, or interfere with or infringe upon
our employees ' rights to privacy in conducting their union affairs, or threaten
employees with bad consequences if they should vote for a union in an
election.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees because of their union activity.
All our employees have the right to join or assist Local 826 , International
Union of Operating Engineers , AFL-CIO, or any other union.
GLOBE CONSTRUCTION COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board's Regional Office, Room
7011, Seventh Floor, 500 Gold Avenue SW., Albuquerque, New Mexico, Telephone
247-2583.
J. C. Penney Company (Store #134) and Retail Clerks Interna-
tional Association , Local 253, AFL-CIO. Case 30-CA-376.
February 9, 1967
DECISION AND ORDER
On September 30, 1966, Trial Examiner Maurice S. Bush issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support of said exceptions,
162 NLRB No. 144.
264-047-67-vol. 162--99