M & B Contracting Corp.

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1215 (N.L.R.B. 1979)

M & B CONTRACTING CORP.
M & B Contracting Corporation and Robert William-
sen and William Tyynismaa. Cases 7- CA- 14386, 7-
CA-14580, and 7 CA 14575
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On February 9, 1979, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, M & B Contracting
Corporation, Novi, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order.
I Member Murphy finds that a narrow order is appropriate here under the
standards set forth in Hickmott Foods, Inc., 242 NLRB 1357 (1977), and
therefore does not join her colleagues in adopting a broad order here.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge:
These consolidated cases were heard at Detroit, Michigan,
on April 12, 13, and 14 and May 9 and 10, 1978, pursuant
to charges filed by Robert Williamsen, an individual, in
Case 7-CA-14386 on September 12, 1977,' and in Case 7-
CA-14850 on February 13, 1978, and a charge filed by
William Tyynismaa, an individual, in Case 7-CA- 14575 on
November 7 and a second amended complaint issued on
March 30, 1978.
The amended complaint alleges that M & B Contracting
Corporation (herein referred to as Respondent), violated
I All dates referred to are in 1977 unless otherwise stated
Section 8(a)( ). (3). and (4) of the National Labor Relations
Act, as amended (herein referred to as the Act), by inform-
ing Robert Williamsen that any attempt on his part to be-
come a union steward would cause him great difficulties in
his future employment and threatened him with unspecified
reprisals if he attempted to do so because of his union ac-
tivities; threatened Williamsen with the imposition of writ-
ten reprimands for every minor working infraction because
of his union activities: referred to Williamsen in a conversa-
tion with an employee as being a "troublemaker" because
of his refusal to operate a truck until certain alleged unsafe
and unlawful aspects of the truck were corrected because of
his union activities: informed Williamsen that he would not
be reassigned to the gravel train until he had withdrawn
Case 7-CA- 14386, and that any of his recent difficulties at
work might be due to his having attempted to file a griev-
ance in August;' informed employees that William Tyynis-
maa risked his continued employment with Respondent by
soliciting grievances from other employees regarding al-
leged contract violations by Respondent: informed employ-
ees that Tyynismaa was a "troublemaker" because he had
been soliciting the filing of grievances by other employees;
informed an employee that the recent solicitation of a griev-
ance filed by the employee and Tyynismaa would be held
against them by Respondent in future decisions regarding
their terms and conditions of employment; referred to
Tyynismaa in a conversation with an employee as a "ha-
rasser" and used other terms of opprobrium to describe him
based on his union views and activities; informed Tyynis-
maa that they desired his resignation because he was too
prounion to continue working for Respondent: informed
Gerald Finn that he would receive written reprimands as
long as he chose to utilize the grievance procedure of the
contract: issued an unjustified written reprimand to Finn to
harass him because of his union activities; refused to return
Finn to his former assignment of driving a gravel train from
driving a fuel truck, thereby affording him significantly less
opportunity to obtain either 40 hours of work per week or
overtime work because of his union activities; relieved Wil-
liamsen and Tyynismaa of their previous duties as gravel
train drivers and assigned them to driving water trucks,
thereby affording them significantly less opportunity to ob-
tain either 40 hours of work per week or overtime work
because of their union activities; required Williamsen to
engage in certain menial chores such as wiping his truck's
body and requiring him to redo his work because of his
union activities and informing him those assignments were
being given to him on account of his grievance solicitation
activities and his having filed an unfair labor practice
charge; issued unjustified written reprimands to Williamsen
because of his union activities;' terminated the employment
of Williamsen's union views and activities and because of
his previous filing of a charge against Respondent with the
Board and his giving of testimony to the National Labor
2 The grievance referred to as reflected by a more definite statement sub-
mitted by the General Counsel pertains to appointing a steward and correct-
ing Respondent's seniority list.
The dates of these reprimands as specified by the General Counsel in
response to a motion for a more definite statement occurred on November
16: December 14 and 29: January 9, 12. 13, 16. 18. and 31: and February I
and 7, 1978.
245 NLRB No. 155
1215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board in support of that charge; refused to assign
Tyynismaa any overtime work whenever such work would
otherwise have been available to him and refused on many
separate occasions to allow Tyynismaa to work a full shift
of work when such work was otherwise available to him
and also required him to appear daily at jobsites distant
from his home before informing him whether he would be
allowed to work that day all because of his union activities;
assigned unjustified written reprimands to Tyynismaa be-
cause of his union activities; and terminated the employ-
ment of Tyynismaa because of his union activities and be-
cause he was named in a charge with the Board and gave
testimony in support thereof.
Respondent in its answer dated April 11, 1978, denied
having violated the Act. It further asserts as affirmative de-
fenses that William Tyynismaa signed a release which con-
stitues a defense to the asserted claims and charges of
Tyynismaa, and that certain allegations of the amended
complaint were not properly before the Board because they
were covered by the collective-bargaining agreement, and
the Board was required to defer to the grievance-arbitration
procedure which had either not been exhausted or had re-
sulted in final and binding decisions.
The issues involved are whether Respondent violated
Section 8(a)(1), (3), and (4) of the Act by engaging in un-
lawful statements and threats to its employees; whether it
discriminated against William Tyynismaa, Robert William-
sen, and Gerald Finn in their work assignments or hours
and by giving them reprimands; and whether it discrimina-
torily discharged Williamsen and Tyynismaa because of its
employees' union activities or the charges filed with the
Board or their giving testimony under the Act, as alleged.
An additional issue is whether the affirmative defenses
raised by Respondent have merit.
Upon the entire record in these cases, from my observa-
tions' of the witnesses and after due consideration of the
briefs filed by the General Counsel and Respondent I
hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation with its principal
office and place of business located at Novi, Michigan, is
engaged in the construction business as a contractor for
various business enterprises and government agencies at
construction sites located throughout the State of Michigan.
During calender year 1976, a representative period, Re-
spondent derived gross revenues in excess of $500,000 from
its operations, and it also purchased and received goods and
materials valued in excess of $50,000 which were delivered
to its place of business located at Novi, Michigan, directly
from points located outside the State of Michigan.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
4 Unless otherwise indicated the findings are based upon the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit.
II. IHE LABOR ORGANIZATION INVOLVED
Local 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein referred to as the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent, which is located at Novi, Michigan, is en-
gaged in business as a contractor in the construction indus-
try. Included among its official and supervisory personnel
are President Edwin Mancuso, Superintendent Douglas
Kelley, and Superintendent Paul Beverlin, who was em-
ployed by Respondent until October.'
Respondent employs approximately 30 truckdrivers.
They are represented by the Union which has a collective-
bargaining agreement covering them. This agreement,
which is between the Associated Underground Contractors,
Inc., of which Respondent is a member, and various local
unions of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, in-
cluding the Union, was effective from September 1, 1976,
until September 1, 1979.
The discriminatees, Robert Williamsen, William Tyynis-
maa, and Gerald Finn, were all employed by Respondent
as truckdrivers and were members of the bargaining unit.
Both William Tyynismaa and Robert Williamsen testi-
fied that about August or early September they prepared
and circulated two petitions among Respondent's
truckdrivers for them to sign. One petition was to get a
union steward appointed, and the other petition sought cor-
rections in Respondent's seniority list. These petitions were
then submitted to the Union, and in October the Union
held an election, at which time a union steward was elected
to represent Respondent's employees.6 Prior to that time
they did not have a union steward on the job.
Tyynismaa testified that in late August Superintendent
Kelley observed him talking to another employee about
signing the petition. The next day Kelley asked him what
good a union steward was going to do him and who he
wanted to be the union steward. Kelley also asked to sign
the petition.7
Superintendent Kelley denied questioning Tyynismaa
about the union steward. However, he acknowledged that
on one occasion, upon observing drivers signing the peti-
tion, he jokingly asked if he could sign it and further ac-
knowledged that in the fall he observed the petition for
union steward being passed around and that Tyynismaa
was circulating it.
I credit Tyynismaa, who I find was a more credible wit-
ness than Kelley. In addition to my observations of the
witnesses in not crediting Kelley, his testimony at times was
contradicted by Respondent's other witnesses.
These three individuals are supervisors under the Act.
6 Both the Union's vice president. Edward Kantzler. and the Union's re-
cording secretary. John Calandra, acknowledged that the election was held
following a petition submitted by Williamsen and Tyynismaa.
I This conversation was not alleged in the amended complaint to be un-
lawful.
1216
M & B CONTRACTING CORP.
While Superintendent Kelley denied any knowledge of a
petition being circulated regarding seniority, according to
President Mancuso, it was Kelley who mentioned to him
such a petition was being circulated.
B. Unlawful Statements and Threats
The General Counsel presented several employees who
testified concerning unlawful statements and threats made
by President Mancuso and Superintendent Kelley.
Darryl Cool testified that about August President Man-
cuso asked him, in the presence of Superintendent Kelley,
whether he had signed the paper for the union steward.
Upon replying that he did not Mancuso stated, "That's the
kind of boy I like." Mancuso also told him that Williamsen
and Tyynismaa had gotten themselves in hot water starting
the deal about the union steward.
Both Mancuso and Kelley denied such a conversation
occurred, and I credit their denials rather than the testi-
mony of Cool, whom I discredit. Apart from my observa-
tions of the witnesses in discrediting Cool, he repeatedly
contradicted his own testimony and admitted making prior
inconsistent statements in an affidavit given to a Board
agent.
Gerald Finn stated that in August, September, or Octo-
ber he overheard a radio conversation between President
Mancuso and Superintendent Angelo Robelli, during which
Robelli informed Mancuso that Williamsen refused to drive
the water truck because it had an expired license plate, and
the brakes, lights, and turn signals were not working prop-
erly. According to Finn, after Mancuso informed Robelli he
would bring a license plate over and send a mechanic to
work on the truck Mancuso told Robelli that Williamsen
was a troublemaker and was causing trouble, which was his
reason for claiming not to drive the water truck.
Although President Mancuso and Superintendent
Robelli acknowledged having a radio conversation about
Williamsen's complaints about driving the water truck,
Robelli denied and Mancuso did not recall his calling Wil-
liamsen a troublemaker.
I credit the testimonies of Mancuso and Robelli, who I
find were more credible witnesses than Finn. Besides my
observations, Finn's testimony was both exaggerated and
contradictory.
Robert Williamsen testified that about September 5 or 6,
during a telephone conversation with Superintendent Kel-
ley, Kelley said, "So you want to be the new union steward.
That could cause a lot of trouble." Williamsen, who visited
the union hall on September 5, also stated that the follow-
ing day Kelley asked him whether he went to the union hall
to sign up to be the new union steward which he denied,
explaining that he went to pay his union dues and showed
him the receipt. According to Williamsen, Warren Rosz-
man was present during the latter conversation.'
Superintendent Kelley, while stating that on one occa-
sion Williamsen mentioned to him about paying back dues,
denied having such conversations with Williamsen.
I Although Warren Roszman testified as a witness for Respondent, he did
not testify about this incident.
Based upon testimony of Williamsen, who I find was a
more credible witness than Kelley for reasons previously
given, I find that about September 5 or 6 Kelley informed
Robert Williamsen that his attempts to become a union
steward could cause him a lot of trouble.
Williamsen testified that in September or the beginning
of October he mentioned to Superintendent Kelley that his
wife had received a telephone call to the effect that he was
going to be fired for passing around the petitions.9 Upon
asking Kelley whether he was satisfied with his work or if
there was any problem Kelley replied that there were no
problems with his work but said that he should stay away
from union activities. Kelley also walked over to the senior-
ity list posted on the board, pointed out William Tyynis-
maa's name, and said that Tyynismaa was a troublemaker
and he should stay away from him because he could be
gotten rid of.
Williamsen also stated that in September Superintendent
Kelley told him that anybody associated with the Union
could be gotten rid of, and they did not want any union
activity in the shop; in September or October Kelley also
told him that he did not like the idea they were writing the
grievances over the union steward and the seniority list and
said that they could do without the Union.
Superintendent Kelley denied having any of these con-
versations with Williamsen. However, I credit Williamsen's
testimony rather than Kelley and find that in September or
October Superintendent Kelley informed Williamsen that
William Tyynismaa was a troublemaker and could be dis-
charged, which I find was because Tyynismaa was engaged
in union activity by soliciting employees to sign the peti-
tion. I further find, although not alleged in the amended
complaint, that Kelley also informed Williamsen that the
should stay away from union activities, and that they did
not want any union activity in the shop; threatened Wil-
liamsen that anybody associated with the Union could be
discharged; and informed Williamsen that he did not like
the idea they were writing the grievances over the union
steward and seniority list and they could do without the
Union.
Williamsen stated that about October President Mancuso
asked him if he was a harasser. When he denied it Mancuso
informed him that he could get along with him pretty well
but said that he could not get along with Tyynismaa be-
cause he was a harasser and stated that he had offered
Tyynismaa I week's pay to quit, which Tyynismaa would
not accept.
While President Mancuso denied having such a conver-
sation with Williamsen, I discredit his denial and find that
about October President Mancuso during a conversation
with Williamsen referred to Tyynismaa as being a harasser,
which I find was because of Tyynismaa's union activities.
Apart from my observations of the witnesses, Mancuso's
testimony, on occasion, was both vague and conclusionary.
Williamsen testified that the Tuesday after returning
from the Iron River jobsite, which would have been No-
vember 15, he turned in a claim for 4 or 5 days' work on
that jobsite although he did not work because his truck was
I According to Williamsen, his wife had received the telephone call from
Tyynismaa.
1217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
broken down,'" but he claimed that he was entitled to it
under the contract because he was ready and available for
work. According to Williamsen, Mancuso informed him
that he was not going to pay him, also said that they were
fighting a losing battle against the Company, and told him
that any chance he got he would give him a reprimand and
write him up for any little thing he could.
Although President Mancuso denied making such state-
ments, I credit Williamsen and find that on November 15
President Mancuso threatened Williamsen with written rep-
rimands, which I find was because of his union activities.
Williamsen, on direct examination, further testified that
the middle of January 1978 he wrote a petition for a union
steward, which he asked employees to sign, and mailed it to
the Union." According to Williamsen, Superintendent Kel-
ley subsequently came up and asked him about his wanting
to be the new union steward and told him that it would get
him into a lot of trouble, mentioning that he did not learn
his lesson. However, under cross-examination Williamsen
was uncertain about the period this conversation occurred.
Superintendent Kelley denied that any such conversation
occurred.
Based upon Williamsen's own uncertainty when this oc-
curred I am persuaded that Williamsen may have been re-
ferring to his conversation with Kelley about September 5
or 6 set forth supra, rather than to an additional conversa-
tion with Kelley.
On October 15 William Tyynismaa had a conversation
with President Mancuso and Superintendent Kelley.
Tyynismaa testified that after Mancuso told him that he
was set in his ways, that they were set in their ways, and
that they were not going to change, Mancuso said that he
would like to offer a solution to the problem and told him
he would offer him 1 week's salary to find himself a job
somewhere else because his views and their views conflicted
too much. According to Tyynismaa, Kelley mentioned that
he should walk away and said that he knew the Company's
views on the Union when he first started there, that they
had talked it over, and that he should not have come to
work if he disagreed with their views on the Union.' He
responded by telling Mancuso that he thought a good solu-
tion to the problem would be to put him back the gravel
train and quit discriminating against him, whereupon Man-
cuso then said that he should think over his offer, and that
this thing could turn into total tragedy for him if he did not.
President Mancuso's version was that Tyynismaa ap-
proached him about going back on the gravel train and
asked if he dropped the charge with the Board whether he
would put him back on the gravel train, whereupon he indi-
cated to Tyynismaa that he could not make any special
arrangements and refused. According to Mancuso, it was
Tyynismaa who indicated that they had a lot of problems
'0 Superintendent Howe acknowledged that he had informed Williamsen
pursuant to his inquiry that there was no work available after his truck broke
down but stated that later, upon needing Williamsen to drive the water
truck, he could not locate him.
" The Union, by a letter to Williamsen dated February I, 1978, acknowl-
edged receiving it.
l' According to Tyynismaa, at the time he was hired in June, Superinten-
dent Kelley mentioned to him that they did not have anything to do with the
Union other than paying the rate, which Kelley denied.
back and forth between the Company and himself and dif-
ferent ideas and stated that since it seemed Tyynismaa was
unhappy with his job, he offered him an opportunity to
look for another job and I week's pay to do so.
Superintendent Kelley claimed that Tyynismaa was un-
happy with the way the Company was being run and with
the equipment, whereupon Mancuso offered to help him
out by offering him I week or 2 weeks pay to give him the
opportunity to hunt another job where he would be happy.
Kelley, who stated that he was not present when the con-
versation started, denied hearing any mention of the charge
or any discussion about the Union.
I credit the testimony of Tyynismaa instead of the testi-
monies of Mancuso and Kelley for reasons previously
given, and I find that on October 15 President Mancuso
and Superintendent Kelley solicited Tyynismaa to resign
his employment with Respondent because of his prounion
feelings. I further find, although not alleged in the amended
complaint, that President Mancuso and Superintendent
Kelley also threatened Tyynismaa that if he did not resign
his job because of his prounion feelings it could turn into a
total tragedy for him.
Several witnesses testified concerning an incident which
happened at the Goat Farm Tavern. The exact date was
not established but was placed by various witnesses as oc-
curring in September, November, or December. William-
sen's version was that during a conversation between Pres-
ident Mancuso, who was sitting at the next table, and
himself, Mancuso jumped up and wanted to know why he
had such an attitude against the Company. Upon denying
that he had an attitude against the Company, Mancuso
stated that he had lots of money and was not going to let
him ruin his business or lose any money and said that he
would spend all the money he had or whatever to get him to
change his attitude or get rid of him. According to William-
sen, another employee, Robert Glass, who was sitting with
Mancuso, told Mancuso that Williamsen was the one who
had started the paper.
Darryl Cool, also presented as a witness by General
Counsel, testified that Williamsen and Mancuso got into an
argument over the union steward business and some griev-
ances and stuff that Williamsen had written up, whereupon
Mancuso told Williamsen it took him 7 years to build this
$50 million business, that he was not going to lose it to
somebody like him, and said "I will get you." However,
under cross-examination Cool acknowledged having stated
in an affidavit given to a Board agent, which he now claims
is in error, that he did not recall Mancuso saying why he
was going to get Williamsen.
Both President Mancuso and John Griffin, who is em-
ployed by Respondent as a laborer, denied that such a con-
versation occurred or that there was any mention made
about the Union or the petition for the union steward.
Mancuso's version was that after he had invited Roger
Freeman to have a drink Williamsen slammed a glass of
beer on the table and told Freeman that if he wanted to
drink the Company's beer to sit with them, after which he
mentioned to Williamsen that he did not appreciate it and
told him to simmer down and be quiet.
The conflicting testimonies of Williamsen and Cool con-
cerning this conversation, which admittedly occurred while
1218
M & B CONTRACTING CORP.
the various participants were drinking, persaude me to
credit the denials of Griffin, who impressed me as a credible
witness, and Mancuso concerning what was said on that
occasion.
C. The Written Reprimand Issued to Gerald Finn
The amended complaint alleges that Gerald Finn was
issued a written reprimand without justification to harass
him because of his union activities.
Finn, who was hired by Respondent in September 1975.
is employed as a truckdriver.
His union activities consisted of signing the two petitions
circulated by Tyynismaa and Williamsen. While Finn also
stated that he had filed three grievances, the evidence does
not establish when such grievances were filed.
Finn testified that while he was off work because the
gravel train he had been driving had broken down and was
being repaired, Superintendent Kelley called him at home
at 4:15 a.m.' on July 16 and asked him to report to work to
drive another gravel train because the regular driver was
sick. Upon his arrival at the yard at 5:50 a.m. it was rain-
ing, and Superintendent Kelley informed him that he would
not be taking the unit out. According to Finn, other drivers
with less seniority than he had already left for the jobsite.
whereupon he put in a claim for 4 hours' showup time on
his log sheet."
Finn stated that later that morning when Kelley asked
him what the 4 hours were for the informed Kelley that it
was for showup time due to the fact there were drivers with
less seniority out driving, whereupon Kelley informed him
that there was no way he was going to get paid that 4 hours.
He then told Kelley that he would go about it the union
way.
Superintendent Kelley denied calling Finn at his home
on July 16.'" According to Kelley, Finn had worked July
15,16 and his name was posted that same day on the drivers'
schedule board scheduling him to work on July 16. How-
ever, Finn did not show up for work at the time scheduled,
and when he did arrive it was raining and no trucks, other
than those which had already been sent out before it started
raining, were sent out.
Kelley stated that after informing Finn the trucks were
not going to work because of the rain, Finn mentioned that
he was going to turn in some time, whereupon he told Finn
that he would have been perfectly in his rights to do so had
he been there on time. Later that morning after Finn put in
a claim for 4 hours he asked Finn why he had turned in the
claim. When Finn replied that he figured he had it coming
51 Finn admits that in an affidavit given to Board agent he stated that
Kelley called him at 5 a.m.; he now says that is in error.
14The daily cartage report for July 16 shows that Finn claimed 4 hours
from 5:30 a.m. to 9:30 a.m.
'1 Although Respondent proffered as evidence a telephone bill to support
Superintendent Kelley's testimony that he had not used the business tele-
phone at his home to call Finn, this bill was for the billing period August 4
through September 3 and did not cover July 16, which was the date in
question.
16 While Finn first denied working on July 15. he subsequently acknowl-
edged that he was not positive. However, the daily cartage report for Finn
shows that he worked on July 15, which was also the date his truck was truck
to the garage for repairs.
he told Finn that he did not and scratched it off the time
sheet.
According to Kelley, employees are not entitled to
showup time unless weather permits, and Finn acknowl-
edged that drivers reporting to the job may be sent home
because of inclement weather without being paid.
Finn received a written reprimand dated July 16 for fail-
ure to properly notify Respondent that he would be late
arriving for work on July 16, as required by the contract.
Finn testified that on July 21 upon asking Superintendent
Kelley about the reprimand Kelley replied he felt he was
agitating Mancuso and aggravating him, which he denied.
Finn further testified that about I week later upon asking
Kelley what he was going to do about the reprimand and
whether he was going to drop it Kelley asked him if he was
going to enforce the 4 hours or whether he was going to
drop it. According to Finn, Kelley also told him that he
would have to talk to Mancuso about it, and upon asking,
Kelley how he could possibly write a reprimand for a day
he did not work, stating that it was an unfair reprimand
because he did not get paid, Kelley made no reply.
Superintendent Kelley stated that the reprimand was
given to Finn because he did not report to work at the
scheduled time. He denied the statements attributed to him
by Finn or informing Finn that the reprimand was based on
the fact he had filed for 4 hours' pay or that this was the
reason for the reprimand.
I credit the testimony of Superintendent Kelley rather
than Finn, whom I discredited for reasons previously given.
Moreover, Respondent's records, proffered by the General
Counsel, show that Finn worked on July 15, and as it was
the practice to post assignments for the following day Finn
would have had prior knowledge he had to work July 16.
Further, by his own admissions, he reported late for work
that day.
D. The Refusal To Reassign Gerald Finn to his Former Job
The amended complaint alleges that from about the mid-
dle of July until November 9 Respondent refused to reas-
sign Finn from driving a fuel truck to his former assignment
of driving gravel trains, thereby affording him significantly
less opportunity to obtain either 40 hours of work per week
or overtime work.
Gerald Finn, who had previously driven other types of
trucks for Respondent, was assigned to drive a gravel train,
which broke down in July. Superintendent Kelley then as-
signed him to drive a fuel truck, which he drove from about
July 20 until November 8.
Both President Mancuso and Superintendent Kelley tes-
tified that the reason Finn was assigned to drive the fuel
truck was because they needed a fuel truckdriver and Finn
was qualified and available. They both also stated that Finn
when asked about the assignment agreed mentioning he
was having back trouble.
While Finn denied making such statements, I credit Kel-
ley and Mancuso.
According to Finn, while driving the gravel train he aver-
aged from 20 to 30 hours overtime each week, whereas after
being assigned to work on the fuel truck he worked very
few overtime hours. While Finn first stated that he only
worked a total of 9 or 10 hours a day unless the other fuel
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
truck had broken down (which was very seldom), Finn sub-
sequently stated that he only worked 8 hours a day, and to
work over that it took a lot of aggravation.
Respondent's payroll records reflect that for the 15-week
payroll periods ending July 30 through the payroll period
ending November 5, covering the approximate period Finn
worked on the fuel truck, Finn worked 40 hours or more
each week and worked a total of approximately 723 regular
hours and 163 premium hours. During the preceding 15-
week payroll periods ending April 9 through July 16 Finn
only worked 40 or more hours a week on eight occasions
and worked a total of approximately 633 regular hours and
186 premium hours. Thus, while the records reflect that
during the 15-week period Finn worked on the fuel truck he
worked approximately 23 less overtime hours than during
the 15 weeks preceding his assignment to the fuel truck, he
also worked approximately 90 more regular hours than dur-
ing the previous period and unlike the previous period
worked 40 or more hours each week.
Finn testified that he had several conversations with
President Mancuso about being reassigned to the gravel
train. The first conversation occurred about 2 weeks after
he was assigned at which time, upon learning that the
gravel train he had been operating had been repaired and
was being operated by a new man, he mentioned it to Man-
cuso, who informed him that it was not a bad job and told
him everything would work out. The second conversation
occurred about August, when he told Mancuso that he felt
the reason for his being put on the fuel truck was punish-
ment for his union activities, which Mancuso denied. The
last conversation occurred about the last part of August or
early September, at which time he mentioned to Mancuso
he did not think there was enough work for two fuel trucks
and asked Mancuso when he was going to be put back on
the gravel train. Mancuso again informed him everything
was going to work out and would be okay.
President Mancuso credibly denied recalling Finn asking
him when he was going to be put back on the fuel truck.
Finn also testified that in January 1978 President Man-
cuso told him that ever since he had teamed up with the
other guy he did not want anything to do with him any
more and had lost all respect for him. Upon mentioning to
Mancuso that it was very unfair because Williamsen and he
had separate things that they believed in, Mancuso made
no response.
President Mancuso denied making such statements to
Finn, and I credit his testimony rather than Finn.
E. William Tyynismaa's Assignment to the Water Truck
and the Refusal To Assign Him Work
The amended complaint alleges that beginning about
September 7 William Tyynismaa was reassigned from the
gravel train to the water truck, thereby affording him signif-
icantly less opportunity to obtain either 40 hours of work
per week or overtime work; that Tyynismaa was refused the
assignment of any overtime work whenever any such work
would otherwise have been available to him; and that on
many separate occasions Tyynismaa was not allowed to
work a full shift of work when such work was otherwise
available to him and was also required to appear daily at
jobsites distance from his home before informing him
whether he would be allowed to work that day because of
his union activities.
William Tyynismaa was employed by Respondent as a
truckdriver from June 25 until his termination on October
21.
His union activities consisted of preparing and circulat-
ing among Respondent's drivers the two petitions to get a
union steward and to correct the seniority list, discussed
supra.
From sometime in September'7 to about the latter part of
October Tyynismaa, who had been driving a gravel train,
was assigned to drive a water truck on the Bell River plant
jobsite located at St. Clair, Michigan,'" where Respondent
was performing work as a subcontractor for Bectel Corpo-
ration. Although the rate of pay for a water truckdriver was
less than that for a gravel train driver, Tyynismaa received
the higher rate of pay. While there Tyynismaa worked un-
der the supervision of Superintendent Paul Beverlin, who
was Respondent's superintendent on the job.
Superintendent Beverlin testified that Respondent was
required to have a water truck on the jobsite to keep the
dust down and upon determining in September that it was
needed, he requested a driver be assigned to the job.
Superintendent Kelley, whose testimony was corrobo-
rated by President Mancuso, testified that the only reason
he assigned Tyynismaa the job of driving the water truck
was because Tyynismaa had been having trouble with his
gravel train, which was being repaired, and because he had
previously driven a water truck. Tyynismaa acknowledged
that he had previously driven a water truck, and that he
had been having trouble with his gravel train about which
he had complained.
Tyynismaa, who lived approximately 49 miles from the
jobsite, was required like other drivers to report to the job-
site every day unless notified otherwise.
According to Tyynismaa, while driving the gravel train
he worked 20 to 30 hours of overtime work a week, whereas
after being assigned to the water truck the only overtime he
worked was 2 hours the first day.'9 He also testified that the
second day he worked on the job Superintendent Beverlin
told him to go home after he had worked 8 hours even
though everyone else was working and the jobsite was
dusty, and that on three or four other occasions Beverlin
had sent him home before he had gotten in 8 hours' work
when in his opinion the water truck was still needed.
While Superintendent Beverlin acknowledged that
Tyynismaa did not work on the job as much as everybody
else, the reason he gave was because Tyynismaa's job on
the water truck was affected by the weather, and there was
no other equipment there Tyynismaa could operate."
Beverlin denied ever restricting Tyynismaa's hours on the
1 According to Tyynismaa. he was assigned to this job a few days after his
conversation with Superintendent Kelley about the union steward in late
August, discussed supra.
m8 Tyynismaa stated that he filed a grievance over the assignment, but the
Union advised him that it had no merit and would not process it.
19 No records were proffered to establish the hours Tyynismaa worked on
either of these jobs.
20 The water truck was the only vehicle on the jobsite operated by a team-
ster, while the other equipment used was operated by operating engineers
employed by Respondent.
1220
M & B CONTRACTING CORP.
job for any other reason. According to Beverlin, after
Tyynismaa was assigned to work on the jobsite the weather
became abnormally wet, which affected the need for the
water truck.
Tyynismaa also acknowledged that with the exception of
the first few days he was assigned to the job it rained prac-
tically every day, and when it rained they did not need the
water truck.
Gerald Finn, on direct examination, testified that in Au-
gust or September he overheard a conversation on his truck
radio between President Mancuso and Superintendent
Beverlin, in which Mancuso instructed Beverlin not to work
the water truck more than 8 hours even though Beverlin
said it was necessary. Mancuso also said that he personally
knew Tyynismaa, who was driving the water truck, only
wanted to work 8 hours a day. However, under cross-ex-
amination Finn placed his conversation as occurring in
September or October and denied the name of the water
truck driver was mentioned.
Both President Mancuso and Superintendent Beverlin
denied that such a conversation occurred, and I credit their
denials rather than the contradictory testimony of Finn,
whom I have previously discredited.
Tyynismaa testified that upon complaining to Superin-
tendent Beverlin about the lack of work Beverlin replied
that they both knew why he was there but said that there
was nothing he could do about it, and that he did not want
to get caught in the middle or involved in any conversation
about it. Beverlin also told him that if they were screwing
with him like they were screwing with Tyynismaa that he
would quit and find another job.
Superintendent Beverlin, who denied any knowledge
about Respondent messing with Tyynismaa, stated that af-
ter Tyynismaa had complained to him about being ha-
rassed by Respondent concerning his working conditions,
he informed Tyynismaa that if Respondent was messing
with him like Tyynismaa said that he would leave and get
another job. I credit Superintendent Beverlin, who I find
was a more credible witness than Tyynismaa.
Tyynismaa also testified that in September or October,
upon asking Superintendent Kelley when he was going
back on the gravel train, Kelley told him never, which state-
ment Kelley denied making.
F. Reprimands Issued to William Tyynismaa
The amended complaint alleges that unjustified written
reprimands were issued to William Tyynismaa because of
his union activities.
Tyynismaa was given a written reprimand dated Septem-
ber 30 by Superintendent Kelley for failing to properly no-
tify Respondent that he would be absent from work on
September 30.1
According to Tyynismaa, the previous evening it was
raining and he called Superintendent Beverlin's home for
the purpose of seeing whether he needed him to work the
next day. After Beverlin's wife suggested that he should call
the next day, he called Superintendent Beverlin the next
21 While Tyynismaa stated that he filed a grievance over this reprimand,
he did not know the results.
morning at 4:45 a.m. and asked Beverlin whether he needed
him. Beverlin informed him that he did not think so but
said that he did not know for sure and told him to call him
back later, whereupon they agreed Tyynismaa would call
him at the jobsite. Tyynismaa stated that at his starting
time he called the jobsite and talked to the timekeeper' but
did not talk to Beverlin. He acknowledged that he did not
go to work that day and did not recall whether it rained.
Superintendent Beverlin stated that he did not remember
having such a telephone conversation with Tyynismaa.
Tyynismaa further testified that Superintendent Kelley
called him at home and asked him why he did not go to
work that morning. Upon replying that he had called
Beverlin and Beverlin had told him that there was no need
for him to come to work, they did not need him, Kelley
informed him that Beverlin did not dispatch him but said
that he did and told him he should have gone and would be
given a reprimand.
Superintendent Kelley's version was that Tyynismaa
called his house one morning before 5 a.m. and asked
whether he had to report to work on the St. Clair job, since
it was raining at Tyynismaa's home. He informed Tyynis-
maa that he did, since it might not be raining 50 miles
away. According to Kelley, after Superintendent Beverlin
informed him that Tyynismaa did not show up for work, he
called Tyynismaa, who informed him that he had called
Beverlin. Kelley stated that Tyynismaa was given the repri-
mand since he did not show up for work after he had told
him to.
Although Tyynismaa denied having called Kelley, he did
remember Kelley telling him he had to report but did not
remember whether it was that same night.
Tyynismaa was given another written reprimand, dated
October 7, by Superintendent Kelley for inefficient work
performance by failing to pick up his tools at the end of the
shift on October 7.
Tyynismaa stated that he received this reprimand after
Superintendent Kelley called him at home and asked him
why he left the water meter, which he was responsible for,
hooked up to the first hydrant. Tyynismaa denied that it
was his responsibility and stated that he told Kelley even if
he wanted to pick it up he did not have time because he
already had his 8 hours in and knew he would not be paid.
He also mentioned that he had received instructions
through a secretary from President Mancuso to buy enough
gas for the truck and bring it back to the yard and park it.
Kelley's response was that he should have picked it up.
Upon telling Kelley that he would have had to do it on his
own time and he was not going to do anything on his own
time, Kelley said that he was not going to bleed the Com-
pany.23
Superintendent Kelley testified that after receiving a re-
port from a foreman that Tyynismaa had left the water
meter he was using hooked to the hydrant he asked Tyynis-
maa why he did not bring it in, whereupon Tyynismaa
claimed that he was not authorized to pick it up on over-
time, whereupon he gave him the reprimand.
According to Kelley, the water meter, which was rented
from the Township of Plymouth and required a $350 de-
1' The timekeeper was not a supervisor or agent of Respondent.
21 Superintendent Kelley denied making such a remark.
1221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posit, was carried on the water truck except at night, when
it was kept in a building. He also stated that it would not
have taken Tyynismaa out of his way to pick it up because
it was right on the jobsite where Tyynismaa was working
and denied that he ever questioned anybody's overtime if it
was to pick up valuable tools.
G. William Tyynismaa's Discharge
The amended complaint alleges that Respondent termi-
nated the employment of William Tyynismaa because of
his union activities and because he was named in the charge
with the Board and gave testimony in support thereof.
Tyynismaa, along with Williamsen, was assigned by Su-
perintendent Kelley to work on the Iron River, Michigan,
jobsite which was located approximately 600 miles from
Respondent's facility. On October 20 they each drove com-
pany trucks described as tractors and semi-trailers which
they were to use on the jobsite from Respondent's facility to
the jobsite, arriving there around 8:30 or 9:30 p.m., was
after work hours.
Tyynismaa, whose testimony was corroborated by Wil-
liamsen, testified that after registering at the motel and find-
ing that nobody was at Superintendent Howe's house trailer
parked at the motel (which was also used as Respondent's
jobsite office), he and Williamsen, using the truck Tyynis-
maa was driving, went to town to get something to eat and
to call their wives. There was no other transportation avail-
able. Upon arriving at Iron River, which was located ap-
proximately 9 to 12 miles from the jobsite, Tyynismaa
parked the truck, leaving the diesel engine idling while
they went to make their telephone calls and attempted to
get something to eat at the Iron River Inn, a combination
bar, restaurant, and motel. After being informed that the
restaurant was closed and while waiting for Williamsen,
whose telephone was busy, to complete his call, Tyynismaa
had three beers and Williamsen had two beers. Upon leav-
ing the Iron River Inn, where they spent about 20 minutes,
they met President Mancuso and his mother and father.25
President Mancuso, who had been in town having dinner
with his mother and father, stated that he had observed two
of Respondent's trucks go by earlier, and on their way to
the parking lot he noticed one of their trucks parked on the
side street near the Iron River Inn with the engine running.
After checking to see where the drivers were he observed
Tyynismaa and Williamsen coming out of Iron River Inn.
When they met, Tyynismaa, whose testimony was cor-
roborated by Williamsen, stated that Mancuso's father
asked why they had left the engine running, mentioning
something about I hour and 40 minutes, whereupon he re-
plied that they were only there a short time, and he did not
see any sense shutting it off. Mancuso's father told them
that by letting it run like that they would scorch the cylin-
der walls and ruin the engine and said that the next time he
drove the truck to town to shut it off unless there was a
2Tyynisma's explanation for leaving the engine idling was because it
was a diesel engine which had to run to cool down after driving it, and they
expected to be right back.
2s Mancuso's mother and father, neither of whom testified, were both pnn-
cipals in Respondent; the function of Mancuso's father was to oversee the
general operations of the business.
problem starting it. Mancuso mentioned that he had seen
them come in town and asked why they did not stay in
town, mentioning that he had a room there registered for
them.
Mancuso, who acknowledged that his father had told
them about not leaving the truck idling, stated that he
asked them how the trip was, why the truck was there, and
whether they had made it to the jobsite, whereupon they
informed him that they went to the job and came back to
make a telephone call. On cross-examination Mancuso ac-
knowledged that nothing was said at the time about their
operating the truck without permission. Further, upon
being questioned whether he asked them if they were drink-
ing, Mancuso, after stating that he could not remember
said, "I had no idea where they were, even, if they were in
the bar at the time." Although Mancuso said that they were
carrying a package, he acknowledged that he did not look
to see what they had and denied knowing what was in the
package at the time.2"
Following this conversation Tyynismaa and Williamsen
got into their truck, and Tyynismaa drove back to the mo-
tel.
President Mancuso testified that after Tyynismaa and
Williamsen left he went into the Iron River Inn bar for the
purpose of finding out if they had been drinking. After en-
tering the bar and observing two empty glasses and an emp-
ty container with peanut shells he asked the bartender if
there had been a couple of bearded fellows there drinking,
whereupon the bartender replied that there were a few min-
utes before."
President Mancuso stated that same might he called Su-
perintendent Kelley, at which time they discussed the mat-
ter and he made the decision to discharge Tyynismaa. Su-
perintendent Kelley's version was that Mancuso had called
him and told him Tyynismaa and Williamsen were drinking
beer in the bar and had left with a six or eight pack; after
discussing it they decided, that it was a dischargeable of-
fense for drinking while on duty and in charge of a com-
pany vehicle.
The next morning, prior to going to work, Tyynismaa
was informed by President Mancuso that he had been ter-
minated. Although Tyynismaa, pursuant to Mancuso's in-
quiry later that morning, acknowledged he had a couple of
beers the previous night, the testimonies of Tyynismaa,
Williamsen, and Mancuso all reflect that this occurred after
his termination.
Mancuso testified that the reasons Tyynismaa was dis-
charged were for misusing the truck to go to Iron River (the
situation where he was drinking and driving the truck), and
leaving the truck idling, which could have caused damage.
Kelley gave as the reason that Tyynismaa was discharged
was because he had a six or eight pack of beer in the truck,
which was probably 10 miles from where it should have
been. However, Tyynismaa's termination notice, dated Oc-
tober 21, gave as the reasons for his termination was the
26 Tyynismaa stated that on the way to town he had gotten a six pack of
beer to go at the Wild River Bar; however. Williamsen denied that they were
carrying anything when they met Mancuso.
27 There was no evidence that Mancuso inquired about what they had
been drinking or the amount.
1222
M & B CONTRACTING CORP.
unauthorized use of a company owned vehicle and drinking
intoxicants while using the vehicle on October 20.
While the drivers furnish their own transportation, there
is no evidence that Tyynismaa and Williamsen were in-
formed they could not use the truck on that occasion to go
get something to eat. Further, Superintendent Howe ac-
knowledged that another driver employed by Respondent
on the job had used a company truck twice to go into town
for meals, although Mancuso denied having any knowledge
of it.
There was no evidence that Respondent had a specific
rule regarding drinking. However, Mancuso testified that he
had fired one employee for drinking on his lunch hour be-
fore the employee was to resume running one of Respon-
dent's machines.
While the General Counsel presented two witnesses for
the purpose of showing that drinking had been tolerated by
Respondent, I do not find such evidence credible in part or
otherwise pervasive.
Darryl Cool testified that in November or December he
observed a link belt operator who appeared drunk. Upon
informing Superintendent Kelley, Kelley's response was
that he and the operator had been drinking all day. How-
ever, on cross-examination when confronted with an affida-
vit given to a Board agent, Cool admitted that Kelley had
not told him that but said he had gotten the information
from the operator. Superintendent Kelley credibly denied
making such statements.
Williamsen testified that on August 10 while he was at
the Goat Farm Tavern with some other drivers drinking
President Mancuso came in and asked for a volunteer to
take a truck to Grand Rapids, mentioning that he knew
they had been drinking but said he did not make a practice
of it at which time he volunteered.
President Mancuso acknowledged that on one occasion
while at the Goat Farm Tavern, which is also a restaurant,
he had asked for a driver to go to Benton Harbor, where-
upon Williamsen or Tyynismaa volunteered. However, he
stated that this was at lunchtime and denied seeing any
drivers drinking.
Williamsen further stated that on occasion he had lunch
at the Hilton Inn located at Plymouth, Michigan, and had
observed Mancuso, Kelley, and other people drinking.
However, his testimony does not establish whether these
were Respondent's drivers drinking or that they were actu-
ally observed by President Mancuso or Kelley, and both
Kelley and Mancuso denied that they had seen any of their
drivers drinking at the Hilton Inn where they went for
lunch.
Darryl Cool further testified that I day after Tyynismaa
was discharged, upon asking Superintendent Kelley the rea-
son, Kelley, who he described as laughing and joking, men-
tioned something about Williamsen and Tyynismaa had
been in a bar eating peanuts. Upon mentioning to Kelley
that it looked like a setup deal, Kelley replied, "Yeah."
However, under cross-examination Cool acknowledged
having stated in an affidavit given to a Board agent that
Kelley had told him the reason was because Tyynismaa had
been caught drinking while supposedly with his truck, and
when he mentioned to Kelley that it looked like a setup
deal, Kelley's only response was laughter. Superintendent
Kelley credibly denied having such a conversation with
Cool.
H. Robert Williamsen's Assignment to the Water Truck
The amended complaint alleges that Respondent, com-
mencing about September 6 to about October 20, relieved
Robert Williamsen of his duties as a gravel train driver and
assigned him to drive a water truck, thereby affording him
significantly less opportunity to obtain either 40 hours of
work per week or overtime work because of his union ac-
tivities.
Robert Williamsen was employed by Respondent as a
truckdriver from May 31 until his discharge on February 7,
1978.
His union activities consisted of preparing and circulat-
ing the two petitions for a union steward and for correcting
the seniority list, discussed supra.
About September 6 or 7 Williamsen, who had been driv-
ing a gravel train at the time, was assigned by Superinten-
dent Kelley to drive a water truck on the 696 jobsite, where
Superintendent Angelo Robelli was the job superintendent.
Williamsen, who had driven other types of trucks for Re-
spondent, had never driven a water truck before. Although
his job paid a lesser rate than driving a gravel train, Wil-
liamsen was paid at the higher rate.
Williamsen credibly stated that upon asking Superinten-
dent Kelley the reason for the assignment Kelley only told
him that he would drive the truck he told him to drive,
whereas Superintendent Kelley's version was that William-
sen agreed to take the job when he asked him.
Both President Mancuso and Superintendent Kelley gave
as the reason that Williamsen was assigned to the water
truck was because Superintendent Robelli, who corrobo-
rated their testimonies, had requested a teamster driver be
assigned to the job and because Williamsen had driven
other types of trucks for Respondent and was qualified.
Williamsen drove the water truck for approximately 2 to
4 weeks.
Williamsen testified that while driving the gravel train he
had averaged 20 to 25 hours per week overtime. However,
after being assigned to drive the water truck he did not
think he worked any overtime except for 30 minutes per
day after working 8 hours per day, as provided for in the
collective-bargaining agreement.
While no records were proffered to show the number of
regular or overtime hours worked by Williamsen on either
the gravel train or the water truck, Superintendent Robelli
stated that on that job the gravel trains worked between 10
to 12 hours a day on the job for 5 or 6 days a week, whereas
the water truck worked 8 hours as needed. Robelli denied
restricting Williamsen's hours on the water truck but stated
that he used him as needed. According to Robelli and ac-
knowledged by Williamsen after Williamsen was assigned
to the job, it rained, although Williamsen did not know how
often. This would have affected the need for the use of the
water truck.
Darryl Cool stated that about the last of August or the
first part of September, upon commenting to Superinten-
dent Kelley that Williamsen was not a bad fellow, Kelley
agreed but said that he had just gotten off on the wrong foot
and got tangled up with the wrong man, Tyynismaa.
1223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Kelley credibly denied having such a
conversation with Cool, whom I had discredited.
Cool further testified that the last part of September or
the first part of October he overheard a conversation on his
truck radio between President Mancuso and Superinten-
dent Robelli, during which Robelli told Mancuso he
wanted to work the water truck more hours which were
needed to water down the road or whatever they were wa-
tering, whereupon Mancuso informed him that the truck
was to work only 8 hours. Cool said that he had observed
Williamsen driving the water truck that day.
Both Superintendent Robelli and President Mancuso
credibly denied having such a conversation with Cool.
Williamsen stated that during a conversation with Super-
intendent Kelley, which he placed as occurring probably in
October, he asked Kelley if he could be reassigned to the
gravel train. Kelley replied that he thought he would be
reassigned to the gravel train but said Mancuso had to save
face. Kelley also asked him if he thought that little piece of
paper would cause him that much trouble, whereupon he
informed Kelley that the piece of paper to elect the union
steward was his right, and that he thought he did what was
right. Kelley made no response.
Although Superintendent Kelley denied making such
statements to Williamsen, I credit Williamsen and find that
about October Superintendent Kelley implied to William-
sen the reason he was not reassigned to the gravel train was
because of the petition he prepared and circulated for get-
ting a union steward appointed.
I. Robert Williamsen's Menial Work Assignments
The amended complaint alleges that Robert Williamsen
was required to engage in certain menial chores, such as
wiping his truck's body, and that he was required to redo
his work because of his union activities.
Williamsen testified that the last part of September or
early October, while he was standing at the jobsite near his
water truck, President Mancuso came over and asked him
why he was not wiping the truck down and what he was
doing standing outside the truck. Upon informing Mancuso
he had helped another driver, Mancuso told him to stay by
his truck at all times and to wipe it down. When he in-
formed Mancuso that he did not have any rags, Mancuso
went over to a pickup truck where he got a rag, brought it
to him, and then told him it was his personal rag and for
him to wipe the truck down, to wipe and wipe until he
wiped all the trouble out of him. Mancuso did not explain
what he meant by trouble.
Under cross-examination Williamsen acknowledged that
when Mancuso came up he was not doing anything, and
that it is company policy when a driver is not busy he must
keep his truck clean including wiping it down. He also ac-
knowledged it was not unusual for a driver to be told to
stay by his truck.
President Mancuso acknowledged telling Williamsen to
wipe his truck down after he had observed him standing
with his hands on his hips, 30 or 40 feet from the water
truck not doing anything. He also furnished Williamsen
with a rag when Williamsen informed him that he did not
have one but denied he made any remark about trouble.
According to both President Mancuso and Superinten-
dent Kelley, the drivers are required to keep their trucks
clean, including wiping them down when they are not busy.
About 2 weeks later Williamsen was operating a dump
truck, hauling guard posts to a jobsite. Williamsen, on di-
rect examination, stated that after dumping two loads
where he had been told by a foreman to dump them, he
returned with a third load which he was proceeding to
dump when President Mancuso, who he had observed
watching him dump the previous loads, came over and told
him he wanted him to stack the posts about 50 feet away
because they were going to save them. Mancuso told him to
stack, stack, and stack until he got all the trouble out of
him. Williamsen, who acknowledged that he had not
stacked the posts to begin with, stated he then stacked them
by hand.
However, under cross-examination Williamsen's version
was that Mancuso had told him the posts were in the wrong
place and should not have been dumped there to begin
with, and he also acknowledged that his conversation with
Mancuso occurred before dumping the second rather than
the third load of posts and further admitted that he did not
know if Mancuso knew what he was doing at the time he
dumped the first load.
Mancuso's version was that upon observing Williamsen
in the process of dumping the second load of posts by a
burning pile he asked him not to dump them there but told
him to stack them along with the posts he had already
dumped in the aisle away from the burning pile, whereupon
Williamsen agreed. Mancuso denied telling Williamsen to
stack the posts until he got all the trouble out of him.
Based upon the conflicts between Williamsen's own ac-
counts of this incident I find Mancuso's version of the inci-
dent more credible.
J. Reprimands Issued to Williamsen
The amended complaint alleges that Williamsen was is-
sued unjustified reprimands because of his union activities.
During the period from November 16 through January
31, 1978, Williamsen was given ten written reprimands
which are discussed as follows:
A reprimand dated November 16 was given for causing
damage to a tractor on November 5 through misuse of the
equipment.
On that occasion Williamsen was operating a dump truck
on the Iron River jobsite when the shaft on the truck broke.
According to Superintendent Howe, after twice ordering
Williamsen to stop chattering the wheels on the dump truck
the shaft broke which he felt was caused by the way it was
being operated. Under cross-examination however, Howe,
who is not a truckdriver himself, acknowledged that he was
not present when the shaft broke or know for a fact what
caused it to break.
Williamsen denied that he had ever been warned about
chattering the truck, which he described as attempting to
drive on sand, causing the truck to sit and bounce.
President Mancuso and Superintendent Kelley stated
that the reprimand was issued based upon Howe's reports.
However, no explanation was offered to explain the delay
between the incident and the issuance of this reprimand,
1224
M & B CONTRACTING CORP.
and Kelley acknowledged that many drivers besides Wil-
liamsen had driven that truck.
Another reprimand also dated November 16 was given
for causing considerable damage to the grease truck on No-
vember 13 and for abandoning it at St. Ignace without au-
thorization and going home without permission.
On that occasion Williamsen was returning the grease
truck from the Iron River, Michigan, jobsite to Respon-
dent's facility when the truck broke down about 300 miles
from Respondent's facility. Williamsen, who left the truck
at a garage where it was subsequently repaired by Respon-
dent, testified that after unsuccessfully attempting to con-
tact President Mancuso and Superintendent Kelley, he was
informed by Tim Quinn, a night foreman, to return home,
and they would have the truck fixed and somebody would
pick it up.
President Mancuso testified that afterwards he informed
Williamsen, which Williamsen acknowledged, that Quinn
did not have the authority and told Williamsen when he
was in the field and wanted to bring a truck back in he was
to take orders from Superintendent Kelley or himself.
These instructions were subsequently reiterated to Wil-
liamsen at a grievance meeting held on January 30, 1978, as
testified to by various witnesses presented by Respondent,
namely, Gilbert Rice, who is the executive secretary of the
Associated Underground Contractors, Inc.; the Union's
Vice President Kantzler, President Mancuso, and Superin-
tendent Kelley and acknowledged by Williamsen.
No evidence was presented to show that Williamsen
caused any damage to the grease truck.
A reprimand dated December 14 was given to William-
sen for allowing his truck to run out of fuel that day. Wil-
liamsen's explanation was this occurred because the fuel
gauge was not working properly.
Although Superintendent Kelley disputed this by stating
that he had subsequently checked the records and could
find no indication on Williamsen's reports about a defective
gauge, it was not established whether the gauge actually
worked properly on that occasion.
Williamsen also credibly testified, contrary to Superin-
tendent Kelley's denials, that upon asking Kelley why he
was the only driver who had gotten a reprimand for run-
ning out of fuel Kelley informed him to mind his own busi-
ness.
A reprimand dated December 29 was given to William-
sen for leaving the job in the middle of a shift on December
28 without authorization.
Williamsen acknowledged leaving work early on Decem-
ber 28 to take care of some personal business. However, he
credibly testified that he had previously received permission
to leave early from Superintendent Kelley, who denied hav-
ing given him such permission.
Williamsen was given a reprimand dated January 9,
1978, for failure to clean out the box on his truck, allowing
the load to freeze, and then refusing to haul his last load
because of the frozen load.
The load on Williamsen's truck, which had not been
sprayed to keep it from freezing, froze.
Superintendent Kelley testified that Williamsen was
given the reprimand for not following company procedures
by spraying the load to keep it from freezing, which caused
him to haul only one load.
However, Williamsen's explanation was that he had been
instructed by Foreman Al Maestri to take the truck to the
yard, which he did, because the box would not raise all the
way to allow him to dump the load, and that he was told
they would clean the box out.
There was also a dispute between Superintendent Kelley
and Williamsen about whether spraying equipment was
available on the job.
No evidence was presented to show that Williamsen ac-
tually refused to haul his last load.
Williamsen was given four reprimands dated January 12,
13, 16, and 31, 1978, for failure to properly make out his
reports and trip tickets on those dates.
Williamsen's explanations were that he culd not find
blank trip tickets, his watch was not working to record the
times, and he did not know before he was filling them out
improperly.
Both Superintendent Kelley and Helen Johnson, who is
employed as Respondent's bookkeeper, stated that there
was a supply of trip tickets available.
While Kelly acknowledged that on occasion other drivers
had failed to complete or turn in their tickets, his testimony
about whether they had also been reprimanded is conflict-
ing. Under cross-examination Johnson also acknowledged
that she had never informed Williamsen he was making out
his sheets wrong.
Williamsen also credibly testified that upon asking Kel-
ley why he was getting reprimands when other drivers who
had not put down their times were not Kelley again in-
formed him to mind his own business.
A reprimand dated January 18, 1978, was given for fail-
ure to report missing trailer license plates and being given a
ticket by the state police on that date for not having the
license plate visibly displayed on the trailer.
Williamsen was issued a traffic citation by the Michigan
State Police on January 18, 1978, for the offense of not
having proof of registration on the trailer, with the citation
indicating that there was no license plate on the trailer
While Superintendent Kelley stated that Williamsen had
admitted to him and the union steward that he knew before
the trip there was no license plate on the trailer, Williamsen
credibly denied having any knowledge that there was no
license on the trailer until he was stopped by the state po-
lice. Kelley's explanation for the trailer not having a license
plate was because the vehicle ordinarily did not go out of
the yard.
Respondent sent Williamsen a letter dated February 1,
1978, setting forth the disciplinary actions contained in his
employment record ° which, with the exception of the repri-
mand dated January 31, 1978, included all the above repri-
mands. The letter further warned Williamsen that the next
offenses committed by him for inefficient work performance
or failure to properly make out reports and/or trip tickets
would subject him to discharge.
21 Foreman Maestn did not testify.
2 Upon proof of registration within 3 days after issuance of the citation
the citation is dismissed, and Kelley stated that he informed Williamsen he
would take care of it.
30 Respondent sent similar letters to the other drivers setting forth the
disciplinary actions contained in their records.
1225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roger Freeman, another truckdriver, testified that about
2 weeks after Williamsen's discharge he told Superinten-
dent Kelley, in the presence of several drivers, that they
were being unfair by singling out certain drivers to give
reprimands to and unfair with the way they were doing it.
Kelley replied not to be so hotheaded and said that things
would be all right now since the troublemakers were gone,
and there would be no more reprimands. While Superinten-
dent Kelley denied making such statements to Freeman, I
credit the testimony of Freeman, who I find was a more
credible witness than Kelley.3
K. Robert Williamsen's Discharge
The amended complaint alleges that Respondent termi-
nated Robert Williamsen about February 7, 1978, because
of his union views and activities, and because of his previ-
ously filing a charge against Respondent with the Board
and giving testimony to the Board in support of that
charge.
Williamsen, whose union activities have previously been
discussed supra, filed a charge against Respondent with the
Board on September 12 in Case 7-CA-14386, alleging that
Respondent had discriminated against William Tyynismaa
and himself because of their union activities.
Williamsen testified that about the end of September or
the beginning of October President Mancuso asked him if
he would be a nice guy and drop the charge, mentioning
that Williamsen had a family to feed and stating that he
had beat those charges before, and he could not live by the
union guidelines. Upon asking Mancuso whether he would
put him back on the gravel train, Mancuso replied that he
could not promise him that he would put him back on a
gravel train.
According to President Mancuso, Williamsen ap-
proached him on three separate occasions beginning about
that time, indicating that he would like to be put back on
the gravel train and mentioned other considerations. Al-
though Mancuso claimed that he knew what Williamsen
meant by the other considerations, he denied they discussed
them and stated he told Williamsen he was not making any
special deal and refused to make any special arrangements
with any one driver.
I credit the testimony of Williamsen rather than Pres-
ident Mancuso for reasons previously given and find that
about the end of September or the beginning of October,
President Mancuso solicited Williamsen to withdraw the
unfair labor practice charge he had filed in Case 7-CA-
14386 by mentioning to Williamsen that he had a family to
feed and impliedly threatened Williamsen with discharge
for his failure to do so.
Williamsen stated that about the first or second week
after he started working on the Iron River, Michigan, job-
site the latter part of October he had a conversation with
President Mancuso at which Mancuso's father and the
union steward, John Haslett, were present. Williamsen
stated that Mancuso again asked him if he would drop the
Board charges, mentioning that Williamsen had a family to
3' This statement, which was not alleged in the amended complaint, was
only offered for a limited purpose.
feed and should take care of them and said that if he
dropped his charge Tyynismas could handle and file his
own charges. Upon asking Mancuso if there would be any
retaliation against him if he dropped the charge Mancuso's
response was that he did not know of any way he could
retaliate against him and said he would not and the union
steward was there as his witness.32
President Mancuso acknowledged having a conversation
with Williamsen at the Iron River jobsite at which union
steward Haslett was present. However, his version was that
Williamsen asked him what would happen if he dropped
the charges and if he would get his job back on the gravel
train, whereupon he informed Williamsen that he was not
making any special considerations.
I credit Williamsen and find that about the early part of
November President Mancuso solicited Williamsen to with-
draw the charge he had filed in Case 7-CA-14386 by men-
tioning that he had a family to feed and impliedly threat-
ened him with discharge for his failure to do so.
Williamsen also testified that the last day he worked on
the Iron River jobsite, which was about the middle of No-
vember, President Mancuso asked him what they were
doing to him and stated that he could not understand how
Gerald Finn had gotten involved in the situation over the
charges because Finn had been put on the fuel truck be-
cause he had a bad back.3 Mancuso then stated that he had
rights himself which were being violated and after he beat
those charges he was going to turn around and sue them
through his attorneys and take everything he had.
Mancuso denied having such a conversation with Wil-
liamsen; however, I credit Williamsen's testimony.3
On February 6, 1978, Williamsen delivered a load of dirt
to the Chubb Road Dump, which was located about 10 or
12 miles from Respondent's facility. Upon arriving there,
the box on the truck would not raise to allow him to dump
the load.
Williamsen stated that after unsuccessfully attempting to
contact Superintendent Kelley and President Mancuso on
his radio he spoke to the parts manager and explained the
problem; the parts manager informed him that he would
get the mechanic.
Superintendent Kelley acknowledged that while he and
President Mancuso were in a meeting that day the office
girl, Helen Johnson, informed him that Williamsen was
calling in on his radio trying to get hold of him because his
truck was broken down. Kelley stated that he then in-
structed the mechanic Warren Roszman3 s to go out, deter-
mine the reason the truck was not working, and to repair it.
Roszman then went to the Chubb Road Dump, and
using the power from another truck there he dumped the
load from Williamsen's truck.
Williamsen stated that Roszman told him that there was
no way he could fix the truck on the job and for him to take
32 Union steward Haslett did not testify.
1s The charge filed by William Tyynismaa on November 7 against Respon-
dent in Case 7-CA-14575 alleges, inter alia that, Gerald Finn had been
assigned less favorable work on account of his union views and activities.
3' The above statements by President Mancuso regarding the charges were
not alleged in the amended complaint and were offered by the General
Counsel only for the purpose of background evidence and to show that
Williamsen's subsequent discharge was unlawful.
Ds Roszman is a member of the Operating Engineers Union.
1226
M & B CONTRACTING CORP.
the truck in.3 Upon asking Roszman if he had the authority
to send him Roszman replied that he did, and in response to
his inquiry Roszman also informed him that he would not
get in trouble.
Roszman, who testified as a witness by Respondent, ac-
knowledged telling Williamsen to take the truck to the shop
to be repaired, and when Williamsen asked him by whose
authority, he replied his. However, at the hearing Roszman
contended that after he tells the drivers to take the trucks
in, which he has the authority to do, they are then supposed
to check with their supervisors before they do.
Superintendent Kelley acknowledged that Roszman in-
formed him that he had told Williamsen to bring the truck
back into the shop. However, both President Mancuso and
Kelley stated that while Roszman has the authority to stop
a truck from running they denied he had the authority to
tell Williamsen to bring the truck back to the shop or to tell
the drivers what to do."
Williamsen then drove the truck from the Chubb Road
Dump back to Respondent's garage where he met President
Mancuso, Superintendent Kelley, and the Union's business
agent, Joe Aloisio. Williamsen testified that Mancuso asked
him what he was doing there, explaining that he was only to
take orders from him, whereupon he replied that Roszman
had sent him to the yard because the truck broke down.
Mancuso said that he was going to write him a reprimand
for that because he was the only one who had any authority
to tell him to take the truck in.
President Mancuso's version, which was corroborated by
Superintendent Kelley, was that upon seeing Williamsen he
asked him what the problem was. When Williamsen replied
that he had brought the truck in he asked Williamsen on
whose authority, whereupon Williamsen replied the me-
chanic's authority, and mentioned that he had called in for
help. Mancuso stated that he then asked Williamsen if he
understood he had to ask for proper authorization to bring
the vehicle in, whereupon Williamsen replied Roszman had
told him.
Mancuso testified that following this conversation he
went in the office and instructed the secretary to prepare a
reprimand for Williamsen for insubordination.
Williamsen stated that a little later Mancuso came out
and asked him what he was doing. Upon replying that he
was on his lunch hour and telling Mancuso if he would like
he would take the truck back to the job and call him be-
cause he could still make it in the 30 minutes for lunch,
Mancuso refused and told him to wipe his truck down.
About 30 minutes later Mancuso told him that he had no
work and for him to go home.
Mancuso acknowledged telling Williamsen to work on
his truck because he was still on the clock and later telling
him to go home. He also stated that he instructed Kelley to
discharge Williamsen and thought that Kelley told him not
to come in the next day.
Williamsen testified that the next day Superintendent
Kelley called and told him there would be no work that
day, and the next night Kelley called again and told him
that his employment had been terminated.
'6 Since the box would not raise, the truck could not be used for anything.
:7 Roszman did not receive a reprimand concerning this incident.
According to Superintendent Kelley, Williamsen was dis-
charged on February 6, 1978, for returning his truck after
being advised not to without direct supervision from him-
self or President Mancuso.
President Mancuso, in a letter to Williamsen dated Feb-
ruary 7, 1978, informed Williamsen that he was discharged
for insubordination on February 6, 1978. The letter further
stated, "On that date you returned your truck from your
job assignment to the company offices at Novi without ob-
taining authorization to return from an authorized supervi-
sor, despite the fact that you had been previously warned
that such conduct was against the company policy."
L. Respondent's Affirmative Defenses
Respondent. in its answer, alleges that a written release
executed by Tyynismaa about October 26 constitutes a de-
fense to the asserted claims and charges of Tyynismaa.
On October 26 Tyynismaa signed a notarized statement
before a notary public entitled "Job Release," which pro-
vided that by Respondent paying him the sum of $1,143.33,
which he received, he released Respondent from all mone-
tary claims and demands of any kind including wages, com-
missions, or other compensation under any employment or
contract for employment between him and Respondent, in-
cluding the collective-bargaining agreement; he withdraw
all grievances previously filed by him and agreed to instruct
the Union not to proceed further upon such grievances, and
by executing the document he voluntarily resigned his posi-
tion with Respondent. waiving seniority.rights or any other
benefits he would be entitled to as an employee of Respon-
dent.
The Union's recording secretary, John Calandra, also
signed the document.
The Union's Vice President Kantzler, called as a witness
by Respondent, testified that Tyynismaa, following his dis-
charge, mentioned he had some grievances, whereupon he
suggested to Tyynismaa that he would get Respondent to
let him quit. He and Tyynismaa then agreed upon an
amount which Tyynismaa thought he had coming for griev-
ances and vacation pay, and the release was made out
which Tyynismaa signed.
The Union's recording secretary, Calandra, also called as
a witness by Respondent, stated that after Tyynismaa in-
formed him and Kantzler that he had vacation pay and 2
days on grievances coming he contacted President Man-
cuso, who told him that whatever Tyynismaa had coming
on grievances and vacation and everything, he would be
willing to settle, whereupon he told Mancuso the amount
Tyynismaa wanted.
The answer also alleges those allegations under Section
8(a)(1) and (3) of the Act, alleging that Williamsen and
Tyynismaa were discriminatorily assigned to the water
trucks; Gerald Finn was discriminatorily assigned to the
fuel truck; Tyynismaa was refused overtime work and not
allowed to work a full shift and was required to appear at
the jobsite before informing him whether he would be al-
lowed to work: unjustified written reprimands were issued
to Tyynismaa and Gerald Finn; Williamsen was required
to perform certain menial chores; and those allegations un-
der Section 8(aX)(). (3), and (4) of the Act alleging that the
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatory discharges of both Williamsen and Tyynis-
maa were not properly before the Board on the grounds the
Board was required to defer those allegations to the griev-
ance and arbitration procedures under the collective-bar-
gaining agreement which covered them, and that the griev-
ance and arbitration procedures either had not been
exhausted or had resulted in final and binding decisions.
Article V of the collective-bargaining agreement between
Respondent and the Union contains grievance and arbitra-
tion provisions. Subsection (b) of that article provides for
the creation of a joint adjustment committee composed of
two representatives each from the Union and the Employer
to adjust and settle disputes or controversies arising under
the agreement. The final step under the grievance and arbi-
tration provisions provides for an umpire selected from list
submitted by the state mediation board in Detroit, follow-
ing the procedure of the American Arbitration Association.
On January 30, 1978, the joint adjustment committee
held a hearing on grievances" filed by Williamsen regarding
some of those reprimands' 9 issued to him, discussed supra.
The joint adjustment committee issued its decision on Feb-
ruary 10. 1978, ruling on these various grievances, finding
merit in some, denying others, and deferring one. Those
grievances denied involved the reprimands dated December
29 and January 9, 12, 13, and 16, 1978. None of these griev-
ances went to the final step of the grievance and arbitration
procedure.
The decision itself makes no references about whether
these reprimands were issued because of Williamsen's ac-
tivities, and the testimonies of both the Union's Vice Pres-
ident Kantzler and Williamsen establish that this issue was
not discussed at the grievance hearing.'
The joint adjustment committee also issued a decision
dated February 21, 1978, denying a grievance filed by Wil-
liamsen alleging that his discharge was unlawful.4' This de-
cision, which did not go to the final step of the grievance
procedure, makes no reference to either Williamsen's union
activities or his having filed a charge as the reason for his
termination.
M. Analysis and Conclusions
The General Counsel contends that Respondent violated
Section 8(a)(1), (3), and (4) of the Act by engaging in un-
lawful statements and threats to its employees; discrimi-
nated against William Tyynismaa, Robert Williamsen, and
Gerald Finn in their work assignments or hours and by
giving them reprimands; and discriminatorily discharged
Williamsen and Tyynismaa all because of its employees'
union activities or the charges filed with the Board or their
giving testimony under the Act, as alleged.
Respondent denies having violated the Act and asserts
certain affirmative defenses relating to the grievance and
arbitration provisions of the collective-bargaining agree-
ment and a private settlement with Tyynismaa.
I The grievances themselves were not submitted as evidence.
39 It appears from the decision that this dealt with the reprimands dated
November 16, December 29, and January 9, 12, 13, and 16, 1978.
0 Although Respondent's answer did not specifically refer to the repri-
mands issued to Williamsen in its affirmative defense, this issue was raised as
a defense by Respondent at the hearing.
41 This grievance was not submitted as evidence.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides, in pertinent part:
"It shall be an unfair labor practice for an employer ... by
discrimination in regard to hire or tenure of employment or
any term or condition of employment to encourage or dis-
courage membership in any labor organization...." Sec-
tion 8(a)(4) of the Act prohibits an employer from discharg-
ing or otherwise discriminating against any employee for
filing charges or giving testimony under the Act.
The findings supra establish that about September 5 or 6
Superintendent Kelley informed Robert Williamsen that
his attempts to become a union steward would cause him a
lot of trouble; in September or October Superintendent
Kelley informed Williamsen that Tyynismaa was a trouble-
maker and could be discharged for engaging in union ac-
tivities by soliciting employees to sign the petition; about
October Superintendent Kelley implied to Williamsen that
the reason he was not reassigned to the gravel train was
because of the petition he prepared and circulated for get-
ting a union steward appointed; about October President
Mancuso, during a conversation with Williamsen referred
to Tyynismaa as a harasser because of Tyynismaa's union
activities; on November 15 President Mancuso threatened
Williamsen with written reprimands because of his union
activities; and on October 15 President Mancuso and Su-
perintendent Kelley solicited Tyynismaa to resign his em-
ployment with Respondent because of his prounion feel-
ings.
The test to be applied in determining whether a violation
of Section 8(a)(1) of the Act has occurred is "whether the
employer engaged in conduct which, it may be reasonably
be said, tends to interfere with the free exercise of the em-
ployee rights under the Act," Electrical Fittings Corpora-
tion, a subsidiary of l-T-E Imperial Corporation, 216 NLRB
1076 (1975). Applying this test, I find that Respondent, by
engaging in the statements and threatsjust enumerated, has
interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the Act
and has thereby violated Section 8(a)(1) of the Act.
The next issues to be discussed are whether Respondent
discriminated against Finn, Tyynismaa, and Williamsen be-
cause of their union activities or for filing charges and giv-
ing testimony as alleged.
The law is well settled that the presence of a valid
grounds for discharging an employee does not legalize a
dismissal which is due to a desire to discourage union ac-
tivity. See Borek Motor Sales, Inc. v. N.L.R.B. 425 F.2d 677
(7th Cir. 1970), cert. denied, 400 U.S. 823; and N.L.R.B. v.
Symons Manufacturing Co., 328 F.2d 835, 837 (7th Cir.
1964). Also, discharging an employee for filing a charge
with the Board violates Section 8(a)(4) of the Act. See
N.L.R.B. v. Globe Manufacturing Company, 544 F.2d 1118,
1120 (Ist Cir. 1976). Direct evidence of discrimination mo-
tivation is not necessary to support a finding of discrimina-
tion, and such intent may be inferred from the record as a
whole. See Heath International, Inc., 196 NLRB 318 (1972).
*2 While other unlawful statements were herein found, no specific finding
of a violation will be made since they were not specifically alleged in the
amended complaint and were only offered for limited purposes.
1228
M & B CONTRACTING CORP.
Applying these principles, the discriminatory acts against
Finn, Tyynismaa. and Williamsen are discussed as follows:
Insofar as the reprimand issued to Gerald Finn is con-
cerned, having credited Superintendent Kelley rather than
Finn and also finding that Finn did not show up for work
on time on July 16 as previously scheduled, I find that the
reprimand was not issued without justification or to harass
Finn because of his union activities and did not violate
Section 8(a)(3) and (I) of the Act as alleged. Moreover,
there was no credible evidence to establish that Finn's lim-
ited union activities were known to Respondent.
With respect to the refusal to reassign Finn from the fuel
truck to the gravel train, Respondent's records refute the
allegations that this assignment afforded him significantly
less opportunity to obtain either 40 hours of work per week
or overtime hours, albeit he did work approximately 23 less
overtime hours but also worked approximately 90 more
regular hours. Moreover, the original assignment itself was
not alleged to be discriminatory, and I do not find any
evidence to support the allegation that the refusal to reas-
sign him to the gravel train was because of his union activi-
ties, which were of a limited nature and unknown to Re-
spondent. Therefore, I find that Respondent's refusal to
reassign Gerald Finn from the fuel truck to the gravel train
did not violate Section 8(a)(3) and (1) of the Act, as alleged.
Insofar as the amended complaint alleges that Tyynis-
maa was discriminated against because of his union activi-
ties by assigning him to drive the water truck, refusing to
assign him work, and requiring him to appear at jobsites
before informing him whether he would be allowed to work
are concerned, the findings supra disprove such allegations.
Tyynismaa was an experienced water truck driver and was
available for assignment at the time the water truck was
required on the jobsite. To the extent that Tyynismaa may
have worked less hours driving the water truck than on his
previous job driving the gravel train and was not assigned a
full shift or overtime work, for which no records were prof-
fered to establish the actual hours worked, the credible evi-
dence, admitted in part by Tyynismaa, shows that this re-
sulted from the rainy weather conditions prevailing at the
jobsite, which affected the need for the use of a water truck.
While Tyynismaa was required to appear at the jobsite be-
fore being informed whether he would be allowed to work
that day, this was a requirement of all the drivers assigned
to the jobsite.
Based upon the foregoing reasons I find that Respondent
did not violate Section 8(a)(3) and (I) of the Act by assign-
ing Tyynismaa to drive the water truck, refusing to assign
him work, and requiring him to appear at the jobsite be-
cause of his union activities, as alleged.
Concerning the two written reprimands issued to Tyynis-
maa, the findings supra establish that Tyynismaa admit-
tedly failed to report to work on September 30, while his
own testimony shows that he had not been given permission
to be off work on that occasion. He also left the water meter
he was using on October 7 attached to the fire hydrant, and
his contention that he would not have been paid to pick it
up because this was after his regular hours and overtime
was not authorized was unsupported by any other evidence
and denied by Superintendent Kelley. whose explanation
about protecting valuable tools even if overtime work was
required appears persuasive.
Based upon the foregoing evidence, which is consistent
with Respondent's reasons given for the two reprimands. I
am persuaded and find that Respondent did not violate
Section 8(a)(3) and ( I) of the Act by issuing unjustified writ-
ten reprimands to Tyynismaa because of his union activi-
ties, as alleged.
The remaining issue to be resolved regarding discrimina-
tion against Tyynismaa is whether he was discriminatorily
discharged because of his union activities or for being
named in a charge filed with the Board and giving testi-
mony supporting it.
The evidence supra establishes that Tyynismaa was ac-
tively engaged in union activities by preparing and circulat-
ing the two petitions among Respondent's drivers to get a
union steward appointed and for correction of the seniority
list. He was also named as a discriminatee in a charge filed
with the Board on September 12 in Case 7- CA 14386
against Respondent.
Respondent, through Superintendent Kelley, admittedly
had knowledge that Tyynismaa was circulating the petition
to get a union steward appointed, and by service of the
charge in Case 7-CA 14386 on it Respondent also had
knowledge Tyynismaa was named in that charge.
The findings supra establish that in late August Superin-
tendent Kelley interrogated T4ynismaa about his wanting a
union steward. President Mancuso and Superintendent
Kelley in September or October also referred to Tyynismaa
as a harasser or troublemaker because of his union activi-
ties, with Kelley stating that he could be discharged. Fur-
ther, on October 15, shortly before Tyynismaa's discharge
on October 21., they solicited him to resign his employment
with Respondent because of his prounion feelings, which he
refused to do, and threatened him that if he did not resign it
could turn into a total tragedy for him.
An examination of those reasons proffered by Respon-
dent for discharging Tyynismaa, when compared to other
evidence surrounding his discharge, shows them to be both
suspect and conflicting. For instance, President Mancuso
admittedly checked the bar in the Iron River Inn specifi-
cally for the purpose of determining whether Tyynismaa
and Williamsen had been drinking, even though he offered
no valid reason for having suspected them of drinking and
under cross-examination acknowledged he had no idea at
the time he talked to them that they had been in the bar.
Nor was any explanation offered to show why Tyynismaa
and Williamsen were not reprimanded or even admonished
for their using the truck at the time of their conversation
with Mancuso in Iron River if, as Respondent now con-
tends. this was a reason for discharging Tyynismaa. Fur-
ther, while Superintendent Kelley testified that President
Mancuso reported to him that Tyynismaa and Williamsen
were drinking beer in the bar and had left with a six or
eight pack of beer, which they decided was a dischargeable
offense for drinking while on duty' and in charge of a com-
pany vehicle, this not only ignores the fact this incident
occurred after work hours but also the fact that Mancuso
denied having any knowledge at the time the discharge de-
cision was made about was in the package which he con-
tended Williamsen and Tyynismaa were carrying, and his
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own testimony fails to show that he inquired of the bar-
tender about what or how much they had been drinking.
Moreover, Mancuso's contention that one of the reasons
Tyynismaa was discharged was because he left the truck
idling is not only contrary to the reasons given by Kelley,
who participated in the discharge discussions, but also was
not included among those reasons listed on Tyynismaa's
termination notice.
For the reasons set forth above I reject Respondent's de-
fense for discharging Tyynismaa and find that the incident
was seized upon as a pretext.
Based upon the foregoing evidence, including Tyynis-
maa's union activities of which Respondent had knowl-
edge; Respondent's union animus as established by its un-
lawfully conduct herein found; the conduct directed against
Tyynismaa personally, especially soliciting and threatening
him to resign his job because of his prounion feelings
shortly before his discharge; the timing of his discharge fol-
lowing his refusal to resign; and having rejected Respon-
dent's defense, I am persuaded and find that Respondent
discharged Tyynismaa on October 21 because of his union
activities thereby violating Section 8(a)(3) and (1) of the
Act. Contrary to the allegations contained in the amended
complaint, I do not find that Tyynismaa's discharge also
violated Section 8(a)(4) of the Act, since the charge in Case
7-CA- 14386 in which he was named as a discriminatee was
filed long before his discharge; the filing of that charge
based upon Tyynismaa's own testimony was never men-
tioned to him; no evidence was presented to show he actu-
ally gave testimony to support the charge; and because I
have found the real reason for his discharge was because of
his union activities.
Turning now to Williamsen, who actively engaged in
union activities by preparing and circulating among Re-
spondent's drivers the two petitions to get a union steward
appointed and to correct the seniority list, the issue to be
discussed is whether he was unlawfully discriminated
against in his employment as alleged.
With respect to his assignment from the gravel train to
the water truck about September 6 or 7, the undisputed
evidence establishes that he had never driven a water truck
before, and this new assignment resulted in his working less
overtime hours than previously worked while driving the
gravel train.43
While Respondent denies that the assignment was for
discriminatory reasons and President Mancuso and Super-
intendent Kelley assert that Williamsen was assigned the
job because he was needed and was qualified, the findings
supra also establish that about September 5 or 6, which was
approximately when the assignment was made, Superinten-
dent Kelley informed Williamsen that his attempts to be-
come a union steward could cause him a lot of trouble.
Further, Kelley, in September or October, also informed
Williamsen that he should stay away from union activities,
and that they did not want any union activity in the shop;
threatened him that anybody associated with the Union
could be discharged; and informed him that he did not like
the idea they were writing grievances over the union stew-
43 The evidence does not establish that this assignment also afforded him
less opportunity to work 40 hours of work per week as alleged.
ard and seniority list and said they could do without the
Union. Moreover, about October, when Williamsen asked
Kelley about being reassigned to the gravel train, Kelley
not only did not grant the request but implied to William-
sen that the reason he was not reassigned to the gravel train
was because of the petition he prepared and circulated for
getting a union steward appointed.
Under these circumstances I am persuaded and find that
for a period of approximately 2 to 4 weeks beginning about
September 6 or 7 Respondent relieved Williamsen of his
duties as a gravel train driver and assigned him to drive a
water truck, thereby affording him less overtime work be-
cause of his union activities in violation of Section 8(a)(3)
and (1) of the Act.
Insofar as the allegations that Williamsen was assigned
menial chores is concerned, the undisputed evidence estab-
lishes that the drivers, when they are not busy, are required
to wipe their trucks down to keep them clean, as was the
case here involving Williamsen. With respect to the incident
involving stacking the posts which Williamsen had deliv-
ered to and dumped at the jobsite, the credited version of
Mancuso does not show that this assignment, which ap-
pears to be within the type duties normally performed by
drivers such as Williamsen, was based upon Williamsen's
union activities. For these reasons I find that Respondent's
assignments of these jobs to Williamsen did not violate Sec-
tion 8(a)(3) and (1) of the Act as alleged. Further, I do not
find any credible evidence to show that President Mancuso,
when making these assignments, unlawfully informed Wil-
liamsen that they were being given to him because of his
grievance solicitation activities and for having filed an un-
fair labor practice charge as alleged.
Upon examining the reprimands issued to Williamsen,
the evidence establishes that beginning November 16
through January 31, 1978, Williamsen was given 10 written
reprimands. While the first two reprimands were dated No-
vember 16, they involved incidents occurring on November
5 and 13 without any valid explanation being offered by
Respondent for the delay in issuing them. Further, on No-
vember 15, the day preceding issuance of the first repri-
mands, President Mancuso threatened Williamsen with
written reprimands because of his union activities, and fol-
lowing Williamsen's discharge Superintendent Kelley in-
formed Roger Freeman, when he complained about their
singling out drivers for reprimands, that there would be no
more reprimands since the troublemakers were gone, which
I find had reference to Williamsen. The credible evidence
discussed regarding each reprimand also reflects that most
of them were issued without any showing of merit."
Under these circumstances and for the reasons indicated
I am persuaded and find that Respondent discriminatorily
issued Williamsen 10 written reprimands dated November
16, December 14 and 29, January 9, 12, 13, 16, 18, and 31,
1978, because of his union activities thereby violating Sec-
tion 8(a)(3) and (1) of the Act.
The evidence supra regarding the discharge of William-
sen shows that while employed by Respondent he engaged
in union activities and also filed a charge against Respon-
dent with the Board in Case 7-CA- 14386. Prior to his dis-
"Having found infra that the reprimands were issued for discriminatory
reasons, I do not find it necessary to further discuss them.
1230
M & B CONTRACTING CORP
charge Respondent not only threatened Williamsen with
discharge but also took certain discriminatory action
against him for having engaged in such protected activities
under the Act. About September 5 or 6 Superintendent
Kelley informed Williamsen that his attempts to become a
union steward could cause him a lot of trouble; in Septem-
ber or October Superintendent Kelley informed Williamsen
that he should stay away from union activities, and that
they did not want any union activity in the shop, threatened
him that anybody associated with the Union could be dis-
charged, and informed him that he did not like the idea
they were writing grievances over the union steward and
seniority list, and said that they could do without the union.
About October Superintendent Kelley implied to William-
sen that the reason he was not reassigned to the gravel train
was because of the petition he prepared and circulated for
getting a union steward appointed; about the end of Sep-
tember or the beginning of October and again about the
early part of November President Mancuso solicited Wil-
liamsen to withdraw the charge he filed in Case 7-CA
14386 and impliedly threatened him with discharge for his
failure to do so; and on November 15 President Mancuso
threatened Williamsen with written reprimands because of
his union activities. Further, Respondent discriminatorily
assigned Williamsen to drive the water truck and discrimi-
natorily issued him 10 written reprimands because of his
union activities and only shortly before discharging him
warned him by a letter dated February 1, in which it cited
nine of these discriminatory reprimands, that the next of-
fense would subject him to discharge.
While Respondent contends that Williamsen was dis-
charged because he returned his truck from the jobsite to
Respondent's facility, a distance of only 10 or 12 miles,
without authorization from President Mancuso or Superin-
tendent Kelley after having been previously warned, I find
that this reason was seized upon as a pretext to discharge
Williamsen. Superintendent Kelley admitted that William-
sen attempted to contact him by radio from the jobsite
about his truck being broken down, and instead of return-
ing Williamsen's call he instructed the mechanic to repair
the truck, which required returning it to the garage and
Williamsen did as instructed by the mechanic. Moreover.
no reprimand was given to the mechanic because of this
incident.
Based on the foregoing evidence and having rejected Re-
spondent's defense I am persuaded and filed that Respon-
dent discriminatorily discharged Williamsen on February 7,
1978, because of his union activities and because he filed an
unfair labor practice charge with the Board thereby violat-
ing Section 8(aX4), (3), and (1) of the Act.
The last issue to be resolved is whether the affirmative
defenses raised by Respondent, insofar as they relate to the
violations herein found, have merit.
While Respondent asserts that the release signed by
Tyynismaa constitutes a defense to the discrimination
against him, such argument is without merit and is hereby
rejected inasmuch as the rights guaranteed under the Act
are in the public interest rather than private rights. See
Schuylkill Metals Corporation, 218 NLRB 317 (1975).
To the extent that Respondent contends those matters
involving discrimination against Williamsen because of his
union activities were not properly before the Board because
it was required to defer those allegations to the grievance
and arbitration procedure under the collective-bargaining
agreement, such position is rejected since the Collver doc-
trine is not applicable to cases involving, as here, violations
of Section 8(a)(3) and (1) of the Act. See Loomis Carrier
Service, Inc.. 235 NLRB 534 (1978): and General American
Transporration Corporation, 228 NLRB 808 (1977).
Further, the decisions rendered by the joint adjustment
committee on Williamsen's grievances and his discharge af-
ford no basis for applying the Spielberg4 doctrine. Where,
as here, settlement under the grievance and arbitration pro-
cedure occurs short of the final step of these procedures and
the issue of whether the discharge violates Section 8(a)(3) of
the Act was never raised, deferral under Spielberg is inap-
propriate. See Owens Corning Fiberglas Co.. 236 NLRB 479
(1978). Moreover where, as in this case, Williamsen's dis-
charge is also alleged to violate Section 8(a)(4) of the Act
the Board will not apply the Spielberg doctrine. See Filma-
tion Associates, Inc., 227 NLRB 1721 (1977).
Therefore, for the reasons expressed I find that the affir-
mative defenses raised by Respondent are without merit.
IV. TIIE FFECT OF THE UNFAIR I.ABOR PRACI l(C S P()ON
COMMERCE
The activities of Respondent, set forth in section llI.
above, found to constitute unfair labor practices, occurring
in connection with the operations of Respondent described
in section 1. above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
CONcLUSION S OF LAW
I. M & B Contracting Corporation is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 247, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America. is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By informing an employee that his attempts to be-
come a union steward could cause him a lot of trouble; by
informing an employee that another employee was a trou-
blemaker and could be discharged for engaging in union
activities by soliciting employees to sign a petition; by im-
plying to an employee the reason he was not reassigned to a
certain job was because he prepared and circulated a peti-
tion to get a union steward appointed; by referring to an
employee as being an harasser because of his union activi-
ties; by threatening an employee with written reprimands
because of his union activities; and by soliciting an em-
ployee to resign his employment because of his prounion
feelings Respondent has interfered with, restrained, and co-
erced its employees in the exercise of their rights guaran-
45 Colletr Insulated Wire, A Gulf and Western Systems Co. 192 NLRB 837
(1971).
"Spielberg Manufacturing Cornpan. 112 NLRB 1080 (1955).
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
teed in Section 7 of the Act and has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. By discharging William Tyynismaa on October 21.
1977, because of his union activities Respondent has en-
gaged in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
5. By relieving Robert Williamsen of his duties as a
gravel train driver and assigning him to drive a water truck
for approximately 2 to 4 weeks beginning about September
6 or 7, 1977, thereby affording him less overtime work be-
cause of his union activities, Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act.
6. By issuing Robert Williamsen 10 written reprimands
dated November 16, December 14 and 29, 1977, and Janu-
ary 9, 12, 13, 16, 18, and 31, 1978, because of his union
activities Respondent has engaged in unfair labor practices
in violation of Section 8(a)(3) and (1) of the Act.
7. By discharging Robert Williamsen on February 7,
1978, because of his union activities and because he filed an
unfair labor practice charge with the Board Respondent has
engaged in unfair labor practices in violation of Section
8(a)(4), (3), and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1),
(3), and (4) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action to effec-
tuate the policies of the Act. Accordingly. Respondent shall
be ordered to immediately reinstate Robert Williamsen and
William Tyynismaa to their former jobs or, if those jobs no
longer exist, to substantially equivalent jobs without preju-
dice to their seniority and other rights and privileges and to
make each of them whole for any loss of earnings and com-
pensation they may have suffered as a result of the discrimi-
nation against them in their employment herein found by
discriminatorily discharging William Tyynismaa on Octo-
ber 21, 1977,' 7 and Robert Williamsen on February 7, 1978.
Respondent shall also make Robert Williamsen whole, with
payment of interest, for any loss of overtime pay he may
have suffered as a result of discriminatorily assigning him to
the water truck beginning about September 6 or 7, 1977,
and shall expunge from its records the 10 written repri-
mands given to Robert Williamsen dated November 16,
December 14 and 29, 1977, and January 9, 12, 13, 16, 18,
and 31, 1978, which were herein found to be unlawful, and
any references to them. Backpay shall be computed on the
basis set forth in F. W. Woolworth Company, 90 NLRB 289
(1950), with interest computed in accordance with the for-
mula set forth in Florida Steel Corporation, 231 NLRB 651
(1977).4
47 The money William Tyynismaa received from Respondent under the
job release he signed shall to the extent it may have been payment for mat-
ters he would be entitled to be reimbursed as backpay be deducted from his
backpay due.
4 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
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:
ORDER 49
The Respondent. M & B Contracting Corporation, Novi,
Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Informing employees that their attempts to become
union stewards can cause them trouble.
(b) Referring to employees as troublemakers and harass-
ers because of their union activities.
(c) Informing employees that they can be discharged for
soliciting employees to sign union petitions.
(d) Implying to employees that their job assignments will
be adversely affected if they prepare and circulate union
petitions.
(e) Threatening employees with written reprimands be-
cause of their union activities.
(f) Soliciting employees to resign their employment be-
cause of their prounion feelings.
(g) Issuing reprimands to employees because they en-
gage in union activities.
(h) Changing the job assignments of employees because
they engage in union activities.
(i) Discouraging membership in Local 247, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of' America or any other labor organization by dis-
charging, refusing to reinstate, or in any other manner dis-
criminating against employees in regard to hire or tenure of
employment or any term or condition of employment.
(j) Discharging, refusing to reinstate, or in any other
manner discriminating against employees for filing unfair
labor practice charges with the National Labor Relations
Board.
(k) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer immediate and full reinstatement to William
Tyynismaa and Robert Williamsen to their former jobs or,
if these jobs no longer exist, to substantially equivalent jobs
without prejudice to their seniority and other rights and
privileges and make them whole for any loss of pay or other
compensation they may have suffered by reason of the dis-
crimination against them in the manner set forth in that
section of this Decision entitled "The Remedy."
(b) Make Robert Williamsen whole, with interest, for
any loss of overtime pay he may have suffered by discrimi-
natorily assigning him to the water truck beginning about
September 6 or 7, 1977, as herein found.
(c) Expunge from its records the 10 written reprimands
given to Robert Williamsen dated November 16, December
14 and 29, 1977, and January 9. 12, 13, 16, 18, and 31, 1978,
o9 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, be adopted by the Board and become its
findings, conclusions, and Order, and all obje,',ons thereto shall be deemed
waived for all purposes.
1232
M & B CONTRACTING CORP.
which were herein found to be unlawful and any references
to them.
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying all payroll
records, social security payment records, timecards, person-
nel records and reports and all other records necessary to
analyze and determine the amount of backpay, if any, due
under the terms of this Order.
(e) Post at its Novi, Michigan, facilities copies of the at-
tached notice marked "Appendix."' Copies of said notice,
on forms furnished by the Regional Director for Region 7
shall, after being duly signed by Respondent's authorized
representative, 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 by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of the Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint be,
and hereby is, dismissed insofar as it alleges unfair labor
practices not specifically found herein.
° In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT inform our employees their attempts
to become union stewards can cause them trouble.
WE WILL NOT refer to our employees as troublemak-
ers and harassers because of their union activities.
WE WILL NOT inform our employees they can be
discharged for soliciting employees to sign union peti-
tions.
WE WILL NOT imply to our employees their job as-
signments will be adversely affected if they prepare
and circulate union petitions.
WE WIll. NOT threaten our employees with written
reprimands because of their union activities.
Wl WIIL NOt solicit our employees to resign their
employment because of their prounion feelings.
WE WI.L. NOt issue reprimands to our employees
because they engage in union activities.
WE WIL. NOT change the job assignments of our
employees because they engage in union activities.
WE WILL NOT discourage membership in Local 247,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, by discharging, refusing to rein-
state, or in any other manner discriminating against
employees in regard to hire or tenure of employment
or any term or condition of employment.
WE WII.L NOT discharge. refuse to reinstate, or in any
other manner discriminate against our employees for
filing unfair labor practice charges with the National
Labor Relations Board.
WE WILL NO1 in any other manner interfere with,
restrain or coerce our employees in the exercise of their
rights to self-organization, to form, join or assist any
labor organization, to bargain collectively through rep-
resentatives of their own choosing, to engage in con-
certed activities for the purpose of collective-bargain-
ing or other mutual aid or protection or to refrain from
any or all such activities, except to the extent that such
rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Na-
tional Labor Relations Act, as amended.
WE wll.l offer immediate and full reinstatement to
William Tyynismaa and Robert Williamsen to their
former jobs or if those jobs no longer exist then to
substantially equivalent jobs without prejudice to their
seniority and other rights and privileges and make
them whole for any loss of pay or other compensation
they may have suffered by reason of our discrimination
against them by discharging them, with interest.
WE WILt make Robert Williamsen whole, with in-
terest. for any loss of overtime pay he may have suf-
fered by reason of our discrimination against him by
assigning him to the water truck.
WE WIll. expunge from our records the written
warnings unlawfully given to Robert Williamsen and
any references to them.
M & B CONTRACTING CORPORATION
1233