Payne & Keller, Inc.,

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 892 (N.L.R.B. 1981)

892 DECISIONS OF NATIONAL
Payne & Keller, Inc. and United Steelworkers of
America, AFL-CIO-CLC. Cases 19-CA-12311
and 19-RC-9757
September 30, 1981
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 22, 1981, Administrative Law Judge
Richard J. Boyce issued the attached Decision and
Report on Objections in this proceeding. Thereaf-
ter, Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the Administrative Law Judge's Decision.
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, find-
ings,' 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Payne &
Keller, Inc., Houston, Texas, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order,2 except that
the attached notice is substituted for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election con-
ducted on June 25, 1980, in Case 19-RC-9757 be,
and it hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
Respondent has excepted o certain credibility findings made h the
Administrative Law Judge. It is he Board's e,lahlished policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all (of the relevant csidence coln-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951) We have
carefully examined the record and find no basis for reversing his findings.
2 In accordance with his dissent in Olympic Medical Corporation. 250
NLRB 146 (1980), Member Jenkins would award interest on the hackpay
due based on the formula set forth therein.
LABOR RELATIONS BOARD
APPENDIX
NoTrici: To EMPI OYEIS
POSIll) BY ORI)ER 01F HI
NATIONAI. LABOR RII.ATIIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT discharge or otherwise dis-
criminate against employees because of their
union sympathies or activities.
WE WILL NOT interrogate employees con-
cerning their union activities and those of their
coworkers.
WE WIL. NOT announce and/or grant new
benefits to employees in the form of paid holi-
days, company-sponsored fishing trips, or oth-
erwise, to influence the employees whether to
obtain union representation.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer Lloyd West and William
Anderson immediate and full reinstatement to
their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or any
other rights or privileges previously enjoyed;
and WE WILl. make them whole for any loss of
earnings or benefits suffered by reason of their
unlawful discharge, with interest.
PAYNE & KEI.I.ER, INC.
DECISION AND REPORT ON POST-
ELECTION OBJECTIONS
1. STATEMENT O1: TlH CASE
RICHARD J. BOYCIL, Administrative Law Judge: This
consolidated matter was heard before me in Spokane,
Washington, on November 20-21, 1980.
258 NLRB No. 119
PAYNE & KELLER, INC.
The charge in Case 19-CA-12311 was filed on April
14, 1980, by United Steelworkers of America, AFL-
CIO-CLC (herein called USW). The complaint was
issued on May 22, and was amended on October 14 and
during the hearing; it alleges that Payne & Keller, Inc.
(herein called Respondent), had committed certain viola-
tions of Section 8(a)(l) and (3) of the National Labor Re-
lations Act, as amended (herein called the Act).
An election in Case 19-RC-9757 was held on June 25,
1980, among the employees of Respondent performing
maintenance functions at the Addy, Washington,' plant
of Northwest Alloys, a Division of Alcoa (herein called
Northwest). The election derived from a petition filed by
USW on April 7, 1980, and a Stipulation for Certification
Upon Consent Election. The tally was two votes for and
eight against union representation, with four challenged
ballots.
On June 30, USW filed objections to conduct alleged-
ly affecting the outcome of the election; and, on August
11, the Regional Director issued a Report on Objections
in which he concluded that the objections raised issues
best resolved by a formal hearing. On August II as well,
the Regional Director issued an order that the complaint
and objection matters herein be consolidated for hearing
before and decision by an administrative law judge.
II. JURISDICTION
Respondent is a Texas corporation with its headquar-
ters in Houston, and is engaged as a maintenance and
construction contractor. Its annual gross income exceeds
$500,000, and it annually causes goods and services of a
value exceeding $50,000 to be transported across state
lines.
Respondent is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
III. THE LABOR ORGANIZATION INVOI VED
United Steelworkers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
IV. ISSUES
The complaint alleges that Respondent violated Sec-
tion 8(a)(1) of the Act on April 8, 1980, by interrogating
its employees about their union sympathies; on May 28,
1980, by announcing to its employees that they would be
receiving 7-paid holidays to undermine their support of
USW; and on June 11, 1980, by offering its employees a
paid overnight fishing trip, again to undermine their sup-
port of USW.
The complaint also alleges that Respondent violated
Section 8(a)(3) and (1) on April 10, 1980, by discharging
Lloyd (Slim) West and William (Murph) Anderson.
The answer denies any wrongdoing, further alleging
that West was a supervisor and thus outside the protec-
tion of the Act.
The objections raise the issue whether conduct by Re-
spondent during the pendency of the election interfered
'Addy has a population of between 150 and 2(X). and boasts three
stores, Iwo taverns, and a post office It is 65 nailes north of Spokane.
with free voter choice, requiring that the election be
rerun.
V. BACKGROUND
As of April 1, 1980, Respondent began to perform
under a maintenance contract at Northwest's Addy
plant. It learned that it had been awarded the contract
about a week before it began performing. Its predecessor
was Chewelah Contractors, Inc. (herein called CCI),
which had carried out the maintenance function since
June 1976.
Respondent's complement at relevant times consisted
of about 14 employees. Its ranking person regularly on
the premises was Ed Tibbett, job superintendent. Visiting
the site from time to time to assist Tibbett and otherwise
oversee the job was Quincy (Bud) Freeman, manager of
Respondent's Northwest Division, who office was in
Portland, Oregon. Beneath Tibbett was David Vaughn,
general foreman. It is undisputed that Freeman, Tibbett,
and Vaughn were supervisors.
Beneath Vaughn was West, one of the two whose dis-
charge is in issue. West, whether designated a leadman
or a foreman, was the highest ranking of Respondent's
three regular electricians. As earlier stated, his status is in
dispute, Respondent contending that he was a supervisor.
Vaughn and West were carryovers from CCI, as were
all of Respondent's onsite personnel other than Tibbett.
VI. THE QUESTION OF WEST'S STATUS
A. Evidence
West, as stated, was topmost among Respondent's
three regular electricians, as he had been with CCI. The
other two, both journeymen, were Anderson, whose dis-
charge also is in issue, and John D'Hondt. Another, Dan
Eagle, worked primarily with heating and air-condition-
ing, but put in about 15 hours per week under West as
an apprentice electrician. West's hourly wage was
$11.15-the same as Vaughn's. Anderson and D'Hondt's
hourly wage was $10.65. Vaughn and West did not
punch a timeclock; those under them did.
West was supposed to spend by far the largest portion
of his workday-80 to 90 percent-"in the field" with
Anderson and D'Hondt. As will be seen, one of Re-
spondent's professed irritations with him was his alleged
inclination to stay in the office when he should have
been in the field. The weight of evidence reveals that
West, Anderson, and D'Hondt were of about equal skill
in their craft, and that, in their daily functioning as a
crew, they more nearly resembled an informal committee
than a boss and two subordinates. As West credibly testi-
fied, there was a "complete informal atmosphere up
there," the other two were "as sharp as" he was, and
"the three of us would go up and look at a job and
decide the best way to do it." West added that most of
the work was of a "routine" nature in conformity with
the National Electrical Code, and that he and his crew
never deviated from the plan without the approval of
Northwest's engineers.
Even so, West was responsible for seeing that the
work of his crew was done efficiently and in keeping
893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Northwest's dictates. That entailed going over job
details as needed with Northwest's engineers, estimating
the time a given job would require, deciding how many
and who to assign to it, requisitioning tools and materials
for each job, and "signing off" to denote a job's comple-
tion. It also was West's responsibility to determine the
order in which jobs would be done in those instances
when the order was not prescribed by Northwest; to
maintain timesheets for Anderson, D'Hondt, and four
others; and to prepare a monthly status report of electri-
cal work outstanding.
West did the paperwork aspects of his job at a desk in
a "big main room" in Respondent's office trailer at the
plant. No one else used the desk. Tibbett and Vaughn,
unlike West, had offices.
It was decided on April I to have Vaughn and West
divide the complement for timekeeping purposes. There-
fore, West was responsible for maintaining timesheets for
the four in addition to Anderson and D'Hondt. They
were Eagle, mentioned above; Jeff Bynum, a
painter/sandblaster; Colin Mai, a welder; and Charley
Pitts, who manned the toolcrib. Except for the times
Eagle was under him as an apprentice electrician, West
knew little about, and did not concern himself with, the
substantive aspects of the work of these four.
On April 1, when Vaughn and West asked "just what
the power structure was," Freeman, the division man-
ager, said that West would be a "working leadman,"
below Vaughn, adding, "Let me emphasize the word
'working."' 2 Freeman concededly did not go into the de-
tails of West's authority.
Tibbett, on examination by Respondent's counsel, testi-
fied that he told West, on April 1, that his duties were to
"keep the job going as smooth as possible," to "keep the
jobs lined up" for the electricians, and to keep the elec-
tricians "busy at all times." Later in the same examina-
tion, responding to counsel's request that he more spe-
cifically detail West's authority, Tibbett testified that
West could assign work and "effectively recommend
hiring, firing . . . put men on the job, [and] recommend
discipline." Tibbett averred that West "had all the au-
thority that I had" concerning discipline, and that he
could release employees early and grant days off as well.
Not until later, on cross-examination, did Tibbett tes-
tify that he actually told West he was possessive of any
such specific authority. He then asserted that he in-
formed West, on April 1, that West was a supervisor as
far as he was concerned; that West could effectively rec-
ommend firing;3 that West could call employees to work
should there be an emergency; and that he had given
West's name, along with his own and Vaughn's, to
Northwest for notification purposes, again in case of
emergency. Tibbett, although saying that West had the
same authority to discipline that he did, admittedly said
nothing to West about this.
2 This is West's credited version. Freeman's version was much the
same, the only notable difference being that he initially testified that he
referred to West as a "working supervisor," later adopting the suggestion
of counsel for the General Counsel that he might have said "leadman."
' Tibbett at first testified that he told West that West "had the right to
fire somebody," quickly shifting to say that he told West he could "effec-
tively recommend firing somebody."
West denied being told any of the specifics of which
Tibbett testified, or that he perceived himself as having
any such authority. He is credited. Tibbett's progressive
enlargement upon his prior testimony, and especially the
belatedness of his revelation of the supposed disclosures
to West concerning West's several areas of authority, be-
trayed spur-of-the-moment fabrication. On the other
hand, West's testimony, generally, was richly detailed,
plausible, and rendered with manifest sincerity.
Tibbett further testified that West had keys to the
office, the toolcrib, and all substations inside the plant;
and, indeed, that West had opened the toolcrib for him
"on more than one occasion." Later, however, Tibbett
testified that he never gave West keys to the office or
the toolcrib. West admittedly had a key to the plant gate,
a legacy from his days with CCI, and keys to some of
the substations, but he denied that he had any others. He
is credited because of Tibbett's self-contradiction and be-
cause, as is elsewhere noted, he was the more believable
of the two in general.
D'Hondt, who succeeded West upon West's discharge,
testified that he has "basically" the same duties and au-
thority that West had. He asserted that, if he feels that
those under him "are not doing good work" or that
"something different should be done," he makes a recom-
mendation to Tibbett and Tibbett "generally" follows it.
D'Hondt explained that Tibbett "relies on my judgment"
because he "does not really have any electrical knowl-
edge." D'Hondt's recital continued that, aside from
doing the sorts of things that West indisputably did, he
participated with Tibbett in the hire of two people, and
hired yet another-to work one weekend-by himself.
D'Hondt also testified that he sometimes gives employees
"verbal warnings" to wear safety gear, that he has au-
thority to release employees early and grant days off,
and that he has keys to the office and the toolcrib.
D'Hondt voted without challenge in the NLRB election.
West was CCI's safety coordinator. As such, he con-
ducted weekly safety meetings and was liaison with
Northwest on safety matters. He remained in that role, at
Tibbett's request, during his brief time with Respondent.
D'Hondt replaced West as Respondent's safety coordina-
tor. While the record is not explicit on the point, this
suggests that D'Hondt, when admonishing employees
about safety gear, was acting in this role, rather than in
that of leadman or foreman.
B. Conclusion
It is concluded that Respondent has not met its burden
of establishing that West was a supervisor during his 10
days on Respondent's payroll. 4
While West plainly bore greater responsibility than the
other electricians, this circumstance removed him from
field work alongside them only for small segments of
time, and did not entail any significant exercise of inde-
pendent discretion. And, when working with the other
electricians, his dealings with them were routine in
nature, rarely if ever requiring any degree of independ-
4 "[T]he burden is on the party alleging supervisory status to prove
that it, in fact, exists." Commercial Movers. Inc., 240 NLRB 288, 290
(1979).
894
PAYNE & KELLER. INC.
ent judgment. His somewhat higher wage, his exemption
from punching the timeclock, his keeping the time of
certain of his coworkers, his being safety coordinator,
etc., although indicating a status apart from the others,
do not override the essentially ministerial character of
his situation.'
That Tibbett saw need, in his testimony, to manufac-
ture conversations in which he supposedly told West that
he possessed assorted supervisory indicia only reinforces
this conclusion, and reflects Tibbett's and Respondent's
realization that an undistorted depiction would not have
served Respondent's purpose. Nor was that purpose
served particularly well by D'Hondt's testimony. His re-
cital not only was of questionable relevance, depicting as
it did a situation evolving over a period of months after
West's discharge, but came across as fraught with hyper-
bole.
VIi. THE DISCHARGES OF WEST AND ANDERSON
A. Evidence
On learning that Northwest had awarded it the Addy
maintenance contract, Respondent hurriedly interviewed
most of the CCI employees with the thought of retaining
them. The interviews were conducted by Bill Lytell,
who was sent from Respondent's Houston headquarters
to assist in the transition, and who was joined at times by
Freeman. Lytell told many, if not all, of those inter-
viewed that Respondent would "observe" 11 holidays, 7
of which would be with pay.
During a weekly safety meeting on April 2, conducted
by West, speculation arose among the employees wheth-
er Good Friday would be among the paid holidays. West
left the meeting to ask Freeman and Tibbett. Freeman
replied that he knew nothing about paid holidays. West
protested that Lytell "had promised" 7 paid holidays.
Freeman, suggesting that West had "misunderstood"
Lytell, asked Tibbett if he had ever received a paid holi-
day in his 2 years with Respondent. Tibbett said he had
not. West countered that all of those interviewed had
been told "the same thing," and that they all would not
"tell the same lie."
Tibbett accompanied West on his return to the safety
meeting; and, once there, announced that he had not re-
ceived any paid holidays in his time with Respondent,
and that, as far as he knew, Respondent "didn't pay any
holidays, period." Several of the employees protested, as
had West, citing Lytell's representation. Tibbett de-
murred that he knew nothing about that, but that he
would call Houston "and find out." Tibbett assured the
group that, if he was in error, it would be rectified.
Later in the day, Tibbett told some of the employees
that they "must have misunderstood" Lytell; and that,
while Respondent would be observing 11 holidays, none
would be paid. Vaughn conveyed the same message to
West.
After work on April 2, most of the employees met in a
"back corner" of the Addy Tavern, about a mile from
the plant, to discuss the situation and consider union rep-
' United Electrical Company. 194 NLRB 665 (1971) See. generally.
Commercial Movers. Inc. supra: John Cuneo of Oklahoma. Inc., 238 NLRB
1438 (1978): Orr Iron. Inc.. 207 NLRB 863 (1973)
resentation. The meeting had been decided on during the
safety meeting after Tibbett's departure. During the
tavern meeting, the employees deplored Respondent's
having recanted its promise of paid holidays, and voiced
concern about the possibility of other, similar retractions.
Anderson proposed that they look into USW rather than
a building trades union, and urged that, whatever they
do, they "stick together"-that a union would "only be
as strong as the people in it."
West also urged a united front, advising that the em-
ployees make up their minds either to go "all the way"
in their quest for representation or not "mess with it at
all." West additionally counseled that they keep their or-
ganizational plans "hush-hush." It was decided that three
who had been with CCI, but were not hired by Re-
spondent, would do the early "legwork." Those most
vocal in the meeting were Anderson, West, and a co-
worker, Joe Borst. In the tavern at the time, perhaps
within earshot, were several Northwest employees.
The next day, April 3, Tibbett asked West if he was
certain that Lytell had "really promised" 7 paid holidays,
suggesting, as he and Freeman had the day before, that
there had been a misunderstanding. West replied that he
was not "stupid or illiterate" and could "read, write, and
understand the English language"; and that, while he
may have been lied to, there had not been a misunder-
standing. He added that he and the others felt they had
been "misled" during the interviews, and that they were
"unhappy" about that.
Also on that day, during the lunch period, 8 or 10 of
the employees resumed the previous evening's tavern dis-
cussion, this time at the plant. Anderson, West, and
Borst, along with another employee, Ben Looney, were
the most outspoken.
That evening, the employees had a second meeting in
a back corner of the Addy Tavern, joined by Larry Mar-
shall, a USW official. West called on Marshall to relate
"the bad side as well as the good side" of union repre-
sentation. After Marshall had made his presentation and
answered questions, West asked if the group was pre-
pared to "go all the way with it." Looney exclaimed,
"We got the fat in the fire, let's fry it!" Anderson reiter-
ated the importance of their "stick[ing] together," and
that "the union [is] only as strong as the people in it."
West likewise declared that they would have to "stick
together."
With that, USW authorization cards were circulated.
All employees there signed, whereupon West gathered
up the cards and handed them to Marshall. Anderson,
West, Borst, and Looney were the most vocal of the em-
ployees at this meeting. As on the day before, some of
Northwest's employees were in the tavern at the time,
possibly within earshot.
Before work the next day, April 4, Anderson, West,
Looney, D'Hondt, and Eagle discussed the prospect of
"get[ting] some rights." Anderson stressed once more the
need to "stick together" and the desirability that they
not let management "know about this." Also on April 4,
several Northwest employees, including some of its engi-
89S
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neers,6 asked Anderson if it was true what they had
heard about union activity among Respondent's employ-
ees. Anderson replied that it was.
On the afternoon of April 4, a Friday, Marshall sent a
telegram to Respondent proclaiming that USW
"represent[ed] a majority of' Respondent's employees
and that it "wish[ed] to meet with you as soon as possi-
ble to negotiate a collective-bargaining agreement." Tib-
bett promptly telephoned Freeman in Portland, reading
the telegram to him.
Freeman visited the plant on Monday, April 7, and
discussed the union situation with Tibbett and with
Northwest's chief engineer, Ned Swanson. Swanson was
Northwest's liaison person in its dealings with Respond-
ent. Also on April 7, Freeman sent a reply to Marshall,
stating that Respondent had "a good-faith doubt of your
claim of majority" and therefore "refuse[d] to meet or
negotiate."
On April 7, as earlier stated, USW filed a petition with
the NLRB to have an election among Respondent's em-
ployees.
On April 8, Vaughn asked Borst if it was true "that
there were some people talking union." Borst verified
that it was, prompting Vaughn to ask, "Why would
anyone want to do that at this time?" 7 And, after work
on April 8, the employees held another organizational
meeting, this time at the American Legion Club in
Chewelah, 12 miles from Addy. Marshall and another
USW official, Al Link, presided.
On April 9, Ned Swanson asked West "the general
feeling of the men" about the "new employer." West an-
swered that they were not happy. Swanson asked what
the problem was, and West said that Respondent had
broken its promise about paid holidays.
On April 10, during the workday, Tibbett informed
West and, minutes later, Anderson that they were fired.
In answer to West's asking why, Tibbett said West had
been "totally unsatisfactory." West, assertedly alluding to
his union activities, responded that he had been "expect-
ing this." Anderson neither asked for nor was given a
reason. On both termination slips, Tibbett left blank the
space calling for a reason.
Tibbett testified that the discharge decisions were
solely his, although he discussed West's termination with
Vaughn beforehand. s His professed reason for firing
West was that West was "not doing his job"--"l never
saw him turn a nut to do anything other than go out and
talk to the men, and standing around." Tibbett added
that West "repeatedly" ignored his directives to "stay
out of the office and [be] in the field more"; and that he
6 Northwest had about 200 employees, of whom 15 or 20 were engi-
neers.
' Borst is credited that this exchange occurred on April 8. Vaughn. as-
serting that he did not learn of the union activity until "definitely after"
the two April 10 discharges, testified that it took place in the "latter
part" of Respondent's second week on the job, Borst was convincing on
the point, recalling that he mentioned the incident to a USW official, Al
Link, during an organizational meeting the evening of April 8. As is
more ully developed later, Vaughn in several instances-this being
one-seemed more intent upon testifying favorably for Respondent than
in relating the truth.
' Vaughn's version of this discussion was: "Ed asked me hat I
thought and stated his reasons. and I didn't see any reason for me to
really go against his decision at that time "
was unable to get West "to do what he was supposed to
do," which was to "lead and direct the men."
Tibbett continued that he checked on West "quite
often" every day, and that he never saw him do physical
labor. He cited an instance in which West and his crew
were cleaning up an area that was strewn with pipe, as-
serting that West "didn't do a damn thing" during the
four or five hours the task entailed. Tibbett testified that
he spoke to West about his lack of industry on this occa-
sion. West denied this, testifying that Tibbett instead
complimented him and his crew for "a nice job." West is
credited. As earlier noted, his testimony was detailed, co-
herent, and generally convincing, whereas Tibbett
seemed given to on-the-spot contrivance and-as in his
saying he had never seen West do physical labor-bla-
tant overstatement.
Tibbett further testified that he was influenced to dis-
charge West by a complaint from Swanson 3 or so days
before that West and his crew had been "wasting time"
in a storeroom while waiting for Northwest personnel to
load materials onto a truck. Tibbett is not believed that
this complaint happened. Apart from Tibbett's penchant
for contrivance, commented upon above, Respondent did
not bring forth Swanson to corroborate him, and Tibbett
could not recall speaking to West about the matter,
which belies its having occurred or, if it did, that it was
of any moment.
Tibbett admittedly never warned West that his job
was in jeopardy. West testified that he not only was
never warned, but was never so much as criticized about
any aspect of his performance or conduct.
Regarding Anderson, Tibbett testified that the "sole
reason" for his discharge was that "his attitude was bad
towards the job." Tibbett expanded that "there was to-
tally no communication between us"-"I would try and
walk up to him and talk to him, and he would just turn
around and walk away." Tibbett later added that he
twice saw Anderson "standing around for 20 or 30 min-
utes at a time" when he should have been working; that
he "didn't feel like [Anderson] was doing his work prop-
erly"; and that, when he attempted to speak to Anderson
about this, Anderson would abort the effort by walking
away in the manner described above.
Tibbett admittedly never warned or criticized Ander-
son about his work, asserting that he "never had an op-
portunity to"-"every time he saw me coming, he was
going the other way." He never called Anderson to the
office to talk with him, but did speak to West once about
Anderson's disinclination to communicate with him,
asking if Anderson had "a problem" and that West talk
to him about it. West answered that Anderson did have a
problem, but was "a very good worker" and would get
over it "shortly." Tibbett surmised that Anderson had
"hard feelings" toward Respondent because his father is
part owner of CCI, and had been CCI's job superintend-
ent at the plant.
Tibbett testified that he had no knowledge that West
and Anderson were prounion when he discharged them.
Moreover, he continued, West had "talked so antiunion
to [him] that [he] thought [West] would be the last one
to suspect of anything." Tibbett asserted that West spoke
896
PAYNE & KELLER. INC.
to him in this vein "perhaps half a dozen [times], maybe
more," both before and after USW's demand. West testi-
fied, on the other hand. that he spoke with Tibbett about
unions "on one occasion," on April I or 2, and that he
then said he had been opposed to unionization while
with CCI because "there was no need for a union"-"we
had everything we wanted." An NLRB election had
been held among CCI's employees in March 1979. It did
not involve USW. As in other instances in which Tib-
bett's and West's stories are in conflict, and for the rea-
sons previously stated, West is credited that they had
only the one conversation about unions.
Anderson likewise had opposed unionization while
with CCI. There is nothing in the record, however, to
indicate that Tibbett, being new to the crew, was aware
of this. Indeed, Anderson was wearing a vest the day of
his discharge that would have intimated the contrary to
the uninitiated. It bore the legend: "For Job Steward,
Vote for Murph."9
After West's discharge, Vaughn drove him to the gate.
En route, according to West, he asked Vaughn if he
"knew" the discharge was going to happen and if he had
been present "when Bud Freeman made the statement he
would fire every son-of-a-bitch that signed a union card,
and hire a bunch of new ones." West's recital continued
that Vaughn answered both questions in the affirmative;
that West then said he would be calling Vaughn to tes-
tify for him; and that Vaughn exclaimed, "I hope to God
you don't." West testified that he heard about Freeman's
remark from one of Northwest's engineers, Calvin Davis,
who reportedly had learned about it from Swanson.
Vaughn testified that he could not recall this conversa-
tion "in its entirety," and that he could not remember
"anything like" West's referring to a supposed discharge
threat made by Freeman. Vaughn conceded, however,
that there was an emotional exchange between the two
of them over his someday testifying on West's behalf and
his commitment to the truth. According to Vaughn, he
expressed sorrow to West that "this had happened,"
West remarked that Vaughn knew what was "going on,"
and Vaughn replied that he did. Asked to explain this
reply, Vaughn testified that he "meant that [West] was
discharged and that I was escorting him to the gate."
Vaughn testified that he never heard Freeman say he
would fire those signing cards-"not to my recollec-
tion"; and, as previously mentioned, that he did not even
know of the union activity until "definitely after" the
discharges. Freeman, for his part, testified that he could
"categorically state that [he] never" said he would fire
card signers.
West is credited that he mentioned to Vaughn that
Freeman had made such a remark, and that Vaughn ac-
knowledged having heard it. West's testimony in this
regard was detailed, consistent, fluid, and altogether con-
vincing. Beyond that, his version gains plausiblity from
Vaughn's conceding that they bickered over his someday
testifying and his commitment to the truth, there being
nothing else in the recitals of either logically giving rise
This legend harked hack to the 1979 election. and presumahly seas
tongue-in-cheek Anderson's true antiunion feelings at the time (of thal
election were more clearly shown by the legend on the reverse-i un-
exposed-side of the same vest "Vote Y'es for Less
to such a quarrel. Further. Vaughn's denial that he heard
Freeman say this was weakened by his not-to-my-recol-
lection postscript. Finally. Vaughn's credibility generally
suffered grievously from the lameness of his explanation
of what he meant by agreeing with West that he knew
what was going on-"that [West] was discharged and
that I was escorting him to the gate"-and by the absur-
dity of his avowal that he did not know about the union
campaign until "definitely after" the discharges-i.e., a
week or more after the union demand.
Freeman, while not given to self-betrayal in so obvious
a fashion as was Vaughn. seemed no less inclined to
shade the truth in Respondent's favor. Consequently, his
denial that he said he would fire card signers consequent-
ly is discredited in light of Vaughn's contrary admission
to West.
Tibbett notwithstanding, the weight of the evidence
reveals that West and Anderson were capable and con-
scientious employees. D'Hondt, although seemingly dis-
posed to slant his testimony on behalf of Respondent at
times, conceded that West was "putting out" during his
time with Respondent, and that Anderson was both a
"fast" and "very good" electrician. Similarly, an electri-
cal engineer for Northwest, Gerald Thayer, testified that
he worked with West and Anderson on occasion after
Respondent's takeover, that he observed them at other
times as well, that the work of both was "excellent," and
that he never saw West "loafing around." Eagle agreed
with D'Hondt that Anderson "worked fast" and "did
good work" for Respondent, and Colin Mai testified that
Anderson was "just a hard worker."
Other than West and Anderson, Respondent had dis-
charged only one employee allegedly for cause up to the
time of hearing-a purported carpenter, after 4 days on
the job, because he was without carpentry skills.
B. Conclusion
It is concluded that the discharges of West and Ander-
son violated Section 8(a)(3) and (1) as alleged.
This conclusion derives from this aggregate of factors:
(a) West and Anderson assumed vocal leadership roles
in the union campaign.
(b) The discharges occurred little more than a week
after the onset of the organizational campaign and only 6
days after USW's recognitional demand.
(c) Respondent harbored powerful antiunion feelings,
as shown by Freeman's remark that he "would fire every
son-of-a-bitch that signed a union card, and hire a bunch
of new ones."
(d) Respondent was aware of the union campaign
before the discharges, having received the union demand
on April 4. It is inferable, moreover, that it perceived the
primacy of West and Anderson in that campaign."t The
smallness of Respondent's maintenance complement, the
smallness and isolation of Addy, and the fact that two of
the organizational meetings in which they were among
the most outspoken were in the Addy Tavern, only a
"' It is not essential that knowledge of a discharged employee's union
actiitsl be estahlished bh direct. as opposed to circumstantial eidence
,' L.R. B v. Okla-lnn d/b/a Holiday Inn of Henryerra. 488 F.2d 498. 506
(10th Cir 1973) Board FIrd. Inc.. 222 NLRB 922. 924, fn. 6 (1976)
897
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mile from the plant and perhaps within earshot of North-
west personnel, make it unlikely that word did not get
back to Respondent. "
Beyond that, as concerns West, Vaughn's admission to
him after the discharge that he knew what was going on,
in combination with Vaughn's discrediting testimonial
explanation of what he meant by that, carries the neces-
sary implication both that Respondent was cognizant of
West's union activities and that Respondent discharged
him because of them. Further, the vehemence of West's
stated outrage to management over the so-called paid
holidays misunderstanding, and the manifest causal rela-
tionship between that "misunderstanding" and the orga-
nizational effort, would have led anyone of even dim
perception to link West to that effort in a prominent
way.
In addition, as concerns Anderson, the "job steward"
reference on his vest doubtless implicated him-at least
in the eyes of Tibbett, there being no evidence that he
knew the true context of that legend-as heavily proun-
ion.
(e) As earlier mentioned, West and Anderson were ca-
pable and conscientious electricians. That Tibbett
deemed their work acceptable is underscored by his
never having criticized either or warned either that his
job was in jeopardy.
(f) That Tibbett's testimonial efforts to depict West as
other than a solid performer were so fraught with fabri-
cation betrayed the pretextuousness of his stated reasons
for West's discharge.12 And, while it may be inferable
that Anderson was struggling with an attitude problem-
perhaps stemming from Respondent's having displaced
CCI-there is no convincing evidence that this adversely
affected his performance, or would have occasioned his
discharge in the absence of union activity-especially in
view of Respondent's apparent general disinclination to
discharge people on the ground of poor performance.
Vlll. OTHER ALI.EGED VIOL.ATIONS
A. Interrogation
Allegation: The complaint alleges that, on April 8,
1980, Vaughn violated Section 8(a)(1) by interrogating
an employee regarding his and his coworkers' union
sympathies.
Facts: As earlier set forth, Vaughn asked Joseph Borst
on April 8 if it was true "that there were some people
talking union." Borst replied that it was, whereupon
Vaughn remarked, "Why would anyone want to do that
at this time?"
Conclusion: It is concluded that Vaughn violated Sec-
tion 8(a)(l) as alleged by interrogating Borst in the
manner related.
B. Announcement of Benefits
Allegation: The complaint alleges that, on May 28,
1980, Respondent violated Section 8(a)(1) by announcing
" E.g., Simley Corporation, 233 NLRB 391, 396, fn. 12, and accompa-
nying text (1977).
1' ShaucA Denn Mining Corporation (Iron King Branch) v. N.L.R.B.,
362 F.2d 466, 470 (9th Cir. 1966).
that the employees would be receiving a benefit not pre-
viously forthcoming, 7 paid holidays.
Facts: It will be recalled that many and perhaps all of
the employees were told by Bill Lytell during the inter-
view process that there would be 7 paid holidays; that,
in the aftermath of a discussion of the issue between the
employees and management, the employees were told on
April 2 that word had come from Houston headquarters
that there would be no paid holidays: and that the orga-
nizational effort gained its initial impetus from this re-
traction.
James Leavsey, a vice president, visited the plant from
Houston in May, authorizing 7 paid holidays while there.
Tibbett accordingly told the employees during a safety
meeting in late May-the Wednesday before Memorial
Day-that Respondent "had decided that, if Mr. Lytell
had told them they would be getting seven paid holi-
days, that's what they would get . . . even if it came out
of the pockets of Payne & Keller."
The employees asked for written confirmation, where-
upon Tibbett posted a notice a day or so later, stating in
relevant part:
4. PAID HOLIDAYS AS FOLLOWS AFTER
30 DAYS' EMPLOYMENT:
New Years Day
Memorial Day
4th of July
Labor Day
Thanksgiving Day
The Friday following Thanksgiving Day
Christmas Day
Conclusion: The timing of a grant of benefits during
the pendency of an election warrants an inference that it
"was calculated to influence the employees in their
choice of a bargaining representative." 3 As concerns Re-
spondent's late May announcement that there would be 7
paid holidays, the antiunion inference is reinforced by
the fact that the union campaign got its start from em-
ployee irritation over Respondent's earlier failure to insti-
tute such a holiday policy.
It is concluded, therefore, that the announcement and
grant of benefits in question violated Section 8(a)(l) as
alleged.
C. The Fishing Trip
Allegation: The complaint alleges that, on or about
June 11, 1980, Respondent violated Section 8(a)(1) by of-
fering the employees a new benefit in the form of an
overnight fishing trip.
Facts: During one of the safety meetings after the
filing of the election petition, Tibbett asked the employ-
ees if they would be interested in a company-sponsored
picnic or dinner, wives included, "to just have some fun
and get to know each other a little better." Some of the
employees asked if they could not instead go on an over-
night fishing trip, much as CCI had done for its supervi-
':' Glosser Bro.. inc. 120 NLRB 965, 966 (1958): Ba Shoe Companvy,
116 NLRB 1239. 1241 (1956).
898
PAYNE & KE..LLER. INC
sory personnel. Tibbett replied that he would check with
Houston.
Houston giving its approval. it was decided in late
May to sponsor an overnight fishing trip to northern
Idaho in mid-June. Respondent agreed to pay for the em-
ployees' gasoline for the trip there and back and for one
night's lodging. The trip later was postponed until mid-
August, Tibbelt explaining that "the men . . . couldn't
all go" in June.
Conclusion: It is concluded that the announcement and
grant of this benefit, initially to be implemented a week
or so before the June 25 election, also "was calculated to
influence the employees in their choice of a bargaining
representative," and that it consequently violated Section
8(a)(1) as alleged. '
CONCI.LISIONS Ot L.Aw'
1. Respondent violated Section 8(a)(3) and (1) by dis-
charging Lloyd West and William Anderson on April 10,
1980.
2. Respondent violated Section 8(a)(i):
(a) On April 8, 1980. when David Vaughn, general
foreman, asked Joseph Borst if it was true "that there
were some people talking union" and why anyone would
"want to do that at this time."
(b) In late May 1980 when Ed Tibbett, job superin-
tendent, announced to the employees, orally and in writ-
ing, that there would be 7 paid holidays.
(c) In late May or early June 1980 when it announced
to the employees that it would sponsor an overnight fish-
ing trip and later when that announcement was imple-
mented.
THF OBJLCTIONS
The two unlawful discharges, the unlawful interroga-
tion, and the two unlawful announcements of new bene-
fits all occurred during the "critical period" after the
April 7, 1980, filing of the election petition.
It is concluded that this misconduct is sufficient to
overturn the election.
ORDER'5
The Respondent, Payne & Keller, Inc., Houston,
Texas, its officers, agents, successors, and assigns, shall:
'' Respondent seems to argue in its brief that its sponsorship )f he
fishing trip %was proper because "the trip was In response to the requests
or' the employees That is beside the poinl
A All outstanding motions inconsistent wiih this recommended Order
hereby are denied. In the event no exceptions are filed as prosided b'
Sec. 102.46 of the Rules and Regulations ,of the National Lahbor Relations
Board, the findings. conclusions, and recommended Order herein shall, as
provided in Sec. 102.48 of the Rules ad Regulations. he adopted h the
Board and become its findings, onclusiols. and Order. and all objections
thereto shall be deemed waived for all purposes
1. Cease arid desist from:
(a) Discharging or otherwise discriminating againist
employees because of their union sympathies or activi-
ties.
(b) Interrogating employees concerning their union ac-
tivities and those of their coworkers.
(c) Announcing and/or granting new benefits to em-
ployees in the form of paid holidays. company-sponsored
fishing trips, or otherwise to influence the employees
whether to obtain union representation, "
(d) In any like or related manner interfering with, re-
straining, or coercing employees in their exercise of
rights under the Act.
2. Take this affirmative action:
(a) Offer Lloyd West and William Anderson immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent jobs.
without prejudice to their seniority or other rights and
privileges and make them whole for any loss of earnings
or benefits suffered by reason of their unlawful dis-
charge. with interest on loss earnings. 7
(b) Preserve and, upon request. make available, to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all records nec-
essary to analyze the amounts of backpay and benefits
owing under the terms of this Order.
(c) Post at the Addy, Washington, plant of Northwest
Alloys, copies of the attached notice marked "Appen-
dix."' Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly signed
by Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order. what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election of
June 25, 1980. be set aside and a new election directed.
" Nothing herein shall he construed. however. a requiring that Re-
spondent rescind anS of the changes in terms or condilions f emplos-
mcnt found to he unlawful.
: Backpac is to be computed in accordanlce ith i H' W4oolworth
Comrpatn. 90 NltRB 289 (1950). with interest to be computed as el frlh
in Floridau Steel Corporalion. 231 N.RB 0t51 (1977). See. generalb, 1w
Plumbing & Ihlauling Co.. 13i8 NL.RB 716 (1962
' In the event that this Order is enfiorced hb a Judgment of the United
Stales Curt oif Appeals. the ords in the notice reading "P,sted hb
Order of the National aI.bor Relation, Board" shall read "Posted Purs.l-
ant to a Judgmenil of the United States Court of Appeals Enforcinlg an
Order of the Natiornal tLaor Relations Board "