Peoria Dry Wall, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1971

191 N.L.R.B. 434 (N.L.R.B. 1971)

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peoria Dry Wall, Inc. and Donald L. Smith, an In-
dividual and Ralph H. Eddy, . an Individual. Cases
38-CA-926 and 38-CA-1009
June 23, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On February 16, 1971, Trial Examiner Owsley Vose
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was engag-
ing in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed ex-
ceptions to the Trial Examiner's Decision together with
a brief, and the General Counsel filed a brief in support
of the Trial Examiner'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 powers
in connection with this proceeding to a three-member
panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in this proceeding, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Peoria Dry Wall, Inc., Peoria, Illinois, its officers,
agents, successors, and assigns, shall take the action set
forth in the Trial Examiner's recommended Order.
I While the record shows that Respondent may have been aware of
Smith's work deficiencies to a greater extent than found by the Trial Exam-
iner, we agree, for the reasons set forth by the Trial Examiner in his Deci-
sion, that Respondent's discriminatory motivation was the factor underlying
Smith's discharge.
' Chairman Miller concurs withhis colleagues: As to,the discharge of
Smith, he concurs -only because he believes the record evidence is sufficient
to justify a-finding-that Smith's protected activities triggered the discharge
of an employee who had a most unenviable work record. He would clarify
the opinion, however, so as clearly to indicate to all of the parties that such
reinstatement is not intended as a license to Smith to continue his poor
performance, and that Respondent is free, so far as this Act is concerned,
to require of Smith a reasonable, nondiscriminatory level of performance in
the future. In the Chairman's view, such a clarification, which ordinarily
might be deemed unnecessary surplusage in an opinion, seems very much
warranted by the facts of this case.
TRIAL EXAMINER'S DECISION
STATEMENT'OF THE CASE
OWSLEY VosE, Trial Examiner: These cases were heard at
Peoria, Illinois, on December 22 and 23, 1970, pursuant to
charges filed on May 18, 1970 (by Smith), and September 15,
1970 (by Eddy). On July 13, 1970,' the Regional Director
issued a complaint in Case 38-CA-926 (the Smith case),
alleging that the Respondent discharged Smith in violation of
Section 8(a)(3) and (1) of the Act. On October 22 the Re-
gional Director issued a complaint in Case 38-CA-1009 (the
Eddy case), alleging that the Respondent threatened em-
ployees with blacklisting or other reprisals if they continued
to process a grievance or filed a charge with the Board, in
violation of Section 8(a)(1) of the Act, and bargained directly
with employees, thereby circumventing Local 165, Laborers'
International Union of North America, AFL-CIO, the cer-
tified bargaining representative, in violation of Section 8(a)(5)
and (1) of the Act. On the same day, October 22, the Regional
Director issued an order consolidating the two cases and a
notice of consolidated hearing.
Upon the entire record, my observation of the witnesses,
and after considering the briefs filed by the General Counsel
and the Respondent, I make the following:
FINDINGS AND, CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, is engaged in the
sale and installation of wall and ceiling components of vari-
ous kinds in commercial and residential buildings. During the
year preceding the hearing the Respondent, in the course of
its construction business, caused to be delivered from out-of-
State sources to its Illinois facilities and jobsites more than
$50,000 worth of goods and materials. Upon these facts, I
find, as the Respondent admits, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
Local 627, International Bortherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America (herein
called the Teamsters) and Local 165, Laborers' International
Union of North America, AFL-CIO (herein called the La-
borers), are labor organizations within the meaning of Section
2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Discharge of Smith on May 4, 1970,
in Violation of Section 8(a)(3) and (I)
of the Act
1. Preliminary statement
The Charging Parties in the consolidated cases were both
employed in the drywall installation part of the Respondent's
business. Drywall is the term used to designate a system of
wall and ceiling finishing involving the erection of large sheets
of gypsum wallboard (4 feet by 8 feet or 4 feet by 12`feet) on,
walls and ceilings, covering the nailheads with a special com-
pound, and installing tape and compound over the joints
between'the sheets of Wallboard,, Before the taping operations
can be performed-the scraps and debris left from the hanging
of the wallboard must be removed and the rooms swept clean.
This. is necessary because in taping ceilings the tapers. work
on stilts, walking backwards with their eyes, on the ceiling,
I All dates herein are in 1970 unless otherwise specified.
191 NLRB No. 82
PEORIA DRY WALL, INC.
and it is dangerous for tapers to do this work with any debris
lying around. The removal of the scraps and debris is called
scrapping. This work is customarily performed by laborers.
The Respondent employs members of the United Brother-
hood of Carpenters and Joiners of of America, AFL-CIO, to
hang the wallboard and perform related operations. It em-
ploys members of International Brotherhood of Painters and
Allied Trades, AFL-CIO, to do the spotting of the nailheads
and taping of the joints. The record fails to show whether the
Respondent has exclusive collective-bargaining contracts
with locals of these labor organizations covering these two
categories of its employees. The record does show that the
Respondent has a collective-bargaining contract with the La-
borers covering its laborers. The record further shows that,
while the Respondent has not signed the latest Teamsters
contract, it honors the contract and makes the required wel-
fare reports, as the Respondent's president, Spencer Black-
burn, testified.
2. The hiring of Smith on April 20;
the nature of Smith's duties
Smith was sent to the Respondent by the Illinois State
Employment Agency in response to its request for referrals.
Smith was interviewed by Spencer Eugene Blackburn, Jr.
(hereinafter referred to as Gene Blackburn ), the son of the
Respondent 's president, on April 20. Gene Blackburn is in
charge of the Respondent 's drywall operations . During
Smith 's interview Gene Blackburn told Smith that the Re-
spondent needed a truckdriver and cleanup man and asked to
see Smith's chauffeur 's license. After examining it, Gene
Blackburn informed Smith that he would be paid $ 125 a week
and that if he wanted the job to report to the Respondent's
warehouse supervisor, William Richart , the next morning.'
Smith reported for work the next morning, April21, at the
yard where the Respondent's warehouse is located . He told
Supervisor Richard , according to Smith 's undenied tes-
timony, that he had a Teamsters card' and Richart told him
"you are okay then ." Richart gave Smith instructions con-
cerning his duties generally and the destinations of the wall-
board which he was to deliver that day. After the arrival of
Ralph Eddy, a laborer , Smith commenced making his deliv-
eries. These were at various residential and apartment pro-
jects at which the Respondent had the subcontract for the
erection of drywall.
Thereafter Smith 's duties consisted almost entirely of mak-
ing deliveries of wallboard and doing "scrapping" work in the
housing units after the carpenters had finished putting up the
wallboard , Scrapping consists of picking up the cutoff pieces
of wallboard and scraps , sweeping out the rooms in which the
carpenters have hung the wallboard , and placing the scraps
and debris in the Respondent 's dump truck . Scrappers are
also expected to carry larger pieces ,of, wallboard from one
workplace to another, as requested by the carpenterswhoare
hanging the wallboard, On all,'exce pptthe last few days of his
employment, Smith worked together with Ralph Eddy, a
laborer, in doing the scrapping work . Except in extremely
rare instances , no supervisor was present when Smith was
performing his driving and scrapping assignments . Smith's
The foregoing findings are based largely on Smith's testimony. Gene
Blackburn testified that he hired Smith as a scrapper-cleanup man around
the yard. In view of the fact that Smith did comparatively little cleanup work
around the yard and a substantial amount of truckdnving, I accept Smith's
version.
' Smith had joined the Teamsters in March 1969 when he was employed
by Lake View Cleaners When he left that employment in July or August
1969, he obtained a withdrawal-card from the Teamsters. This is the card
to which Smith referred in his testimony
435
workweek was 9 hours on weekdays and 4 hours on Satur-
days, a total of 49 hours.
3. Smith's efforts to obtain union wages
for himself and other employees
On Monday, April 27, Smith's wife had a baby and Smith
received permission to take the day off. Smith stopped by the
Teamsters office that day and asked the local president, Rob-
ert Barker, whether the Teamsters had a contract with the
Respondent. Barker said yes. Smith then informed Barker
that the Respondent was paying him $125 a week and no
overtime. Barker advised Smith to have someone from the
Respondent call Barker the next day and that he would have
the Respondent straighten the matter out. Smith told Gene
Blackburn the next day that he was supposed to call the
Teamsters about his wages. Blackburn replied that he would
take care of it right away.
That same day, April 28, Smith asked Niles Sterm, Spencer
Blackburn's son-in-law, if he had a Teamsters card and was
getting Teamsters wages. Sterm, who drove the Respondent's
special hoisting rig, answered affirmatively. Also on April 28,
Smith told Eddy, the laborer with whom he worked, that he
had contacted the Teamsters about his wages and asked how
much Eddy was being paid a week. Eddy replied that he was
getting a flat $125 a week and asked what he could do about
it. Smith suggested that he go down to the labor hall and talk
to a representative of the Laborers about joining the organiza-
tion.
4. Events preceding Smith's discharge
The record is confused and conflicting concerning the ex-
act sequence of events during this period, including the date
of Smith's discharge. The complaint alleges that Smith was
discharged about May 5. Spencer Blackburn, when asked the
date of Smith, was not precise, answering "About May fifth."
However, the Respondent's payroll record for Smith shows
that the last day on which Smith worked for the Respondent
was May 4. In my opinion this payroll record is much more
likely to be accurate than Blackburn's imprecise recollection.
The following discussion of the events leading up to Smith's
discharge is based on my reconciliation of the conflicting
versions of the testimony of the various witnesses.
During the last full week of Smith's employment he was
assigned to do scrapping work in a large apartment project.
While working on, building 6, Ralph Eddy, a laborer, was
assigned to work with Smith.
Dewey Robinson testified that on Tuesday, April 28, he
had a conversation with Smith about the progress of the
scrapping work on building no. 6. Robinson was a taper and,
as found above, for reasons of safety, the coifiiriencement of
the taping work necessarily followed the completion of the
scrapping work. According to Robinson, he asked Smith for
an estimate as to when Smith would be through scrapping so
that Robinson could commence taping. Smith,stated that it
would be justdwhanever,he could_finish the work. When Rob-
inson pointed out that because of the delays in scrapping he
was sometimes unable to obtain a full day's -work; Smith
indicated that "he didn't care."4
° This is the first of a series of conversations between Robinson and Smith
which were testified to by Robinson. Smith denied havrng.any conversations
with Robinson about Smith's work and he denied saying anything to the
effect that he did not care how soon the scrapping work would be completed
Robinson, like Smith , was a union member, a member of the painters and,
like Smith, was a nonsupervisory employee having no financial interest in
the Respondent 's business . Robinson 's testimony was replete with details
indicating that he had a good recollection and his account of these conversa-
tions is not the kind which I think one employee would be apt to fabricate
(Cont)
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robinson then went to the office and made a complaint to
Supervisor Richart about Smith's work. Robinson did not
testify as to what he reported to Richart on this occasion.
Richart credibly testified that Robinson informed him on one
occasion that Smith "just wasn't doing his job right. He was
slow. He was standing gazing out the window."
Upon completing building no. 6 Smith was assigned to
building no. 7. However, on this building Smith was assigned
to work alone. Eddy was not sent to help.' Smith commenced
work on the top floor of building no. 7 sometime Wednesday
or Thursday, April 29 or 30. There are four two-bedroom
apartment units on each floor, plus the hall and stairway on
each floor. The building has three floors. By midafternoon on
Thursday, April 30, Smith had cleaned the scraps out of two
and a half apartment units.
Robinson, the taper, had another conversation with Smith
on Thursday, April 30, in which he told Smith that men were
coming from Chicago the following week to pour lightweight
concrete on the two top floors of building no. 7. When Robin-
son went on to'say that he would appreciate it if Smith could
get the job done so that he could complete his taping work
before the pouring of the concrete, Smith replied "Well, they
won't give me any damn help, so I don't care if I get it done
or not." There is no evidence that this conversation was ever
reported to any official of the Respondent.
On Friday morning, May 1, Gene Blackburn went out to
the apartment project and mildly reprimanded Smith for his
lack of progress in completing the scrapping in building no.
7. Smith's response indicated resentment at being repri-
manded and a lack of concern over his progress.
The next morning, Saturday, May 2, Robinson discussed
Smith's shortcomings with the two Blackburns, Supervisor
Richart, and Office Manager Bernard Ivey. Robinson com-
plained that Smith was not performing his work properly and
as a result he, Robinson, was losing working hours. Robinson
explained that Smith would not make any effort and had no
ambition to do his job.'
During this week other employees also complained to the
Respondent's officials about Smith's work. Robert Irwin, a
carpenter, complained to Spencer Blackburn that the large
pieces which were left over after the wallboard was hung on
a floor were not being carried down to the floor below. This
was part of the scrapper's duties. Irwin reported to Gene
Blackburn that when he had asked Smith to move a piece or
two of wallboard from one house to another Smith had
refused, saying that he would not do it without authorization
from the office. Similar reports about Smith were received by
Gene Blackburn from Herman Nell and Brad Freeman, two
other carpenters. Bill Gay, a taper, expressed concern to
Gene Blackburn about the unsafe working conditions result-
ing from the failure to clean out the scrap.' During this week
Gene Blackburn discussed with his father the various com-
plaints about Smith, but they decided, as Gene Blackburn
about a fellow employee, particularly about another union member . For all
of the above reasons I credit Robinson 's testimony about these conversa-
tions rather than Smith's denials.
' This is Robinson 's testimony which I credit . Smith testified that he had
help every day except his last day. However, the very slow progress which
Smith made in completing building no . 7 strongly reinforces Robinson's
testimony that Smith worked alone in building no. 7
6 Robinson also mentioned that the owner of the apartment project had
complained to him about the lack of progress in completing the scrapping
work.
' At some undisclosed time during the approximately 2-week period of
Smith's employment, Ralph Eddy told Supervisor Richart, as Richart tes-
tified, that "he couldn 't figure out why Don [Smith] could stand while the
other two boys carried the rock [sheetrock]."
testified, "to try him a little bit more, little bit longer, see if
he came out of it."
Smith continued working in building no. 7 the following
week. On Monday, May 4, Mr. Jack Ohiman, the owner of
the apartment project, called Gene Blackburn and com-
plained that the scrapper on the job was not getting anything
done. That same morning Robinson warned Spencer Black-
burn that he was not going to be able to get the building ready
for the pouring of the lightweight concrete at the rate Smith
was going. When Blackburn asked why, Robinson replied,
"Because he is not moving. He is not getting the job done."
Blackburn said that he would have a talk with Smith.
Later that day Robinson again complained directly to
Smith about his failure to complete the scrapping work on the
top floor of building no. 7, reminded him that the concrete
men were due to arrive the following day, and warned that,
if the job were not completed according to the contract, the
Respondent would get thrown off the job and that neither he
nor anyone else would have any work. Smith's reply was that
"It don't make any difference.... I'm going to [obscenity]
this job over until I get enough money to reinstate my union
card and let my BA handle my business." There is no show-
ing that this conversation was ever reported to the Respond-
ent's officials.
Mr. Ohlman, the owner of the project, spoke to Smith
about 2 p.m. on May 4. Ohlman asked where his help was.
Smith's response was that the laborers could not work that
day because they did not have union cards.
At 2:30 p.m. on May 4 Robinson reported to Spencer
Blackburn that Ohlman was "very upset" over the Respond-
ent's failure to perform its duties and warned that the Re-
spondent would have to have more men on the job if it wished
to get the scrapping done. A half hour later Gene Blackburn
arrived at the apartment project and told Smith that 5 p.m.
was the deadline for completing the building. Smith testified
that he replied that he would do it if it was possible.'
5. Events of May 4; Smith's discharge
at the end of work that day
When Smith received his paycheck on Monday morning,
May 4, for the payroll week ending the previous Wednesday,
April 29, he found that it was based on the same $125 figure
that he had previously complained about to Teamsters Presi-
dent Barker. Smith promptly called Barker and informed him
that he was still being paid on the same old basis. At this time
Barker inquired if all the men working at the apartment
project had union cards. Smith said he was the only one there,
that the Respondent did not send any laborers out because of
apprehensions that the project was "going to get checked" for
union cards.'
Later that same morning, Monday, May 4, Barker called
Spencer Blackburn and told him that they were having a
Building Trades Council meeting that morning at the labor
hall, that he and Bud Hasty of the Laborers wanted to talk
to him, and that, if Blackburn did not contact him, the Team-
sters and the Laborers were going to shut him down.10 Within
8 The above finding concerning Gene Blackburn's visit to the project is
based on Smith's testimony. Blackburn was unable to recall talking with
Smith at the project on this occasion. In this instance I believe Smith's
recollection is more accurate than Blackburn's.
' Smith testified that the latter portion of the above conversation regard-
ing checking the laborers' cards occurred in a second conversation with
Barker on Tuesday, May 5, the day of his discharge . Since, as indicated
above, Smith was discharged at the end of the workday on May 4, I find that
Smith was confused and that in reality he had only the one conversation,
as found above.
'° Barker testified that he called Spencer Blackburn on this occasion and,
PEORIA DRY WALL, INC.
an hour or two, the two Blackburns appeared at the Labor
Hall and had Barker called out of the meeting of the Coun-
cil." Barker brought Hasty out of the meeting with him and
they talked with the Blackburns for a few minutes in the hall
outside the meeting room . Barker told Spencer Blackburn
that he had Smith doing Teamsters work and that he was not
paying him the proper rate. Spencer Blackburn said that
Smith was not hired to do Teamsters work and to his knowl-
edge he was not doing such work. Barker then asked who was
in charge of Smith 's work . Spencer Blackburn said that Gene
Blackburn was in charge . Gene Blackburn admitted to
Barker that Smith had been doing Teamsters work . Barker
told them to check their figures and get Smith paid at the
proper rate. The Blackburns agreed that they would do so.
Bud Hasty told Blackburn that he doubted that some of the
people working for Peoria Dry Wall doing laborers' work had
Laborers cards. He told Blackburn that he wanted to get
together with him and check this out in the near future.
When Smith returned about 5 p.m. on May 4, he was
summoned to Spencer Blackburn 's office. The testimony of
the participants in the conversation on this occasion is
sharply conflicting . Smith's version is as follows:
I first went in, and he asked me how I was and how
I liked my job . Then he told me he caught it from both
sides that day.
TRIAL EXAMINER- He caught it from both sides?
THE WITNESS: That 's the words he told me. Both
unions were down there at, or that day, on him , mostly
about me, he said . So he said, `I guess I'm going to have
to let you go.'
Q. (By Mr. Shostrom) Was anything else said?
A. He told me , he says, "We start employees off here
at what we think is right , 125 a week, and we give them
raises as they go on."
Q. Did you say anything to all this?
A. Yes. I told him he had a contract with the Team-
sters, and that's what I expected , Teamsters' pay.
Q. Was anything else said?
A. Yes. He told me if he changed his mind he'd call
me. He gave me the last check , and that was it.
Smith further testified that, as far as he could recall , Black-
burn did not mention any dissatisfaction with his work dur-
ing the discharge interview.
being unable to reach him , left a message to this effect. However, the Re-
spondent introduced into evidence what appears to be a complete record of
telephone messages received during this period and it does not contain any
record of a call from Barker in which a message was left. In view of this fact
and the further fact, found below, that the two Blackburns promptly left for
the labor hall to meet with Barker, I infer that Barker actually reached
Blackburn on this occasion and gave Blackburn the message during this call.
Neither Barker nor Blackburn had a precise recollection of the events during
this period
" As indicated above, neither Barker nor Blackburn was able to testify
with any degree of certainty when this meeting was held.
Barker testified in effect that the meeting was held before Smith's dis-
charge. Barker further testified , as stated more fully below, that the meeting
concerned only the question of Teamsters pay for Smith and the fact that
the Respondent 's laborers did not carry union cards.
Blackburn testified that the meeting was held after Smith 's discharge and
that the visit to the labor hall with his son was prompted by the appearance
of a picket at the apartment project . Blackburn further stated that during the
meeting he "probably asked him (Barker) what the picket was doing there."
I credit Barker's testimony discussed above. In my opinion Blackburn is in
error in his reconstruction of the sequence of events leading up to this
meeting.
The account of the events of May 4 and thereafter discussed below is
based on my analysis of all the evidence and provides what I believe to be
the most logical sequence of events.
437
Spencer Blackburn testified as follows concerning this con-
versation:
A. I was disturbed when I called him in. I was dis-
turbed. So I readily chumped him out about he'd been
doing.
Q. Do you recall what you said?
A. How he had deterred the help and I never received
so many complaints before on any employee. I so stated
this to him. And I really wanted to know from him, from
his lips why. And so I discussed this with him.
I never got many answers from him. And naturally at
the end of this questioning these questions I was asking
him why, I told him that we couldn't use him in this
capacity. I had too many complaints. The job owner
didn't want him out there any more.
And then I lead into this I had heard rumors concern-
ing union activities , and so then I asked him about this.
TRIAL EXAMINER. This was after you fired him?
THE WITNESS: Yes, sir, it was.
Then he said to me that he would just take his problem
up with the Union, and we parted. I didn't like to hear
this, of course, I thought we had hired him on a basis,
kind of a training basis....
Earlier Blackburn had testified as follows:
Q. (By Mr. Shostrom). During that conversation with
Mr. Smith in which you informed him of his discharge,
did you have any conversation about the Teamsters or
Mr. Barker?
A. Yes, after I laid him off.
Q. What did you say at that time about the Teamsters
and Mr. Barker?
A. I asked him what was going on.
Q. What did he say?
A. Not much.
Q. Well, what did you say if anything, about the
Teamster's Local 627?
A. Only if he was a member.
TRIAL EXAMINER I don't understand that. Only?
THE WITNESS: I mean, I did ask him. I asked him
about the union , that some rumors were about that he
was joining the union or was going to cause problems or
something like that. It was in the air , and to be specific
about what was said, I couldn't be.
Later Blackburn testified as follows:
He [Smith] did state that he wasn't paid, that he was
demanding more money. He had never been to see me
before. I asked him why he didn't come to me personally
or to see Gene personally. I asked if he had made com-
plaints in the field to different people that would substan-
tiate the rumors I had heard, and he did agree to that.
But he didn't have any answers for me.
Gene Blackburn testified that he entered the office after Smith
had been terminated, that he told of his observation of
Smith's work and that he felt that Smith was not doing his
job. According to Gene Blackburn, Smith merely shook his
head and said no. Gene Blackburn, after stating that Smith
mentioned "something about going to the union ," added that
he had heard a rumor about Smith's involvement with the
Union.
Since both Smith and Spencer Blackburn impressed me as
being willing to stretch a point or two to aid their respective
cases, I have scrutinized their testimony very closely in at-
tempting to determine where the truth lies with respect to the
conversation at the discharge interview . For reasons more
fully discussed below, I conclude that Smith's version of the
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge conversation is entitled to credit and that Spencer
Blackburn did not mention Smith's work performance at this
time.
6. Events subsequent to Smith's discharge
Shortly after Smith's discharge Robinson, the taper, went
out to the apartment project to check on the progress of the
scrapping work.12 Robinson found that three of the four units
on the top floor of building no. 7 were scrapped but not swept
and that the fourth unit, the hall, and the stairwell were not
completely scrapped. Robinson returned to the office and
offered to complete the scrapping of the two top floors, halls,
and stairwells the next morning.
Spencer Blackburn accepted this offer and sent Eddy along
with Robinson to help out with the completion of the scrap-
ping of the two top floors. The two men started to work at
about 7 a.m. on May 5. Eddy left after completing one apart-
ment unit in about a half hour. It took Robinson until 9:30
a.m. to complete the rest of the scrapping work. This,
together with the unit done by Eddy, involved a total of five
apartment units, all three hallways, and stairwells.
On Tuesday, May 5, Smith went to the labor hall and
reported to Barker that he had been fired. According to
Smith's credited testimony, Barker said he would get together
with Bud Hasty and "throw up a picket line." Barker handed
Smith a picket sign and told him to picket. Smith left for the
apartment project about noon that day and picketed during
the afternoon.
On May 18, the Respondent sent Smith a check for $77.24
which represented the amount needed to bring Smith's wages
up to the Teamsters wage scale for 38 hours of driving time
during the 2-week period of his employment, less the usual
deductions.
7. The Respondent 's contentions;
conclusions
The Respondent contends that Smith was discharged for
cause, asserting that he failed to complete his work within a
reasonable time , that he had a wholly negative attitude to-
wards his job , and was the subject of numerous complaints
from coworkers and from the owner of the apartment project.
The record leaves no doubt that Smith was an extremely
slow worker . Ralph Eddy , the laborer with whom Smith
worked most of the time up until the last few days of Smith's
employment , testified that working alone it would take him
about an hour to dump into the dumptruck the scraps from
one floor of the apartment project, consisting of four two-
bedroom apartments . Additional time was required for the
halls and stairwells , sweeping, and driving to and from the
dump . According to Eddy, who exhibited a sympathetic atti-
tude towards Smith , he could "almost knock the whole
[building] out in one day." There were 12 apartments in each
building. Smith failed to complete even half of building no.
7 in 3 days. Smith 's performance, if the Respondent were
aware of it , would have justified discharge.
However , the following facts, in my opinion, indicate that
the Respondent's officials were not aware at the time of
Smith 's discharge how poorly Smith was performing. At the
time of Smith 's discharge he had been employed by the Re-
spondent only 2 weeks. He had been working in the field
without supervision and no supervisory official had had an
opportunity to observe Smith at work for more than a few
minutes at a time on rare occasions. The Respondent 's offi-
11 Robinson had called Spencer Blackburn about 5 p.m on May 4 to find
out if the scrapping was completed on building no. 7 Blackburn told Robin-
son that he would appreciate it if Robinson would check the building
cials really had no basis for forming a firsthand judgment
about Smith's performance on the job. While Robinson, the
taper, testified at the hearing at some length about conversa-
tions with Smith and his alleged shortcomings as a worker,
it does not appear that the details of these conversations were
reported to the Respondent's officials. Rather the record
shows that Robinson merely reported in general terms that
Smith was a slow worker with little or no ambition to do a
good job. Even after receiving some of these reports, the
Respondent took no action but rather decided to give Smith
a further trial. Admittedly, Smith was never warned that his
manner of performing his work was jeopardizing his con-
tinued employment.
However, on Monday, May 4, after the meeting at the
labor hall at which the Teamsters had demanded that the
Respondent pay Smith the Teamsters wage scale , Spencer
Blackburn discharged Smith . At this time Blackburn was
unaware of how much scrapping work Smith had completed
on building no. 7. During the discharge interview Blackburn
admittedly asked Smith whether he had made complaints in
the field which would substantiate the rumors which he had
heard about Smith and the Teamsters. Blackburn also admit-
ted in effect that he asked Smith at this time whether he was
going to "cause problems" with the Teamsters.
Blackburn, when asked at the hearing whether he consid-
ered Smith "an agitator or a troublemaker," replied, "It
seemed to come out that way. This was our conclusion after
discussion. But this was the general concensus of opinion
from Bill Richart and Gene Blackburn and, myself."
In view of the foregoing facts I am persuaded that Smith's
job performance was not a factor in his discharge and that
Smith's version of the discharge interview, particularly his
testimony that Blackburn did not mention his job perform-
ance but did mention the fact that both unions had been
"down on" him that day, mostly because of Smith, is entitled
to credit.
Taking all of the facts of the case into consideration, in-
cluding the Respondent's admitted knowledge ' that Smith
had been "agitating" among the employees for the payment
of union wage scales, the timing of the discharge, the day of
the confrontation at the labor hall over Smith's wages, and
Blackburn's remarks to Smith during the discharge interview,
I conclude that the Respondent discharged Smith because it
objected to Smith's agitation among other employees for the
payment of union wage scales and because it resented Smith's
action in taking up his claim for the union wage scale with
the Teamsters. Accordingly, Smith's discharge violated Sec-
tion 8(a)(3) and (1) of the Act. It is well recognized "that the
existence of valid grounds for discharge is no defense to an
8(a)(3) unfair labor practice charge when discriminatory mo-
tive is a factor in the employer's decision." Sweeney & Com-
pany, Inc. v. N.L.R.B., 437 F.2d 1127 (C.A. 5), and cases
therein cited.
B. Interference, Restraint, and
Coercion; the Attempted
Circumvention of the Laborers
1. Introduction
In Case 38-CA-1009 the complaint alleges and the Re-
spondent's answer admits that at all times material herein the
Laborers has been the exclusive certified bargaining repre-
sentative of the Respondent's laborers and watchmen and
that said laborers and watchmen are covered by a 3-year
collective-bargaining contract which expires on April 30,
1972.
PEORIA DRY WALL, INC.
2. The facts
Ralph Eddy, Jr., was hired by Gene Blackburn as a laborer
during the second week in April at a wage of $125 for a
49-hour week. The collective-bargaining contract in effect at
that time called for considerably higher wages for laborers
than those paid Eddy.
Eddy applied for membership in the Laborers and was
initiated on May 29. Spencer Blackburn paid his $111 initia-
tion fee.
On a Saturday in the latter part of June Eddy's wife in-
quired of Assistant Business Manager Gregory Hasty of the
Laborers what Eddy was supposed to be earning as a laborer
for the Respondent. Hasty informed her that Eddy should be
making $5.70 per hour, plus welfare and pension benefits.
When Mrs. Eddy said that her husband was not receiving
such wages, Hasty told her to bring in the check stubs and
that he would contact the Respondent and attempt to get
backpay for him.
About the end of June Hasty commenced calling Spencer
Blackburn. At first he called once or twice a day and after 2
or 3 weeks Hasty called Blackburn every 3 days or so. Al-
though each time Hasty called Blackburn he left his name
and requested that Blackburn call him back, Blackburn never
returned Hasty's call. In the meantime, on July 30, Eddy quit
the Respondent's employ.
Finally, when Hasty called Blackburn in the first part of
September, he was connected not with Blackburn, but with
another man in the Respondent's office. Hasty told this man
that if Blackburn did not get in touch with him, the Laborers
were going to go to the Board and let it settle the matter.
Early the following morning, Thursday, September 10,
Blackburn stopped by Eddy's home and talked to him in the
backyard.13 According to Eddy's uncontradicted testimony,
the following conversation occurred:
He asked me how I was doing. I said okay and he says,
"What's this about the union?" At first I didn't answer,
and then I says, "It's about my back pay I got coming,"
and then kept going in conversation and he says, "I don't
want no trouble with the union and why can't we settle
this between me and you?" And I told him it's out of my
hands. I already went down to the union hall. And he
says, "Can't we settle it out of the union hall?" and I
says, "Well, it's out of my hands."
The next morning, Friday, September 11, Blackburn ap-
peared at Hasty's office at 7:30 a.m. After Hasty arrived,
Hasty told Blackburn that, judging by Eddy's check stubs
and the Respondent's health and welfare reports, the Re-
spondent owed Eddy about $600 in backpay. Blackburn's
initial response was as follows:
He said he wasn 't going to pay Eddy any back pay at
all and that if he pursued after this line of back pay, that
he had something on him that he wouldn't work for
another contractor in Peoria."
The discussion ended when Blackburn agreed to meet with
Hasty and Eddy early the following morning.
Supervisor Richart accompanied Blackburn to the meeting
the next morning . Hasty again mentioned the $600 figure.
Richart and Blackburn maintained that Eddy worked on
commercial projects only one third of the time15 and Black-
burn offered to pay $215 less the amount he had already paid
for Eddy's initiation fee. After discussing the matter out of
1' The record is not clear as to the exact sequence of events during this
period. The account set forth herein places the events in what I conclude
to be the most logical sequence.
This is Hasty's credited and undenied testimony.
" The Laborers did not enforce the $5.70 rate on residential projects
439
the presence of Blackburn and Richart, Hasty and Eddy
returned and proposed the Respondent settle for the payment
of $215 without any deduction for the amount already paid
the initiation fee. Blackburn refused this proposal. During the
discussion Eddy asked Blackburn what "he had on" him.
(This was a reference to Blackburn's threat to blacklist Eddy
which was made to Hasty the previous day.) Blackburn did
not answer Eddy's question. The meeting ended without
agreement being reached on the amount of backpay due
Eddy.
The following Monday, September 14, Blackburn stopped
by Eddy's home and handed him a check for $215, saying,
"I've been thinking this over. I want to go on vacation. I don't
want this hanging over my head, so I decided I'll give you the
$215... Your laborer's card is paid." When Eddy hesitated,
Blackburn said, as Eddy testified, "Take the check; take it
down to the union hall and go from there." Eddy, after
consulting the Laborers, cashed the check.
3. Conclusions
a. Interference, restraint,
and coercion
As found above, immediately after Assistant Business
Manager Hasty made a claim on Blackburn for backpay due
Eddy under the terms of the collective-bargaining contract,
Blackburn made a threat to Hasty to have Eddy blacklisted
among Peoria contractors. As the record shows, this threat
was promptly passed along by Hasty to Eddy, as Blackburn
might reasonably have anticipated. In fact, Eddy questioned
Blackburn about the threat at the meeting the following
morning.
The facts of this case parallel in important respects the
facts in East Texas Pulp and Paper Co., • 143 NLRB 427, in
which the Respondent in that case threatened former em-
ployees who had been lawfully discharged that "they could
not expect recommendations for other employment as long as
they continued to process their grievances against" it. The
Board fully upheld the Trial Examiner's conclusion in the
East Texas case that the threat to former employees to with-
hold employment recommendations if they persisted in press-
ing their grievances under the collective-bargaining contract
violated Section 8(a)(1) of the Act. The Trial Examiner stated
his rationale for this conclusion as follows:
These grievances had been filed pursuant to a collective-
bargaining agreement between the Respondent and the
union of which the aggrieved employees were members,
and in filing and processing of the grievances they had
the active support of the union's officers.... The Board
has specifically held that even an individual employee
who asserts a claim under a collective-bargaining agree-
ment is engaged in a form of concerted activity, since
such activity is "but an extension of the concerted ac-
tivity giving rise to the agreement," and the employees
in the present case who filed grievances were also en-
gaged in implementing the collective-bargaining agree-
ment with their employer. If it is important that em-
ployees who are engaged in the concerted presentation
of grievances be protected against discharge for such
activities, as has been repeatedly held, it is no less impor-
tant that they be protected against threats of denial of
employment by any employers because they have filed
grievances against their discharge.
See also Orenduff & Kappel, Inc., 118 NLRB 859, 864, fn.8,
881; Baumann Construction Co., 181 NLRB No. 80 (TXD),
and cases therein cited.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The fact that the threat was uttered by Blackburn to Ed-
dy's representative, Hasty, rather than to Eddy himself does
not affect the Respondent's liability for the threat. The natu-
ral and reasonably forseeable consequence of Blackburn's
uttering the threat to Hasty was that Hasty, Eddy's represent-
ative, would pass the threat along to Eddy, as he did, and
Blackburn, therefore, must be presumed to have intended this
result. It also might reasonably be anticipated that Hasty
would convey Blackburn's threat to other laborers still in the
Respondent's employ, whom he represented. Cf. N.L.R.B. v.
Local 140, United Furniture Workers of America, 233 F.2d
539, 540-541 (C.A. 2). See also M. Snower & Co., 83 NLRB
290, 291. Blackburn's threat of blacklisting Eddy, made to
Hasty on the occasion of his pressing a claim for wages due
Eddy under the collective-bargaining contract, constituted
interference, restraint, and coercion in violation of Section
8(a)(1) of the Act.
b. The refusal to bargain
collectively
As found above, Laborers Assistant Business Manager
Hasty for several months attempted unsuccessfully to reach
Spencer Blackburn to discuss Eddy's claim for wages due him
under the Laborers contract with the Respondent. Finally,
Blackburn, after being informed that the Laborers was seri-
ously thinking of filing charges against the Respondent,
sought out Eddy and attempted to reach a private settlement
with him with respect to his wage claim. Even after Eddy told
Blackburn that the Laborers were handling his claim, Black-
burn persisted in trying to settle the matter "out of the union
hall."
As found above, Eddy's claim for wages was one based on
the collective-bargaining contract between the Respondent
and the Laborers. As stated in New York Mailers' Union No.
6 v. N.L.R.B., 327 F.2d 292, 298 (C.A. 2), "The processing
of grievances under a collective bargaining contract has been
held to be just as much a part of the bargaining process as the
negotiation of an agreement." Therefore no settlement of any
claim arising under the contract could be made without the
participation of the Laborers, one of the parties to the con-
tract. The Respondent in attempting to bypass the Laborers
in disposing of Eddy's wage claim violated its duty to bargain
collectively, thereby engaging in unfair labor practices in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, by discharging Donald Smith, has in-
terfered with, restrained, and coerced its employees in the
exercise of their right to self-organization and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, in violation of Section 8(a)(1)
of the Act, and has engaged in discrimination in regard to
tenure of employment and terms and conditions of employ-
ment which discouraged membership in labor organizations,
in violation of Section 8(a)(3) of the Act.
2. The Respondent, by threatening that Ralph Eddy would
be placed on a blacklist for pressing a wage claim through his
exclusive bargaining representative, has interfered with, re-
strained, and coerced employees in the exercise of their right
to self-organization and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, in violation of Section 8(a)(1) of the Act.
3. At all times material herein the Laborers has been the
exclusive collective-bargaining representative of an appropri-
ate unit of the Respondent's employees consisting of laborers
and watchmen.
4. The Respondent, by bypassing the Laborers on Septem-
ber 10, 1970, and attempting to deal directly with Ralph
Eddy concerning his wage claim under the collective-bargain-
ing contract between the Respondent and the Laborers, has
refused to bargain collectively with the Laborers, in violation
of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, my recommended order will direct that it
cease and desist therefrom and take certain affirmative action
to effectuate the policies of the Act.
I have found that the Respondent discharged Donald
Smith in violation of Section 8(a)(1) and (3) of the Act. To
remedy this unlawful conduct my recommended order will
provide that the Respondent offer to Smith immediate and
full reinstatement to his former job or, if this job no longer
exists, to a substantially equivalent job, without prejudice to
his seniority and other rights and privileges. My recom-
mended order will further direct that the Respondent make
Smith whole for his losses resulting from the Respondent's
discrimination against him by payment to him of the sum of
money he would have earned from the date of his discharge
until the date on which the Respondent offers him reinstate-
ment, less his net interim earnings. Backpay shall be com-'
puted on a quarterly basis and shall include interest at 6
percent per annum, as provided F W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
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:
ORDER16
The Respondent, Peoria Dry Wall, Inc., Peoria, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Local 165, Laborers' In-
ternational Union of North America, AFL-CIO, or any
other labor organization, by discharging or in any other man-
ner discriminating against employees in regard to their hire
or tenure of employment or any terms or conditions of em-
ployment.
(b) Threatening blacklisting or other reprisals against
Ralph Eddy or any other employee or former employee for
exercising rights guaranteed by the Act.
(c) Refusing to bargain collectively with Local 165, Labor-
ers' International Union of North America, AFL-CIO, by
bypassing said labor organization and attempting to deal di-
rectly with employees concerning matters arising under its
collective-bargaining contract with said labor organization.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
16 In the event no exceptions are filed to this Recommended Order as
provided by Section 102.46 of the Rules and Regulations of the National
Labor Relations Board, the findings, conclusions and recommended order
herein shall, as provided in Section 10(c) of the Act and in Section 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes.
PEORIA DRY WALL, INC.
(a) Offer Donald Smith immediate and full reinstatement
to his former job or, if this job no longer exists, to a substan-
tially equivalent job, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss
of pay suffered by reason of his discharge, in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Notify Donald Smith, if presently serving in the Armed
Forces of the United States, of his right to full reinstatement
upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces.
(c) 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, as well as all other records necessary
to analyze and compute the amount of backpay due under the
terms of this recommended Order.
(d) Post at its facilities at Peoria, Illinois, copies of the
attached notice marked "Appendix."" Copies of said notice,
on forms provided by the Regional Director for Region 38,
after being duly signed by the Respondent's representative,
shall be posted by the Respondent 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 the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 38, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith."
" In the event that the Board's Order is enforced by a Judgment of a
United Stated Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
11 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify said Regional Director, in writing, within 20 days from the date of
this Order what steps the Respondent has taken to comply herewith "
441
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against any of our employees in regard to their hire,
tenure of employment, or any term or condition of em-
ployment, because they have engaged in union or con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection.
WE WILL NOT threaten blacklisting or other reprisals
against any employee or former employee for pressing
claims against us under our collective-bargaining con-
tract with Local 165, Laborers' International Union of
North America, AFL-CIO, or for otherwise exercising
rights guaranteed in the Act.
WE WILL NOT bypass Local 165, Laborers' Interna-
tional Union of North America, AFL-CIO, and attempt
to deal directly with employees concerning matters aris-
ing under our contract with Local 165, Laborers' Inter-
national Union of North America, AFL-CIO.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL offer immediate reinstatement to Donald
Smith and will pay him backpay as provided in the
Board's Decision and Order.
PEORIA DRY
WALL, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 10th
Floor, Savings Center Tower, 411 Hamilton Boulevard, Pe-
oria, Illinois 61602, Telephone 309-673-9282.