Graham Engineering

National Labor Relations Board - Board Decisions

May 17, 1967

164 N.L.R.B. 679 (N.L.R.B. 1967)

GRAHAM ENGINEERING 679
W. J. Graham , John Graham , II, and Martin
Gracey, a Partnership d/b/a Graham
Engineering and Benjamin Havard, an
Attorney
Local 347, International Union of Operating
Engineers , AFL-CIO and William H. Kelley
and Benjamin Havard , an Attorney. Cases
23-CA-2177 and 2288 and 23-CB-555, 629, and
655.
May 17, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On December 7, 1966, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and
desist therefrom and take certain affirmative'action,
as set forth in the attached Trial Examiner's
Decision. He further found that Respondents had
not engaged in certain other unfair practices alleged
in the complaint and recommended that such
allegations be dismissed. Thereafter, Respondent
Employer and the General Counsel filed limited
exceptions to the Trial Examiner's Decision and
supporting briefs. The Respondent Union filed a
reply brief to the exceptions and brief filed by the
General Counsel.
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.
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 Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner as herein modified.
1. Add the following as paragraph 1(d) to section
A of the Trial Examiner's Recommended Order, and
consecutively reletter the paragraph subsequent
thereto:
"(d) Recognizing Local 347 as the representative
of any of their employees for the purpose of dealing
with them concerning grievances, wages, rates of
pay, hours of employment, or other terms or
conditions of employment, unless and until the
Board shall certify Local 347 as such representative.
Provided, however, that nothing herein shall require
the Respondent to vary or abandon any wage, hour,
seniority, or other substantive feature of their
relations with their employees, or prejudice the
assertion by the employees of any rights they may
have heretofore acquired."
2. Add the following as paragraph 2(a) to section
A of the Trial Examiner's Recommended Order, and
consecutively reletter the paragraphs subsequent
thereto:
"(a) Withdraw and withhold all recognition from
Local 347 as the collective-bargaining representative
of any of their employees for the purpose of dealing
with Respondents concerning grievances, wages,
rates of pay, hours of employment, or other terms or
conditions of employment, unless and until said
Local 347 shall have demonstrated its exclusive
representative status pursuant to an election
conducted by the National Labor Relations Board."
3. Add the following as the first paragraph to
Appendix A attached to the Trial Examiner's
Decision.
WE WILL withdraw and withhold recognition
from Local347, International Union of
Operating Engineers, AFL-CIO, as the
collective-bargaining representative of any of
our employees unless and until it is certified by
the National Labor Relations Board as such
representative. However, we are not required to
vary or abandon any wage, hour, seniority, or
other substantive feature of our relations with
our employees, and our employees are not
precluded from asserting any rights they may
have heretofore acquired.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondents , W. J. Graham, John Graham, II, and
Martin Gracey , a Partnership d/b/a Graham
Engineering , their officers , agents, successors, and
assigns, and Local 347, International Union of
Operating Engineers , AFL-CIO, their officers,
agents, and representatives , shall take the action set
forth in the Trial Examiner 's Recommended Order,
as herein modified:
i The Respondent 's exceptions to the Trial Examiner's
Decision are in large part directed to the credibility resolutions of
the Trial Examiner We will not, however , overturn a Trial
Examiner 's resolution of credibility issues unless the party
excepting to such finding demonstrates by a clear preponderance
of the relevant evidence that they are incorrect Standard Dry
Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
Respondent , in our opinion , has not satisfied that burden here
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN, Trial Examiner: The charge in Case
23-CB-555 was served on Respondent Union on July 23,
1964. The original charges in Cases 23-CB-629 and
23-CA-2177 were served on Respondents on
164 NLRB No. 87
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 30, 1965,' and the original charges in Cases
23-CB-655 and 23-CA-2288 were served on Respondents
on January 25, 1966. The consolidated complaint, as
amended , issued on May 24, 1966, and the hearing was
held from June 21 to 24, 1966 . After the hearing briefs
were filed by all parties.2 The issues litigated involved
alleged violations of Section 8(a)(1), (2 ), (3), and (4) by
Respondent Company and Section 8(b)(1)(A) and (2) by
Respondent Union.
Upon the entire record in this proceeding,'' including my
observation of the witnesses , I adopt the following findings
and conclusions.
1. THE BUSINESS OF THE COMPANY
W. J. Graham, John Graham, II, and Martin Gracey a
partnership d/b/a Graham Engineering , hereinafter called
the Company or Respondent Company, is a partnership,
and maintains its principal office and place of business at
the NASA Manned Spacecraft Center, in Houston , Texas,
where it performs certain maintenance services. The
Company annually purchases goods valued in excess of
$50,000, which are shipped to its Houston location from
out-of-State points. The Company is engaged in commerce
under the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 347, International Union of Operating Engineers,
AFL-CIO, hereinafter called the Union or Respondent
Union , is a labor organization under the Act.
International Union of District 50, United Mine Workers
of America , hereinafter called District 50, is a labor
organization under the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The pleadings raise the following issues:
1. Whether the Company violated Section 8(a)(1) of the
Act by interrogation, threats of reprisal, and other coercive
conduct.
2. Whether the Company violated Section 8(a)(2) and (1)
of the Act by requiring membership in the Union as a
condition of employment.
3. Whether the Company violated Section 8(a)(3) and (1)
of the Act by discharging various employees on
September 29, November 2, and December 30, by refusing
to hire Koppenol, and by refusing to promote Orvel Kelley.
4. Whether Respondent's alleged discharge of William
Kelley and its refusal to promote Orvel Kelley violated
Section 8(a)(4) of the Act.
5. Whether the Union violated Section 8(b)(1)(A) by
threats of reprisal for, and interrogation about, employee
concerted activities in opposition to the Union, by
soliciting employees to withdraw their support of District
50, and by informing employees that membership in the
Union was a condition of employment.
6. Whether the Union violated Section 8(b)(2) and (1)(A)
by causing the Company to refuse to hire Koppenol.
B. The Settlement Agreement
Since early in 1963, the Company has been engaged,
under a contract with NASA, to perform various services
at the Manned Spacecraft Center in Houston , hereinafter
called the Space Center , including the operation and
maintenance of the heating and cooling equipment and the
sewage and water treatment plants.
Prior to January 1, 1966, it had about 500 employees at
the Space Center , of whom 56 were stationary engineers,
hereinafter called operators, engaged in operating and
servicing the foregoing equipment . At all times here
relevant the operators were covered by a contract between
the Union ' s International parent body and the
Company." On July 20 , 1964, two of the operators , William
Kelley and his brother , Orvel , were discharged, and on
July 22, 1964 , William filed a charge in Case 23-CB-555
alleging that the Union had caused the discharge of
himself and his brother because of their "protected
concerted activities and/or because of their opposition to
intra-union policies." At the same time a charge was filed
by William Kelley against the Company in Case
23-CA-1854 alleging that the foregoing discharges
violated Section 8 (a)(3) of the Act. On September 8, 1964,
the Union entered into a settlement agreement , which was
approved by the Regional Director , and the Company
about the same time reinstated the Kelleys with backpay
in the amount of $1,000 to each , whereupon the charge
against it was withdrawn . On December 23, 1965, after the
filing of the instant charges against the Union, the
Regional Director set aside the foregoing settlement
agreement.
The settlement agreement is material here in that the
instant complaint alleges various unlawful acts by the
Union occurring more than 6 months before the service of
the earliest of the new charges against the Union (on
September 30, 1965), and which would be time -barred
unless the settlement agreement was properly set aside.
Accordingly, pursuant to Board policy , it will be necessary
to consider below whether there was any postsettlement
violation by the Union, before any findings can be made as
to its presettlement violations. However , in determining
the legality of the Union 's postsettlement conduct, such
conduct may be considered against the background, and
evaluated in the light , of its presettlement conduct.'
As to the Company, there is no problem of setting aside
a settlement agreement , as the old charge against it was
disposed of by withdrawal thereof in consideration of
certain remedial action taken by it, and without the
execution of any settlement agreement , formal or informal.
Moreover , the instant complaint does not allege any
violations by the Company antedating the settlement
agreement, nor does it in fact allege any such violations
before March 30, 1965, which is the cutoff date under
Section 10 ( b) with respect to the original charge against
the Company in the instant proceeding . Accordingly, any
events related below occurring before March 30, 1965, can
affect the Company only insofar as they provide a
background for conduct of the Company occurring on and
after that date . We proceed now to consider
chronologically the events which gave rise to this
' All events herein occurred in 1965, unless otherwise
indicated.
After the hearing there was also submitted by the parties, at
my request , various stipulations deemed by me necessary to
complete the record. Such stipulations have been marked as TX
Exh. 1 through 6 , and are hereby ordered received in evidence.
a For corrections of the record, see Appendix A attached hereto
[omitted from publication].
' The contract was executed on March 13, 1963, for a term of 1
year, with provision for automatic renewal.
Joseph's Landscaping Service, 154 NLRB 1384.
GRAHAM ENGINEERING 681
proceeding, concerning which there is no substantial
dispute.
C. Sequence of Events
On June 1, 1963, Prendergast became the Company's
"plants superintendent"" at the Space Center, in which
capacity he was responsible for the hiring and discharging
of operators and the overall supervision of their work. He
was assisted, among others, by Roy Clark, the "plant
superintendent."
Prendergast began recruiting operators in the fall of
1963. Admittedly, about one-third of the operators in the
Company's employ were referred to it by Jones, the
Union's business agent: and Teague, the Union's business
manager, acknowledged that all the operators hired by the
Company at the Space Center were members of the
Union.'
In October 1963, the Kelley brothers were hired.
From March 15 to May 1, 1964, Jones, on leave of
absence from his union post, was employed by the
Company in a supervisory capacity.
As already related, the Kelleys were discharged on
July 22, 1964, but, after charges were filed, were
reinstated early in September with backpay. During the
next few days, at the solicitation of William Kelley, about
half of the 50-odd operators then in the Company's employ
signed cards authorizing District 50 to represent them.
Shortly thereafter, Jones, with some assistance from
Prendergast, induced some of those who signed cards for
District 50 to forward letters to District 50 requesting
return of their cards.
In June 1965, Koppenol, who was not a member of the
Union, applied to Prendergast for a job as an engineer, and
was referred to Jones. After an unsatisfactory interview
with Jones, the details of which are discussed below,
Koppenol reported to Prendergast, who took no action on
Koppenol's application.
On September 2, Q. Simmang wrote the Company a
letter in which he indicated that he and other operators
were contemplating legal action against the Union. About
that time William Kelley attempted to revive interest in
District 50 by passing out some more cards for that Union,
and about the same time he collected contributions from
various of the operators to defray the cost of legal
representation, and retained an attorney, Havard, to
represent the dissident union members. On September 24,
Havard wrote Teague, the Union's business manager,
advising that he had been retained by certain employees
"at the NASA installation," to represent them in
connection with certain grievances against the Union,
including the alleged "dual employment" of Jones and the
alleged misuse of union funds, and requesting an audit of
such funds.
On September 28 and 29, the Company distributed to all
its employees new job application forms, which called for
certain information not contained in the forms theretofore
submitted by them, and which requested information as to
union affiliation . On September 29, William Kelley and
Van Meter were discharged, allegedly for refusing to
complete these new forms. On October 6, a suit was filed
in Federal district court to compel the Union to permit
inspection of its books. The suit named as plaintiffs the
Kelleys and Van Meter, among others. The next day, a
local newspaper published a report of this action, listing
the plaintiffs' names. On November 2, Robertson, one of
the plaintiffs in the foregoing lawsuit, was discharged,
allegedly for violating a plant rule against reading on the
job.
During the last week in December, the Company laid off
a number of its operators, for economic reasons, including
three who were named as plaintiffs in the foregoing
lawsuit.
D. Discussion
1. The closed-shop issue
While the instant employees were admittedly covered
by an agreement between the Company and the Union's
International parent body, which contains a union-security
clause, that clause is by its terms not applicable to a State
like Texas, which outlaws union-security arrangements.
And the complaint contains no allegation that there was
any unlawful union-security arrangement to which the
Union was a party. It is alleged only that the Company
rendered unlawful assistance to the Union by requiring
union membership as a condition of employment.
Accordingly, as the issue was not litigated, there is no
need to determine at this point whether there was involved
here more than merely a policy unilaterally adopted by the
Company. In support of his contention that there was such
a policy, the General Counsel points to the following:
a. The fact that, as noted above, all of the operators
hired by the Company were members of the Union, even
though the union-security clause in the International's
agreement did not, and could not lawfully, apply to the
instant job.
b. Prendergast's admission that Jones was given
advance notice of prehire interviews in the early stages of
the Company's recruitment program.
c. Testimony by William Kelley, Van Meter, Q.
Simmang, D. Simmang, Sledge, Jack Clark, and Sutphin
that the Company required that they join the Union as a
condition of employment"
d. Testimony of Sledge that Prendergast gave him a
union membership application to sign and collected $5
from him, which was apparently the amount of the union
initiation fee, as well as the testimony of Q. Simmang that
he was requested to sign a union membership application
by Prendergast's secretary, who collected $9 from him for
the Union.
e. Testimony by Edge that, when he applied to
Prendergast early in 1964, for a job, he was told to see
Jones about becoming a union member; that he joined the
Union in December 1964, that sometime thereafter he was
notified by Jones to report for work, and, when he
appeared at the jobsite, was offered employment by
Prendergast. '
f. Testimony of Revell, Junior, that, when he and his
father applied to Prendergast, they were told to see Jones
about joining the Union; that they talked to Jones; that the
witness later received a call from Jones informing him that
he was to be hired by the Company, and directing him to
'' His designation was later changed to "operations
superintendent ," but without any apparent change in duties
' While Prendergast testified that he did not think that all the
operators were union members , I deem Teague 's testimony more
reliable , as he was obviously better qualified than Prendergast to
know the identity of the union members
" As to Koppenol's like testimony, see below
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come to Jones' office and join the Union, which he did. He
was thereafter hired by the Company.
g. Testimony by Robertson that he applied to the
Company for employment, that Jones called him to come
to his office, and that about 2 weeks before he was actually
hired Jones told him to join the Union "and the job was
mine."
In opposition to the foregoing, the Company adduced
testimony by Prendergast denying that he told any
applicant that he had to join the Union as a condition of
employment." Prendergast insisted that he merely
explained to applicants that all the craftsmen at the jobsite
were union members, and that the Union's jurisdiction
extended to the Company's operations. However, he
admitted that he might have given Sledge a union
authorization card and collected $5 from him Nor did he
controvert Q. Simmang's testimony that, at the behest of
Prendergast's secretary, he signed a union membership
application and paid her $9.
On the basis of demeanor, and in view of the cumulative
effect of the testimony of the employee witnesses, as well
as the fact that all the Company's operators were union
members, I credit such testimony and find that
Prendergast not only required union membership as a
condition of employment but also assisted Jones in
inducting the operators into the Union, by giving him
advance notice of the identity of those whom the Company
proposed to hire, and by personally, or through his
secretary, soliciting job applicants to sign union
membership applications and pay initiation fees and dues.
However, except for Koppenol, all the foregoing
employee witnesses were hired before May 10, 1965-the
relevant cutoff date under Section 10(b) of the Act."'
Accordingly, insofar as the General Counsel is contending
that the Company has since that date maintained in effect
a closed-shop policy, no finding to that effect may be made
solely on the basis of the circumstances under which
employees were hired before the cutoff date, and such
circumstances may serve only as a basis for evaluating
events occurring since that date. The only such more
recent events here relevant appear to be (1) the fact that
since May 10, 1965, as before, all the operators hired by
the Company were admittedly union members, and (2) the
circumstances surrounding the Company's failure to hire
Koppenol in June 1965
As to Koppenol, the evidence was as follows:
He testified that in June 1965, he applied to Prendergast
for a job as an operator, that Prendergast assured him that
there was a job available and, after ascertaining that the
witness had the proper license, gave him an application to
complete, but told him he had to go to the Union and to
return with his application after joining the Union; that the
witness went to the Union's office, where he was
interviewed by Jones: that, when the witness offered to
join the Union, asserting that he could get a job with the
Company, Jones stated:
Well, you cannot get the job and we cannot make you
a member because there are sixty-seven more people
on my list.
According to the witness, when he continued to
importune Jones to admit him to membership, Jones
indulged in profanity, and declared, "you are not a
member, you cannot get the job." However, under cross-
examination, Koppenol admitted that Jones stated that
Koppenol could join the Union but asserted that , even as a
union member , Koppenol could not get a job with the
Company, as there were 67 applicants ahead of him. He
added that, when he called Prendergast the next day, the
latter stated that he could not hire Koppenol absent union
membership. Koppenol was not hired.
Prendergast's version was that, after reviewing
Koppenol's qualifications, he explained that it was his
practice to hire directly, but that, if he had no qualified
applicant for a particular opening, he would call upon the
Union for referrals; that Koppenol then stated that he was
a member of the Union: that Prendergast remarked that he
had no openings but suggested that, if Koppenol was a
union member, Jones might be able to help him find a job;
that the next morning Koppenol called him to report that
Jones had abused Koppenol and ordered him out of the
office; and that the witness merely expressed his regret at
the incident, and had no further conversation with
Koppenol. Prendergast insisted that his only reason for not
hiring Koppenol was the absence of any opening at the
time and that he did not hire any operators until about 10
days later.
According to Jones, when he was told by Koppenol that
he was seeking a job with the Company, Jones remarked
that normally the Company would call him for referrals, if
it needed any from him, but that he had not had any such
call and, so far as he knew, there was no job available with
the Company; that Koppenol countered that he could have
a job with the Company if Jones would refer him; that
Jones declared that the Company was free to hire
Koppenol without any such referral; that Koppenol then
offered to join the Union, if Jones would refer him to the
Company; that Jones answered:
... if I had the jobs available, I would probably get
sixty or seventy people to join my union in the
morning, if I had these jobs and could fill them.
Jones added that he solicited Koppenol to join the Union,
but Koppenol persisted in his position that he would join
the Union only if Jones would refer him to the Company,
and that, when Koppenol threatened to file charges with
the Board, Jones was provoked to profanity and ordered
him out of Jones' office.
It appears from the foregoing that there is no substantial
dispute that Koppenol applied in June 1965 to
Prendergast, who was satisfied with Koppenol's
qualifications; that Prendergast referred Koppenol to
Jones for help in obtaining employment; that Koppenol
informed Jones, in effect, that he expected to be hired by
the Company, if he could obtain a referral from Jones, and
offered to join the Union; that, while willing to admit
Koppenol to membership, Jones refused to refer him to the
Company: that Koppenol informed Prendergast that Jones
would do nothing for him; and that Koppenol was not
hired.
The only points in dispute are the following:
1. Whether Prendergast indicated that he would hire
Koppenol if he became a union member.
2. Whether Prendergast told Koppenol to see the Union
about becoming a union member.
3. Whether Prendergast told Koppenol , after his
" Jones denied that he notified any operator to report for work Union as a condition of employment first appears in an amended
with the Company For reasons indicated below , I do not credit charge in Case 23-CA-2177, which was served on the Company
such denial on November 10, 1965
" The allegation that the Company required membership in the
GRAHAM ENGINEERING 683
interview with Jones, that he could not hire him so long as
he was not a union member.
With regard to all the foregoing matters, the issue is
basically one of resolving credibility as between
Prendergast and Koppenol. I credit Koppenol on the basis
of demeanor.'' I find therefore that Prendergast told
Koppenol, in effect, when he applied, that he would be
hired if he joined the Union, and referred him to the Union
for that purpose, and the next day refused to hire him
because he had not become a union member; and that, by
such refusal, the Company violated Section 8(a)(3) and (1)
of the Act. I find further that, as alleged in the complaint,
by Prendergast' s statements to Koppenol to the effect
that, absent union membership he would not be hired,
Respondent violated Section 8(a)(1) of the Act.'2
In view of the foregoing findings, and in view of the fact
that after May 10, 1965, as was the case before that date,
all the Company's operators were union members, I
conclude that the Company's preexisting policy of hiring
only union members has been maintained in effect since
May 10, 1965, and that the Company thereby rendered
assistance to the Union, in violation of Section 8(a)(2) and
(1) of the Act.'•'
There remains to be considered whether, as alleged in
the complaint, the Union violated Section 8(b)(2) and
8(b)(1)(A) of the Act, by causing or attempting to cause the
Company to refuse to hire Koppenol because of his lack of
union membership. There is no conflict between Koppenol
and Jones that Jones refused to refer Koppenol. However,
a Union's refusal to refer a job applicant is not , without
more, unlawful. It must be shown in addition (1) that the
Company had arranged with the Union to hire only persons
referred by it and (2) that the Union discriminated as
between job applicants on the basis of union
considerations. As to (1), Koppenol attributed to Jones the
assertion that Koppenol could not get a job with the
Company, even if he became a union member, because
Jones would not refer him, thereby implying that Jones
had exclusive referral power. Moreover, the contract in
evidence between the Union and the Company requires it
to seek referrals from the Union to fill the Company's
manpower needs. On the other hand, if one accepts as true
Prendergast's and Jones' version of their referral
arrangement , as allegedly related by them to Koppenol, it
would appear that such arrangement was not exclusive but
was resorted to only when qualified applicants could not
be obtained by direct hiring. Moreover, Koppenol's own
testimony attributes to Prendergast only a stipulation that
he obtain union membership, and not a union referral, as a
condition of employment. Thus, such testimony
establishes that Prendergast was prepared to hire
Koppenol if he would but join the Union. Finally, there was
no contradiction of Teague's testimony that only about
one-third of the Company's operators had been referred by
the Union, and the record abounds with evidence of direct
hiring by Prendergast. Accordingly, I find that, insofar as
it precluded direct hiring, the contract was in practice
disregarded by the parties.
In any event, as to (2), the record fails to establish that
Jones refused to refer Koppenol because of lack of union
membership or for any other reason proscribed by the Act.
It is clear from Koppenol's own testimony that Koppenol
offered to join the Union and that Jones was willing to
accept him as a member, but that Koppenol was deterred
from joining when Jones indicated that, in any case, he
could not refer Koppenol to the Company because 67
others had registered for referral ahead of him. Thus, from
Koppenol's own testimony it would appear that the
proximate reason for his failing to obtain a referral from
the Union was not his unwillingness to become a union
member or the Union's unwillingness to accept him as a
member, but the fact that the Union deemed itself bound
to give priority in referrals to others who had applied
before he had. It would seem therefore that the General
Counsel has proved merely that Koppenol was not hired
because he failed to obtain union membership, which the
Union, however, was willing to grant him. In view of this, I
am unable to find that, as the complaint alleges, the Union
caused or attempted to cause the Company not to hire him
because he lacked union membership, and it will be
recommended that this allegation be dismissed. 14
2. Other 8(a)(1) violations
It is alleged that on or about August 16, Plant
Superintendent Roy Clark promised an employee a
promotion if he abandoned his concerted activities in
opposition to the Union. This allegation evidently refers to
an incident involving Roy Clark and his brother Jack, who
in August was an operator and was later, on October 4,
promoted to chief operator, a position which he held at the
time of the hearing Jack Clark was an understandably
reluctant witness for the General Counsel, but ultimately
acknowledged the veracity of statements made by him in a
pretrial affidavit to the effect that he was told in mid-
August by his brother that he had talked to Prendergast,
who had asserted that if the witness "was not mixed up in
this deal to get rid of Jesse Jones," the witness could be
promoted to chief operator According to the affidavit, the
witness retorted that he "would not change his mind
about" Jones and that he thought the employees needed
"more equal representation." Roy Clark denied that there
" Moreover , Prendergast ' s version of his interview with
Koppenol appears contrived , as he failed to explain why it was
necessary for him to describe to Koppenol, an admittedly
qualified applicant, his alleged practice of calling upon the Union
for referrals when he had no qualified applicants
' However, there is nothing in the record to support the
allegation in section 7(a) of the complaint that Prendergast
coercively interrogated Koppenol about his union membership
" While such policy was also violative of Section 8(a)(3) of the
Act, such a violation was not specifically alleged In any event, a
finding to that effect would not affect the remedy herein
'a Even if it be assumed, contrary to the findings above, that
Koppenol would not have been hired had he joined the Union
unless he was referred by Jones, there would still be insufficient
basis in the record for finding a violation of Section 8(b)(2) of the
Act, for, to establish such a violation , it would have to appear in
addition that Jones refused to refer Koppenol for discriminatory
reasons, or prevented him from qualifying for referral for reasons
proscribed by the Act However, according to Koppenol's own
testimony Jones indicated only that Koppenol , even if he joined
the Union, would not be referred because of the large number of
prior registrations for referral-clearly not a discriminatory
criterion Nor is it clear how it can be said that , by advising
Koppenol of this nondiscriminatory basis for job referrals, which
advice caused Koppenol to lose interest in qualifying for such
referrals by joining the Union, Prendergast prevented Koppenol
from so qualifying In any event, the General Counsel has
suggested no reason for believing , and there is no evidence that,
in giving such advice , Jones was motivated by any bias against
Koppenol because of his union or nonunion status On the
contrary, the record is replete with evidence that Jones accepted
as union members , and referred to employment with the
Company, operators who, like Koppenol, had had no prior
affiliation with the Union
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was any such conversation. The fact that, despite his
evident reluctance at the hearing to implicate his brother
or the Company in any unfair labor practices, Jack Clark
did not attempt to repudiate, or to mitigate the effect of,
his affidavit vouches for its veracity. In view of this, I give
credence to the statements in such affidavit, as adopted at
the hearing, and find that, by the foregoing promise of
promotion if Jack Clark disassociated himself from any
movement to unseat Jones as the Union's representative,
Respondent violated Section 8(a)(1) of the Act.
It is alleged that on or about September 22, 1965, Roy
Clark requested an employee to discourage others from
concertedly opposing the Union's administration of its
internal affairs, and threatened an employee with reprisals
if he gave any information to the Board. Van Meter
testified that about September 22, Roy Clark asked him to
talk to some of the other employees who "were going down
to the court," and see if the witness "could get them
settled down a little bit," or get them to "slow down,"
because there was a good chance that Clark might lose his
job. According to the witness, Clark explained that he was
being held responsible by management for the
reinstatement of the Kelleys, as he had "testified that the
Kelleys' work was good," and, when the witness expressed
the view that the employees were acting within their
rights, Clark rejoined, "Well, maybe so, but all they
needed to do was just to make one mistake."
While Clark denied making any of the foregoing
statements, I credit Van Meter on the basis of demeanor
and the circumstantiality of his testimony.' 5
However, it is not clear from Van Meter's testimony
what "court" action Clark had reference to." No lawsuit
was actually filed until October 6, about 2 weeks after the
foregoing incident. However, on September 2, Q.
Simmang had written Graham indicating that some of the
operators were resorting to "private litigation" against the
Union, and, as Prendergast's below-noted inquiry of
Springer early in September indicated, the former then
knew that William Kelley was raising a fund to retain
counsel. The inference is therefore warranted that, when
he spoke to Van Meter, Clark was aware that the dissident
operators were contemplating litigation against the Union,
and that his remarks to Van Meter were calculated to
deter them from proceeding with such action. As such
action was concerted activity protected by the Act, I find
that, by Clark's solicitation of Van Meter to discourage the
operators from proceeding therewith, the Company
violated Section 8(a)(1) of the Act.
There remains the question whether, as alleged in the
complaint, Clark's remarks contained a threat of reprisal
for giving information to the Board. The General Counsel's
theory here appears to be that, in expressing fear for his
job because his "testimony' '17 had been favorable to, and
forced the Company to reinstate, the Kelleys, Clark was
implying that the Company would not hesitate to take
reprisals against anyone, including rank-and-file
employees, who gave information to the Board adverse to
' S The record shows that Clark did in fact furnish an affidavit to
the Board in the course of the Board 's investigation of the charges
filed by William Kelley in 1964, and that Clark therein spoke well
of the Kelleys ' competence as employees The record fails to
suggest how Van Meter could have known this had Clark not
made the disclosure attributed to him by Van Meter
16 Van Meter opined that this incident occurred "when they
were bringing this in on the dual employment of Jesse Jones and
so forth " As the matter of Jones' alleged dual employment was
the interests of the Company. Whether or not Clark
intended his remark to be so construed, it was readily
susceptible of such a construction. It is therefore found
that Respondent thereby additionally violated Section
8(a)(1) of the Act.
It is further alleged that, on or about September 29, the
Company unlawfully interrogated its employees by
requiring them to answer a question in an employment
application about their union affiliation. This has
reference to the fact that on September 28 and 29, the
Company distributed to all its employees, about 500 in
number, new employment application forms, which called
for certain information not previously supplied relating to
education and medical history, and which contained a
question about union affiliation. The Company's personnel
director, John Graham,"' testified that this question had
been included in all the Company's employment
application forms to enable it to maintain an index of its
employees on the basis of union affiliation, so that it would
know, in dealing with the various unions at the jobsite,
which employees were represented by which union. He
added that, after consulting with counsel, who questioned
the propriety of this item on the form, he instructed his
secretary to delete it from all the applications that had not
yet been distributed, but such deletion was not effected in
those that had already been passed out. However, there is
no evidence that the employees who received the
uncorrected forms, including a number of the operators,
were apprised of the inadvertence, or told that they were
not required to disclose their union affiliation;'`' and the
operators may well have believed that the question on the
form was designed to ascertain whether they were still
members of the Union, which membership as found above
had been consistently required by the Company as a
condition of employment, and to ascertain whether any of
its operators had again defected to District 50.20In view of
these circumstances, it is found that the inclusion in the
form of the question concerning union affiliation was
coercive, and that the Company thereby violated Section
8(a)(1) of the Act.
The complaint alleges that on or about November 2,
Prendergast threatened an employee with discharge for
concerted activities. In support of this, the General
Counsel adduced testimony by Springer that on
November 2, after the discharge of Robertson on that date,
which is discussed below, the witness was called into
Prendergast's office, and that Prendergast was "laughing"
and told the witness he had eliminated one "agitator" and
was going to eliminate some more, and that one was just
then walking by the office whom he intended to eliminate.
The individual last referred to, according to the witness,
was Orvel Kelley. Prendergast denied that there was any
such conversation, and it was shown at the hearing that
Springer had twice been convicted of forgery. However, he
had completed his second sentence in 1952 or 1953, and
there was no evidence that he had had any difficulties with
the law during the past 13 years. Moreover, I was favorably
mentioned in Havard 's letter of September 24, 1 construe this
testimony to have reference to that letter
"See fn 15, above
" All references hereinafter to "Graham" denote John
Graham, II.
'" Those operators who testified on this point denied that they
were told to ignore the question about union affiliation
"' As already noted, a few weeks before the new applications
were distributed , William Kelley had renewed his campaign to
organize the operators on behalf of District 50
GRAHAM ENGINEERING 685
impressed by his demeanor and the specificity of his
testimony.2' In view of this, I credit Springer and find that
Prendergast made the foregoing remarks about getting rid
of "agitators." As both Robertson and Orvel Kelley were
at that time involved, as Prendergast admittedly knew,22
in the suit that had been filed against the Union, the clear
implication of his statement was that he was planning to
discharge all those so involved.
3. The failure to promote Orvel Kelley
The complaint alleges that since March 30, 1965,223 the
Company has refused to promote Orvel Kelley to chief
operator because of his opposition to the Union, his filing
of charges against the Company and the Union, his giving
of testimony under the Act, or his involvement in
concerted activities, and that the Company thereby
violated Section 8(a)(1), (3), or (4) of the Act.
Orvel Kelley was first hired in October 1963 and was
employed as an operator until his discharge, together with
his brother, on July 20, 1964. As related above, after
charges were filed by William Kelley against the Company
and the Union, both Kelleys were reinstated with backpay
early in September 1964, and Orvel Kelley has since been
employed as an operator. He was a plaintiff in the suit filed
against the Union on October 6, and, as found above, on
November 2 Prendergast cited him to Springer as one of
the "agitators" who would be eliminated from the
Company's employ.24 There was also some evidence that
he participated in the distribution of District 50 cards in
August 1965.
Although Orvel testified that since his reinstatement in
September 1964, there had been 11 promotions to chief
operator, so far as the record shows Respondent since the
May 10 cutoff date has promoted to chief operator only the
following, on the dates shown:
1. McCairns, on May 18
2. Corley, on June 28
3. Revell, Junior, on October 4
4. Jack Clark, on October 4
5. Pape, on October 12.25
The gravamen of Orvel's complaint appeared to be that
he had more seniority than those who had been promoted.
However, nothing in the Union's contract requires that the
Company consider seniority in making promotions.
Moreover, of the five listed above, McCairns and Revell,
Junior, had equal seniority with Orvel.
While the General Counsel adduced testimony, which I
credit, as to Orvel's competence in all phases of his
work,'" there was no preponderance of evidence that
Orvel was more competent than any of those who were
promoted.27
Moreover, at the time of the promotion of McCairns and
Corley, the only protected activity with which Orvel was
associated was the filing of the charge on his behalf in July
1964, by his brother. Even if it be assumed that any
discrimination against Orvel on that account would violate
Section 8(a)(4) of the Act,"" the fact remains that
Respondent had as much, if not more, reason to
discriminate against Revell, Junior, for, he, like the
Kelleys, was discharged on July 20, 1964, and after filing a
charge on his own behalf, was reinstated on the same
terms, and at the same time, as the Kelleys.29 Yet, he has
at all times since his reinstatement retained his position of
chief operator. In view of this, and in view of the
remoteness of the incident, as well as the absence of any
evidence that Orvel Kelley was more competent than
McCairns or Corley, I do not find any discrimination
against Orvel in their promotion.
While, by the time of the promotion of Jack Clark and
Revell, Junior, on October 4, Orvel had (in August)
participated in the distribution of District 50 cards, there is
no cogent evidence that Prendergast was aware of this
activity. Nor is there any direct evidence that on
October 4, Prendergast suspected that Orvel was involved
in the preparation of the lawsuit against the Union that was
filed on October 6,•1o or that prior to October 7,
Prendergast knew that Orvel would be a plaintiff in that
action. While it appears from Van Meter's version of his
conversation with Roy Clark on September 22, 1965,
which I have credited, that Clark made some disparaging
allusion to the "Kelleys" in the context of his discussion of
the operators' plans for a lawsuit, Springer testified that
Prendergast about the same time referred only to William
Kelley as the instigator of the litigation 31
Moreover, both Revell, Junior, and Jack Clark were like
Orvel, plaintiffs in the lawsuit, and both were promoted
only 2 days before the suit was filed. If one assumes that
Prendergast on October 4 passed over Orvel because
Prendergast knew of his involvement in the impending
No effort was made to cross-examine Springer with regard to
the details of his direct testimony
22 The suit had been filed about a month before and named
Robertson and Orvel Kelley, among others, as plaintiffs
Prendergast admitted that he had read a newspaper account of
the suit published on October 7, which listed the names of the
plaintiffs
2-1 This is presumably regarded by the General Counsel as the
cutoff date under Section 10(b) of the Act However, as the
allegation of a discriminatory refusal to promote Orvel first
appears in an amended charge in Case 23-CA-2177, served on
the Company on November 10, 1965, the appropriate cutoff date
would seem to be May 10,1965
'a He was not , however, included in the December 31 layoff
The General Counsel would have the Board attribute this to the
fact that by that time a charge had been filed alleging
discrimination against him in failing to promote him
2' See TX Exh 4(c)
26 The credibility of Prendergast 's testimony that Orvel's work
on refrigeration equipment left something to be desired was
impugned by his inept efforts to explain why in 1963 , when he was
Orvel's supervisor on another job, he had given him a favorable
rating for his work on refrigeration equipment
27 Only in the case of Pape did the General Counsel attempt to
adduce any evidence on this point- in the form of testimony by
Orvel's chief operator, Chatterton-and, although he professed to
be familiar with Pape's work, Chatterton, when asked to compare
the ability of Orvel and Pape, answered only, "I wouldn't make
any estimate on that " There was , thus, no refutation of
Prendergast 's testimony that he regarded Orvel as less qualified
than those selected for promotion
25 That subsection forbids discrimination only "against an
employee because he has filed charges or given testimony under
the Act" (emphasis added) However, the Board has construed
Sec 8(a)(4) as protecting an employee, under certain
circumstances , against discrimination because a charge has been
filed by another on his behalf Briggs Manufacturing Co , 75
NLRB 569, 572-573. Burnside Steel Foundry Company, 69 NLRB
128, 136 (While the complaint alleges discrimination against
Orvel for, inter alta , giving testimony under the Act, there was no
evidence to support this allegation )
29 See TX Exhs 2(a) through (f) and 4(b)
"'Indeed, there is no evidence that Orvel was in fact so
involved, apart from his apparent consent to be named as plaintiff
in the action
1i Despite Prendergast 's denial, I credit Springer as to this
conversation.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawsuit, it becomes necessary to explain why he gave
preference to the two others. There is as much reason to
infer that he was aware of Revell, Junior's, involvement as
that he was aware of Orvel's.:12 Moreover, it has already
been found that Jack Clark in August indicated to
Respondent that he would not disassociate himself from
the anti-Jones group, despite Respondent's warning that
he would not be promoted to chief operator unless he did
so. Yet, this did not deter Respondent from promoting
him.
Under all the circumstances, I am not persuaded that
Prendergast promoted Jack Clark or Revell, Junior, in
preference to Orvel Kelley, for discriminatory reasons.
As for Pape, by the time of his promotion, on
October 12, Prendergast admittedly knew that Orvel was a
plaintiff in the suit against the Union, and it may be
inferred that this was what prompted Prendergast's
disparaging reference on November 2 to Orvel as an
"agitator," who would be eliminated. While there is,
accordingly, persuasive evidence that by October 12,
Prendergast was disposed to discriminate against Orvel,
the General Counsel's case fails even here because of the
aforenoted absence of any proof that Orvel was more
competent than Pape."'
It is accordingly concluded that, while the matter is not
free from doubt, discrimination against Orvel Kelley in the
matter of promotions has not been proved and dismissal of
the instant allegation will be recommended.
4. The discharges
a. On September 29
On September 29, the Company discharged William
Kelley and Van Meter. The reason assigned for their
discharge was their refusal to complete the new job
application forms, which, as noted above, were distributed
on September 29 to the operators. Although the discharges
were simultaneous and had certain common features, an
attempt will be made to deal separately with each.
(1) Kelley
Kelley testified that on the morning of September 29,
when Roy Clark handed him the new form with
instructions to fill it out, Clark was at a loss to answer
Kelley's question about the purpose of the application;
that the same afternoon, in response to an inquiry by
Clark, the witness indicated that he had not completed the
form because he was waiting for an answer to his previous
question; that Clark then told him the purpose was to
update the Company's records; that, not being satisfied
with this, the witness proceeded to Prendergast's office
where, in the presence of Clark and Van Meter, the
witness twice reiterated his refusal to complete the
application until he knew the reason therefor; that
Prendergast ordered the witness to turn in his badge; that,
when the witness refused, a discussion ensued, in the
course of which Prendergast confirmed that the purpose of
the new form was to update the Company's records; that
the witness then stated that he wished to consult the
Board and his attorney before completing the form; that
Prendergast offered him the alternative of compliance or
discharge, and told him that, if he was not satisfied, he
might appeal to Personnel Director Graham; that the
witness did not comply and did not go to Graham. Kelley
explained that he balked at completing the form because
he suspected that the Company wished to discharge him
for his antiunion activities, and hoped to find some
discrepancy between his answers in the new and the old
form which it could use as a pretext for such discharge,
and that he felt that under such circumstances it would be
futile to appeal his discharge to Graham.
Prendergast's version of the discharge interview did not
differ materially from Kelley's, except that he made no
reference to Kelley's alleged request for an opportunity to
consult the Board and his attorney before deciding
whether to comply with Prendergast's ultimatum. While
admitting that at the time of the foregoing incident he had
heard that Kelley was engaged in some dispute with the
Union and Jones, Prendergast disclaimed any knowledge
of the nature of the dispute 34
At the hearing, the General Counsel suggested that the
only reason for the distribution of the new forms was the
Company's hope that some of the operators would refuse
to fill them out, thereby affording a pretext for their
discharge. However, in his brief the General Counsel
appears to have abandoned this rather speculative
contention, in recognition of the uncontroverted evidence
at the hearing that the new forms were distributed not only
to the operators, but also to all the Company's 500-odd
employees, including its salaried personnel; and the
General Counsel's present position appears to be that,
while the discharge of Kelley (and Van Meter) was not
planned in advance, the Company utilized Kelley's
fortuitous reluctance to complete the form as a pretext for
discharging him, the real reason for such action being his
involvement in the operators' antiunion activities.
However, while it is clear from the record that the
Company did not look with favor on such activities, and
while it is found below that Robertson 's similar
involvement was a factor in his discharge , I am not
persuaded that the record preponderates in favor of a
finding that Kelley's discharge was pretextual. In contrast
'" Moreover, only 2 weeks before his promotion, Revell, Junior,
had filed a grievance alleging discrimination against him by
Prendergast and Roy Clark because in 1964 he had given
"testimony" to the Board in support of the old charges against the
Company. It is thus evident that, when he promoted Revell,
Junior, Prendergast was aware of his foregoing "testimony,"
adverse to Respondent.
'' See in. 27 above. While Pape was demoted on December 28
(See TX Exh. 6), such demotion appears to have been due to the
general retrenchment effected at that time . At any rate, as the
circumstances of such demotion were not litigated, it would not
be proper to draw any inference therefrom adverse to
Respondent.
About a week after Pape's promotion, Orvel complained to
Prendergast that he had been unjustly passed over. In his brief
the General Counsel suggests that such complaint may have
motivated any subsequent discrimination against Orvel, with
regard to promotions. However, there is no evidence of any
promotions after Pape's.
'' During the period of several weeks before his discharge
William Kelley was engaged in (1) an attempt to revive interest in
District 50, (2) a campaign to raise funds to retain legal counsel to
represent the dissident union members, and (3) an effort to obtain
an investigation by a Federal agency of alleged improper
payments by the Company to Jones. However, while Springer's
testimony that Prendergast asked him about the fund that Kelley
was raising indicates Prendergast 's awareness of that activity,
there is no evidence that he knew about any of the other activities.
Nor is there any evidence that the Company had any knowledge of
the contents of Havard's letter of September 24 to the Union
charging that there had been dual employment of Jones, and
seeking an accounting of certain union outlays.
GRAHAM ENGINEERING 687
with its summary and precipitous action in Robertson's
case, it is clear from Kelley's own testimony that
Prendergast repeatedly urged him to comply, and finally
even offered him an unsolicited opportunity to appeal his
discharge to Graham. It is immaterial whether this was
due to the Company's unfortunate experience with Kelley
in connection with his 1964 discharge, or merely to a
desire to be fair to him. In any case, the consideration thus
shown Kelley is difficult to reconcile with the General
Counsel's "pretext" theory. Moreover, so far as the record
shows, except for Van Meter, who was also discharged
under circumstances discussed below, no one else of the
500 or so employees who received the new forms
expressed an unwillingness to complete the form.
Accordingly, there is no evidence or contention that there
was any disparate treatment involved in Kelley's case. The
General Counsel suggests only that the penalty of
discharge may have been too severe in view of Kelley's
testimony that toward the end of his interview with
Prendergast he did not unequivocally refuse to complete
the form but merely asked for time to consult the Board
and counsel.'1-5 However that may be, the fact remains that
Kelley, according to his own testimony, repeatedly balked
at filling out the application on the spot, even in the face of
an ultimatum that he do so or be discharged and that his
conduct was therefore undeniably insubordinate.
Reasonable men might well differ as to whether it would
have been better policy for the Company to have
overlooked such insubordination or whether the Company
was justified in taking the position in the interest of
maintaining plant discipline, that its employees were not
entitled to refuse to comply, or to seek legal advice before
complying, with on-the-job instructions. In any event, the
Company's adoption of such position and its
implementation thereof by discharging Kelley does not
appear to have been so shocking or outlandish as to
require a finding that the Company's motivation was
discriminatory,-'6 particularly in view of the evidence cited
above of the extreme pressure exerted by Prendergast
upon Kelley to fill out the application and avoid
discharge. "
(2) Van Meter
Van Meter, like Kelley, was handed the new application
by Roy Clark on the morning of September 29. Van Meter
testified that, when he asked why the new form was
necessary, Clark answered only that the Company wanted
it completed, that, when Clark inquired about the form
later in the day, the witness stated that he could not
complete it because he needed some information; that he
was called into Prendergast's office at the same time as
Kelley; that the witness told Prendergast that, in order to
complete the form, he needed some data from a file he
kept at home; that Prendergast asked the witness why he
had not mentioned that before; that Prendergast then
asked the witness if he wanted to see Graham; that, upon
arriving at Graham's office with Clark, the witness again
asked about the reason for the form; that Graham
explained that it was needed to update the Company's
records, and it would be useful in connection with
promotions and transfers; that the witness then indicated
that he was "satisfied with it," and Clark proposed that,
since the matter was settled, the witness return to work;
that Graham, however, stated that he would have to check
with Prendergast; that there followed a series of telephone
conversations in another office involving Graham and
Clark; that Graham then returned to the witness and
discussed that the Company would have to "make it stick"
or "make it hold up," and he was discharged.
Thus, if one credits Van Meter, in his discussion with
Clark and Prendergast, (1) he not only did not refuse to
complete the new form, but in effect indicated that he
would do so after consulting his records, and (2) he was,
nevertheless, told by Prendergast to see Graham and,
notwithstanding Van Meter's apparent withdrawal of his
objection to the form in the light of the explanation
therefor tendered by Graham, the latter announced Van
Meter's discharge after consulting with Prendergast."
Prendergast testified, on the other hand, that Clark
reported to him early on the morning of the 29th that Van
Meter (as well as Kelley) was refusing to fill out the form;
that at his interview that afternoon with Kelley and Van
Meter, he asked both men to fill out the form; that Van
Meter "just shook his head, and said, `No"'; that, acting on
instructions by telephone from Graham, the witness then
directed both men to fill out the form "on company time
before you leave," and upon their refusal to do so, ordered
them to turn in their badges; that Van Meter stood mute;
that, after reporting this by telephone to Graham, who
instructed him to discharge Van Meter (and Kelley), the
witness did so, stating that the discharge might be
appealed to Graham. As to the subsequent events, Graham
testified that, after the reason for the new form was
explained to Van Meter, he expressed concern that the
execution of a new job application might affect his
seniority; that the witness explained that there was no
seniority provision in the Union's contract; that Van Meter
seemed confused at that point; that the witness called
Prendergast from another office to verify the fact that he
told Van Meter the reason for the new form; that
Prendergast asserted that he did and, at Graham's
request, verified also that he had refused to complete the
form; and that the witness then returned to Van Meter and
confirmed his discharge. Graham denied that Van Meter
ever offered to fill out the form. When asked why it was
necessary for him to verify that Prendergast had told Van
Meter the reason for the form, Graham explained that
when he came to Graham's office, Van Meter seemed
confused, as if he had never been told the reason for the
4' Van Meter corroborated Kelley to the extent of testifying that
he heard Kelley tell Prendergast that he had "definitely not
refused to fill out" the form However, Kelley admitted that
Prendergast characterized Kelley and Van Meter as the only
employees of the Company who had refused to complete the
forms
" See Cornwell Company, Inc , 161 NLRB 807
" Such evidence can be discounted only if it be assumed that
Prendergast expected that Kelley would not yield to such
pressure and would persist in his refusal However , apart from the
speculative nature of such an assumption , it seems unlikely that,
if he were seeking a pretext to discharge Kelley, Prendergast
would take the risk that Kelley would act contrary to such
expectation
" Although Kelley was present during the exchange between
Prendergast and Van Meter, he was not questioned about it by the
General Counsel Clark was also present during the exchange, but
I advised the Company's counsel, during the presentation of the
defense, that there was no need to question him about that matter,
as it seemed at that point in the hearing that there was no
substantial dispute about that phase of the case In view of this, I
draw no adverse inference from Clark's failure to testify on that
point
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form. Graham acknowledged that, at Prendergast's
suggestion , he called Roy Clark to the telephone.
Clark's version of the interview was that Van Meter
rejected Graham's request that he fill out the form,
asserting that he thought it was illegal ; that Van Meter
asked why the application was needed, and Graham
explained that the Company was updating its records and
it would aid the Company in making transfers and
promotions ; that Van Meter still insisted that the form was
illegal and never agreed to fill it out; that on this occasion
Clark talked on the telephone to Prendergast, after
Graham had left the telephone, and Prendergast merely
asked what was going on, to which the witness replied that
Graham was still talking to Van Meter. Prendergast's
version of his telephone conversation with Graham was
that the latter called to verify the fact that Van Meter (and
Kelley) had refused to comply with a demand that they fill
out the applications "on company time," and Prendergast
corroborated Clark as to the tenor of their subsequent
telephone conversation on that occasion.-"'
It is apparent from the foregoing that while there are
some minor discrepancies in the foregoing accounts by the
company witnesses as to the circumstances of Van
Meter's discharge, they were in substantial agreement on
the critical points. Only the explanation offered for
Graham's call to Prendergast leaves something to be
desired. If one is to credit Graham and Clark, Van Meter
at no time in his interview with Graham indicated any
willingness to fill out the form, but either questioned the
need therefor or flatly refused to fill it out, even after
Graham, according to his own testimony, had launched
into a lengthy explanation of the reasons for the form. It is
not clear therefore why it was necessary for Graham to
make certain that Prendergast had also explained to Van
Meter the need for the form. On the other hand, certain
aspects of Van Meter's testimony do not withstand
scrutiny. If one is to credit him, he was merely a bystander
during the exchange between Kelley and Prendergast, in
the course of which, as already found, the latter repeatedly
demanded that Kelley complete the form on the spot, and,
when Van Meter interjected the remark that he needed
time to review his records, Prendergast asked him why he
had not so stated before, thereby implying that he
regarded this as a reasonable request, and yet, in the very
next breath indicated that Van Meter, like Kelley, was
discharged subject to review by Graham. As Van Meter
had been summoned to Prendergast's office at the same
time as Kelley and for the same reason, Prendergast's
testimony that his various ultimatums were addressed to
both men seems the more cogent and, unlike Van Meter's
foregoing cryptic version of his discharge, Prendergast's
testimony that he discharged Van Meter after repeated flat
refusals by him to comply with Prendergast's instructions
sets forth a series of logically related events.40Moreover,
Van Meter did not seem to be a candid witness in this area.
Under cross-examination, he was markedly evasive as to
his discussion with Kelley concerning the new form before
their interview with Prendergast. (See also fn. 41, below.)
Accordingly, I credit Prendergast and find that Van Meter,
contrary to his testimony, did not indicate to Prendergast
that he would comply, if given an opportunity to consult
his records.4' I find further, in any event, that, as
Prendergast testified, when pressed to comply on the spot,
Van Meter merely stood mute.
As to whether he finally indicated to Graham that he no
longer had any objection to filling out the form, I am
constrained to find that he did not. As already noted, I was
not favorably impressed by Van Meter's candor in this
area. Moreover, while the questionable explanation given
by the Company's witness for the aforementioned
telephone call may give rise to suspicion, such suspicion
alone cannot overcome the effect of the aforecited
testimony in the record, which I credit, that, as in the case
of Kelley, Prendergast exerted extreme pressure on Van
Meter to complete the form, and the uncontroverted
evidence that, when such pressure failed, Prendergast
offered him an unsolicited opportunity to appeal his
discharge to Graham, who resorted to persuasion,
explaining in some detail the advantages of the new
form .42
Accordingly, I do not believe that the evidence
preponderates in favor of a finding that Kelley and Van
Meter were discharged for the reasons alleged by the
General Counsel, and it will be recommended that the
a' Both Graham and Clark disputed Van Meter's testimony
that, after Clark spoke to Prendergast, Graham resumed his
telephone conversation with Prendergast
"" Moreover , Kelley's admission that Prendergast stated in the
course of the foregoing interview that Kelley and Van Meter were
the only employees out of the Company's entire work force who
refused to complete the forms tends , if anything, to impeach Van
Meter's version that he merely asked for more time and did not
categorically refuse to comply
41 Moreover, even if he did so indicate, Prendergast would have
been justified in believing that , as Van Meter 's own testimony
implies, he was not acting in good faith but was merely seeking a
pretext for avoiding compliance with the Company 's demand For
Van Meter admitted that, when Clark first asked him about the
status of his application , Van Meter answered that he would not
fill it out that day and that , when Clark inquired whether he would
return it the next morning , Van Meter answered evasively , "Well,
I am not positive of that because I need some more information "
(Note , also, that, during his interview with Graham, Van Meter
appears to have abandoned the foregoing pretext for not
complying , for during that interview , according to his own
testimony , he only questioned the reason for the form , and, when
that was explained to his satisfaction, indicated that he was
prepared to comply with the Company 's demand that he complete
the application forthwith )
"' It is not clear, in any event , what the General Counsel
proposes that the Board infer with regard to the content of the
mysterious telephone call The General Counsel nowhere spells
this out, and it would be sheer speculation to suppose that in this
conversation Prendergast told Graham something about Van
Meter's involvement in the antiunion movement which Graham
did not already know Indeed, there is no evidence as to what
Prendergast , himself , knew about such involvement other than
what he may have learned from Clark about the failure of his
efforts to induce Van Meter to oppose the filing by the dissident
operators of any suit against the Union The General Counsel's
position would seem, therefore , to require an assumption (1) that
Clark had already told Prendergast, but not Graham, about this
incident , (2) that Graham learned about it for the first time from
Prendergast in the foregoing telephone conversation, and (3) that
it was that information which motivated the discharge of Van
Meter.
(While Van Meter testified that he signed a card for District 50
in September 1964 , there was no evidence that the Company
knew of this or that a year later it still bore him ill will on that
account On the contrary , the record shows that at the time of his
discharge Van Meter enjoyed the status of a chief operator )
GRAHAM ENGINEERING 689
allegations of the complaint relating to their discharge be
dismissed.43
b. On November 2
On November 2, Robertson was discharged by
Prendergast, allegedly for reading a newspaper on the job.
He was a plaintiff in the suit against the Union filed on
October 6, and Prendergast admitted that he had seen a
contemporaneous newspaper account of that suit which
listed the names of the plaintiffs.
According to Robertson, during worktime on the
morning of November 2, he and several other operators
scanned a newspaper summary of football scores to assist
them in betting on the results of forthcoming games; and
that about 1 p.m., about half an hour after the other
employees had left, his foreman notified the witness of his
discharge. None of the other operators allegedly involved
in this incident was disciplined therefor.
At the hearing, the Company contended that the
immediate cause of the discharge was the fact that
Robertson had violated a rule against reading extraneous
material on the job.44 While it is undenied that such a rule
had been posted in February 1965, Prendergast admitted
that other employees who had not observed the rule had
not been discharged but merely reprimanded. When asked
to explain this apparently disparate treatment of
Robertson, Prendergast asserted that the reading incident
was merely the "final act" and that the following
undisputed background matters influenced his decision.
Robertson, who was hired in October 1963, frequently
reported sick and on April 29, 1965, was discharged on
that account. Due to the intercession of Jones, Robertson
was rehired about July 8, on a 90-day trial basis, upon
condition that he furnish a medical certificate that he was
physically fit and discontinue his habit of reporting sick.
However, between July 8 and November 2, Robertson
failed to report for work at least 10 times because of
illness.
According to Prendergast, when he learned from Roy
Clark on November 2 that Robertson had been reading a
newspaper during worktime, he decided not to tolerate
Robertson's shortcomings any more and ordered his
discharge. However Prendergast was at a loss to explain
why, despite his renewed absenteeism, and despite the
fact that his reinstatement had been expressly conditioned
on regular attendance, Robertson was retained until
November 2.4i When pressed on this point , Prendergast's
testimony became rambling, sometimes virtually
unintelligible, and at other times apparently self-
contradictory. Thus, at one point he attempted to minimize
Robertson's renewed absenteeism, while at another point
he seemed to condemn it. He finally confessed that he did
not know why he hadn't discharged Robertson earlier.'
Moreover, it has been found above that on November 2,
after Robertson's discharge, Prendergast told Springer
that he had gotten rid of one "agitator," and there is
nothing in the record to explain why Prendergast so
characterized Robertson other than the fact that he was
involved in the lawsuit against the Union, as was Orvel
Kelley, to whom Prendergast applied the same label on
that occasion 47 It has already been found that in
September Roy Clark attempted to bring pressure upon
the dissident operators through Van Meter to desist from
any legal action against the Union. In view of the foregoing
circumstances, and in view of the ineptness of
Prendergast's efforts to explain why he tolerated
Robertson's flagrant absenteeism until the newspaper-
reading incident, as well as the abundant evidence in the
record of Prendergast' s eagerness in general to maintain
harmonious relation with, and advance the interests of, the
Union, I do not credit his explanation of Robertson's
discharge. I find rather that such discharge was motivated
by the fact that, as Prendergast had learned on October 7,
Robertson had joined in the suit against the Union and had
thereby presumably rendered himself persona non grata
to it and Jones.48 Accordingly, I find that, by discharging
Robertson because of his identification with the antiunion
"agitators," Respondent violated Section 8(a)(3) and (1) of
the Act.
41 While it has been found that the new job application form
contained an unlawful inquiry about employee union affiliation,
and that the discharge of Kelley and Van Meter was for refusing to
fill out the form , it is clear that such refusal was not because of, or
limited to , the question about union affiliation , but extended to the
entire application It is inferrable also that, having belatedly
attempted to delete the question from the forms, the Company
would not have pressed the issue had Kelley and Van Meter
merely refused to answer that particular question Accordingly,
the illegality thereof cannot be deemed to justify their
insubordination or to render their discharges unlawful , and the
General Counsel does not so contend
" The Company' s witnesses also denied that they knew of any
other operators being involved in this incident In any event, as
noted below , the Company 's defense is that Robertson was not
discharged because of that incident alone but because of his
absenteeism as well
As the 90-day "trial" period expired on October 6, that would
seem to have been the latest logical date to discharge Robertson
for violating the condition upon which he was rehired Yet, there
was no evidence that Prendergast at any time even reprimanded
Robertson for lapsing into his old habits
46 The Company adduced testimony by Graham that, about a
week before Robertson's discharge, Prendergast reported that
Robertson was "up to his old tricks of absenteeism", that the
witness indicated that the Company "would make plans to
release" Robertson , and that the witness subsequently left town
on business and did not return until after Robertson 's discharge
This testimony was presumably offered to prove that a decision
was reached before November 2, to discharge Robertson for
absenteeism and that this decision was implemented by
Prendergast, in the absence of Graham However, Prendergast
makes no reference to any such conversation with Graham or to
any such decision On the contrary , the entire thrust of
Prendergast's testimony was that no decision was made to
discharge Robertson until the "final act" of November 2. If there
had in fact been any such decision as Graham describes, it is
difficult to believe that Prendergast would have failed to mention
such an obviously exculpatory circumstance In view of this, I do
not credit Graham
" The General Counsel suggests that the fact that Robertson
on September 17 filed a grievance through William Kelley
protesting his first discharge and seeking backpay was also a
factor in Prendergast's decision to discharge Robertson again
However, in view of my findings herein, there is no need to pass
on this contention
'" The fact that both in tolerating Robertson 's renewed
absenteeism after Jones' intercession on his behalf and in
discharging Robertson after he had joined in the lawsuit attacking
Jones and the Union, Prendergast was acting in accordance with
Jones' presumed wishes , coupled with Prendergast's curious
inability to offer any rational explanation for his tolerance of such
absenteeism, warrants the inference that the true explanation,
and one which Prendergast for obvious reasons was reluctant to
disclose, was that in the one case, as in the other , Prendergast
was bent on accommodating Jones
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. On December 31
Late in December, the Company decided for economic
reasons to lay off 13 operators ,4" 7 of whom were alleged
by the General Counsel to have been selected for
discriminatory reasons. These seven were Revell, Junior,
Q. Simmang, D. Simmang, Sledge, Sutphin, Roy, and
Edge.5o
(1) Revell, Junior
The General Counsel points to the fact that Revell,
Junior, not only joined in the lawsuit against the Union
but also had filed two grievances in September 1965, both
of which still pending at the time of his layoff.
In explaining the selection of Revell for layoff,
Prendergast testified that Revell was chief of a crew of
"roving operators,""' that it was necessary for budgetary
reasons to eliminate, among others, the equivalent of one
crew of roving operators, including their chief, and that
after due consideration Revell was chosen. When asked
why he could not have simply demoted Revell, who was
admittedly competent, laying off a less competent operator
to make room for him, Prendergast answered that he
feared that a demotion would impair Revell's morale and
his value as an operator.
(2) Q. Simmang
As to this operator, the General Counsel cited his role as
a plaintiff in the lawsuit and the fact that in February 1965,
when he was demoted from chief operator to operator, he
filed a grievance through the same attorney who
subsequently represented the plaintiffs in the suit against
the Union.
Prendergast, on the other hand, asserted that, while Q.
Simmang was eminently qualified for his job from the
standpoint of educational background_ he had proved
inadequate as a chief operator, necessitating his
demotion,'' and that as an operator his efficiency was
impaired by his physical condition.53
(3) D Simmang
In addition to this individual's connection with the
lawsuit,54 the General Counsel cites the fact that in the
summer of 1965, he filed a grievance protesting his
4" It was stipulated that 10 were laid off effective December 31,
The record shows that another, McCarthy, was not laid off until
February 11, and as to the remaining 2 there is no evidence as
when, if ever, they were actually laid off
'" In addition , the complaint named "G E Price" as having
been discriminatorily "discharged " at the same time However, as
no evidence was offered in support thereof , the allegation as to
him is dismissed See In 70, below
As distinguished from the other operators , the roving
operators had no fixed location, being required to service a
number of installations
The General Counsel did not challenge the propriety of this
demotion
" Early in 1965, Q Simmang had suffered a coronary attack
while at work , and his condition was diagnosed as hypertension
He suffered another mild attack late in 1965
Prendergast also cited the fact that he had had to reprimand Q
Simmang for demonstrating his ignorance of operating procedure
on a particular occasion However, Simmang testified without
contradiction that on that occasion he had merely complied with
an instruction by Prendergast , which he knew was erroneous, and
transfer to a less desirable job, which grievance was
rejected.
According to Prendergast, this operator was selected for
layoff because he did not respond to an on-the-job training
program, and had been reported on one occasion to be
asleep on the job Prendergast cited also the fact that the
aforenoted transfer was effected at the request of
Simmang's supervisor because of his lack of initiative.
While Simmang denied that any supervisor had criticized
his progress in the training program, there was no attempt
to dispute Prendergast's testimony as to the sleeping
incident and the reason for the transfer.
(4) Edge
Edge was not named as a plaintiff in the suit against the
Union but had contributed money to defray the expense
thereof, and he testified that in the latter part of
September he had admitted to Jones that he had signed a
card for District 50, which admission elicited from Jones
an admonition not to forget how much less he had earned
at his previous job. While Jones gave a different,
innocuous version of this conversation, I credit Edge for
reasons related below, where this incident is discussed in
another context.5 5
Prendergast's testimony, substantially corroborated by
Clark and Graham, was that Edge was selected for layoff
because of his tendency to make adjustments in his
equipment without obtaining the necessary permission
from his chief operator, his lack of initiative, and his
offensive personal habits, including his unorthodox attire
while at work.
Edge admitted that, because of his domestic situation,
he had difficulty in keeping his uniforms in proper
condition, that he found it necessary for that reason to
wear other clothes on the job, and that his chief operator
had reprimanded him therefor on a few occasions. He
added that, after a general instruction had been issued on
the subject, he wore his uniform at all times, except
"under more or less unusual circumstances." He insisted,
however, that other operators wore clothes at work other
than their uniforms and had been retained by the
Company. However, as it is clear that his nonconformist
attire was not the only reason assigned for his layoff, the
fact that such others were retained would not per se
establish disparate treatment., " And there is no specific
evidence that the Company was aware of Edge's support
of the lawsuit. J7
that he had not deemed it politic to call the error to Prendergast's
attention
" He was a plaintiff therein and contributed financial support
thereto
The General Counsel also cites an occasion early in 1965
when Edge was deterred by Roy Clark from filing a grievance
because of an injury suffered by Edge as a result of the
Company's failure to adopt a safety suggestion made by him It is
not clear whether the General Counsel contends that this was a
factor in Edge's layoff nearly a year later, nor how such a
contention could be supported
Moreover , it is apparent from Prendergast 's testimony that
he was more concerned about the untidiness of Edge's
appearance , even in uniform , than about his failure to wear a
uniform
" Roy Clark's disclosure to Van Meter on September 22, of his
awareness that some of the operators were planning "court
action" may be sufficiently accounted for by the fact that in a
letter of September 2, to Graham about his grievance over his
demotion Q. Simmang disclosed that , "not being duly
represented ," he and others had resorted to "private litigation "
GRAHAM ENGINEERING 691
(5) Roy
The only reason for Roy's selection suggested by the
General Counsel was that in June 1965, he complained to
an unidentified individuals" in the Company's office that
health insurance premiums were being deducted from
Roy's pay without his consent,5 ' and indicated that he
would take the matter to "the Labor Board," whereupon
the individual in question stated that he would, too s"
However, even if the individual was, as Roy supposed,''' a
bookkeeper in the Company's employ, that fact would
afford insufficient basis for imputing to the Company any
knowledge of Roy's threat to seek the aid of the Board.
According to Prendergast, Roy was selected for layoff
on the basis of Roy Clark's report that he had shown
insufficient interest in the on-the-job training program.
This was corroborated by Clark, who added that Roy had
occasionally been uncooperative,"' that he had expressed
a preference for a job on the day shift, because he had
difficulty in getting to sleep when he was assigned to a
rotating shift, and that, if he had been retained, it would
have been necessary to put him on a rotating shift.
Roy admitted that he had expressed to Clark a
preference for the day shift.
(6) Sledge and Sutphin
The General Counsel suggests no reason for the
Company's selection of these two for layoff, other than
that the Company (1) erroneously believed that they were
involved in antiunion acitivities or (2) wished to give an air
of legitimacy to the layoff of the other five operators
discussed above."; As to (1), the General Counsel relies on
testimony by Q. Simmang that Ruminer, the Company's
new chief of operations, told the witness, when he was
notified of his layoff, that Ruminer had been given "a list
of names of men to lay off" and had been assured that
when he got rid of those men all his "troubles would be
over." Ruminer disputed this. In any event, the foregoing
remarks seem as readily susceptible of an innocent
construction as of the one which the General Counsel
would place thereon. Thus, the remark allegedly quoted by
Ruminer might as well have meant that, since those
selected for layoff included the least desirable operators,
their elimination would make his job easier.
As to (2), above, this contention presupposes a finding
that the five operators previously discussed were selected
for discriminatory reasons. That is a question which
remains to be considered.
Graham testified that Sledge had been selected because
he had been found asleep on the job twice, and had been
suspended for 3 days on the second occasion. He was
offered reinstatement in March 1966, but rejected the
offer. Sledge admitted that he had "dozed" on the job64
and was suspended for that reason.
As to Sutphin, Graham explained that his supervisor did
not regard him to be as cooperative or as valuable as the
only other operator in his department who was also under
consideration for layoff.
As evidence of disparate treatment in the cases of
Sutphin and Sledge, the General Counsel cites the fact
that, while each of them had been in its employ for about 2
years, the Company saw fit to lay them off, while retaining
several operators who had been hired within the past 7
months. This raises an issue which cuts across all seven
layoffs here involved; for both Simmangs, Revell, Junior,
Edge, and Roy had also been with the Company for
periods ranging from 1 year to more than 2 years.
The record," in fact, shows that between May 1 and
November 12, 1965, Respondent hired 13 operators, all of
whom were retained on December 31. However, since the
contract did not require the Company to follow seniority in
layoffs, the foregoing circumstance is entitled to little
weight, particularly when one considers that we are
dealing here with a craft group whose skills were
transferrable from one job to another.
The General Counsel sought to attack the qualifications
of four of the foregoing junior operators66 through
testimony by Roy, Revell, Junior, and O. Kelley. However,
while Roy's testimony implied that they were working as
apprentices, when hired by Graham, it was stipulated that
on December 27, all of them had second-class licenses 67
As to two other operators who were retained, Chief
Operator White testified that one (Billingsley) was
competent in "water treatment and control" but not with
regard to "boilers and chillers," and Revell, junior,
testified that the "attitude" of the other (Springer) who
was a member of Revell's crew was not as good as that of
another member of the same crew. The latter comparison
of two operators, both of whom were apparently retained,
is of little aid to the General Counsel's case. As to
Billingsley, the record affords no basis for comparing
Billingsley with the operators who were laid off. The fact
that White was not satisfied with some aspects of his
performance does not require a finding that top
management regarded Billingsley as less desirable than
any of those laid off.''"
It was also shown that some of the alleged
discriminatees assisted in "training" other operators.
However, this apparently consisted merely in orienting
55 Roy referred to this individual as someone whom he
"supposed " to be a bookkeeper
59 According to Roy, he was informed that the moneys so
deducted were being remitted to the Union.
80 Roy testified that he contributed to the fund for the lawsuit
and in November 1965, gave the Board an affidavit in connection
with its investigation of the discharge of William Kelley and Van
Meter, discussed above, and signed a card for District 50 in
September 1965. However, there was no evidence of any company
knowledge of these matters, and in his brief the General Counsel
does not allude thereto
B i See In 58 above.
82 Graham confirmed that Clark had mentioned this factor to
him.
83 Both men signed cards for District 50 in September 1964
Sledge promptly withdrew his card at the behest of Prendergast.
Sutphin was not solicited to withdraw his card and there is no
evidence that the Company knew of his adherence to District 50
In any event , here, as elsewhere , the General Counsel does not
contend that such adherence in 1964 was a factor in the layoff
action
As to Sledge, there is also uncontroverted evidence that in
November 1965 he gave an affidavit to the Board in connection
with the investigation of the instant charges and that, upon his
return from the Board 's office, his supervisor asked him if he had
said anything to embarass Prendergast It does not appear what
reply, if any, Sledge made.
64 He denied , however, that this happened more than once
65 T.X Exh. 4(c)
66 Cates, Ticer, B. Jones, and Spake.
87 TX Exh. 4(c).
68 It is clear from White's testimony that he was not consulted
about the layoffs. The reason therefor was not explained.
298-668 0-69-45
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
newly hired operators as to the routine of their new duties.
In any event, this circumstance sheds little light on the
relative value of the operators as of the date of the layoffs
The General Counsel also elicited testimony concerning
the Company's action in recalling certain of the laid-off
operators. It appears from Prendergast's uncontradicted
testimony that in the spring of 1966, the Company rehired
three of the laid-off employees to fill vacancies occurring
since their layoff, and that these three were Price, D. Cox,
and McCarty. Of the seven alleged discriminatees only
one, Sledge, was offered reemployment, which offer he
rejected. Prendergast acknowledged that on September
21, 1965, he had recommended suspension of Cox for
engaging in "unproductive" activities during work hours
but, when asked why he recalled Cox rather than Q.
Simmang, Prendergast asserted that, despite his
disciplinary record, Cox's "over-all work" was much
better than Simmang's. Since McCarty survived the
original retrenchment of December 31, and was not laid off
until February 11, 1966, he was presumably regarded by
the Company as a more desirable employee than the
others. Nor can any inference adverse to the Company be
drawn from the fact that Price was recalled, since he was
included in the original list of alleged discriminatees,04
and his case was not litigated by the General Counsel only
because he was not available to testify at the conclusion of
the General Counsel's case .70 Hence, it cannot be
assumed that he was recalled in preference to one of the
seven alleged discriminatees because he did not bear the
same taint of involvement in concerted activities.
All of the foregoing falls short of proving that the
Company in fact regarded any of the alleged
discriminatees as a more desirable employee than those
who were retained or recalled. The Company's testimony
as outlined above concerning the shortcomings of the
operators selected for layoff was in the main not
specifically contradicted, 71 and I do not consider such
testimony as so implausible as to require that it be given
no credence. It would seem that, in this regard, the
strongest cases for the General Counsel were those of Q.
Simmang and Revell, Junior. Simmang's qualifications,
from the standpoint at least of his educational background,
were admittedly outstanding. Moreover, in his case
Prendergast committed the faux pas of citing a reprimand
for a mistake, for which, according to Simmang's
uncontradicted testimony, Prendergast, himself, was at
least partly responsible. Yet, it is undisputed that it had
been necessary to demote Simmang in February 1965
because of his inadequacies, and that he had a coronary
condition which the Company might well have deemed to
impair his efficiency.
As for Revell, Junior, as already noted, he had been
elevated to chief operator on October 4, and the General
Counsel properly raises the question why, in view of his
admitted competence, he was not at least retained as an
operator. The Company's answer that he was not so
retained for reasons of morale may be deemed suspect.
However, any demotion entails the risk that the employee
09 See fn 50 above.
10 After all his other witnesses had testified , the General
Counsel explained that Price had left the hearing room to receive
medical treatment and had not returned, despite his promise to do
so. Upon my refusal to delay the proceeding to await Price's
possible return , the General Counsel rested his case
r' 1 do not regard as adequately refuting such testimony the
fact that , as some of the laid -off operators testified , they had not
been criticized by their supervisors for such shortcomings, that
affected will develop a negative attitude to his work and
the degree of such risk depends on the temperament of the
employee, a factor which management is normally in a
position to evaluate .72 While some of the reasons assigned
by the Company, such as Edge's unorthodox attire, may
seem relatively trivial, it must be remembered that the
Company was required to choose among 50-odd operators,
all of whom were admittedly doing an adequate job.
In any event, even if it be assumed that the Company
retained or recalled operators whom it regarded as less
competent than one or more of those who were laid off and
not recalled, the question would still remain whether such
disparity of treatment was for reasons proscribed by the
Act, or for some other reason, such as nepotism''' or
personal predilection.
In an effort to supply an answer to this question, the
General Counsel adduced considerable testimony
concerning the involvement of some, at least, of the
alleged discriminatees in (1) antiunion activities and
(2) grievance activities, and he contends that it was such
activities that prompted their layoff. The validity of this
contention will be next considered.
d. Antiunion activities
The principal activity was the lawsuit against the Union,
which was filed on October 6. It has already been found
that Prendergast discharged Robertson because of his
known participation in that lawsuit as a plaintiff and
threatened to get rid of other such "agitators," and it is
clear that at the time of the layoff Prendergast knew that
Revell, Junior, and the Simmangs were also plaintiffs in
the court action; and the record amply attests
Prendergast's solicitude for the advancement of the
interests of the Union. Accordingly, as to these three the
General Counsel may be deemed to have proved that the
Company was disposed to discriminate against them
because of their known involvement in the litigation with
the Union. However, any attempt to analogize their case to
Robertson's encounters a serious roadblock in that, while
there is no evidence that the Union opposed Robertson's
discharge, there was uncontradicted evidence that the
Union strenuously objected, in effect, to the selection for
layoff of any of the seven alleged discriminatees. Thus, the
• record shows that I find that on December 10, upon
learning that the Company was considering a reduction in
force, Jones wrote Graham a letter in which he opposed
the layoff of any operators, contending that such action
would not be compatible with efficiency of operations and
requested a meeting to discuss the matter, and that on
December 27, Jones met with Graham and, after vainly
opposing any layoffs, demanded that the Company lay off
on the basis of strict seniority, which demand Graham
rejected.
While it appears from Jones' testimony that he did not at
this meeting know what employees had been selected for
layoff, he presumably learned of their identity by
their work had on occasion been praised by their supervisors, or
that their supervisors had given them a letter of recommendation
for use in seeking other employment
72 Prendergast testified that he based his view as to Revell's
probable reaction to a demotion on the marked improvement in
his morale when he became chief operator.
13 That this was a factor in Prendergast 's employment policies
is strongly suggested by the record
GRAHAM ENGINEERING
December 29,'4 for on that date he wrote the Company as
follows:
In the meeting of December 27, 1965, you once again
insisted you were not going to lay off the operators on
a strictly seniority basis and have since carried out
the layoff as you stated.
I take this opportunity to officially protest this method
in which you laid off our people and this union will
seek Legal Counsel and persue [sic] whatever course
we feel is legal to get our people reinstated.
It is further found, on the basis of Jones' uncontradicted
testimony, that he thereafter consulted his attorney, who
advised him that he had no recourse against the Company
under the contract.
At the hearing, the General Counsel sought to neutralize
the effect of the foregoing circumstances by suggesting
that, in objecting to the Company's action, the Union was
not acting in good faith ,7' and he cited the fact that in
August 1964, the Union had protested the discharge of the
Kelleys. However, the proceeding involving the legality of
their discharge was disposed of without any determination
of that issue'76 and, while the General Counsel had an
opportunity to litigate it here, he did not do so.
Accordingly, there is no record basis for finding that the
Union's 1964 protest was spurious, and no inference may,
therefore, be drawn therefrom that the Union's like action
in 1965 was insincere." Accordingly, in order to find that
involvement in the lawsuit was a factor in the layoff
selection, it is necessary to assume that the Company was
more concerned than was the Union about the implications
of that litigation, even to the point of rebuffing the Union's
efforts to save the jobs of the litigants. In support of such
an assumption the General Counsel suggests that the court
action may have been of special concern to the Company
because of a cryptic reference in Attorney Havard's letter
to the Union of September 27, to the alleged "dual
employment" of Jones .7" However, the lawsuit thereafter
filed named only the Union as defendant and sought only
an audit of the Union's books; and there is no evidence in
r' The testimony of those laid-off operators, who appeared to
have a clear recollection of the matter , was that they were notified
of their layoff on December 27, to be effective on or about
December 31.
Jones testified that at their December 27 meeting Graham did
not disclose the names of those selected for layoff and that Jones
did not know of their identity "prior to the layoffs " As Jones'
letter of December 29, quoted below in the text, reflects
knowledge of their identity on that date , I take such testimony to
mean that he did not learn thereof until after December 27, the
date of their notification of layoff. In any event , Jones must have
realized that his insistence on a strict senionty policy would
frustrate any plan to discriminate against the seven named in the
complaint , since they were among the most senior employees
r' Implicit in this suggestion is the assumption that the
Company knew that the Union 's insistence on seniority was mere
camouflage and for that reason ignored the Union's demand
]s As already noted, the matter of their discharge was disposed
of by the Union' s execution of a settlement agreement in Case
23-CB-555, and by the withdrawal of the charge against the
Company in consideration of the reinstatement of the Kelleys with
backpay
77 In his brief, the General Counsel does not renew the
foregoing attack on the Union 's good faith
78 Section 302(a) of the Act imposes sanctions on an employer
693
any case that the Company was aware of the contents of
Havard's letter.
At the hearing, the General Counsel asserted that the
Company may have been motivated by a desire to preserve
the benefits of its contract which would be jeopardized by
the advent of a rival union. However, the fact that the
Union was not indifferent to this peril is amply attested by
the findings below as to the measures taken by it to
combat dual unionism . Accordingly, the fact that the
Union, nevertheless, opposed the December layoffs is
persuasive that the Union did not regard the alleged
discriminatees as posing any threat to its incumbency;'''
and the record affords no basis for inferring that the
Company had reason to take a different view or to reject
the Union's judgment in a matter of such vital concern to
it N0
Moreover, as to Edge, Sutphin, Sledge, and Roy, there is
no evidence that the Company was aware of their
participation in the financing of the lawsuit or of their
current adherence to District 50, or suspected that they
had any other connections with activities inimical to the
Union
Accordingly, upon consideration of all the foregoing
circumstances, it is concluded that the evidence does not
preponderate in favor of a finding that any of the seven
alleged discriminatees was selected for layoff because of
their antiunion activity or because of a desire to protect
the incumbency of the Union.
e. Grievance activity
Sometime before his layoff D. Simmang protested his
transfer to a different building; and, in September 1965,
Revell, Junior, filed two grievances, the first protesting
Roy Clark's performance of the work of an operator, and
the second protesting a reprimand administered by
Prendergast for remaining on the premises while off
duty."' The latter grievance, which was in written form,
and is dated September 20, 1965, was offered in evidence.
It contains a number of statements calculated to arouse
the ire of the Company x' Yet, only 2 weeks later Revell,
Junior, was promoted to chief operator. In any event, this
for certain payments to a representative of his employees, other
than as compensation for services rendered as an employee The
General Counsel contends that while on Respondent 's payroll
Jones rendered no services for the Company However, there is
insufficient evidence on that point in the record
99 So far as the record shows, only Edge was known by the
Union to have signed a recent card for District 50 W Kelley, the
leader of the District 50 movement , was no longer in the
Company's employ, and the lawsuit , itself, did not challenge the
Union's right to represent the operators
80 Moreover , the General Counsel's position presupposes that
the Company had reason for preferring the Union to District 50
However, there was no evidence or contention that the current
contract was particularly favorable to the Company On the
contrary, whatever evidence there is on the point indicated, at
least in the matter of wages, that contract provided for
substantially better terms than those prevailing in the area
s' According to Revell, Junior, he was discussing "union
business" on that occasion with Orvel Kelley
"' Thus the grievance , inter alia, taxes Prendergast and Roy
Clark with discriminating against the grievant because he gave
"testimony" to the Board in the 1964 case in support of the
charges against the Company, and asserts that the disciplinary
action against him by Prendergast was for the purpose of
intimidating the grievant , in violation of his rights under the Act.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
theory that the selections for layoff were motivated by
resentment over resort to the grievance procedure would
not account for the selection of Sledge, Sutphin, Edge, and
Roy,83 none of whom was shown to have filed any
grievance with the Company. In view of this, and as the
Company saw fit to promote Revell, Junior, despite the
fact that he filed more grievances than any of the others,
and despite the provocative language of his second
grievance, I am not persuaded that grievance activity was
a factor in the Company's layoff selections.
Accordingly, it is concluded that there is no
preponderance of evidence that any of the seven alleged
discriminatees was selected for layoff because of his
concerted activities, and dismissal of the instant allegation
will be recommended.
5. The case against the Union
a. Postsettlement conduct
(1) The 8(b)(2) issue
The allegation of the complaint that in June 1965, the
Union unlawfully caused the Company not to hire
Koppenol has already been discussed and found without
merit.
(2) 8(b)(1) incidents
The complaint alleges that on or about September 15,
1964, Teague threatened employees with discharge if they
continued to engage in protected, concerted activities.
William Kelley testified that at a union meeting in the
latter part of September 1964, Teague stated that every
member of the Union who had signed a card for District 50
would be given a chance to withdraw and that "any
member that was interested in their job would withdraw."
The witness added that on this occasion Teague also
warned that those who refused to withdraw from District
50 would be tried by the Union on charges of dual
unionism and expelled.
Springer testified that at the foregoing meeting Teague
warned that he was "going to find some way to get rid of"
those who did not withdraw the cards they had signed for
District 50, and that Springer thereafter, at Jones'
solicitation, signed a letter requesting return of his card.
While Teague made no bones of the fact that he had
warned all the operators that he would file charges against
"anybody that was practicing dual unionism," he denied
that he had threatened any operators with discharge for
adhering to District 50.
On the basis of demeanor and as Springer's testimony
tends to corroborate him rather than Teague, I credit
William Kelley and find that, in addition to threatening
expulsion for dual unionism, Teague on that occasion
intimated that the Union would secure the discharge of
those operators who refused to withdraw from District 50,
and it is further found that the Union thereby violated
Section 8(b)(1)(A) of the Act.84
The complaint alleges that during the latter part of
September 1964, Union Agent Jones unlawfully solicited
employees to withdraw from District 50 and threatened
reprisals against those who failed to do so. It is not
disputed that during the latter part of September 1964,
Jones solicited operators who had signed cards for District
50 to sign letters prepared by him asking District 50 to
return their cards. It is also undisputed that, at Jones'
request, Prendergast aided in such solicitation. The Union
denies, however, that such solicitation was reinforced by
threats of reprisal. It has already been found that at a
union meeting Teague threatened discharge of those
operators who refused to retract their cards, and , as it is
inferrable from the timing, as well as the subject matter, of
Teague's threat that it was designed to facilitate Jones'
concurrent solicitation activities, there is no need to
determine whether, as alleged here, Jones additionally
voiced such a threat 85 While it may well be that the
solicitation of employees by one union to repudiate a rival
union would not per se be unlawful, the_ situation is
different where, as here, such solicitation occurs in the
context of a threat of reprisal against those who refuse to
repudiate the rival union, and the employer is enlisted to
aid in such solicitation. Accordingly, it is found that under
the foregoing circumstances the solicitation was coercive
and that the Union thereby violated Section 8(b)(1)(A).
It is further alleged that on or about April 30 and
June 18, 1965, Jones informed employees that
membership was a prerequisite to employment by the
Company. Search of the record fails to reveal any evidence
pertaining to the April 30 allegation. As to June 18,
reference is here presumably intended to the testimony of
Koppenol, which I have credited above, that about that
date, at the direction of Prendergast, he applied to Jones,
who told him in effect that he could not get a job with the
Company, because he was not a union member. Even
though this accurately described the Company' s unilateral
closed-shop policy, the statement was nonetheless
coercive, particularly in the context of Jones' admitted
simultaneous solicitation of Koppenol to join the Union,
and in view of the circumstances under which Koppenol
was referred to Jones. Accordingly, I find that the Union
thereby violated Section 8(b)(1)(A) of the Act.
It is next alleged that on or about September 15, Jones
illegally interrogated an employee about his activities on
behalf of District 50, threatened to cause his discharge
because he had signed a card for District 50, and
threatened his discharge unless he ceased opposing the
Union. The employee involved is Edge, who testified that
in September 1965, Jones approached him while at work
and asked him if he knew anything about the District 50
cards,86 and that, when the witness indicated that he knew
83 As already noted, while it was shown that Roy had protested
to an unidentified office employee that group insurance premiums
were being deducted from his pay without his consent, there is
insufficient basis for imputing to the Company any knowledge of
such protest.
14 In view of this finding there is no need to consider whether,
by Teague's threat to secure the expulsion from the Union of
those members who supported District 50, the Union additionally
violated Section 8(b)(1)(A).
(In view of the "closed-shop" conditions existing at the
Company's project , such a threat was calculated to instill in the
operators fear of discharge if they adhered to District 50 See
Gibsonburg Lime Products Co., 121 NLRB 914 But cf. Pittsburgh-
Des Moines Steel Company, 154 NLRB 692, holding that a union is
privileged to expel a member for supporting a rival union, even
though there is in effect a union - security contract )
85 The General Counsel's allegation of a threat by Jones is
apparently based on a misconstruction of Spnnger 's testimony as
attributing such a threat to Jones as well as Teague.
"S At that time, as already related, there was a resurgence of
organizing activity for District 50.
GRAHAM ENGINEERING 695
"very little" about them, Jones expressed gratification that
the witness had not signed such a card, whereupon he
volunteered that he had in fact done so. According to
Edge, Jones then abruptly broke off the conversation but,
as he walked away, turned to ask the witness if he
remembered how much he had earned on his previous job,
and admonished him not to forget how much better off he
was now. Jones' version was that on that occasion he
merely asked Edge if he wished to sign a card for the
Union in connection with a petition for an election, and
that Edge put him off.
In view of the circumstantiality of Edge's testimony, I
credit him, and find that Jones' question as to what Edge
knew about the District 50 cards was calculated to elicit
from him some clue as to the extent of Edge's own
involvement in the defection movement"' However, I
have difficulty in inferring a threat of discharge from
Jones' allusions to the higher wage scale on Edge's current
job as compared with his prior job. Such allusion may as
well be construed as a reminder to Edge that the Union
had a claim to his loyalty because it had negotiated the
relatively high wage scale enjoyed by the Company's
operators.
Interrogation having been found, the question remains
whether the questioning of an employee by a union
concerning his support of a rival union may be deemed
coercive. In a recent case,as the Board found that a union
violated Section 8(b)(1)(A) by questioning employees about
their participation in a campaign to deauthorize the union,
in the context of a threat to keep those involved in such
activity under surveillance, and of actual surveillance of
such activity. Here, the interrogation occurred against the
background of Teague's threat at a union meeting of
reprisals against adherents of District 50. While such
threat was relatively distant in time from the instant
episode, it was so closely related to the subject matter of
Jones' interrogation (adherence to District 50) as to
warrant assessing the impact of such interrogation in the
light of such threat. So viewed, I find the interrogation
unlawful.""
As it has been found that, after the execution of the
settlement agreement, the Union violated the Act in the
various respects noted above, it follows that the settlement
was properly set aside by the Regional Director and it
becomes appropriate to consider next the alleged
presettlement violations.
b. Presettlement conduct
It is alleged that on or about April 14, 1964, Jones
threatened an employee with reprisals if he engaged in
protected, concerted activities. This presumably refers to
an incident involving Elliott and Jones. On April 13, 1964,
these two had attended a union meeting at which a vote
was taken on whether to exclude Jones because of his then
status as a supervisor for the Company. It was voted to
permit Jones to remain , after he assured those present that
he was about to resign his position with the Company.
According to Elliott, he and Revell, Junior, were among
those who voted to exclude Jones, and the next day Jones
indicated to Elliott his displeasure over the foregoing
incident, and declared, "I get you a job out here and you
turn around and gut me ... I want to tell you ... to keep
your shirts clean .... In the event you ever need any help,
don't come to me." According to the witness, Jones also
told him that Jones had interceded for him when he was
blamed by the Company for a breakdown of equipment,
and, referring to Revell, Junior, Jones stated, "I can get his
job anytime. He is sixty-seven years old," and added that
he would "get the people that engineered what happened
at the meeting." Jones' version was that, after dissuading
management from discharging Elliott because of a
breakdown for which he was held responsible,`" he
happened to meet Elliott and warned him to keep his nose
clean or he would get in trouble. Jones denied that he had
criticized Elliott for turning on Jones at a union meeting or
that he was aware that Elliott had ever opposed Jones at
such a meeting or elsewhere, or that he had warned Elliott
not to seek any help from Jones, and he added that, when
it was reported to him that Elliott had misconstrued as a
threat Jones' foregoing remark about keeping his nose
clean, he sought Elliott out and assured him that he meant
only to caution him to be more careful in his work, because
the Company had threatened to discharge Elliott.
The foregoing raises a credibility issue,"' which need
not, however, be resolved, in view of my findings below
As already noted, on April 14, Jones was a supervisory
employee of the Company and, according to Teague's
uncontradicted testimony which I credit, was officially on
leave from his union post, and drew no pay from the Union
with respect to that period. Accordingly, even if one
credits Elliott, Jones' remarks must be regarded as
relating either (1) to action he proposed to take in his then
capacity as a company supervisor or (2) to action to be
taken in his future capacity as a union agent, if and when
he resumed his position with the Union. As to (1), the
Union clearly would not be liable for a threat delivered by
one who was at the time a company supervisor concerning
action he would take in that capacity. Nor is it apparent
how the Union can be held responsible for a threat by such
a supervisor concerning action he would take, if and when
he again became a union agent . In his brief, the General
Counsel seems to contend that, even during his tenure
with the Company, Jones continued to be an agent of the
Union. However, absent any evidence to the contrary, it
must be presumed that, while on leave from his union post,
Jones had no duty or authority to act for the Union. Even if
it be true that, as William Kelley testified, Jones promised
at the union meeting that the next day (April 14) he would
resign from his job with the Company and return to his
union post, Jones could not thereby vest authority in
himself to speak for the Union as of April 14, when the
87 That this was, moreover, in fact Jones' purpose in putting the
question is indicated by his quickness to infer from Edge's answer
that he had not signed a District 50 card
88 Skorman 's, Inc., d/b/a Skorman 's Miracle Mart, 160 NLRB
709.
88 In equating Jones' interrogation of Edge with employer
interrogation , I have given weight to the fact that, when he first
applied to Prendergast for work, Edge was referred to Jones about
joining the Union, and, after joining , was notified by Jones to
report for work. Under these circumstances , Edge could hardly
fail to regard the Union as exercising substantial control over his
job tenure.
8° Elliott admitted that there had been such a breakdown but
denied that he had been criticized therefor.
°i According to William Kelley 's testimony, as well as the
official minutes of the meeting , the vote to permit Jones to stay at
the meeting was unanimous . If so, it would seem to be necessary
to reject not only Elliott's testimony that he and others voted to
exclude Jones, but also his testimony implying that Jones
threatened reprisals against Elliott and Revell, Sr , or anyone else
because they had so voted
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged threats were delivered. Jones did not in fact return
to his union post until May 1, and the Union could not be
bound by any assertion he might have made on April 13 as
to what his status would be on April 14. In view of this, I
perceive no legal basis for imputing Jones' foregoing
alleged remarks to the Union and will recommend
dismissal of this allegation.
The complaint, as amended at the hearing, alleges that
on July 27, 1964, the Union threatened reprisals against
employees "for going to the Board " Sutphin testified that
in July 1964, he attended a union meeting , at which
Teague referred to the fact that the Kelley brothers had
"gone to" the Board, and asserted, "They are getting no
damn help from this local union." According to Sutphin,
Jones echoed these sentiments. Teague's version was that
at this meeting he told the employees that he "had no
intention of helping the Kelleys to arbitrate a discharge
case that they had already taken to the Board and charged
the union was responsible for [sic]." In its brief the Union
appears to argue that Teague' s statement , as related by
him, was a privileged explication of the Union's position
that it could not properly assist the Kelleys to process a
discharge grievance because it would thereby be placed in
the anomalous position of, in effect, presenting a grievance
against itself. However, even as related by him, Teague's
remarks did not make it clear that he was merely
explaining what the Union considered proper under the
circumstance to avoid a conflict of interest, and such
remarks were readily construable by his unsophisticated
audience as a threat of reprisal against the Kelleys for
filing charges This was true a fortiori of Sutphin' s version
of Teague's statement, which I credit 92 Accordingly, it is
found that, by Teague's statement, in effect, that because
of the pending charges the Union would in the future reject
any request by the Kelleys for its assistance as their
representative, the Union violated Section 8(b)(1)(A) of the
Act.93
THE REMEDY
As it has been found that the Company violated Section
8(a)(1) and 12) of the Act, and that the Union violated
Section 8(b)(1)(A), it will be recommended that they be
required to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
It has been found that the Company violated Section
8(a)(3) and (1) of the Act by the refusal to hire Koppenol on
June 18, 1965, and by the discharge of Robertson on
November 2, 1965. It will accordingly be recommended
92 1 rely not only on demeanor but also on the fact that Jones,
who, according to Sutphin 's uncontradicted testimony, was
present on that occasion , did not dispute Sutphin's version of this
incident
93 At the hearing, I struck paragraph 8(a) of the complaint,
which alleged participation in, and surveillance of, the April 13
meeting by Jones while he was a company supervisor , and that the
Union thereby violated Section 8 (b)(1)(A) of the Act In so doing, I
stated that , even if Jones was at the time acting as a union, rather
than a company, representative , there would be no violation of
Section 8 (b)(1), because as a union representative he was entitled
to attend a union meeting . While the Board has found to be
unlawful the surveillance by a union of a meeting of a dissident
group, (Skorman's , Inc., supra), here, so far as the record shows,
the meeting was one duly called by the Union and there was no
evidence that it was proposed to consider at the meeting any
that it be required (1) to offer Robertson reinstatement to
the same or substantially equivalent position, without
impairment of his seniority or other rights and privileges,
and (2) to offer Koppenol employment as an operator or in
a substantially equivalent position. It will also be
recommended that the Company be required to reimburse
them for any loss of pay they may have suffered by reason
of the discrimination against them, by paying to them a
sum of money equal to the amount they would normally
have earned from the date of such discrimination to the
date of the offer of reinstatement or employment specified
above, less their net earnings during that period. Backpay
shall be computed on the basis of calendar quarters, in
accord with the method prescribed in F. W. Woolworth
Company, 90 NLRB 289, and interest at the rate of 6
percent per annum shall be added to net backpay, in
accord with Isis Plumbing & Heating Co., 138 NLRB 716.
The General Counsel contends that the Company
should, in addition, be required to reimburse the operators
for dues and initiation fees paid to the Union within the
period beginning 6 months before the service of the
relevant charge upon the Company. As the allegation of an
unlawful requirement of union membership first appears
in the amended charge in Case 23-CA-2177, which was
served on the Company on November 10, 1965, the
General Counsel is in effect seeking reimbursement of all
fees and dues paid since May 10. 1965 It has been found
that since that date the Company maintained in effect a
policy of hiring only union members. and that all the
operators hired since that date were in fact union
members. However, while there is ample evidence that
certain operators (hired before the cutoff date) were
coerced by the Company to join the Union, and a
reimbursement order is warranted as to them, there is no
evidence as to the extent of such coercion, if any, with
regard to the hiring of other operators. For aught that
appears in the record, such operators may have been
union members even before they applied for jobs with the
Company, and, if so, the fact that under the Company's
closed-shop policy they would not have been hired but for
"uch membership does not suffice to establish coercion to
join the Union such as would warrant a reimbursement
order.94 However, the record shows that both before and
after the cutoff date, certain of the operators signed
authorization cards for District 50. thereby indicating that
they no longer desired to be represented by the Union;
and, as to such operators, the inference is warranted that,
but for the Company's closed-shop policy, they would have
resigned their union membership at or about the date of
signing such cards.95 Accordingly, it will be recommended
action inimical to the Union, or that Jones was there for any
reason other than that he was still a union member Finally, the
fact that, as found above , Jones was not at the time acting as a
union representative affords sufficient ground in itself for
dismissing the foregoing allegation (While Jones' presence at the
meeting while employed as a company supervisor might afford a
basis for finding surveillance by the Company, in violation of
Section 8(a)(1), no such violation was alleged, because of the
limitations of Section 10(b) )
94 Local 60 , Carpenters [Mechanical Handling Systems] v
N.L.R.B , 365 U S 651, Majestic Weaving Co ., Inc., of New York,
149 NLRB 1523
95 While some of the District 50 adherents retracted their
cards, I can give no weight to such retraction as evidencing a bona
fide repudiation of District 50, in view of the circumstances under
which such retraction occurred , as related above
GRAHAM ENGINEERING
that the Company be required to reimburse with
interest , 96 all dues, initiation fees, and assessments paid or
withheld since May 10, 1965, with respect to those
operators, who, as found above, were specifically directed
by the Company to become union members as a condition
of employment, or who, as shown by the record, signed
authorization cards for District 50, before that date.97 In
the case of those signing such cards after that date, it will
be recommended that such reimbursement be ordered
with respect to dues and assessments paid since such
signing.
The General Counsel further urges that, in view of the
uncontroverted evidence that the Company executed a
contract with the Union's International parent body
covering the instant project before any representative
complement had been hired,98 the Company should be
ordered to withdraw recognition from the Union.99
Respondents contend that any such prehire contract
was authorized by Section 8(f) of the Act, which permits
such contracts between an employer engaged primarily in
the building and construction industry and a building
trades union, "covering employees engaged (or who upon
their employment will be engaged) in the building and
construction industry." As I reject the General Counsel's
instant request for other reasons, noted below, I do not
pass on this contention.
Respondents point out that, in any event, the signatory
of the contract in issue was not the Union but its parent
body, which was not given notice of, nor made a party to,
this proceeding. Under the decision of the Supreme Court
in the Consolidated Edison case,' the absence of such
notice would seem to be fatal.2 Accordingly, invalidation of
the instant contract will not be recommended.
CONCLUSIONS OF LAW
1. By requiring membership in the Union as a condition
of employment, the Company has violated Section 8(a)(2)
and (1) of the Act.
2. By coercively interrogating employees about their
union affiliation, by promising promotion if employees
would desist from concerted activities in opposition to the
Union, by soliciting an employee to dissuade other
employees from such concerted activities, by implying
that it would visit reprisals upon employees for giving the
Board information adverse to the interests of the
Company, and by threatening employees with reprisals for
56 See Seafarers International Union, of North America, Great
Lakes District, AFL-CIO, 138 NLRB 1142.
91 While it is clear from the foregoing that the remedy here
recommended is based on events occurring before the cutoff date
under Section 10(b), the Board has held that it is not barred from
basing remedial action on prelimitations conduct , even though no
violation finding might be predicated thereon Lundy
Manufacturing Corporation , 136 NLRB 1230, enfd . 316 F.2d 921
(C A 2). There, although it found only assistance to the
incumbent contracting union within the 10 (b) period, the Board
ordered withdrawal of recognition on the basis of the employer's
prelimitations conduct in coercing employees to designate the
Union as their representative and granting it recognition on the
basis of such designation . Here, by analogy , it seems proper, in
framing a remedy for the Company 's maintenance of closed-shop
conditions during the 10(b) period , to take into account
prelimitations events demonstrating the coercion of particular
employees with respect to acquiring or retaining union
membership
96 The contract was executed on March 13,1963, for a term of 1
697
concerted activities, the Company has violated Section
8(a)(1) of the Act.
3. By discriminating against an applicant for
employment because of his nonmembership in the Union,
and by discharging an employee because of his
involvement in concerted opposition to the Union, the
Company has violated Section 8(a)(3) and (1) of the Act.
4. By threatening to secure the discharge of adherents
of District 50, by soliciting such adherents, in the context
of such threats, to repudiate District 50, by informing an
applicant for employment by the Company that union
membership was a prerequisite to such employment, by
coercively interrogating an employee about his adherence
to District 50, and by threatening to withhold its services
from employees in reprisal for their filing of charges under
the Act, the Union has violated Section 8(b)(1)(A) of the
Act.
RECOMMENDED ORDER
Upon the entire record in the case , and the foregoing
findings of fact and conclusions of law, it is recommended
that:
A. The Respondent Company, W. J. Graham, John
Graham , II, and Martin Gracey, a partnership d/b/a
Graham Engineering , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discriminating against employees or applicants for
employment because of their nonmembership in Local
347, International Union of Operating Engineers,
AFL-CIO, or because of their concerted activities in
opposition to such labor organization.
(b) Maintaining in effect a policy of requiring
membership in said Local 347 as a condition of
employment , or otherwise contributing support and
assistance to said Local.
(c) Promising employees promotions or other
inducements to abandon their concerted opposition to said
Local, and soliciting employees to induce other employees
to desist from such opposition.
(d) Coercively interrogating employees about their
union affiliation and threatening employees with reprisals
for engaging in concerted activities or for giving
information to the Board.
(e) In any other manner interfering with , restraining, or
coercing its employees in the exercise of their right to self-
year, with provision for automatic renewal thereafter , and was
still in effect at the time of the hearing Prendergast testified that
on June 1, 1963, when he first came to work for the Company, it
had in its employ at the Space Center only a "labor foreman" and
a "water plant operator."
99 Any finding that the initial grant of recognition violated
Section 8(a)(2) of the Act would of course be barred by Section
10(b) of the Act However, as already noted, under the Lundy
case , supra, the Board would not be barred from taking the
legality of such grant of recognition into account in fashioning a
remedy
i Consolidated Edison Co of New York, Inc v. N L R B , 305
U.S. 197 There the court rejected the contention that notice to a
local union constituted proper notice to its parent body, and
pointed out that, in any event, neither the local nor the parent had
any notice that the validity of this contract was under attack The
same situation prevailed here
2 See also Sec. 102 8 of the Board's Rules , which includes in
the definition of "party" as used in those Rules "any person .
named as party to a contract in any proceeding under the Act "
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization , to form, join, or assist International Union of
District 50, United Mine Workers of America, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act.
(a) Offer to James H. Robertson immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges, and offer Ferdinand Koppenol employment
as a stationary engineer or substantially equivalent
employment.
(b) Notify said Robertson and Koppenol if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(c) Make whole the said Robertson and Koppenol, in the
manner set forth in the section of this Decision entitled
"The Remedy," for any loss of wages that they may have
suffered by reason of the discrimination against them.
(d) In the manner and to the extent specified in the
remedy section of this Decision, refund to its present and
former employees all moneys that they have been
unlawfully forced to pay to the aforesaid Local 347 in the
form of initiation fees, dues, and assessments.
(e) Preserve and, upon request, make available to the
Board or its agents , for examination or 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 under the
terms of this Recommended Order.
(f) Post at its operations in the Houston, Texas, area,
copies of the attached notice marked "Appendix B."3
Copies of said notice, to be furnished by the Regional
Director for Region 23, after being duly signed by the
Respondent Company's representative, shall be posted by
it immediately upon receipt thereof, and be maintained by
it for a period of at least 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Copies of the attached
notice marked "Appendix C" shall be similarly posted,
after receipt thereof from Respondent Union. Reasonable
steps shall be taken by Respondent Company to insure
that such notices are not altered. defaced, or covered by
any other material.
(g) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Decision, what
steps the Respondent has taken to comply herewith.4
B. Respondent Union, Local 347, International Union
of Operating Engineers, Houston, Texas, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Theatening to secure the discharge of adherents of
International Union of District 50, United Mine Workers
of America, or coercively soliciting such adherents to
repudiate said District 50.
(b) Informing applicants for employment by
Respondent Company that membership in Respondent
Union is a prerequisite of such employment.
(c) Coercively interrogating employees about their
adherence to said District 50.
(d) Threatening to withhold its services from employees
in reprisal for their filing of charges under the Act.
(e) In any like or related manner , interfering with,
restraining , or coercing employees in the exercise of their
right to self-organization, to form, join, or assist
International Union of District 50, United Mine Workers of
America, or any other labor organization , to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action , which is
deemed necessary to effectuate the policies of the Act.
(a) Post at its place of business in Houston , Texas,
copies of the attached notice marked "Appendix C."5
Copies of said notice, to be furnished by the Regional
Director for Region 23, after being duly signed by the
Respondent Union. shall be posted immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, where notices to
members are customarily posted. Respondent Union shall
take reasonable steps to insure that such notices are not
altered, defaced, or covered by any other material
Respondent Union shall provide copies of such notice to
Respondent Company for posting by it in accordance with
the provisions of this Recommended Order.
ib) Notify the aforesaid Regional Director, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent has taken to comply herewith.6
3 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 "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
See fn 3 in the Recommended Order.
s See fn 4 in the Recommended Order
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the 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 discriminate against employees or
applicants for employment because of their
nonmembership in Local 347, International Union of
Operating Engineers, AFL-CIO, or because of their
concerted activities in opposition to such labor
organization.
WE WILL NOT coercively interrogate employees
concerning union membership or activities.
WE WILL NOT threaten employees with economic
reprisals for engaging in concerted activities or for
giving information to the Board.
WE WILL NOT offer employees promotions or other
inducements to abandon their concerted activities in
GRAHAM ENGINEERING
opposition to any labor organization or solicit
employees to induce other employees to desist from
such activities.
WE WILL NOT maintain in effect a policy requiring
membership in said Local 347 as a condition of
employment or otherwise contribute support or
assistance to said Local.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
International _Union of District 50, United Mine
Workers of America, or any other labor organization,
to bargain collectively, through representatives of
their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection. or to refrain from any
or all such activities
WE WILL offer James H. Robertson immediate and
full reinstatement to his former or substantially
equivalent positions, and we will offer Ferdinand
Koppenol employment as a stationary engineer, or
substantially equivalent employment, and we will
make them whole for any loss of wages suffered as a
result of the discrimination against them.
WE WILL refund to all our present and former
employees all moneys that they have been unlawfully
forced to pay since May 10. 1965, to said Local 347 in
the form of initiation fees. dues, or assessments.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any labor
organisation.
W. J. GRAHAM, JOHN
GRAHAM II, AND MARTIN
GRACEY, D/B/A GRAHAM
ENGINEERING
(Employer)
Dated By
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive day'
from the date of posting. 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
699
directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston. Texas 77002,
Telephone CA-8-0611. Extension 4721.
APPENDIX C
NOTICE TO ALL OUR MEMBERS AND TO ALL EMPLOYEES
OF GRAHAM ENGINEERING
Pursuant to the 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 you that:
WE WILL NOT threaten to secure the discharge of
adherents of International Union of District 50, United
Mine Workers of America, or coercively solicit such
adherents to repudiate said District 50.
WE WILL NOT inform applicants for employment by
Graham Engineering that membership in our Union is
a prerequisite of such employment.
WE WILL NOT coercively interrogate employees
about their adherence to said District 50.
WE WILL NOT threaten to withhold our services
from employees because they have filed charges
under the Act.
WE WILL NOT, in any like or related manner,
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to form,
join or assist International Union of District 50, United
Mine Workers, or any other labor organization, to
bargain collectively through representatives of their
own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
(Representative ) (Title)
Dated By
LOCAL 347 , INTERNATIONAL
UNION OF OPERATING
ENGINEERS , AFL-CIO
(Labor Organization)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees or members have any question concerning
this notice or compliance with its provisions, they may
communicate directly with the Board's Regional Office,
6617 Federal Office Building, 515 Rusk Avenue, Houston,
Texas 77002, Telephone CA-8-0611, Extension 4721.