Robert P. Scott, Inc.

National Labor Relations Board - Board Decisions

Dec 8, 1961

134 N.L.R.B. 1120 (N.L.R.B. 1961)

1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the trivial amounts involved, under the circumstances I shall make no affirmative
recommendation in this connection.
I shall recommend that the Company offer immediate and full reinstatement to
Busefink to his former or a substantially equivalent position without prejudice to his
seniority and other rights and privileges, and that the Company and the IUE, jointly
and severally, make Busefink whole for any loss of pay suffered as a result of the
discrimination against him by paying him a sum of money equal to the amount he
would have earned from the date of his discharge until offer of reinstatement, less
net interim earnings, the backpay to be computed in accordance with F. W. Wool=
worth Company, 90 NLRB 289. The IUE may terminate its liability for further
accurate of backpay by notifying the Company that it does not object to Busefink's im-
mediate reinstatement and that it requests such reinstatement, and the IUE shall not be
liable for any backpay after 5 days from the giving of such notice. As a valid union-
security contract has been in effect at all times since Busefink's discharge, the Com-
pany and/or the IUE shall deduct from the net backpay the amount of IUE dues
which Busefink owed under the contract to the IUE at the time of his discharge and
the amount of all dues unpaid since then which Busefink would have been required
to pay to maintain such membership as a condition of employment; such amounts
shall be paid over to the IUE by the Company and/or withheld by the IUE, and the
IUE shall thereupon credit Busefink's membership account in such amount.
No violation has been found in regard to the checkoff authorization of the five-
mentioned employees. I nevertheless feel impelled to mention my disagreement with
the suggestion that, should such violation be found, a proper remedy would in-
clude reimbursement to these five employees of all dues withheld thereunder. A valid
union-security agreement has been in effect at all times since the incident, and the
agreement requires these five, as it does all other employees, to pay membership
dues as a condition of employment. To order restitution of dues in these circum-
stances would in my opinion, be nothing short of "a windfall to the employees and an
unjust penalty" exceeding any authority granted under this Act. N.L.R.B. v. Ameri-
can Dredging Company, 276 F. 2d 286, 288 (C.A. 3). See Republic Steel Corpora-
tion v . N.L.R.B., 311 U.S. 7, 11-12; Consolidated Edison Co. of New York, Inc. v.
N.L.R.B., 305 U.S. 197, 235-236.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The IUE and the Society are labor organizations within the meaning of Section
2(5) of the Act.
3. The Company has violated Section 8(a)(1) and (3) of the Act by discharging
Busefink.
4. The IUE has violated Section 8(b)(1)(A) and (2)' by causing the Company
to discharge Busefink and by seeking and threatening the discharge of Bendik,
Bower, Burgess, Pukelis, and Ulam unless these employees paid back dues for a
period not covered by a union-security contract.
5. The aforesaid unfair labor practices are unfair labor practices within Section
2(6) and (7) of the Act.
6. The Company did not violate the Act as to Morris, and neither the Company
nor the IUE violated the Act in regard to the checkoff authorizations of Bendik,
Bower, Burgess, Pukelis, and Ulam, and the Company also did not require or
threaten to require these five employees to pay back dues for the no-contract period
as a condition of employment.
[Recommendations omitted from publication.]
Robert P. Scott, Inc. and International Hod Carriers, Building
and Common Laborers Union of America, Local No. 16, AFL-
CIO. Case No. 28-CA-636 (formerly 33-CA-636). December 8,
1961
DECISION AND ORDER
On November 29, 1960, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
134 NLRB No. 120.
ROBERT P. SCOTT, INC. 1121
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent and Charging
Party filed exceptions to the Intermediate Report, with supporting
briefs, while the General Counsel filed a brief in support of the Inter-
mediate Report. Subsequently, by order dated May 8,1961, the Board
remanded this matter to the Regional Director for the purpose of ob-
taining additional commerce data. After further hearing, the Trial
Examiner, on August 3, 1961, issued his Supplemental Intermediate
Report, which is attached thereto, containing further findings of fact,
conclusions of law, and recommendations with respect to the evidence
adduced at such reopened hearing. Thereafter, the Respondent filed
exceptions to the Supplemental Intermediate Report, while the Gen-
eral Counsel filed an additional brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Supplemental Intermediate Report, the excep-
tions and briefs, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner,
with the following modifications.'
On April 8, 1960, the Union secured proper authorization cards
from 20 out of the approximately 30 employees in the appropriate unit.
On April 11, 1960, union representatives told Scott, Respondent's
president, that the Union represented a majority of his employees and
requested recognition. At that time, Union Representative Baldwin
handed Scott the authorization cards and Scott inspected them. Scott
then stated he would not negotiate, that he could "fire all these men"
and operate his business any way he wanted. The next day, the Union
again requested recognition and Scott repeated his refusal to negotiate,
adding to his remarks of the previous day that he "would never need a
Union" and "would never work Union." 2
1 The Respondent contends that its operations do not meet applicable Board standards
for the assertion of jurisdiction We disagree . The record shows inter alia that during
the 12 months immediately prior to the issuance of the complaint the Respondent sold
or supplied goods and services valued at $53,289 to Wylie Co., Inc, and that Wylie Co ,
Inc , together with two other Wylie enterprises-the three companies constituting, as the
Trial Examiner found, a single employer for jurisdictional purposes-sold goods and
rendered services during the same period outside the State of New Mexico valued at over
$400,000. Accordingly , we find, as did the Trial Examiner , that the Respondent is en-
gaged in commerce within the meaning of the Act and that it will effectuate the policies
of the Act to assert jurisdiction in this proceeding . See Siemon8 Mailing Service, 122
NLRB 81, 85-86.
' On April 13 , rather than April 26 as stated in the Intermediate Report, Respondent's
employees went out on strike because of Respondent's failure to recognize the Union.
630849-62-vol. 134-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent now contends that Respondent was justified in re-
fusing to recognize the Union because it had a good-faith doubt as to
its majority status. However, it is clear from the facts outlined above
that the sole basis for Scott's refusal to negotiate with the Union on
April 11 and 12 was his categorical determination not to deal with
any union. On neither date did he question the Union's majority
either directly or indirectly. Rather his only comment after he had
been handed and had inspected the 20 authorization cards was that he
could "fire all these men." Consequently we find that, under the cir-
cumstances, Respondent did not have a good-faith doubt on either
April 11 or 12 and times material thereafter concerning the Union's
majority status and that the Union did represent, as Respondent knew,
a majority at such times. Thus, the Respondent was obligated to
recognize the Union upon request 3 Under these circumstances, the
Respondent's attempt to place in issue the majority status of the Union
by filing a representation petition on April 18 came too late. An elec-
tion on the petition would only have proven what Respondent already
knew at the times it refused to bargain and would only have delayed
the recognition Respondent was obligated to extend the Union. Con-
sequently, the filing of the petition could not operate so as to free
the Respondent of its obligation to recognize the Union on April 11
and 12 4 Accordingly, we find as did the Trial Examiner that the Re-
spondent has refused to bargain with the Union within the meaning of
Section 8(a) (5) and (1) by failing to recognize the Union as.the ex-
clusive representative of its employees in the appropriate unit 5 on
and after April 11, 1960.
ORDERS
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Robert P. Scott, Inc.,
Albuquerque, New Mexico, its officers, agents, successors, and assigns,
shall :
3 See United Mine Workers of America v. Arkansas Oak Flooring Co, 351 U S 62, 74-75.
4 See Bilinskti Sausage Manufacturing Company, Inc , 132 NLRB 229
5 The Respondent also contends that it was justified in refusing to bargain as the Union
did not specify the unit for which it claimed to be the majority representative . However,
the Respondent did not at any time prior to this proceeding seek to justify its refusal to
bargain on such grounds . Furthermore , the unit set forth in the Respondent' s petition
of April 18 , 1961, is substantially the same as that specified in the charge and complaint
and found appropriate by the Trial Examiner . Moreover , as it encompassed "all Re-
spondent 's . . . employees" with the usual exclusions, the unit confirms to the Union's
claims made on April 11 that it represented Respondent 's employees . Consequently, we
find that the Respondent did not entertain any reasonable doubts at times here material
concerning the unit for which the Union sought recognition.
U The Charging Party took exception to the fact that the Trial Examiner failed to in-
clude in the remedial order a provision requiring reinstatement of the strikers herein
upon unqualified request. We see no merit in this exception . The record shows that the
Respondent has rehired all strikers who have sought to return to work, and there is no
evidence that it would not rehire the remaining strikers upon their appropriate request
for reinstatement.
ROBERT P. SCOTT, INC. 1123
1. Cease and desist from :
(a) Refusing to bargain collectively with International Hod Car-
riers, Building and Common Laborers Union of America, Local No.
16, AFL-CIO, as the exclusive representative of the employees in the
following appropriate unit :
All employees engaged in construction work at the Respondent's
Albuquerque, New Mexico, operations, excluding office clerical
employees, technical employees, watchmen, guards, and super-
visors as defined in the Act.
(b) In any like or related manner, interfering with the efforts of
the above-named Union to bargain collectively with the Respondent
Company.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Hod
Carriers, Building and Common Laborers Union of America, Local
No. 16, AFL-CIO, as the exclusive representative of all employees in
the appropriate unit, with respect to rates of pay, wages, hours of em-
ployment, and other terms or conditions of empolyment, and, if an
understanding is reached, embody such understanding in a signed
agreement.
(b) Post at its establishment in Albuquerque, New Mexico, copies
of the notice attached hereto marked "Appendix A."' Copies of said
notice, to be furnished by the Regional Director for the Twenty-
eighth Region, shall, after having been duly signed by the Respond-
ent, be posted by 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 such notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Twenty-eighth Region,
in writing, within 10 days from the date of this Order, what steps
it has taken to comply herewith.
7 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we-hereby notify our employees that :
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively with International Hod Carriers,
Building and Common Laborers Union of America, Local No. 16,
AFL-CIO, as the exclusive statutory bargaining representative
of all employees in the bargaining unit described below with
respect to grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is :
All our Albuquerque, New Mexico, employees exclusive of
office clericals, technical employees, guards, watchmen, and
supervisors as defined by the Act.
WE WILL NOT in any like or related manner interfere with the
efforts of the above-named Union to bargain collectively with us
as the representative of our employees in the appropriate unit.
ROBERT P. SCOTT, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed on April 14, 1960,1 by International Hod Carriers,
Building and Common Laborers Union of America , Local No. 16, AFL-CIO,
herein called the Union , the General Counsel of the National Labor Relations
Board , herein respectively called the General Counsel 2 and the Board , through the
Regional Director for the Sixteenth Region (Fort Worth, Texas ), issued a com-
plaint , dated June 14 , against Robert P. Scott , Inc., herein called Respondent, al-
leging that Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (5) and Section 2(6) and
(7) of the National Labor Relations Act, as amended from time to time , 61 Stat.
136, herein called the Act.
Copies of the charge and complaint , together with notice of hearing thereon, were
duly served upon Respondent and copies of the complaint and notice of hearing
were duly served upon the Union.
Specifically, the complaint alleged that since April 11 Respondent has refused to
bargain collectively with the Union as the designated bargaining representative of
Respondent 's employees in a certain appropriate unit despite the fact that the Union
had been selected and designated on April 8 as such representative by a majority of
the employees in said unit.
Respondent duly and timely filed an answer denying the commission of the un-
fair labor practices alleged.
Pursuant to due notice, a hearing ,was held on July 28 and September 6, 7, and 8,
at Albuquerque , New Mexico , before the duly designated Trial Examiner. Each
party was represented at the hearing by counsel . Full opportunity was afforded
the parties to be heard , to examine and cross-examine witnesses, to introduce evi-
dence pertinent to the issues , to argue orally at the conclusion of the taking of the
i Unless otherwise noted all dates mentioned herein refer to 1960.
2 This term specifically includes counsel for the General Counsel appearing at the
hearing.
ROBERT P. SCOTT, INC. 1125
evidence, and to file briefs on or before October 10.3 Briefs have been filed by
counsel for each party which briefs have been carefully considered.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. RESPONDENT 'S BUSINESS OPERATIONS
Respondent, a New Mexico corporation, has its principal offices and place of
business in Albuquerque, New Mexico, where it is engaged as a curb and gutter
contractor. During the 12-month period immediately preceding the issuance of
the complaint herein, Respondent's gross business amounted to approximately
$400,000, of which amount approximately $81,000 was received from Wylie
Brothers Paving Company for goods delivered to and for services performed for
said concern. During the same period, Wylie Brothers Paving Company purchased
construction material, either from concerns located outside the State of New Mexico
or from concerns located within the State of New Mexico, which, in turn, received
said goods directly from outside the State of New Mexico of a value in excess of
$50,000. During the aforesaid 12-month period Respondent also performed services
and delivered construction material to Sproul Homes, Inc., valued in excess of
$52,000 and to Bellamah Homes in excess of $36,000. Respondent, Sproul, and
Bellamah each purchased, during said period, construction material valued in excess
of $50,000 from said firms located within the State of New Mexico.
Upon the basis of the foregoing facts, it is found, in line with established Board
authority, that Respondent is engaged in, and during all times material was en-
gaged in , business affecting commerce with the meaning of Section 2(6) and (7)
of the Act and that its operations meet the standards fixed by the Board for the
assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES INVOLVED
The Refusal To Bargain Collectively With the Union
A. The appropriate unit
The complaint alleged that all Respondent's Albuquerque, New Mexico, em-
ployees, exclusive of office clericals , technical employees , guards, watchmen, and
supervisory employees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act. Respondent's answer
denied this allegation. In Case No. 33-RM-70 (not published in NLRB volumes)
(a representation proceeding involving the same employer and the same labor
organization here involved) Respondent sought to have the Board officially de-
termine whether the Union was in fact , as it claimed , the collective-bargaining repre-
sentative of Respondent 's production and maintenance employees engaged in con-
struction work exclusive of its professional, technical , and clerical employees , guards,
and supervisors as defined by the Act. In addition, the evidence is convincingly
clear that most of Respondent's nonsupervisory employees are shifted from one job
to another. Under the circumstances, the Trial Examiner finds that all Respondent's
Albuquerque, New Mexico, employees, exclusive of office clericals, technical em-
ployees, guards , watchmen , and supervisors as defined by the Act, at all times ma-
terial herein constituted , and now constitute , a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act, with respect
to labor disputes , grievances , wages, rates of pay, hours of employment , and other
conditions of employment. The Trial Examiner further finds that said unit insures
to said employees the full benefit of their right to self-organization, to collective
bargaining, and otherwise effectuates the purposes of the Act.
S At the request of Respondent 's counsel the time to file briefs was extended to October 24.
On October 6, Respondent's counsel, after having served copies thereof upon counsel for
the other parties, filed with the Trial Examiner a motion to correct certain Inaccuracies
appearing in the stenographic report of the hearing The motion Is hereby granted and
the motion papers are received In evidence and marked "Trial Examiner 's Exhibit No 1 "
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Union's majority status in the appropriate unit
Uncontroverted credited evidence establishes that as of April 11, 12, and 13, Re-
spondent had in its employ approximately 30 nonsupervisory cement finishers,
cement finisher tenders, truckdrivers, laborers, grader operators, tractor operators,
front end loader operators, and motor operators.
On behalf of the General Counsel there were offered and received in evidence
20 signed cards expressly authorizing the Union to represent the signers thereof
for the purpose of collective bargaining. The genuineness of the signatures appear-
ing on the -cards was in some instances proved directly by the -testimony of the
signers and in some instances by witnesses to the signatures.
The Trial Examiner has compared the names appearing on the aforesaid cards
with the names of the persons which the record discloses were in Respondent's
employ on April 11, 12, and 13 and finds that on those dates 20 employees in the
appropriate unit had on April 8, signed cards designating the Union as their
collective-bargaining representative. The Trial Examiner accordingly finds that
on April 8, and at all times thereafter, the Union was the duly designated collective-
bargaining representative of Respondent's employees in the unit heretofore found
to be appropriate. Accordingly, pursuant to Section 9(a) of the Act, the Union
was at all times material, and now is, the exclusive representative of all the em-
ployees in said appropriate unit for the purposes of collective bargaining with respect
to grievances , labor disputes , rates of pay, wages , hours of employment , and other
conditions of employment.
C. The refusal to bargain
1. The pertinent facts 4
On March 25, Pete Baldwin, the Union' s business agent, contacted Robert P.
Scott, Respondent's president and principal owner, at a paving job which Respondent
was then pertorming for Wylie Brothers Paving Company, herein called Wylie
Brothers, the general or prime contractor on this particular job. Baldwin told
Scott, even though the Union did not at that time represent any of Respondent's
employees, that Respondent had to pay its employees the scale provided in the then
existing Union-Wylie Brothers contract Scott replied that he was paying the scale
established by the New Mexico Labor Commission for the particular job. Con-
siderable discussion then ensued concerning the difference between the State scale
and the scale set „forth in the Union-Wylie Brothers contract, a copy of which
Baldwin exhibited to Scott This contract contained a clause whereby subcon-
tractors , such as Respondent , were to be bound by its terms including the wage
scale. Being unable to persuade Scott to execute an agreement with the Union
and abide by the Union-Wylie Brothers contract wage scale. Baldwin contracted
Marshall Wylie, president of Wylie Brothers, and requested Wylie to try to induce
Respondent to abide by the terms of the Union-Wylie Brothers contract Baldwin
also told Wylie if-Respondent, refused to abide by the terms of the aforesaid con-
tract the Union would shut down the job Wylie contacted Scott and told Scott
that the Union had been endeavoring to persuade him to make Respondent sign
an agreement with the Union.
During the 2-week period immediately following March 25, the Union conducted
an organizational campaign among Respondent's employees
During the day of either April 7 or 8, Baldwin, accompanied by Joe Bermudez,
the Union's business manager, contacted Scott at the jobsite in question. Bermudez
asked Scott, even though the Union did not represent a majority of Respondent's
employees, if Respondent was going to cooperate with the Union and agree to
abide by the said Wylie Brothers-Union contract Scott declined to do so. Scott
testified that the reason he refused to do so was because "T didn't know anything
about this T had had no experience with the union and had onerated as a non-
union open shop employer . and that I was not interested in signing with the Union."
On Friday evening, April 8, a meeting of Respondent's employees was held at the
union hall at which 20 of Respondent's employees sinned union authorization cards.
On Monday morning , April 11, Baldwin and Bermudez went to the aforemen-
4In the light of the entire record, all of which has been carefully read and parts of
which have been reread and rechecked several times, and being mindful of the contentions
of the parties with respect to the credibility problems here involved and of the fact that
it would unduly protract this report greatly to summarize all the testimony or to spell
out the confusion and inconsistencies therein, the findings contained in this section coin
pose a composite picture of all factual issues involved
ROBERT P. SCOTT, INC. 1127
tioned jobsite and there told Scott that the Union represented a majority of
Respondent's employees and requested Scott to recognize the Union as the collective-
bargaining representative of Respondent' s employees . At the same time one of the
aforementioned union representatives handed Scott the 20 authorization cards which
Respondent's employees had signed the previous Friday evening. Scott, after
removing the band which was around the cards when they were handed to him,
"took them one at a time and looked through all of them" and then stated that
they were cards of his employees but he refused the union representatives' request
to recognize or deal with the Union as the collective-bargaining representative of
the employees in the appropriate unit.
Later in the day of April 11, Baldwin and Bermudez informed Wylie that the
Union represented a majority of Respondent's employees and that Respondent,
through Scott, had refused to recognize the Union as the collective-bargaining rep-
resentative of the employees involved or to negotiate an agreement on their behalf.
Wylie stated that he would talk "to Scott and see if he wouldn't meet with [Baldwin
and Bermudez] again to discuss the possibility of recognition." That evening, Wylie
telephoned Scott and when he asked Scott "what he thought about signing up with
the union ," Scott replied, to quote from Wylie's credited testimony, "He wasn't
going to sign a contract with [the Union]. . he was going to continue to operate
an open shop . he wasn't interested in signing a union contract."
On the evening of April 11, the 20 Respondent employees who had executed
union authorization cards on April 8, together with 5 or 6 other employees of
Respondent, met at the union hall There, Baldwin outlined to those present what
had transpired between him and Scott and Scott's refusal to recognize the Union
as the collective-bargaining representative or to negotiate a contract. Baldwin then
explained that the employees could either strike or petition the Board for an elec-
tion to establish the Union's majority status. The employees present voted to strike.
On the morning of April 12, Baldwin and Bermudez returned to the jobsite and
again requested Scott to recognize and bargain with the Union as the collective-
bargaining representative of Respondent's employees. Scott replied, to quote from
Baldwin's credited testimony, "He would not and again stated that he had never
needed the Union and would never need the Union and waved his hand toward
[certain employees then working on the job] and said `I can fire them all. I can
replace them and I will never work Union' . he had never been Union in
the past . he would never be Union in the future"
On April 26, 26 of the Respondent's approximate 30 nonsupervisory employees
struck. The pickets wore or carried signs reading, "ROBERT P. SCOTT UNFAIR,
REFUSES TO BARGAIN WITH EMPLOYEES REPRESENTATIVE, LABORERS
LOCAL # 16 " The pickets were removed on July 29. but the employees, except for
some five who had returned to work, were still on strike at the time of the hearing.
2 Concluding findings
It is true that prior to the evening of April 8, the Union did not represent a
majority of Respondent's employees in the appropriate unit and therefore Respond-
ent did not violate Section 8(a)(5) of the Act by refusing to recognize the Union
prior to that date However, the Union made an explicit and unequivocal demand
for recognition on April 11, and again on April 12, after a majority of the employees
in the appropriate unit had authorized the Union to represent them. Respondent
refused on each of said occasions, although Scott examined the 20 signed union au-
thorization cards, to accord the union representative status to which it was entitled
The credited evidence likewise supports a finding, which the Trial Examiner now
makes, that at all times since April 11, Respondent had steadfastly refused to
recognize or deal with the Union as the designated collective-bargaining representa-
tive of its employees in the appropriate unit. Accordingly, based upon the record
as a whole, the Trial Examiner finds that Respondent's conduct on April 11, and
thereafter, constituted a refusal to bargain in violation of Section 8(a)(5) of the
Act, and since such conduct and action necessarily interfered with, restrained, and
coerced its employees in the exercise of their statutory rights, Respondent thereby
also violated Section 8 (a) (1) of the Act
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States. and. such of them as have been found to constitute unfair labor
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices, tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, violative
of Section 8(a)(1) and (5) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action designed to effectuate the poli-
cies of the Act.
Having found that Respondent on April 11, 1960, and at all times thereafter, has
refused to bargain collectively with the Union as the duly designated representative
of the employees in an appropriate unit, the Trial Examiner will recommend that
Respondent, upon request, bargain collectively with the Union as the exclusive
representative of said employees, and, if an agreement is reached, embody such
understanding in a signed agreement.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Hod Carriers, Building and Common Laborers Union of America,
Local No. 16, AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
2. All Respondent's Albuquerque, New Mexico, employees, exclusive of office
clericals, technical employees, guards, watchmen, and supervisors as defined by the
Act, constitute, and at all times material constituted, a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act.
3. International Hod Carriers, Building and Common Laborers Union of America,
Local No. 16, AFL-CIO, was on April 8, 1960, and at all times thereafter has been,
the exclusive statutory representative of all the employees in the above-described
appropriate unit , for the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
4. By refusing on April 11, 1960, and at all times thereafter, to bargain collectively
with International Hod Carriers, Building and Common Laborers Union of America,
Local No. 16, AFL-CIO, as the exclusive statutory representative of the employees
in the appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
SUPPLEMENTAL INTERMEDIATE REPORT AND
RECOMMENDED ORDER
On November 29, 1960, the duly designated Trial Examiner issued his Intermedi-
ate Report and Recommended Order, herein called the report. On the same date,
the case was transferred to the Board. On December 20 and 23, 1960, respectively,
Respondent and the Union filed exceptions to the report.
On May 8, 1961, the Board issued an order reopening record and remanding pro-
ceeding to Regional Director "for the purpose of obtaining additional commerce
data, by hearing or otherwise. The additional commerce data shall include, but not
be limited to, the direct and indirect flow of goods and services of Respondent."
Said order further provided that in the event a further hearing becomes necessary,
such hearing shall be held before the Trial Examiner and that at the conclusion of
said hearing, if any be held, he prepare and serve upon the parties a Supplemental
Intermediate Report containing findings of fact, conclusions of law, and recom-
mendations with respect to the evidence adduced at said reopened hearing.
Pursuant to the aforesaid Board order of May 8, 1961, the Trial Examiner, upon
due and timely notice to the parties, held a hearing at Albuquerque, New Mexico,
on June 27 and 28, 1961. Each party was represented by counsel and they were
afforded full and complete opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence pertinent to issue as to commerce, to argue orally
at the conclusion of the taking of said evidence, and to file briefs on or before
July 14, 1961. A brief has been received from the General Counsel which has
been carefully considered.
Upon the entire record in the reopened hearing, and from his observation of the
witnesses appearing thereat, the Trial Examiner makes, in addition to the commerce
data findings made in his report on November 29, 1960, the following:
ROBERT P. SCOTT, INC. 1129
Respondent is a New Mexico corporation engaged as a curb and gutter contractor.
During the 12-month period immediately preceding the issuance of the complaint
herein , Respondent 's gross business , consisting of the sale of goods and of services
within the State of New Mexico, amounted to a value of $519,622.21. Of this
amount, goods and services valued at $53,289 were sold and supplied to Wylie Co.,
Inc.; goods and services valued at $48,419.32 were sold and supplied to Sproul
Homes, Inc.; and goods and services valued at $57,274.51 were sold and supplied
to Dale J. Bellamah.
With respect to the business operations of the above-named three concerns with
whom Respondent did business during the period in question, the credited evidence
establishes:
Wylie Co., Inc., a New Mexico corporation , is engaged in, and during all times
material was engaged in, the general construction business and is one of three com-
panies owned and operated by Claude Wylie and his brother, Marshall. The other
two companies, owned and operated by the Wylie brothers, are Wylie Brothers Con-
tracting Company, a, New Mexico corporation engaged in the general construction
business, and Wylie Paving Company, a partnership composed of Claude and
Marshall Wylie , engaged in the paving business . All three Wylie businesses have the
same address, do not compete with each other, and are managed by Marshall Wylie,
Claude Wylie, and Branch B. Raglin. During the 12-month period immediately pre-
ceding the issuance of the complaint herein, Wylie Brothers Contracting Company
sold goods and rendered services to the State of Arizona valued between $400,000
and $500,000 for road construction work on the Navajo Reservation under a con-
tract with the Bureau of Indian Affairs. The three Wylie companies, referred to
herein , are actually one business enterprise and comprise a single employer and meet
the standards fixed by the Board for the assertion of jurisdiction.'
Sproul Homes , Inc., a New Mexico corporation, is engaged in, and during all times
material was engaged in, home building and is one of four corporations majority
owned and entirely operated by Elmer C. Sproul, Fred C. Sproul, and Robert Cline.
The other three companies thus owned and operated are Sproul Homes, Inc., a Colo-
rado corporation, engaged in home building; Security Supply Company, a New
Mexico corporation, engaged in purchasing and selling of building materials; and
Security Supply Company, a Colorado corporation, engaged in purchasing and
selling of building materials. The Colorado Sproul Homes, Inc., was absorbed, at
some date and for reasons not here material, by the New Mexico Sproul Homes,
Inc., and the Colorado Security Supply Company was also absorbed, at some date
and for reasons not here material, by the New Mexico Security Supply Company.
All four corporations have or had the same address, are or were managed by the
same people, and are or were operated as a single business enterprise. During the
12-month period immediately preceding the issuance of the complaint herein, the
New Mexico Security Supply Company's out-of-State purchases of goods and
supplies exceeded $50,000 in value. During the same 12-month period, the New
Mexico Sproul Homes, Inc.'s, out-of-State sales of goods and services approximated in
value in excess of $5,000 ,000. The four so-called Sproul companies are, and always
have been, one business enterprise and are, and always have been, operated as a
single employer and as such meet the standards fixed by the Board for the assertion
of jurisdiction under the doctrines laid down by the Board in above-cited Mohican
and Alamo-Braun cases.
Dale J .. Bellamah is, and at all times material was, the president and principal
owner of corporations engaged in the purchase and sale of real estate, subdividing,
home construction, and the like. The so-called Bellamah corporations pertinent
to the instant proceeding and which are owned and operated by a holding company
known as Dale Bellamah Corporation are: Dale Bellamah Homes, Inc., a New
Mexico corporation engaged in home building at Las Cruces, New Mexico; Dale
Bellamah Land Co., Inc., a New Mexico corporation engaged in the purchase,
development, and the sale of land for residential and commercial purposes; Dale
Bellamah Homes of El Paso, either a New Mexico corporation licensed to do busi-
ness in Texas or a Texas corporation, engaged in home building at El Paso, Texas;
Dale Bellamah Homes of Lubbock, either a New Mexico corporation licensed to
do business in Texas or a Texas corporation, engaged in home building at Lubbock,
Texas; Dale Bellamah Estates, Inc.. a New Mexico corporation engaged in home
building at Albuquerque, New Mexico; Dale Bellamah Homes of Santa Fe, a New
I See 31ohican Trucking Company, 131 NLRB 1174, citing with approval J TV Saltvman,
doing business as Saltsman Construction Company 123 NLRB 1176, and Madison County
Construction Co . 115 NLRB 701 See also Alamo-Braun Beef Company and George Braun
Packing Co, 128 NLRB 32
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mexico corporation engaged in home building at Santa Fe, New Mexico; Dale
Bellamah Builders, Inc., a New Mexico corporation engaged in home building at
Alamogordo, New Mexico; Dale Bellamah Contractors, Inc., a New Mexico cor-
poration engaged in home building at Hobbs, New Mexico; Dale Bellamah Building
Company, Inc., a New Mexico corporation engaged in the building business at
Albuquerque, New Mexico; Dale Bellamah Homes of Roswell, a New Mexico cor-
poration engaged in home building at Roswell, New Mexico.
Dale Bellamah exercises personal management and control of all the corpora-
tions mentioned in the preceding paragraph and operates them as a single business
enterprise. There is no competition between these companies, and each operates
in an area determined exclusively by Bellamah.
The credited evidence discloses that during the 12-month period here involved,
Respondent herein did business with Bellamah and billed Bellamah for the work
performed and goods supplied with no independent knowledge with which Bella-
mah corporation he was doing business.
During the aforesaid 12-month period, the out-of-State sales and services rendered
of Dale Bellamah Homes of El Paso, of Dale Bellamah Homes of Lubbock, and of
Dale Bellamah Corporation (the holding company) exceeded $100,000 in value.
During the same period, the holding company's (through Dale Bellamah Estates,
Inc, and Dale Bellamah Homes, Inc.) purchases of goods and services rendered
exceeded $100,000 in value. The record is convincingly clear, and the Trial Ex-
aminer finds, that during all times material Bellamah operated his corporations as
one business enterprise and as one employer and that his business operations meet
the standards fixed by the Board for the assertion of jurisdiction under the Mohican
and Alamo-Braun doctrines.
The facts as found clearly establish that Respondent, during the 12-month period
immediately preceding the issuance of the complaint herein, sold goods and rendered
services, valued at $158,982.83, to concerns directly engaged in commerce within
the meaning of the Act.2
During the 12-month period immediately preceding the issuance of the complaint
herein, Respondent, purchased and received replacement equipment valued at
$121,264 42 from sources within the State of New Mexico. These purchases
consist of:
1. One Euclid front end loader purchased from Lively Equipment Company,
Albuquerque, New Mexico, who, in turn, purchased said loader from Euclid Di-
vision of General Motors Corporation and it was shipped to Lively's Albuquerque
establishment from Cleveland, Ohio. Said loader cost Respondent about $18,000.
Respondent also purchased from Lively some curb and gutter forms at a cost
of about $10,000. Said forms were shipped to Lively's Albuquerque establishment
from either Pittsburgh, Pennsylvania, or from Matoon, Illinois.
2. A purchase from Oden Chevrolet Company, Albuquerque, New Mexico, of
a new passenger automobile cost Respondent about $2,300, and a new $2,649.26
Chevrolet pickup truck. The automobile was shipped to Oden's Albuquerque estab-
lishment from the Kansas City, Missouri, plant of General Motors, and the truck
was received from a New Mexico Chevrolet dealer who, in turn, received it from
outside the State of New Mexico.3
3. A purchase of a new $2,706 95 truck from Frontier Ford, Albuquerque, New
Mexico, a new car Ford dealer. Said truck was shipped of Frontier's Albuquerque
establishment from one of the Ford Motor Company's plants located outside the
State of New Mexico. Frontier's annual out-of-State purchases of new automobiles
approximate $4,000,000.
4. A purchase from Jones Motor Company, Albuquerque, New Mexico, a new
car dealer, of a $3,877.65 new passenger automobile, which was shipped to Jones'
Albuquerque establishment from the Ford Motor Company's Kansas City, Missouri,
plant. Jones' annual out-of-State purchases of new automobiles exceed $500,000.
5 A purchase from Western Tractor, Inc., Albuquerque, New Mexico, of two
Ford tractors at a cost to Respondent in excess of $10,000. These tractors were
shipped to Western's Albuquerque establishment from Denver, Colorado. Western's
annual out-of-State purchases of tractors approximate $225,000.
6. A purchase from Leonard Motor Company, Albuquerque, New Mexico, of a
$21,000 ready-mix concrete truck which was shipped to Leonard's Albuquerque
2 Sumner Sand & Gravel Company, 128 NLRB 1368, citing with approval Siemons
Afaihng Serv?ce, 122 NLRB 81 See
White's Uvalde Mines, 117 NLRB 1128
also Hart Concrete Products Co , 94 NLRB 1565:
'There is no Chevrolet plant within the State of New Mexico.
ACME FAST FREIGHT, INC. 1131
establishment from a point located in the State of Texas or from a point located
in the State of Wisconsin.
7. A purchase of a new $6,731 . 09 Cadillac passenger automobile from Galles
Motor Company , Albuquerque , New Mexico , which automobile was shipped to
Galles' Albuquerque establishment from the Detroit , Michigan , plant of the Cadillac
Division of General Motors Corporation . Galles' annual out-of-State purchases
of new automobiles amount to about $225,000.
Upon the basis of the foregoing facts, it is again found , in line with established
Board authority , that Respondent is engaged in, and during all times material
was engaged in, business affecting commerce within the standards fixed by the
Board for the assertion of jurisdiction.
Acme Fast Freight, Inc. and John Tomarelli
Lodge 1618 , Brotherhood of Railway and Steamship Clerks,
Freight Handlers , Express and Station Employees , AFL-CIO
and John Tomarelli. Cases Nos. 2-CA-7128 and 2-CB-1804.
December 8, 1961
DECISION AND ORDER
On June 29, 1960, Trial Examiner George J. Bott issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. Thereafter, the General Counsel and
Respondents filed exceptions to the Intermediate Report and support-
ing briefs.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this proceeding,2 and finding merit in the Respondents' exceptions,
hereby adopts the findings and conclusions of the Trial Examiner
only to the extent consistent with our decision herein.
For the reasons set forth in the Intermediate Report, we agree with
the Trial Examiner that Tomarelli did not make a full and complete
tender to the Respondent Union of all dues and fees which he was
lawfully required to tender until after the Respondent had effectively
requested his discharge. We also find in this record insufficient evi-
1 Pursuant to leave of the Board , briefs amici curiae were filed on behalf of Aluminum
Workers International Union , AFL-CIO, American Federation of Technical Engineers,
AFL-CIO, Brotherhood of Painters , Decorators and Paperhangers of America , AFL-CIO,
International Brotherhood of Boilermakers , Iron Ship Builders , Blacksmiths , Forgers, and
Helpers , AFL-CIO, 'International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , and Tobacco Workers International Union, AFL-CIO.
2 As the record and briefs adequately present the issues and positions of the parties and
Intervenors amici, the several requests for oral argument , including that of American
Federation of Labor and Congress of Industrial Organizations , are hereby denied.
134 NLRB No. 98.