Herman Buns & Son, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1972

200 N.L.R.B. 401 (N.L.R.B. 1972)

HERMAN BUNS & SON 401
Herman Buns & Son, Inc. and International Union of
Operating Engineers, Local 234. Case
18-CA-3313
November 22, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On June 14, 1972, Administrative Law Judge 1
George Turitz issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
The Administrative Law Judge found that by
concertedly refusing to work before 7:30 a.m.
without pay the five employees engaged in concerted
activities for the purpose of mutual aid and protec-
tion and were discharged for these activities. We
agree.
When Steiff, Durgin, and Ziegler arrived at their
machines a few minutes after 7 a.m., Tegtmeyer, the
Respondent's foreman, informed them that they
were late and would be docked one-half hour. Ziegler
and Durgin protested, but walked away. Moore
arrived to find Steiff and Tegtmeyer arguing. Steiff
said that if his time would not start until 7:30, he
would wait in his car and begin working when his
time began. Tegtmeyer replied that the men would be
fired if they went down to their cars. After Moore
said he would not donate half an hour of his time,
Tegtmeyer said he could either start work then,
without an argument, his time to begin at 7:30, or
consider himself fired. Moore answered that he
considered himself fired and began walking down the
road with Steiff. Durgin, seeing this, followed a few
steps behind.2
When they saw Durgin, Steiff, and Moore walking
away, Johnson and Clark stopped working to ask
what was going on. Informed of Tegtmeyer's
ultimatum, Clark and Johnson decided not to accept
it, and left with the others.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Ziegler, however, chose to work the rest of the day, claiming time only
from 7:30
3 Buns denied that there was any discussion of the discharge, but the
After the group had walked a few steps, Tegtmeyer
drove up and warned the men to go back to work.
Durgin replied "Don, all you have to do is start our
time at starting time and we'll go back to work," but
Tegtmeyer refused.
The five discharged employees left the project and
went to the Company's office at Britt, 75 miles away,
to ask Robert Buns, the Respondent's active manag-
er, why they should accept the dock and whether the
discharge stood. Buns was absent but all five
returned the next day, Sunday, and spoke with Buns,
who told them that Tegtmeyer had fired them and he
considered him right.3 On Monday morning, when
the five men picketed the jobsite, Tegtmeyer ordered
the other employees to go to work, warning that if
they did not do so they would be out of work "like
the five fired Saturday."
It is apparent that the five employees engaged in
concerted activity by refusing to work before 7:30
without pay for work performed prior to that time.
Tegtmeyer's demand that they do so was unequivo-
cal; the five employees could only protest by walking
out, although they realized that this would result in
their discharges. That the men wished to work is
evidenced by their actions in driving 75 miles on
Saturday immediately after they were discharged to
appeal their firings to Buns, then again seeking a
meeting with him on Sunday. Buns stated on Sunday
that the men were discharged, and on Monday
Tegtmeyer referred to the men who were "fired on
Saturday."
When the five employees refused to work without
pay, for work performed before 7:30, they were
exercising their right to engage in concerted activity
for the purpose of mutual aid or protection. The
Respondent discharged them, not for their tardiness,
but for their protected activity in refusing to
acquiesce to Tegtmeyer's unequivocal and uncom-
promising demands that they work without pay until
7:30. Accordingly, we find that the Respondent
violated Section 8'(a)(1) of the Act.
REMEDY
For reasons expressed by the Administrative Law
Judge we find that an appropriate remedy for
Respondent's unfair labor practices includes, inter
alia, a requirement that Respondent make the
discriminatees whole for any loss of earnings
suffered by them from 7:30 a.m. on August 28 to the
date Respondent offers them reinstatement. It is
clear that these employees did not intend to engage
Administrative Law Judge did not credit his testimony . The; Respondent
excepts to this and other credibility findings , but we are satisfied under the
Standard Dry Wall Products test (91 NLRB 544) that there is no basis for
overturning the findings of the Administrative Law Judge.
200 NLRB No. 67
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in, nor did they engage in, a strike to obtain the one-
half hour's pay they were to be docked for tardiness.
Rather, they were concertedly refusing to work
during the remainder of the half hour they were to be
docked. As they were discharged for engaging in that
refusal, the backpay period appropriately begins as
of 7:30 a.m. on August 28, 1971.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Herman Buns &
Son, Inc., Britt, Iowa, shall take the action set forth
in said recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner: Upon a charge filed by
International Union of Operating Engineers, Local 234
(the Union), on September 1, 1971, and served on that date
upon Herman Buns & Son, Inc.' (Respondent, and, at
times the Company), the General Counsel of the National
Labor Relations Board (the Board),, through the Regional
Director for Region 18, on February 7, 1972, issued a
complaint and notice of hearing which was duly served
upon Respondent. Respondent filed its answer in which it
denied all allegations of unfair labor practices. A hearing
on the Complaint was held before me in Garner, Iowa, on
March 2 and 3, 1972, at which the General Counsel,
Respondent, and the Union were represented by their
respective counsels. All parties have submitted briefs.
Upon the entire record and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, Herman Buns & Son, Inc., is an Iowa
corporation having its principal place of business at Britt,
Iowa, where it is engaged in highway construction. In the
course of its operations Respondent annually has gross
receipts in excess of $500,000, including receipts in excess
of $250,000 from the State of Iowa or its political
subdivisions for services performed on projects financed in
whole or in part by the Federal government. In the course
of its operations, also, Respondent annually purchases fuel,
equipment, and materials valued at in excess of $50,000
from sellers located outside the State of Iowa, or from
sellers who, although located within the State of Iowa,
received directly from outside the State of Iowa the fuel,
equipment, or materials purchased by Respondent. I find
that Respondent is an employer engaged in commerce
1 This is the correct name of Respondent, and the Complaint, including
the caption, was amended at the hearing accordingly.
within the meaning of Section 2(2)(6) and (7) of the
National Labor Relations Act, as amended (the Act).
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , Local 234,
is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The issues litigated were whether the five employees
named in the Complaint quit or were discharged, and, if
the latter, whether the reason constituted a concerted
activity.
In August 1971 Respondent was engaged in grading,
ditch, and culvert work for a road near Ricefield, Iowa.
The road went through farm country and the employees on
the project arrived near each day's work area by private
automobile. As the work progressed, they parked their
vehicles at various places, sometimes at the nearest
accessible point to where the particular day's work was to
begin, at other times at a point they estimated would be
near where the day's work would end. In some instances
these parking spots were rather far from the beginning
work point and the men were transported between their
cars and the machines they operated by Respondent's
grease bus or by the foreman's pickup truck. When the
parking spots were nearby, they walked. There was no
definite custom or policy as to the distance which
warranted transportation.
On Saturday morning, August 28, at about 6:40 or 6:45,
a number of the employees arrived at the work area and
parked their cars at the same place where some had parked
the previous day. Two, Dietz and Hannah, were to work
equipment standing nearby, and they immediately started
preparations for work. The grease bus and the foreman's
truck could be seen from the parking area, and the five
employees named in the Complaint stood around awhile,
expecting to be picked up. They were Steiff, Durgin,
Moore, Clark, and Johnson.2 As 7 o'clock, the starting
time, approached, they finally concluded that they were
not to be picked up, and they started walking up the road
towards their respective equipment. At that point another
employee, Ziegler, arrived. He parked his car and fell in
with the others.
B. The Alleged Concerted Activities and Discharge
1. Steiff, Moore, and Durgin
Respondent's foreman, Don Tegtmeyer, was standing at
his pickup truck, about 50 feet from where Steiff, Durgin,
and Ziegler had left their machines the previous evening.
2 All five had previously signed cards for the Union, but they had not
been made members.
HERMAN BUNS & SON
This was about 3/4-mile from where the men had parked
their cars.3 They arrived at their machines shortly after
7:00 and were about to prepare for work.4 Tegtmeyer
called Steiff over and, pointing to his watch, said, "You're
a little late, aren't you?" Tegtmeyer testified that when he
spoke, he was addressing all three men, and I so find. Steiff
said yes, they had been waiting to be picked up. Tegtmeyer
replied that they were docked half an hour for being late.
Durgin asked if that included him, and Tegtmeyer said it
did, pointing out that it was 7:15 and his machine was not
running. Durgin protested that the men had been waiting
"down there" to be picked up. Tegtmeyer replied that
"down there" did not count .5 Ziegler also protested that
the dock was unfair. Durgin walked over to his machine,
upset and undecided what to do.
Moore, whose primary job was to help Quaintance, the
head greaser, had stopped at the grease bus to ask
Quaintance whether he was needed for greasing. Told no,
he proceeded to Tegtmeyer's truck, a quarter of a mile
farther up the road from the bus, to find out what he was
to do that day. He arrived to find Durgin cogitating at his
machine and Steiff arguing with Tegtmeyer. Learning of
the dock, he asked Tegtmeyer who else was affected.
Tegtmeyer told him, "All those fellows who walked up the
road with you."
Steiff asked if the docking meant that his time would
start at 7:30, and when Tegtmeyer said it did, he said he
would go to his car and be back at 7:30. Tegtmeyer replied
that if the men went down to their cars, they should keep
going because they would be through.6 Moore said that he
would not donate half an hour of his time, and Tegtmeyer
told him he could either start work then without an
argument, his time to start at 7:30, or consider himself
fired. Moore replied, "I guess I consider myself fired."
Steiff and Moore started down the road together,
carrying their lunch buckets. Seeing this, Durgin made up
his mind and followed, a few steps behind. Moore testified
as follows:
Q. Did you men make a decision on whether or not
you were going to work this half hour free?
A. Not at that time, we had already made that
decision, yes, in our own mind, not to each other.
Ziegler got on his machine and started it. While it
warmed up, he drank some coffee. He worked the rest of
the day, and claimed time only from 7:30.
2. Johnson and Clark
These employees' work places were near the grease bus.
They had been at work for some time when they saw Steiff,
Moore, and Durgin approaching carrying their lunch
buckets. They stopped working and asked what was going
on. Informed of Tegtmeyer's order that all be docked one-
half hour but nevertheless start work immediately or be
3 The various distances referred to in this Decision were the estimates of
the employees. I do not regard them as accurate.
4 Tegtmeyer testified that the time was 7 15, Durgin and Steiff testified
that it was 5 to 10 minutes earlier. The difference would not affect the merits
of the case.
5 While some lateness was excused, the employees were supposed to be
at their machines at 7 o'clock Before actual operation commenced it was
necessary to do some greasing and to allow the machine to warm up for
several minutes
403
fired, Johnson and Clark decided not to accept these
conditions. Clark covered the exhaust pipe of his machine
and the two started to walk down the road with the others.
Johnson and Clark had walked a few steps when
Tegtmeyer drove up and warned that the men had better
go back to work or they would be sorry, since Respondent
had much work lined up for the fall. Durgin, who at that
point was standing with Johnson next to the pickup,
replied, "Don, all you have to do is start our time at
starting time, and we'll go back to work." Tegtmeyer said,
"No, I can't do that. Take a half hour dock or down the
road," adding, "As far as that for you, John Durgin, Buns
told me to fire you two weeks ago." Durgin replied, "Well,
I guess it's done now." 7 Clark, who heard part of the
conversation, said "Mr. Tegtmeyer, I went to work. I was
working at 7 o'clock. I have loaded two loads of dirt. Why
should I be docked a half hour?" Tegtmeyer replied,
"Everybody who walked up this road is docked a half hour
... You'll take the dock along with the rest of them and
go back to work or down the road." Clark testified
specifically that his conversation with Tegtmeyer took
place after he had decided to walk off. He explained his
decision as follows:
Well, it was because he had told these others, and I
heard him telling John [Durgin] that either go back to
work or else, and I had made up my mind if they were
going to get docked and they told me I was getting
docked, I was not going to take the dock. When I heard
this, I turned around and asked him myself.
C. Alleged Reaffirmations of the Discharge
The five discharged employees left the project area and
decided to go to the Company office at Britt, some 75 miles
away, to find out from Robert Buns, Respondent's vice
president and its active manager, why they should accept
the dock and whether their discharge stood. In Robert
Buns' absence , they spoke to Herman Buns, his father, who
was president of Respondent but only semiactive in its
affairs. Told that the men had been discharged for being
"five or some minutes late," he said that he did not see
where that was "such a problem," but that the men would
have to speak to Robert Buns.
The next morning, Sunday, all five met with Robert Buns
at the Company shop, with Moore as their designated
spokesman. Moore asked Buns whether he had heard
about the incident on Saturday. Buns replied, "You fellows
don't work here any more, I don't know what you are
doing here." Moore asked if they still had jobs and Buns
replied that Tegtmeyer had fired them and he considered
him right. Moore then asked whether the men would be
paid for the half hour they had put in arguing with
Tegtmeyer. Buns replied that they had not worked the half
hour, had had not worked for Respondent since Friday,
6 Tegtmeyer answered "No" to the question, "Did you tell them they
were fired9" As to whether any of the men said something about going
down to sit in their cars , he testified that he could not remember one way or
the other. Ziegler testified that he did not hear Tegtmeyer's conversation
with the other employees Moore and Durgin testified convincingly about
the incident, and I have credited their testimony.
7 Durgin testified that although he said, "we ," he was speaking only for
himself. Johnson testified , in effect, that in view of Durgin's use of "we," he
understood Tegtmeyer's reply to apply to him, Johnson.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and would not any more. He started pouring abuse on the
men they had walked out.8
On Monday morning the men picketed the jobsite with
signs bearing the Union's name and indicating that they
were picketing Respondent for a contract with the Union.
The signs said nothing about the terminations, but the men
told employees that they had been discharged the previous
Saturday and the circumstances, and some refrained from
working. Tegtmeyer arrived between 7 and 7:30 and
ordered the employees to go to work, warning that if they
did not, they would be out of work "like the five fired
Saturday." He gave the five men a half hour to clear out,
and when they did not, he called the sheriff. A deputy
appeared, but he permitted the picketing to continue. Later
Moore spoke to Buns and told him that if the men could
not work, they were going to picket. Buns replied that
"nobody was going to make him join any damn un-
ion...." 9
D. Concluding Findings
1. The allegedly concerted activities
At or shortly before 7:15 Ziegler, Durgin, and Steiff
arrived together at the area of Tegtmeyer's truck. Tegtmey-
er's order that pay would start at 7:30 but work must start
at once was obviously directed to all three. The fact that he
called Steiff over to comment on the hour detracted
somewhat from the clarity of the scope of the directive.
However, Ziegler and Durgin recognized that it probably
applied to them, and Tegtmeyer immediately cleared up
the ambiguity by so stating. He himself testified at the
hearing that what he said to Steiff was directed to all three.
Moore arrived and learned of the order and that it applied
to him, also, as well as to Clark and Johnson.
Moore and Steiff indicated that they were ready to start
work at 7:30 but would not work the prior quarter-hour
without pay. It is unnecessary for purposes of this case to
decide whether the four employees' talk with Tegtmeyer
-all of the same, protesting nature-was a concerted
activity. What is plain is that when Moore and Steiff went
beyond words and, by walking down the road with their
lunch buckets, unequivocally refused to work under the
conditions laid down by Tegtmeyer, they did so together.
Respondent emphasizes that Moore and Steiff reached
their decision without prior discussion. In ambiguous
situations such discussion often makes plain that acts are
group, rather than individual, acts. However, prior discus-
sion is not a condition precedent to a finding that acts are
concerted. Distinguish Mushroom Transportation Co. v.
N.L.R.B., 330 F.2d 683 (C.A. 3), cited by Respondent,
which did not involve acts but only talk which, moreover,
the Court specifically found did not look forward to group
action. In the present case two employees, standing near
each other, simultaneously refused to work under new
9 Buns denied that there was any discussion of the discharge He testified
that the men, some of whom lived at substantial distances from Britt, only
asked for pay for the half hour Buns impressed me unfavorably as to the
credibility, and I have not credited his testimony. When the men submitted
their time reports, they included their claim for one-half hour on Saturday
and Respondent paid them.
9 These findings are based on the testimony of General Counsel's
witnesses Respondent adduced no testimony describing the incidents on
conditions laid down in a directive intended for both, as
well as the others who had walked up the road together. I
find that by walking off the job Moore and Steiff
concertedly refused to work the time before 7:30 without
pay.
Moore, Ziegler, Durgin, and Steiff all had the same
reaction of outrage to Tegtmeyer's order. They had
incurred expenses in coming to the job that day-some had
driven 75 miles-and the half- or quarter-hour pay does
not appear to have been the important factor. Apparently
the men felt that a principle was involved. Ziegler
overcame his feelings of outrage and went to work. Durgin
was torn. However, the sight of Moore and Steiff walking
off the job tipped the balance, and he fell in close behind
them. I find that Durgin refused in concert with other
employees, to work before 7:30 without pay.
Clark and Johnson saw Moore, Durgin, and Steiff
concertedly walking off the job. Apprised of the reason,
they joined in, thereby refusing, in concert with the others,
to work before 7:30 without pay.
I have emphasized that, following Tegtmeyer's edict, the
first act of any employee, as opposed to mere words, was
the simultaneous walking off by Moore and Steiff. This
simultaneity simplifies the demonstration that the five
employees acted concertedly. However, a more correct
approach to this issue is to examine the entire incident as a
single event, rather than a series of separate events to be
nicely analyzed. Tegtmeyer issued an edict to a group, and
he got a group response in the form of the employees
walking off the job together. Indeed, the men's refusal to
work under Tegtmeyer's conditions did not become
unequivocally final until they had left the jobsite; before
that Tegtmeyer pursued them and tried to persuade them
to change their minds. They refused, since he still insisted
on the half-hour dock and their services, and all five left
the jobsite together.10
I find that by concertedly refusing to work before 7:30
without pay the five employees named in the Complaint
engaged in concerted activities for the purpose of mutual
aid and protection.
2. The terminations
Tegtmeyer's statements that if the employees went back
to their cars they should "keep going" because they were
through, and that they should consider themselves fired
were not mere invitations to quit. Tegtmeyer felt strongly
that the men had to be punished because of what appeared
to him to be a too easy attitude about getting to work with
punctuality. At the same time he did not want the
punishment to result in delaying completion of the project,
with possible loss to Respondent. To ensure the accom-
plishment of this dual purpose, he drew the strongest
weapon in his arsenal, not a threat of discharge, which the
men would assume might or might not be carried out, but a
Monday except insofar as Buns, when asked whether any of the employees
had "ever" asked whether they could return to work, answered, "No."
10 In its brief Respondent quotes the General Counsel to the effect that
the five men were fired "in succession ." However, the General Counsel
clarified his position on the next page of the transcript, where he pointed out
that no one started to walk out until the first four had all been told that their
refusal to work without pay would mean they were fired. He then stated,
"They all started walking out together "
HERMAN BUNS & SON
clear order that any employee's refusal to work without
pay before 7:30 was to result simultaneously in his
automatic discharge. Their acceptance of this severe
penalty in preference to the mild financial loss involved in
the docking apparently surprised Tegtmeyer, and he
attempted to persuade them to reconsider . Respondent
contends that this attempt demonstrates that the employ-
ees had not been discharged but had quit. However
Tegtmeyer still insisted that the men work up to 7:30
without pay, and when they refused, he allowed the
discharges to stand . These conclusions are buttressed by
Tegtmeyer's own references on the following Monday to
the five men "fired" on Saturday, and by Buns' statement
on Sunday that he considered Tegtmeyer right in discharg-
ing them.
The fact that Tegtmeyer's procedure accomplished the
men's termination not by means of a further statement or
other acts by him, but by the employees' own acts did not
make the termination a quit rather than a discharge. The
employees had no intention to quit, or even to strike; they
proceeded from the jobsite directly to company headquar-
ters to get the matter resolved. All they intended was to
refuse to work prior to 7:30 without pay. The Board has
held that an employer's order that all employees who
wanted a union should get out of the plant constituted a
discharge of all those who left after hearing the order. See
Quest-Shon Mark Brassiere Co., Inc., 80 NLRB 1149, 1151,
enfd. 185 F.2d 285 (C.A. 2), cert. denied 342 U.S. 812. It is
not material that Clark and Johnson decided to walk off on
the basis of 'what the employees told them and before
hearing the order directly from Tegtmeyer. The Board has
indicated that in the case of an order of this kind it would
find a discharge with respect to employees who did not
hear the order directly from Respondent but heard it
related by employees who did hear it directly. See Quest-
Shon Mark Brassiere Co., Inc., supra, at page 1152.
Tegtmeyer's statement that if the men did not work
immediately they were discharged implied an order to get
off the project. The men were not required to put
Tegtmeyer to the test and risk prosecution for trespass or
possible loss of their status as employees by remaining on
the property after being discharged.
I find that Tegtmeyer discharged Clark, Durgin, John-
son, Moore, and Steiff. Since the reason he discharged
them was that they engaged in concerted activities for
mutual aid and protection, I further find that Respondent
thereby violated Section 8(a)(1) of the Act. See Ablon
Poultry & Egg, Company, 134 NLRB 827, 829.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
I find that the activities of Respondent set forth in
section III, occurring in connection with its operations
described in section I, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
405
As I have found that Respondent has engaged in certain
unfair labor practices , I recommend that the Board issue
the recommended Order set forth below requiring Respon-
dent to cease and desist from said unfair labor practices
and to take certain affirmative action which will effectuate
the policies of the Act.
I recommend that Respondent reinstate Arthur L. Clark,
John L. Durgin , Bobby J. Johnson, Daryl Moore, and
Ronnie R. Steiff to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions , without
prejudice to their seniority and other rights and privileges,
and that they be made whole for any loss of earnings
suffered by reason of the discrimination against them. The
employees suffered no loss of pay up to 7 : 30 on August 28;
notwithstanding Tegtmeyer's edict, Respondent , possibly
to avoid litigating a matter of no substantial consequence
financially, has paid the men for that time in full. As to the
period after 7:30 it is necessary to consider the question of
whether the men's loss of earnings resulted from the
discrimination against them or from their concerted refusal
to work. The men did not go out on a full-fledged strike. So
far as they were concerned , they wished to withhold their
services only up to 7:30, when their pay would begin; the
record is plain that they wished to work after that. Nor
does the fact that on Monday the employees picketed for a
contract affect the amount of backpay . Consideration of
all the circumstances makes it appear highly unlikely that
the employees would have struck or picketed if they had
not been discriminatorily discharged ; in fact Moore told
Buns that they would picket if they could not work. If there
is any doubt in the matter, it must be resolved against
Respondent, since its unlawful discrimination has made it
impossible to ascertain even more definitely whether they
would have struck in the absence of the discrimination. See
Merchandiser Press, Inc., 115 NLRB 1441, 1442. Accord-
ingly, the amount of backpay to each employee shall be a
sum of money equal to what he would have earned from
August 28, 1971, to the date of Respondent 's offer to him
of reinstatement,' with interest at 6 percent per annum, less
his net earnings during said period. See First National Bank
of Omaha, 171 NLRB ' 1145, 1153. Backpay and interest
shall be computed in accordance with the Board 's usual
practice. See F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716. I further
recommend that Respondent preserve and, upon request,
make available to the Board and' its agents , for examina-
tion and copying, all payroll , time, work, accounts-receiva-
ble, and other records to facilitate the computation of
backpay due and to ensure the proper carrying out of the
reinstatement provisions of the recommended Order.
Upon the basis of the foregoing findings of fact and on
the entire record in this case 'I make the following:
CONCLUSIONS OF LAW
1. Respondent, Herman Buns & Son, Inc., is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. International Union of Operating Engineers, Local
234, is a labor organization within the meaning of Section
2(5) of the Act.
4. By concertedly refusing to work without being paid
for the full-time work, Arthur L. Clark, John L. Durgin,
Bobby J. Johnson, Daryl Moore, and Ronnie R. Steiff
engaged in concerted activities for the purpose of mutual
aid or protection within the meaning of Section 7 of the
Act.
5. By discriminatorily discharging Arthur L. Clark,
John L. Durgin Bobby J. Johnson, Daryl Moore, and
Ronnie R. Steiff because they engaged in concerted
activities, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
6. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 11
ORDER
Respondent, Herman Buns & Son, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging employees or otherwise discriminating
against them because they engage in concerted activities
for the purpose of mutual aid or protection.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Arthur L. Clark, John L. Durgin, Bobby J.
Johnson, Daryl Moore, and Ronnie R. Steiff immediate
and full reinstatement to their former jobs, or if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges.
(b) Notify any of the above-mentioned employees, if
presently serving in the Armed Forces of the United States,
of their right to full reinstatement as provided in this Order
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 employees referred to in subpara-
graph (a) in the manner set forth in section V of this
Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board and its agents, for examination, copying, and
reproduction, all social security payment records, payroll
records, time records, accounts-receivable records, and all
other data necessary or helpful to analyze and compute the
backpay required by this Order and to ensure the proper
reinstatement of employees as required by this Order.
(e) Post at its office in Britt, Iowa, copies of the attached
notice marked "Appendix." 12 Copies of the notice, on
forms provided by the Regional Director for Region 18,
shall, after being signed by a representative of Respondent,
be posted immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to ensure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify said Regional Director for Region 18, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.13
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , automatically become the findings,
conclusions , and order of the Board, and all objections thereto shall be
deemed waived for all purposes.
12 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading, "Posted by
Order of the National Labor Relations Board ," shall be changed to read,
"Posted pursuant to the Judgment of a United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
13 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify said Regional Director for Region 18, in writing, within 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Arthur L. Clark, John L. Durgin,
Bobby J. Johnson, Daryl Moore, and Ronnie R. Steiff
immediate and full reinstatement to their former jobs,
without prejudice to their seniority or other rights and
privileges, and WE WILL notify any of them presently
serving in the Armed Forces of the United States of
their right to full reinstatement in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
WE WILL pay the employees named above for any
loss of earnings suffered as a result of the discrimina-
tion which the Board has found we practices against
them.
WE WILL NOT discharge employees because they
engage in concerted activities for mutual aid or
protection.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-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.
HERMAN BUNS & SON, INC.
(Employer)
Dated By
(Representative) (Title)
HERMAN BUNS & SON 407
This is an official notice and must not be defaced by ing this notice or compliance with its provisions may be
anyone. directed to the Board's Office, 316 Federal Building, 110
This notice must remain posted for 60 consecutive days South Fourth Street, Minneapolis , Minnesota 55401,
from the date of posting and must not be altered, defaced, Telephone 612-725-2611.
or covered by any other material. Any questions concern-