Gulf Building Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1966

159 N.L.R.B. 1621 (N.L.R.B. 1966)

GULP BUILDING CORPORATION 1621
2. By expelling Velio lacobucci from membership in its union because he had
caused Philip Cusat to file an unfair labor practice charge against it, Respondent
Union restrained and coerced employees in the exercise of rights guaranteed in
Section 7 of the Act, thereby violating Section 8(b)(1)(A) thereof.
3. By that conduct, Respondent Union was guilty of an unfair labor practice
affecting commerce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent Union has engaged in an unfair labor practice,
my Recommended Order requires that it cease and desist therefrom and take the
specified affirmative action required to remedy the unfair labor practice found and
to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
Gulf Building Corporation and William Paul Spake . Case 23-
CA-92001. June 27, 1966
DECISION AND ORDER
On November 29, 1965, Trial Examiner W. Edwin Youngblood
issued his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices as alleged
in the complaint and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that the Respondent had not
engaged in certain unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter, the
General Counsel and the Respondent filed exceptions to the Trial
Examiner's Decision, with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.' The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations, except as modified below.2
'We do not adopt the Trial Examiner's characterization in footnote 12 of Blackmon's
testimony as improper rebuttal. However, we leave unresolved the credibility issue raised
as a result of Scott's denial. In our view, even assuming that Scott's denial were credited,
it would not affect our conclusion that Clark was discharged in violation of Section 8(a) (3).
2 We find that the Respondent is engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction in the instant case.
Plant City Welding and Tank Company , 123 NLRB 1146. In view of the broad order that
is to be entered and the fact that any findings of additional 8(a) (1) violations would be
merely cumulative , we find no necessity for passing upon the General Counsel's exceptions
to the Trial Examiner 's Decision that Respondent further violated Section 8(a) (1).
159 NLRB No. 122.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, contrary to the Trial Examiner, that the Respondent
discharged employee Ronald James Clark in violation of Section
8(a) (3) of the Act. In so doing, we note the Respondent's often
expressed union animus as' indicated by the numerous threats to its
employees in violation of Section 8(a) (1) of the Act, including
threats to Clark and another employee that the Respondent's employ-
ees would lose their jobs if they voted for the Union.
A representation election was held between 3 and 3:30 p.m. on
February 26, 1965, and the results were announced later the same day.
The Union lost by a vote of 7 to 5. At approximately 6: 30 p.m. that
same day, Clark asked Scott for permission to transfer from the
night shift to the day shift because of his inability to get along with
his foreman, Danny Raney, and Scott refused. Clark said that he
had heard that he was not going to be working there on Monday
after the election, to which Scott made no reply. Clark further stated
that he would have to find another job, but declined Scott's sugges-
tion that he put in a 2 weeks' notice in that regard. During the
course of this conversation, Scott stated he was not satisfied with
Clark's work lately, and Clark replied that he was not satisfied with
his job. Scott then called John T. Haischer, the Respondent's build-
ing manager, to attend the conference so that he, Scott, could advise
him of Clark's complaint.
When Haischer arrived, Scott started to explain Clark's dissatisfac-
tion with his work, whereupon Haischer abruptly interrupted Scott,
told Clark in obscene language to "get the out of there," and
to turn in his keys. On March 5, 1965, Clark was required to sign a
resignation as a condition of receiving his paycheck, and, 2 weeks
later, he received an additional check representing 2 weeks' severance
pay.
The record shows that Scott during this entire episode was passive,
devoting himself primarily to a discussion with Clark as to whether
a termination of the latter's employment might not be the most satis-
factory solution for all parties concerned in resolving Clark's work
dispute with Raney, his superior. Scott admitted that he had no
complaint against Clark, and Clark testified that he and Scott got
along together well. As appears below, Scott did not make the deci-
sion to discharge Clark; Haischer did; and it is Haischer's conduct
that we rely on for ,the basis for our conclusion.
As noted above, Haischer attended the discussion at Scott's request
ostensibly to hear of Clark's work dispute with Raney. Yet, almost
at the moment Haischer arrived, and before Scott had completed a
sentence of explanation, Haischer angrily ordered Scott, in profane
language, to "get out of there," and advised Clark to turn in his keys
and start looking for another job. It is therefore clear that the
GULF BUILDING CORPORATION 1623
responsibility for Clark's termination was Haischer's, and that if
Scott did participate, a fact which is not entirely clear from the
record, his role was perfunctory and in response to the orders of Hai-
scher, his superior. In seeking an explanation for Haischer's con-
duct, it does not appear that it stemmed from any dissatisfaction
with Clark's work performance, absent any record testimony by
Scott, Haischer, Raney, or any other witness evidencing Haischer's
dissatisfaction with Clark, a prior awareness of Clark's alleged dis-
pute with Raney, the nature of the dispute, or anything which
occurred at the termination interview.
In view of the Respondent's union animus as demonstrated by the
numerous 8 (a) (1) violations found herein, including the threat to
Clark to discharge employees if they voted for the Union, the timing
and circumstances of the discharge, and the absence of a reasonable
explanation for the termination, we find that the Respondent, through
Haischer, discharged Clark, and that the primary motivation therefor
stemmed from the Respondent's opposition to Clark's union organi-
zational activity and adherence as an engineer, which the Respondent
knew about or suspected.
[The Board adopted the Trial Examiner's Recommended Order,
with the following modifications :
[1. Delete paragraph 2(a) from the Trial Examiner's Recom-
mended Order and substitute therefore the following:
["(a) Offer-to William Paul Spake and Ronald James Clark
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay they
may have suffered as a result of the discrimination against them in
the manner set forth in the section of this Decision entitled "The
Remedy."
[2. Substitute the following for paragraph 2(b) and reletter those
subsequent thereto consecutively :
[" (b) Notify the above-named employees, if presently serving in
the Armed Forces of the United States, of their right to full rein-
statement upon application, in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces."
[3. Delete the fifth indented paragraph from the Appendix attached
to the Trial Examiner's Decision, and substitute therefor the
following :
[WE WILL offer to William Paul Spake and Ronald James Clark
immediate and full reinstatement to their former or substantially
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
equivalent positions, without prejudice to their seniority and
other rights and privileges, and make them whole for any loss of
pay suffered as a result of the discrimination against them.
[4. The following NOTE paragraph appearing below the signature
line at the bottom of the Appendix attached to the Trial Examiner's
Decision, is amended to read:
[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 of
1948, as amended, after discharge from the Armed Forces.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner W. Edwin Youngblood, in Houston,
Texas, on June 21, 22 and 23, 1965,1 pursuant to a complaint issued April 29, upon
a charge and amended charge filed March 17 and April 26, respectively. The com-
plaint alleges that Respondent engaged in some 17 separate acts of interference,
restraint, or coercion in violation of Section 8(a) (1) of the Act through its build-
ing manager, John T. Haischer, and its chief engineer, Clyde O. Scott 2 Further,
the complaint alleges that Respondent discharged Ronald James Clark and William
Paul Spake, and deprived five named employees of overtime, all in violation of Sec-
tion 8 (a) (3) of the Act. Respondent denies the commission of any unfair labor
practices. Briefs have been received from the General Counsel and Respondent.
Respondent's motion to dismiss the complaint, made at the close of the hearing, is
disposed of in accordance with the findings and conclusions set forth herein.
Upon the entire record, including my evaluation of the witnesses based upon the
evidence and my observation of their demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
In Gulf Building Corporation, Case 23-RC-2364,3 the Regional Director issued
his Decision and Direction of Election on February 16, finding, inter alia, that the
Employer was engaged in commerce within the meaning of the Act, and that the
Employer met the Board standards for enterprises engaged in the management and
operation of office buildings. This finding was based on a stipulation of the parties.
Although Respondent denied in its answer to the complaint herein that it was
engaged in commerce, and contended in its brief that the stipulation it made in the
representation case should not be considered in this case, Respondent does not
assert that the facts upon which the Regional Director based his decision (the stipu-
lation) are erroneous. In fact, John T. Haischer, Respondent's building manager,
virtually admitted at the hearing in the instant case that the stipulation made at
the representation hearing was accurate.
I take official notice of the Regional Director' s decision , and therefore find and
conclude that the Employer is a Texas corporation engaged in the business of rent-
ing of offices in the Gulf Building, Houston, Texas. I further find that the Employ-
er's gross revenues from office rentals for the year 1964 exceeded the sum of $100,-
000 and that at least $25,000 of such sum was derived from a tenant which during
1964 sold and shipped goods valued in excess of $50,000 directly to points outside
i All dates herein are in 1965 unless otherwise indicated.
2 Scott's name appears as corrected at the hearing. Haischer and Scott's status as
agents of Respondent was admitted.
8 Not published in NLRB volumes.
GULF BUILDING CORPORATION 1625
the State of Texas. Accordingly , I find and conclude that Respondent is engaged
in commerece within the meaning of the Act and that it meets the Board 's standards
for enterprises engaged in the management and operation of office buildings .4
It. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local 347, AFL-CIO, herein called
the Union , is an organization which exists for the purpose of organizing employees,
and negotiating contracts on their behalf with employers in order to improve
employees' wages, hours, and working conditions.5 I therefore find that the Union
is a labor organization within the meaning Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Prefatory Statement
On January 8, Spake and four other employees went to the Union's offices and
joined the Union. Subsequently they talked to various employees about joining the
Union. On January 12, the Union wrote Haischer advising that a majority of his
engineers had designated the Union to represent them and requesting a meeting to
negotiate a contract. An election was held on February 26, which the Union lost
by a vote of seven to five; the election was set aside and another election was con-
ducted on June 7, which the Union also lost.
A. Interference, restraint, and coercion
1. Conduct of Scott
a. Preelection conduct
In mid-January, Scott called Spake into his office. Scott referred to a written
wage survey which showed wages being paid to employees in various buildings in
Houston. Scott also referred to a piece of paper which showed Spake's total salary
including an allowance for insurance, uniforms, a bonus, and a vacation. Scott
then stated that 10 years ago this Union had tried to come into the trade and all
members of the Union were fired and replaced by janitors. Scott said that it had
taken 10 years to get the wages back to where they were, and now "this thing" had
come up and if the Union got in he did not know what would happen insofar as
wages and benefits were concerned. Further, Scott said that his head was on the
"chopping block" over this and if the Union got in, he did not expect to be around
much longer. Scott also said that he hoped the employees "seen the light before it
was too late." 6
I find and conclude that Scott's references to union members losing their jobs in
a prior union campaign were clearly designed to and reasonably did convey the
impression that union adherents might be discharged in the current union organiza-
tional campaign, and were therefore coercive and violative of Section 8(a)(1) of
the Act. I further find and conclude that Scott's reference to insurance allowances,
bonuses, and other benefits, coupled with his statement that he did not know what
4 CL National Electric Products Corporation, 87 NLRB 1536, footnote 2, wherein the
Board states that it rejects the implication of the Trial Examiner "that a Board finding in
one proceeding may not be used as a basis for a finding in a later proceeding involving
the same employer ." Cf. also, Seine & Line Fisherman's Union of San Pedro ( William J.
Horner ), 136 NLRB 1, footnote 4. In view of this finding, I do not pass upon General
Counsel 's contention made at the hearing, but not renewed in his brief , that Gulf Build-
ing Corporation is an alter ego and a wholly owned subsidiary of the Texas National Bank
of Commerce.
5 Based on the credited testimony of Paul Teague, business manager of the Union.
6 The foregoing is based on the credited testimony of Spake, who withstood a long ex-
haustive examination by a very skillful attorney without substantial changes in his testi-
mony which testimony is consistent with and forms a pattern with that of other witnesses
whose testimony is credited herein. Spake impressed me generally as a sincere and candid
witness. I was not similarly impressed with Scott. Although Spake was confused some-
what with respect to dates, and admittedly misrepresented his attitude toward the Union
to Scott, under all the circumstances I have credited Spake's testimony , and rejected Scott's
denials.
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would happen to these benefits if the Union came in, and his statement that he
hoped the employees saw the light before it was too late, were reasonably calculated
to create the impression in the employees' minds that these benefits might be taken
away if the Union were selected and were therefore coercive and violative of the
Act. Finally, I find and conclude that Scott's statements that his head was on the
"chopping block" over the Union, and that if the Union got in he expected to be
discharged were reasonably calculated to convey the impression that Respondent
would discharge him if the Union got in and were therefore coercive. Such state-
ments would clearly operate to inhibit and restrain the employees in the exercise of
their Section 7 rights?
About a week after the above conversation between Scott and Spake, Scott and
Burnia Jones had a conversation about the Union in the engineroom office. The
strike of 1955 was discussed and Scott said that all the engineers were replaced.
Further that if the Union got in, employees might lose "uniforms, our Christmas
bonus and all our fringe benefits " Scott also said that wages would be at a "stand-
still." Further, that if he lost his job he would have to put his wife to work because
he knew that he could not get an operating job making as much money as he was
making. Scott said "he figured the building would be against him if the Union got
in or the Union would be against him if it didn't get in, and he figured he would
have had it either way." 8
I find and conclude that Scott's statement about the strike of 1955 and his state-
ment that all engineers were replaced at that time were reasonably calculated to
convey the impression that employees would be discharged if the Union became the
bargaining representative of the employees. I also ,find and conclude that Scott's
statement that if the Union got in employees might lose Christmas bonuses and
fringe benefits constituted a threat that Respondent would discontinue fringe benefits
if the Union became bargaining representative and was therefore coercive. Further,
in context with Scott's other statements, I find and conclude that his statement that
wages were at a "standstill" was reasonably calculated to convey the impression that
wage increases would be discontinued if the Union became bargaining representative
and was therefore coercive. Finally, I find and conclude that Scott's statement in
effect that he would be discharged if the Union became bargaining representative
was coercive.9
In late January or early February, Scott took Clark to the fifth floor where they
talked about the Union. Scott displayed a piece of paper to Clark showing what
his uniforms were worth, and his Christmas bonus and told him that he would lose
"all these things if this thing come about." Scott also said that if the employees
voted for the Union, they would lose their jobs.'°
I find and conclude that Scott's statement to Clark that he would lose bonuses
and other benefits if the Union came in was clearly coercive. I further find and
conclude that Scott's statement that employees who voted for the Union would lose
their jobs was also clearly coercive.
Approximately on February 24, Spake and Scott had another conversation about
the Union. Spake testified: "The conversation was about the Union operators do
nothing but operate. As it stands now, he can let us get overtime because we can
go up in the building and do maintenance work in the building and we can also do
maintenance work in the engineroom, overtime work. And the same way with the
Union, there will be no more overtime due to the fact that a union operator does
nothing but operate."
Scott's statements about overtime were clearly designed to convince Spake that if
the Union came in employees would inevitably lose overtime. I find and conclude,
therefore, that Scott did thereby threaten employees with loss of overtime if the
Union came in and his statements were therefore coercive and violative of Section
8(a) (l).11
° ( United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada ), Daniel Construction Company v . N.L.R B., 341
F 2d 805 (C.A. 4), enfg. In part 145 NLRB 1397.
8 The foregoing is based on the credited testimony of Jones who testified in a straight-
forward and plausible way. Therefore, notwithstanding the fact that Jones deliberately
misled Respondent's Attorney Brown in a pretrial interview, I have credited Jones' testi-
mony and rejected Scott's denials
9 Cf. Daniel Construction Company v. N.L.R.B., supra.
10 Based on the credited testimony of Clark which is consistent with that of other wit-
nesses and was given in a sincere and plausible way. Scott's contrary testimony is
rejected.
21 Cf. Barnardin, Inc., 153 NLRB 939.
GULF BUILDING CORPORATION 1627
b. Postelection conduct 12
(1) The complaint alleges in paragraph 7(n) that Respondent on or about
March 1, through a bulletin placed on its bulletin board by Scott, imposed addi-
tional and more onerous duties upon its employees in retaliation for the activities
its employees had engaged in and were engaging in on behalf of the Union. The
parties stipulated at the hearing that this allegation related to rules 13 and 14 (Gen-
eral Cou'nsel's Exhibit 7(b)) which Respondent placed in effect on Thursday or Fri-
day of- the week following the election of February 26. About February 2,
Respondent had posted 12 rules for the guidance of operating engineers . ( General
Counsel's Exhibits 7(a) and ( c).) 13 Rule 13 reads as follows:
EACH OPERATOR WILL BE REQUIRED- TO FILL OUT A TIME CARD
EACH SHIFT AND PLACE IT IN MY CARD RECEIVING BOX. THIS
CARD MUST SHOW THE AMOUNT OF TIME SPENT CLEANING AND
PAINTING YOUR ASSIGNED CLEANING STATION. THERE SHOULD
BE AT LEAST 3 HOURS AVERAGE SPENT PAINTING AND CLEAN-
ING EACH SHIFT.
Rule 14 reads as follows:
NO OPERATOR SHOULD BE OUT OF THE ENGINE ROOM AREA FOR
NO MORE THAN THE TIME NEEDED TO GO CHECK YOUR PENT-
HOUSE OR TO CHECK THE OUTSIDE WEATHER. (CERTAINLY NO
MORE THAN 15 MINS. AT ANY TIME.)
It was the credited and uncontradicted testimony of Scott that rule 13 related to
a practice which had been in effect to require cleaning of stations , but that the men
for many weeks had not been observing the practice . So rule 13 was posted to
make it clear that Scott wanted this cleaning requirement observed . Similarly, rule
14 was posted relating to time that the operators could spend outside the engine-
room area because the men had been spending too much time out of the engine-
room. This was brought to Scott's attention when he was informed that a telephone
call for an operator had come in , but that the man could not be found although
they looked for him about an hour. Scott candidly admitted that he had deferred
posting these rules until after the election because of the pendency of the election.
Further, as Spake credibly testified , Scott told Spake about the time rules 13 and 14
were posted that there had been too much talk about the Union and not enough
work going on.
It is clear that these rules applied equally to all operators , and that some opera-
tors favored the Union and some did not, as Scott must have known by virtue of the
vote in the election of February 26. Under all the circumstances , I find and con-
clude that rules 13 and 14 were posted because of the Employer's genuine concern
with getting the work done , and I must therefore reject the General Counsel's con-
tention that these rules were posted in retaliation for employees ' union activities. I
shall therefore recommend the dismissal of this allegation.
(2) The complaint alleges in paragraph 7(o) that Respondent through Scott
announced restrictions in coffee breaks and lunch breaks by its operator employees
in retaliation for their having engaged in union activities.
Spake credibly testified that Scott told him on March 5, that all his coffee breaks
would be taken in the engineroom , and that maintenance personnel would take their
coffee breaks upstairs . In addition , Scott told Spake that he was to eat lunch down-
stairs and maintenance personnel would lunch upstairs . Prior to the election, Spake
was permitted to eat and drink coffee where he pleased.
"After Respondent rested, General Counsel called C. H. Blackmon, Jr., as a rebuttal
witness. The testimony of this witness was received over Respondent 's attorney ' s objec-
tion because of General Counsel ' s assurance that it was proper rebuttal . Blackmon testi-
fied that a few days after the first election , which the 'U nion lost by a vote of 7 to 5, he
had a conversation with Scott . Scott told him that there were 5 men in the engineroom
that would have to go, and that he "tried all lie could to keep them there, but he did not
think the bank would let him." Scott denied this testimony . After examination of this
testimony , I do not believe it is proper rebuttal , and therefore make no finding on it. In
any event , it would not affect the scope of the Recommended Order herein.
to Spake's testimony that General Counsel 's Exhibit 7(c) was not posted is rejected
because I am persuaded that he was in error about this , and that Scott 's testimony
is correct.
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the same reasons set forth under (1) above, I must reject the contention that
this rule was announced in retaliation for employees ' union activities.
(3) The complaint alleges in paragraph 7(p) that on March 5, Respondent
through Scott imposed additional burdensome duties by requiring timekeeping in
retaliation for the employees' union activities.
Presumably this allegation relates to rule 13 discussed above. For example, Spake
testified that Scott told him on March 5 to read the rules posted on the bulletin
board. Spake asked Scott how he could be responsible for all the equipment if he
had to start filling out timecards stating what "we painted on, where it was at, and
how long we spent on it." Rule 13 relates to filling out timecards. For the rea-
sons set forth above, I recommend the dismissal of this allegation.
(4) Paragraph 7(q) alleges that Respondent on March 11 and 17, through Scott,
refused to return a letter to an employee which related to the employee' s union
activities for the purpose of interfering with and curtailing these union activities.
This allegation will be discussed herein in connection with Spake's discharge.
2. The activities of Haischer
On Monday or Tuesday before the February 26 election, Jones attended a meet-
ing with Haischer about the Union on the 27th floor. Haischer started off by stat-
ing that he was against the Union. Haischer then read off some figures from a slip
of paper and said that the Union did not get the uniforms and Christmas bonuses
for the employees and they "didn't need the Union to keep them." 14
In this brief, General Counsel urges that Haischer's statement to Jones that the
employees did not need the Union to keep fringe benefits "carried with it the una-
voidable implication that these benefits would be taken away from the employees
should they select a union representative." General Counsel contends that this evi-
dence establishes the allegation in paragraph 7 of the complaint that Haischer threat-
ened employees with the discontinuance of fringe benefits if the Union became bar-
gaining representative of the employees . I must reject this contention because I am
not persuaded that Haischer's statement constituted a threat, or could reasonably be
so construed, to take away fringe benefits if the Union became bargaining represent-
ative of the employees.
B. The alleged unlawful discharges of Clark and Spake
1. Clark -
Clark was employed by Respondent in the latter part of September 1964, and
worked as an operating engineer. During the union campaign Clark joined the
Union and "tried to get everybody [he] could join the Union that was an engineer
in the Gulf Building." As set forth above, Scott told Clark in late January or early
February that if employees voted for the Union, they would lose their jobs.15 This
was the only conversation about the Union which Clark ever had with Scott, and he
had none with Haischer or any other official.
After the election of February 26 was over, and around 6:30 p.m. of the same day,
Clark went to Scott and asked if he could be transferred from the night shift to the
day shift because he "couldn't get along with Danny Raney," and Scott said that he
could not.16 Scott said that "he would be glad to enter it in the record of the building"
if Clark wanted him to that Clark could not get along with Raney. Clark said that
was all right with him. Clark told Scott that he heard that he (Clark) was not
going to be working there on Monday after the election. Scott made no comment
to this. Clark said that he "would have to find another job." Scott said, "Do you
want to put your two weeks' notice in?" Clark said that he did not. Clark asked
if he could work there until he could find another job. Scott said that he "would
1U The foregoing is based on Jones' credited testimony. To the extent that Haischer's
testimony may constitute a denial of Jones' testimony, it is rejected.
is On direct examination, Clark testified that Scott said that Clark would probably lose
his job eventually. On cross-examination, Clark testified that Scott did not tell him
"directly" that he would lose his job; Clark testified the statement was made as set forth
above. I believe the version on cross -examination is more plausible and accurate.
1e Clark was an apprentice engineer and Raney was a second class engineer ; both worked
the night shift.
GULF BUILDING CORPORATION 1629
give [Clark] two weeks' pay and [he] wouldn't even have to come to work if [be]
didn't want to." Clark said that he "didn't want anything that [he] didn't work
for." Scott then telephoned Haischer. Scott told Clark that he was calling Haischer
down to his office "to put a complaint in on Raney for what [Clark] told him, said
he wanted to get it on the record." Sometime during the conversation, Scott told
Clark that he was not satisfied with Clark's work lately. Clark replied that he was
not satisfied with the building either. Clark testified that he was not happy with his
job on February 26, and that he knew that Raney had complained to Scott about
him.17
Haischer came to Scott's office and Scott said that Clark was not happy, and
before he finished speaking Haischer told Scott to get Clark out of there. Clark
was told that he could draw pay up to March 15.18
On March 5, Clark came in to pick up his paycheck and testified that he was
asked to sign a "paper [he] was no longer employed by the Gulf Building." Scott
told him that he could not get his check if he did not sign.19 Clark then signed a
resignation paper. Clark returned to the plant on March 20 and received another
check which was his two weeks' severance pay.
The General Counsel contends that Clark was discharged because of his union
activities; Respondent contends that he quit. I find it unnecessary to resolve this
question because I do not believe that a preponderance of evidence establishes
that Clark's termination of employment was because of his union activities. Absent
this factor, his termination, however it came about, is not violative of the Act 2°
On cross-examination by General Counsel, Scott credibly testified that about the
middle of January Raney came to him with a complaint about Clark's work per-
formance. Although Raney was not classified as a supervisor, Clark's work per-
formance was supposed to satisfy Raney. Scott credibly testified further that he
had been instructed by Respondent's attorney not to fire anybody until after the
election unless it was absolutely necessary. Therefore Scott told Raney that he
did not want to listen to his complaint until after the election. In addition, Spake
credibly testified that Scott told him before the elecion that "win or lose" the
election he was going to fire Clark after the election, adding that he had taken
more off of Clark than he had ever taken off any employee.
I believe and find that Scott remained silent when Clark raised the question of
his discharge the following Monday because of Raney's complaint and his own dis-
satisfaction with Clark. There is no evidence connecting Raney's dissatisfaction
with Scott to the Union nor does the evidence establish that Scott's own statement
of his intention to fire Clark had anything to do with the Union. Therefore, under
all the circumstances, and even though Respondent's animus toward the Union is
established by Scott's threats to employees in the preelection period, and assum-
ing Respondent's knowledge of Clark's union activities, I am unable to find by a
preponderance of the evidence that Clark's termination was because of his union
activities. I shall recommend the dismissal of this allegation.
2. Spake
After the union activity commenced on January 8, Scott told Spake that in the
event of a strike, the Union was not strong enough and would not back the employ-
ees, and that the Building and Construction Trades Council would not back up the
Union. Spake heard that Scott had said this same thing to other employees. Spake
17 The foregoing is based on the credited testimony of Clark. Except for stating that
Clark answered in the affirmative when he asked Clark if he wanted to give two weeks'
notice, Scott's version is substantially the same as that of Clark.
19 Based on the credited testimony of Clark. Scott's testimony that Clark told Haischer
that he wanted to give two weeks' notice is rejected
1 Scott credibly testified that employees who resigned received 2 weeks' severance pay ;
those who were fired did not. Scott further credibly testified that it was a formality
required by the Company to have employees who quit sign a resignation I am persuaded
that Clark' s version is accurate of what Scott said, but that in context Scott was referring
to the severance pay check and not the regular salary check
20 It might be noted that at least one Board decision , J. W. Beteson Company, Inc., 134
NLRB 1654, 1656, indicates that Clark's termination would be held to be a constructive
discharge if motivated by union activities
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then talked with Union Representative Jessie Jones and told him what Scott had
said. Later on February 18 or 19, Jones gave Spake a letter and told him "Not
to let it get out of [his] hands." The letter reads as follows:
February 18, 1965.
Mr. Jesse W. Jones, Business Representative
Operating Engineers Local Union 347
705 Main Street
Houston, Texas
Dear Jesse:
In reply to your letter of February 15th requesting support be given Local
Union 347 on their organizing campaign. This is to advise you of the action
taken by the Council in their meeting today.
Motion was made that the Board of Business Agents of the Houston Building
and Construction Trades Council go on record as supporting the Stationary
Operating Engineers Local #347 in their campaign to organize all Stationary
Engineers working in down town Houston Buildings and each Business Agent
urge all of their members to aid and assist Local #347, in this organizing
campaign. The motion was seconded and carried by unanimous vote of the
Business Agents present.
The Council extends to you the best wishes in your organizing campaign.
Fraternally yours,
M. A. GRAHAM,
Executive Secretary.
Spake took this letter and showed it to about 11 employees because Scott had
said that the Union would not be backed up if a strike occurred, and Spake wanted
to prove this was not true. Sometime after Spake got the letter, he also showed
it to Scott who told him to put it back in his pocket, which he did. Scott also
said that he did not want to see Spake displaying the letter at all in the building
and to get it out of the building. Scott had heard that Spake was showing the let-
ter to other employees in the building, and decided that one way to stop this was to
get the letter out the building. Scott subsequently talked with Spake on the tele-
phone, and Spake told Scott pursuant to Scott's request that he would give Scott
the letter. Spake did not do so, however, because he telephoned Jones who told
him not to give Scott the letter. On the Monday following the election of Febru-
ary 26, Spake discovered that the letter was missing. One of the employees brought
the letter to Scott a few days after the election, and Scott immediately took it to
Haischer. Having heard from another employee that Scott had the letter, Spake
approximately a week and a half before his discharge asked Scott if he had his
"letter from the Union." Further, Spake told Scott that the man the letter
belonged to wanted it back. Scott refused to return it. Spake approached Scott
about three times about getting the letter back. Then Spake decided that he would
seek the return of the letter in front of a witness. Spake and Jones then agreed
that Jones would listen to a conversation between Scott and Spake. Spake then
called Scott on March 17 and asked him to come down to see him saying that he
had something to tell Scott. When Scott arrived, Spake again asked him for the
return of the letter to which Scott replied "Well, you're not getting it." Spake
asked when he could get the letter, and Scott said, "You can't. What I get my
hands on, I keep." Spake then stepped over the door of the dressing room where
Jones was changing clothes, which door was partly shut, pulled it open and asked
Jones if he had heard what was said. Jones said that he had. At that point, Scott
said to Spake "You are fired." When asked at the hearing why he fired Spake,
Scott said "I don't let any of my employees lead me into traps and hold some type
of threats over me." Scott then took Spake to Haischer's office. Scott informed
Haischer that Spake could not work for him any longer. Haischer inquired of
Spake what had happened, and Scott said, "We had a conversation in the engine-
room office and he had a man hidden behind the door listening to him." Spake
asked Scott why he did not ask the boy what the conversation was and Scott said
it was immaterial. Spake said that that was the trouble with Scott, "Everything
was immaterial to him." Haischer then told Spake that he was not fired and
suggested that Spake resign and take two weeks' pay besides what he had coming
to him. Spake refused saying that he did not want the two weeks' pay.21
21 The foregoing is based on the credited testimony of Spake, Jones, and Scott.
GULF BUILDING CORPORATION 1631
It is apparent from the foregoing that Spake was using the Union's letter to
strengthen the Unions' organizational campaign, and thus that Spake's activities
in that regard were union activities protected by the Act.22 It is just as apparent
that Spake's efforts to get the letter back were also protected union activities, and
Scott's refusal to return the letter interfered with Spake's Section 7 rights and
thereby violated Section 8(a)(1) of the Act as alleged in paragraph 7(q). The
question arises, however, as to whether Spake's action in seeking the return of the
union letter by arranging with Jones to overhear the conversation with Scott was
also protected by the Act. For it is clear that this was the cause of his discharge;
Scott did not discharge Spake for displaying the letter, failing to get it out of the
building, or seeking its return; it was the arrangement with Jones that caused the
precipitant discharge 23 Spake's conduct in that regard was so directly related to
and so clearly grew out of his protected union activities that I find and conclude
that this conduct was also protected.24
Respondent urges in its brief that the evidence does not establish that this dis-
charge was motivated by an intent to discourage union membership. The Supreme
Court has held, however, that "specific evidence of intent to encourage or discour-
age is not an indispensable element of proof of violation of Section 8(a)(3)."25
Further, the Court stated in the Radio Officers' case that an employer's protesta-
tion that he did not intend to discourage union membership is unavailing where
a natural consequence of his action was such discouragement. Therefore actual
proof of discouragement is not required. In the case at bar, the natural and
probable consequence of Spake's discharge would be to discourage union mem-
bership and union activities, i.e., Spake's efforts to recover the union letter together
with the use of the letter in union organizational campaigns. - Therefore Respond-
ent's contention must be rejected. It follows that Spake's discharge for engaging
in this protected union activity was violative of the Act. I so find.
C. The overtime issue
The complaint alleges in paragraphs 9 and 11 that Respondent, since on or
about March 1 and continuing to date, has deprived Clark, Spake, Tommy Gray,
Jones, and Al Honnoll of "regularly recurring overtime work" because these
employees were members of, or engaged in activities on behalf of, the Union."
Prior to the advent of the Union's organizational campaign, Respondent's practice
was to permit employees to work 2 days or 16 hours overtime a month. Respond-
ent, however, had been trying to curtail or eliminate overtime entirely by hiring
more employees. As Scott testified, when he took over as chief engineer 2 years
ago he found five men working a great deal of overtime, and he decided to make
it his goal to eliminate all overtime if possible. Thereafter more employees were
hired and as a result the amount of overtime worked declined. Scott had intended
to go to a 40-hour workweek after the first of the year but when the union activi-
ties came up he deferred further overtime changes until after the election. Then
during the week after the election of February 26 further changes were made in
overtime so that apparently overtime is now worked only in emergencies. Clearly
then the employees named above, as well as all other employees, have since on
or about March 1 been deprived of regular recurring overtime, as alleged in the
complaint. This change, however, related to all employees, not just union adher-
ents, and as the evidence indicates not all the engineers were union adherents.26
Therefore I am constrained to reject General Counsel's contention that changes
in overtime were discriminatory or that these employees were deprived of overtime
because of their union activities. This is particularly true in the light of Scott's
22 It is unnecessary to speculate what the situation would have been if Respondent had
had a valid no-solicitation rule in effect since there is no evidence that it did ; to the con-
trary Scott instructed Spake not to display the letter at all in the building; certainly
Spake had a protected right to display the letter during breaks.
23 For this reason I must reject Respondent ' s contention made in its brief that it dis-
charged Spake for disobedience in that Spake did not remove the letter from the building
as Scott had instructed.
u Cf. N.L.R B. v. Thor Power Tool Company, 351 F 2d 584 (C.A. 7), enfg 148 NLRB 1379.
25Radxo Officers ' Union of the Commercial Telegraphers Union ( A. H. Bull Steamship
Company ) v. N.L R B., 347 U.S 17.
26 The foregoing is based on the credited testimony of Scott.
1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony that these changes were made pursuant to plans made before the advent
of the Union. It follows that this allegation has not been established by a pre-
ponderance of the evidence and I shall recommend its dismissal. ,
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(a)(1) and (3) of the Act, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminatorily discharged William Paul Spake,
I recommend that he be offered reinstatement and made whole for any loss of
pay resulting from his discharge to the date on which he is offered reinstatement,
less his net earnings during that period. Such backpay shall be computed on a
quarterly basis in the manner proscribed by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, and shall include interest at 6 percent as provided by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices committed, the commission of
similar and other unfair labor practices reasonably may be anticipated, I shall,
therefore, recommend that Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. International Union of Operating Engineers Local 347, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discouraging membership in a labor organization through discrimination
in employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3)
and (1) and 2(6) and (7) of the Act.
4. Respondent did not violate the Act as alleged in paragraphs 7(a), (d), (1),
(n), (o), (p), 8(a), 9, and 11 of the complaint.
5. Except as specifically found herein, Respondent has not otherwise engaged in
acts or conduct in violation of Section 8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, I recommend that Respondent, Gulf Building Cor-
poration, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening their employees with discharge, with loss of overtime, insurance
allowances, bonuses, and other benefits, and with discontinuing wage increases if
the Union became bargaining representative of their employees, or because of their
union activities.
(b) Threatening their employees by telling them that their supervisors will be
discharged if the supervisors permit employees to engage in union activities.
(c) Discouraging membership in and activities on behalf of International Union
of Operating Engineers, Local 347, AFL-CIO, or any other labor organization of
their employees, by discharging any employee or in any other manner discriminat-
ing in regard to hire or tenure of employment, or any term or condition of
employment.
(d) In any other manner interfering with, restraining, or coercing their employ-
ees in the exercise of their rights under Section 7 of the Act.
GULF BUILDING CORPORATION 1633
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer to William Paul Spake immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay he may have suffered as a
result of the discrimination against him in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to ascertain
any backpay due under the terms of.this Recommended Order.
(c) Post in their offices at Houston, Texas, copies of the attached notice marked
"Appendix." 27 Copies of the said notice to be furnished by the Regional Director
for Region 23, shall, after being duly signed by a representative of the Respondent,
be posted by Respondent immediately upon receipt thereof, and maintained by it
for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 23, in writing, within 20 days from
the date of receipt of this Decision, what steps Respondent has taken to comply
therewith 28
IT IS FURTHER RECOMMENDED that paragraphs 7(a), (d), (1), (n), (o), (p), 8(a),
9, and 11 of the complaint be dismissed.
27In 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 be 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."
7e 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner National Labor Rela-
tions 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 threaten our employees with discharge, with loss of overtime,
insurance allowances, bonuses, and other benefits, and with discontinuing wage
increases if the Union becomes bargaining representative of our employees, or
because of their union activities.
WE WILL NOT threaten our employees by telling them that supervisors will
be discharged if the supervisors permit employees to engage in union activities.
WE WILL NOT discourage membership in or activities on behalf of Interna-
tional Union of Operating Engineers, Local 347, AFL-CIO, or any other labor
organization, by discharging any of our employees or in any other manner
discriminating against our employees in regard to their hire or tenure of
employment, or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights under Section 7 of the Act.
WE WILL offer to William Paul Spake immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges, and make him whole for any loss of pay suf-
fered as a result of the discrimination against him.
All our employees are free to become and remain, or to refrain from becoming
or remaining members of the above-named Union or any other union.
GULF BUILDING CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Repr(,sentative) (Title)
243-084-67-v of 159-104
1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NOTE.-We will notify the above -named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended , after discharge from the Armed Forces.
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 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
228-4722.
George W. Ball, Phillip M. Stern, Arnold Sagalyn and Clayton
Fritchey, t/a Northern Virginia Sun Publishing Company and
Roger W. Wheeler, Jr., et al. Cases 5-CA-1508, et al. June 27,
1966
SUPPLEMENTAL DECISION AND ORDER
On December 7, 1961, the Board issued a Decision and Order 1 in
the above-entitled proceeding, finding that the Respondents had
engaged in certain unfair labor practices and ordering them to cease
and desist therefrom and to take certain affirmative action to remedy
such unfair labor practices. On January 10, 1963, the Circuit Court
of Appeals for the District of Columbia remanded the proceeding to
the Board for further hearing to present evidence with respect to
certain contract negotiations occurring on and prior to February 28,
1959.2 On July 12, 1963, the Charging Parties filed a motion request-
ing that Northern Virginia Sun, Inc., the present owner who pur-
chased the newspaper on February 4, 1963 (subsequent to the unfair
labor practices) be added as a party Respondent in any supplemental
hearing to be held, contending that the purchasing corporation was
a successor which was liable to remedy the unfair labor practices of
the original Respondents. On April 13, 1964, the Board issued a Sup-
plemental Order 3 amending the original Remand Order and redefin-
ing the issues to be heard by the Trial Examiner as that relating to
the alleged successorship status of Northern Virginia Sun, Inc., and,
as specified by the court, to permit the Respondents "to develop
directly and on cross-examination of previous witnesses the general
bargaining background prior to the discharge in question."
On March 29, 1965, Trial Examiner Louis Libbin issued his Sup-
plemental Decision in the above-entitled proceeding, finding that the
original Respondents had engaged in certain unfair labor practices,
1134 NLRB 1007.
2 314 F.2d 260.
8 On October 7, 1963 , the Board issued an Order remanding the proceeding and granting
Charging Parties ' motion to add Northern Virginia Sun, Inc., as a party Respondent.
Thereafter , the original Respondents filed a petition to the Court of Appeals for the Dis-
trict of Columbia asserting that the Board 's remand Order was too restrictive . The court
then issued a decision clarifying its prior remand order. (330 F.2d 231 .) The Board's
Supplemental Order redefined the issues to be heard on remand accordingly.
159 NLRB No. 140.