State Electric Co.

National Labor Relations Board - Board Decisions

Mar 9, 1966

157 N.L.R.B. 504 (N.L.R.B. 1966)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departed from customary procedure and expressly recommended that no notice be
required. 145 NLRB at 157-158. No exception was taken to that recommendation.
Certain features which militated against a notice in Cuitiss-Wright are absent here,
for the issue was no longer "novel" (the court's decision in Curtiss-Wright predated
the Company's refusal here and the Board's decision predated the Union's request by
18 months), and the data in Curtiss-Wright was actually furnished in large part before
the hearing in that case. Nevertheless, my expressed reasons for not requiring a
notice in Curtiss-Wright are equally applicable here, and I adhere to that precedent.
This is the type of case where the furnishing of the data is sufficient to remedy the
unfair labor practice, and general notification to all employees serves no useful
purpose.
CONCLUSION OF LAW
By refusing to give the Union the data it requested concerning the number, names,
job titles and job descriptions, wages or salaries, hours, and fringe benefits of
"excluded salary technicians," the Company engaged in an unfair labor practice affect-
ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
Accordingly, upon the foregoing findings and conclusions and upon the entire
record, and pursuant to Section 10(c) of the Act, I recommend that Respondent,
Goodyear Aerospace Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from refusing to furnish International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, when
requested to do so by said organization, with the name, department number, job title
or classification, job description, wage or salary, hours, and fringe benefits of each
"excluded salary technician" employed at the Akron plants in which Local 856 of that
labor organization is the bargaining representative.
2. Take the following affirmative action necessary to effectuate the policies of
the Act:
(a) Furnish the above-named labor organization with the above-described data as
requested in its letter of May 18, 1965.
(b) Notify the Regional Director for Region 8, in writing, within 20 days from the
date of the receipt of this Decision, what steps the Respondent has taken to comply
herewith.2
2In the event that this Order is adopted by the Board, this provision shall be modified
to read, "Notify said Regional Director, in writing , within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
State Electric Company and International Brotherhood of Elec-
trical Workers, Local Union No. 611 , AFL CIO. Case No. 938-
CA-11893. March 9,1966
DECISION AND ORDER
On October 29, 1965, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices as alleged in the coin-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. Respondent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief, and the General Counsel filed an answer-
ing brief.
157 NLRB No. 43.
STATE ELECTRIC COMPANY 505
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations, except as stated below.
We agree with the Trial Examiner that the Respondent's discharges
of employees Arnold Vaillancourt, James E. Douthit, and Vences V.
Jaramillo constituted a violation of Section 8(a) (3), as well as Sec-
tion 8(a) (1), of the Act. In so agreeing, however, we find that the
primary reason for the discharges was the Respondent's hostility
toward the Charging Party, of which these three were members. As
set forth in detail in the Trial Examiner's Decision, the Respondent
and the Charging Party were engaged in a longstanding contract dis-
pute which predated the hire of the discriminatees and continued up
to and including the time of their discharges. The dispute concerned
the fact that Foreman David Sivage and Partner Bill Scott frequently
worked with tools and at nighttime, thereby giving rise to complaints
by the Charging Party and its members that in so doing they were
depriving the Respondent's employees of overtime work in violation
of the work-rules provisions of the current contract between the
parties. John Milosevich, the Charging Party's business representa-
tive, had complained of this conduct to the Respondent prior to the hire
of the discriminatees. Following the hire of the discriminatees, Milo-
sevich continued his complaints, and Vaillancourt, the shop steward,
did likewise on several occasions. Indeed, it was one of Vaillancourt's
complaints which immediately preceded the almost simultaneous dis-
charges of the three discriminatees herein.
In these circumstances, we find that the union hostility engendered
by the work-rules dispute was the Respondent's primary motive for the
discharges of all the Charging Party's members on the job, and its
claim of a work slowdown as the basis therefor was merely pretextual.
On such basis, we sustain the violations found herein.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Amend paragraph 1(a) by deleting the words "in any other
manner" and substituting "in any like or related manner."
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[2. Delete the first paragraph of the notice (Appendix) and sub-
stitute the following :
[WE WILL NOT discourage membership of any of our employees
in International Brotherhood of Electrical Workers, Local Union
No. 611, AFL-CIO, or in any other labor organization of our
employees, by discharging or discriminating against any individ-
ual in regard to hire, tenure of employment, or any term or con-
dition of employment.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on February 5, 1965, the General Counsel for the'National
Labor Relations Board, by the Regional Director for Region 28 (Albuquerque, New
Mexico), issued a complaint on March 11, 1965, against State Electric Company,
herein called the Respondent or the Company, alleging that it had engaged in certain
unfair labor practices affecting commerce within the meaning of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein
called the Act. The Respondent's answer denies the allegations of unlawful conduct
as alleged in the complaint.
Pursuant to notice, a hearing was held in Albuquerque, New Mexico, on May 25
and 26, 1965, before Trial Examiner John P. von Rohr. All parties were represented
by counsel and were afforded full opportunity to adduce evidence, to examine and
cross-examine witnesses, and to file briefs. Briefs have been received from the
General Counsel and the Respondent and they have been carefully considered.,
Upon the entire record in this case, and from my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New Mexico partnership with its principal office and place
of business located in Clovis, New Mexico, where it is engaged in electrical con-
tracting business. During the 12 months preceding the hearing herein, the Respond-
ent purchased goods and materials valued in excess of $50,000 from enterprises in
New Mexico, which enterprises received such goods and materials directly from
points outside of the State of New Mexico.
The Respondent concedes, and I find, that it is and has been engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Local Union Nos . 611 and 535 , International Brotherhood of Electrical Workers,
AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act.
HI. THE UNFAIR LABOR PRACTICES
The complaint alleges that employees James E. Douthit, Vences V. Jaramillo, and
Arnold Vaillancourt were discharged by the Respondent on January 7, 1965, in
violation of Section 8 (a) (1) and (3) of the Act because "[they] were members of
the Union and engaged in union activity or concerted activities for the purpose of
i On' August 11, 1965, the Respondent filed a motion to strike the General Counsel's
brief on the ground that it was "scurrilous" and that it indulged in "character assassina-
tion" of Respondent 's witnesses . I denied this motion with the statement that I would
not take into account the General Counsel 's characterizations of witnesses . Upon fur-
ther examination of the brief, I am impelled to state that there is some merit in Respond-
ent's complaint . While it is entirely proper for the General Counsel, or any other party,
to argue issues of credibility, I think that in this instance the General Counsel's representa-
tives went far beyond this point by repeatedly characterizing Respondent's witnesses with
such epithets as "liars," being "sadistic," and the like. As a representative of the Gov-
ernment, I think counsel exercised poor discretion by engaging In such unwarranted name
calling and other argument ad homiem.
STATE ELECTRIC COMPANY 507
collective bargaining or mutual aid and protection." , Denying any discrimination
against these employees, it is Respondent's assertion (as expressed in its brief)
that "[they] were fired for failing to work and produce as they should have and
were capable -of doing and repeatedly ignoring the instructions of the Company's
supervisors in regard thereto and thereby engaged in a deliberate slowdown of
their work for the purpose of trying to force the Company to give them additional'
overtime and double time hours...: '
A. Background
The Respondent is an electrical contractor with its headquarters located in Clovis,
New Mexico. Since 1957 it has had successive collective-bargaining agreements with
Local 535, IBEW, the local having jurisdiction in the Clovis, New Mexico, area. It
appears that the relationship between these parties have always been harmonious.
In 1963 the Respondent had occasion to work on jobs which were located under
the jurisdiction of Local 611, IBEW. Accordingly, on April 1, 1963, it signed a
letter of assent with Local 611 wherein it agreed to comply with the terms and con-
ditions of the labor agreement between the Central New Mexico Chapter, NECA,
Inc, and Local Union 611, IBEW.
About August 1964 the Respondent undertook the electrical work on a school
project in Los Alamos, New Mexico, this location being within the area jurisdiction
of Local 611. Pursuant to its agreement with the Union, Respondent staffed this
job with employees referred through the Local 611 hiring hall, this including Fore-
man Gene Springer. Springer, it may be noted , was brought to the job from the
jurisdictional area of Local 535. He was granted clearance by Local 611 to act
as foreman on the job.
In latter August or early September 1964, the Respondent became involved in
a series of disputes which continued through the duration of the job.2 This dispute
initiated when Local 611 received complaints from its member employees 8 that
Partner Bill Scott was working with tools on the job .4 John Milosevich, business
representative of Local 611, went to the job and complained to Scott about the matter,
declaring that Scott's working with tools was in violation of article III, section 5, of
the contract which provides that "not more than one (1) member of a firm
(Employer) shall be permitted to work with the tools and then only after two
journeymen are'employed." 5 Scott testified that he thereupon stopped working with
his tools. However, it is undisputed that he resumed this work again in the middle
of Septembers In the meantime , by letter dated September 11, 1964, the New
Mexico Chapter of the National Electrical Contractors Association notified the
Respondent that Local 611 had complained that it was operating in violation of
article III, section 26, of the contract 7 and requested the Respondent to be present
at a proposed joint conference. By letter dated September 15, 1965, the Respondent
in substance stated that it was not at fault and declined to attend the meeting.
On September 17, 1964, four members of Local 611 walked off the job. As
replacements for these men, Respondent on or about September 18 brought in
two employees from its Clovis area operations. These were Don Wilcher, a journey-
man, and David Sivage, an apprentice, both members of Local 535. It is undisputed
that within a day or two Foreman Gene Springer left the job and Sivage was
2 Respondent completed its subcontract on the Los Alamos job on January 25, 1965.
,8 With some fluctuation , there was an average of four to six employees working on the
job, exclusive of the foreman
A The Respondent Company initially was a sole proprietorship owned by Barney Locock.
Scott became a partner in the latter part of 1963.
5 Apparently the Union took the position that a foreman who worked with his tools
was a member of the firm As indicated hereinafter, there were other disputes between
the Respondent and the Union as to the interpretation of various provisions of the con-
tract. While such disagreements of themselves are relevant to the issues herein, I shall
not, since it is immaterial to the issues , attempt to resolve the validity of the positions
taken by either side concerning these matters.
8 Scott testified that he did so because "production wasn't going as well as it should be."
4 Section 26 provides in pertinent part as follows:
Any outside Electrical Contractor undertaking any work in the territory where this
Agreement applies will be permitted to bring in not more than one journeyman who
will work under the terms and conditions of this Agreement.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appointed foreman as his successor. (Sivage, who was aged 25, was still an apprentice
at the time of this appointment. There is, of coure, no question of Respondent's
right to select him as foreman.) By letter dated September 22, Union Business
Manager John Milosevich wrote the Respondent that Sivage, Wilcher, and two
other employees had not complied with the referral procedure of the Local 611
contract and demanded that these employees be terminated immediately. On Sep-
tember 30, Sivage and Wilcher, accompanied by Scott, reported to the union hall
in Albuquerque for the purpose of attempting to comply with the referral procedure.
On request of the union representative, Wilcher produced a journeyman's card.
Sivage was told that he was an apprentice. Before they could complete the forms
which they were instructed to fill out, they were told that the office was closed. They
appeared at the union hall about 2 weeks later, but were denied clearance on this
occasion also. Ultimately the Union (Local 611) fined Sivage and Wilcher $1,394.40,
plus an additional day's wages for every day they continued to work on the Los
Alamos projects The record discloses that Sivage filed an appeal of this action
on November 28, 1964.
B. The discharges
As has been indicated above, the job from almost its inception was fraught
with dispute between the Respondent and Local 611. Respondent stipulated, and
its witnesses conceded, that these disputes continued as long as members of Local
611 were employed on the project. Additional instances of more specific nature
will follow. But notwithstanding these difficulties, the Respondent and Local 611
continued to operate through the Union's hiring hall. A total of approximately 30
employees were referred to the job by Local 611 at one time or another. The alleged
discriminatees herein were among the last of such referrals. The dates of their
referral and hire are as follows: Arnold Vaillancourt, November 17; James Douthit,
December 2; and Vences Jaramillo, December 16, 1964.
Each of the above employees was hired as a journeyman, with Vaillancourt being
appointed as steward on the job. It is of importance to note that these employees,
all members of Local 611, were the only journeyman employees on the job at the
time of their discharge on January 7.
Before turning to the cases of these alleged discriminatees, some further back-
ground relative to the disputes between the Respondent and the Union is in order.
Thus, in addition to the Union's complaint with respect to Scott's working with
his tools, a further complaint of the Union was that Scott and Foreman Sivage
worked on the job nights, thus allegedly depriving the men of their share of over-
time.9 It is undisputed that Scott and Foreman Sivage did in fact work nights from
time to time. It was stipulated at the hearing (and was also revealed in the testimony)
that Union Representative Milosevich and the job steward quite frequently objected
to this procedure and that both voiced these objections to Scott and Sivage. While
the record does not disclose all the exact dates, it is undisputed that Milosevich paid
several visits to the job where he spoke to Scott and the foreman over this and other
alleged contract violations. On at least one such occasion, Milosevich's presence on
the job led to heated words between this union representative and Scott.
The disputes between the Union and the Respondent did not let up after the hire
of Vaillancourt, Douthit, and Jaramillo. Vaillancourt testified without contradiction
concerning a conversation he had with Scott on his first day on the job. Scott began
by stating that he was part owner of the Company and that he intended to work on
the punch list. Vaillancourt replied that he would be in violation of the contract
if he worked with his tools. Scott then asked if there would be a work stoppage if
he did. Vaillancourt replied that there would be no trouble. According to Vaillan-
court, he thereupon told Scott that "we had come up there to do a day's work for a
day's pay, we were going to do the best we could, and should at any time he feel
our work was unsatisfactory, or not up to standard, it was up to him to lay us off."
Vaillancourt testified without contradiction that at various times the men on the
job complained to him about Scott's and Sivage's working nights and that he spoke
to Sivage about this on a number of occasions. Vaillancourt's complaints to Sivage
not only alluded to the fact that Sivage and Scott were working with their tools, but
also to the fact that their working nights deprived the men of their share of overtime.
e The charges were initiated by Milosevich on September 22.
B Article %V, section 24, of the contract provides: "Overtime shall be impartially divided
11among the workmen on each job. The employer shall keep records available . . . .
STATE ELECTRIC COMPANY 509
Although Vaillancourt's complaints did not deter Sivage and Scott from continuing
to work nights,l° it did have the effect of the employees being granted some overtime.
Thus, Respondent's records disclose that Vaillancourt, Douthit, and Jaramillo were
given 11/2 hours' overtime on three occasions between December 8 and 22.
Vaillancourt also spoke to Milosevich about the men's grievances on the job, this
resulting in Milosevich's coming to the jobsite to protest these matters to Scott and
Sivage on three different occasions during Vaillancourt's employ. The last of these
visits, concerning more of which will be said later, occurred on December 8.
The three alleged discriminatees were discharged by Sivage in about the middle
of the afternoon on January 7. Vaillancourt testified that right after lunch on this
day Sivage came up and asked why he had asked "the carpenter" if he (Sivage) and
Scott had worked the night before, and that Sivage said, "Why didn't you ask me?"
Vaillancourt testified that he responded to Sivage with the statement, "All right,
Dave I'm asking you, did you work last night?" Sivage answered, "Yes, we did,"
and thereupon explained the work that had been done the night before. I credit
the foregoing testimony by Vaillancourt, which was unrefuted.
As to the discharge conversations, each of the alleged discriminatees testified that
he was broached individually by Sivage. Vaillancourt's credible testimony con-
cerning his discharge conversation with the foreman, which the foreman testified in
essence was correct, was as follows:
Mr. Sivage called for me and told me to come down off the scaffold. When
I came down, I saw he had some checks in his hand and also an envelope. I
walked up to him and he said, "Val, we're going to have to let you fellows go.
We're going to have to lay you fellows off, and if John '[Milosevich] wants to
know the reasons, you can tell him it's 611's fault." I said, "Just what do you
mean by this, Dave?" And he said, "Well, ever since John was up here on the
job, you fellows have been slowing the work down and trying to force me into,
double time ... Mr. Scott was standing right close by and he didn't enter into
the conversation at all. He didn't say anything." And I replied to that, "Dave,
you know this is not so. We have not been slowing down the work and trying.
to force you into overtime." And he asked me if I thought State Electric was.
trying to screw us. And I answered, "No. Bill Scott and Dave Sivage." 11
With respect to Douthit and Jaramillo, Sivage said that he spoke to these employees.
at the time and testified to this conversation as follows: 12
I gave them their two checks and told them they were fired on account of a
slow down. They were not working and were not following instructions. As
to whether they were doing this on their own or through the Union, I didn't
know, but there was a shutdown, they were trying to force us into double time
and overtime to keep from completing the job on schedule.
Douthit's testimony concerning his conversation with Sivage was substantially the
same as that of the foreman.13 Douthit testified additionally, however, that after
having been told of his discharge he proceeded to show Sivage the work he had been
1G This is not to say that Sivage and Scott worked every night, for apparently this was
done on an individual basis. The complaints referred to above arose when the men
reported in the morning and visibly observed that work had been performed after their
working hours of the day before.
n Scott testified that when Sivage told Vaillancourt of his discharge he overheard
Vaillancourt say to Sivage, "I'll admit, Dave, that we haven't been doing too good the
last couple of weeks, but our morale is real low ." Neither Sivage nor Vaillancourt so
testified. I do not credit this testimony by Scott.
'Although Sivage testified that he spoke to these two employees at the same time, I
credit the testimony of Douthit and Jaramillo to the effect that they were individually
broached and spoken to by the foreman. There is no doubt, however, that these con-
versations followed one another closely, for Jaramillo testified that Sivage was still speak-
ing to Douthi-t on the floor below at the point when Sivage told him to come down from
the ladder. Jaramillo said that Sivage spoke to him after he had descended.
Is Douthit was not quite forthright about his conversation with Sivage and needed some
prodding before conceding everything that was said to him by Sivage. Additionally, in
his prehearing affidavit, Douthit stated that Sivage told him as follows: "On account of
the discontent and hard feelings, because we have been working overtime, I am letting
you guys go. There has been a slowdown in production and we have a deadline to meet."
As to the last sentence, I accept this as having been stated by Sivage to Douthit during
this conversation
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doing. According to Douthit's uncontradicted testimony, Sivage at this time remarked
that he had "lost his ticket" and that "most of the shops were going non-union." 14
Concerning his conversation with Sivage, Jaramillo testified that Sivage began by
telling him that "this is no reflection on the quality or quantity of your' work" and
that Sivage then went on to say that he was being discharged because of the attitude
of his union "toward us working nights." Although Sivage denied making any
statement to Jaramillo to the effect that his discharge was no reflection on the quality
or quantity of his work, I credit'Jaramillo's testimony that this statement was made
to him by the foreman. Jaramillo impressed me as an honest witness. Notwith-
standing vigorous cross-examination, he was very positive about this statement having
been made. From my observation of this witness, I am convinced that he was
telling the truth.15
Turning to events subsequent to the discharge of these employees in January 7,
it is undisputed that Respondent thereafter did not call Local 611 for additional
men. The job was completed on January 25. The remaining work was performed
by Sivage, Scott, and two other members of Local 535, Combs and Wilcher.16 In
addition, two other employees, also members of Local 535, were called in to work
on weekends. They worked 20 hours each during the three weekends prior to the
job completion. '
'B. The defense
Asserting that Vaillancourt, Douthit, and Jaramillo were not performing the work
they were capable of doing, the Respondent charges that these employees engaged
in a deliberate slowdown for the purpose of forcing the Company to give them over-
time. Foreman Sivage testified that it was his decision to discharge these employees
and that he discharged them for the reason thus stated. I turn to a consideration of
Sivage's testimony.17
In giving his account of the discharges , Sivage preliminarily testified to an incident
which occurred on December 8, this involving a visit to the job by'John Milosevich,
the union business manager. With reference to this occasion, Scott testified first that
he had worked late on the night of December 7 experimenting with the uni-struts in
the high bay of the gym area. Scott testified that on the following morning,
December 8, Vaillancourt asked "who had done the work the night before" and
that he replied that he did. In the' afternoon of the same day Milosevich came
to the job and spoke to Sivage and Scott about the matter. According to the credited
and unrefuted testimony of Sivage, Milosevich at this time made the statement, "as
long as Bill '[Scott] was working on the job, and I was working overtime nights, that
there would be trouble on the job." 18 .1 1
Having testified concerning this incident, Sivage proceeded to say, "From the
date of December 7th there was a slowdown "in my estimation on the job. By slow-
down, I mean there was not as much work being accomplished as there was the day
before. Less ... it became less and less each day."
Upon completion of the above testimony, Sivage was next asked to cite instances
in support of his statement that the men thereafter engaged in a slowdown. In
evaluating Sivage's testimony on this subject, it is significant to note here that Sivage's
first response to this question was to state that "one day in particular ... I did notice
they took five coffee breaks." The date of this occurrence was established as Decem-
14 It appears that about this time Vaillancourt " entered the room and some further dis-
cussion ensued . However , this need not be detailed here since it has no bearing on the
issue one way or the other.
19 Jaramillo was a relatively new employee on the job, having been employed only since
December 15, this just some 3 weeks prior to his discharge.
19 Combs and Wilcher had previously worked on the Los Alamos job. While the record
is not clear on this point , it appears that they were recalled about this time. Sivage,
Combs, and Wilcher were all paid on a straight salary basis while the job was being
completed.
17 Respondent also points to the fact, which is not disputed, that the deadline for the
job was approximately January 25 I have taken this into account in assessing Respond-
ent's defense
IBA notation of this incident was made by Sivage in his daily construction report.
Thus, in his report of December 8, Sivage made the following notation:
John Milosevich was on the job today-Vaillancourt , of 611, called John as to my
working last night . John told Bill Scott that we would have trouble all through the
job as long as we kept the attitude we have; and keep putting these little (blank)
deals.
STATE ELECTRIC COMPANY 511
her 16.19 Sivage said that as a result of this occurrence he asked the employees
"to close it down to a day or two." Asked if they complied, Sivage testified, "In
my presence they did. Sometimes I would walk in on them unexpected and catch
them drinking, as to whether they had one before that, I don't know." Vaillan-
court, who was called on rebuttal concerning the matter of coffee breaks, testified
that he and the men normally took two coffee breaks per day, but that "quite
often they [the employees] would have their thermos bottles in the area where
they were working, as Mr. Sivage did, and if they were in a position where they
could pour a cup of coffee, or a little bit of coffee in a cup and drink it while they
were working, sometimes they did this." Vaillancourt also testified that it was not
uncommon for Sivage to come to the area where the men were working and invite
them to join him in coffee. On several such occasions he was working with Douthit
on a scaffold. Although in some such instances he advised Sivage that they already
had their coffee break, Sivage would say, "Come down and have another one."
Vaillancourt further testified that on the occasion of his birthday,. December 23,
Sivage came up while he, Douthit, and Jaramillo were hanging fixtures and invited
them to a nearby cafe for coffee. This they did.20 While I do not wish to unduly
lengthen this report, the testimony with respect to the coffee breaks is significant and
I have recited it in some detail because Sivage's reference to the five coffee breaks
taken by the men on December 16 was the first specific instance as well as one of
the few, cited by him in support of his assertion that the employees were discharged
for having engaged in a slowdown. In fact, the only other testimony given by Sivage
in support of this assertion is best set forth by quoting his testimony as it thus appears
in the record:
Well, there was a continuous-any type of work that they were assigned to do,
when they gathered the material for it they would gather a third or half enough
and they'd have to make another trip back to the van to get more material each
time. There was one instance when I told Jaramillo to cut up six pieces of
angle iron to strip-strap some instrut with, which he'd just cut one.and when
ever they needed it they would end up with two men waiting on the other one
to cut a piece of angle iron. On hanging these light fixtures, Vaillancourt and
Jim [Douthit] told me one afternoon that if they had another man working
with them it would pick up, it would help, and I assigned Jaramillo with them
and there was no apparent change in the speed of it.
In addition to the foregoing, Respondent introduced into evidence certain con-
struction reports, two of which have already been alluded to in preceding footnotes.
These reports appear to have been made on a- daily basis and reflect the amount and
type of work performed each day on the job. The form of the report also provides
a space for "Remarks." Of the reports introduced, and in addition to those previ-
ously set forth, those that may be considered relevant reflect the following: On
December 18 Sivage noted, "The men seem to work hard for the first time in a
week or so"; and on January 4, Sivage made the notation, "I strongly believe that
Vaill, Jim and Vences are trying to force the job into overtime. By doing very little
work." 21
19 Sivage made the following notation on a construction report dated December 16:
The men have come to a stop they are staying busy but are not getting any work
done. Today they took five (5) coffee breaks; - - '
m Vaillancourt's testimony as above set forth is undenied. ' In accepting it as a state-
ment of fact, which I do, I do so for the further reason' that Vaillancourt impressed me
as an honest and forthright witness.
a The Respondent also introduced a construction report which on its face bears the
date of November 7, 1964. At the point' of its introduction, Sivage was on the stand.
The General Counsel objected to the relevancy of this report on the ground that Douthit
and Jaramillo were not then employed. Sivage then examined the records further, where-
upon the testified that the date of November 7 was a mistake, that in reality the report
should bear' the date of December 7. However, since Sivage'offered no explanation as to
how he arrived at his conclusion that the date was in error , I am quite dubious of Sivage's
testimony in this regard and am inclined to view the date reflected on the document itself
as the best evidence of the date on which if purportedly was made. However, even should
I accept Sivage's testimony as to the date,, this would not, affect my ultimate conclusions
herein. This report, it may be noted, stated: "The"men don't seem to work at getting
anything done. I have to spend'too much Jtime checking on them."
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I turn now to the testimony of Billy Scott, the partner. It may be noted prelimi-
narily that Scott did not devote his full time to the Los Alamos job. Indeed, Scott
testified that he did not work on the job from December 18 until January 3 except
to bring tools and materials to the job. Additionally, so far as the supervision of the
men on the job and the layout of their work were concerned, Scott testified, "We
leave that up to the foreman on the job."
Scott testified that production on the job "got worse" after Milosevich's visit to
the job on December 7. It is difficult to see where this could apply to the production
of Jaramillo, for Scott testified, when asked to relate his observation of the work of
Douthit, Jaramillo, and Vaillancourt, that, "when they first came to the job, the first
few days or first week, [they] worked good." Jaramillo, it will be recalled, was not
employed by the Respondent until December 17. In any event, Scott's further testi-
mony concerning his observation of the alleged discriminatees was as follows: He
said that in latter February and early January, Jaramillo and Scott worked together
on a job involving the installation of conduit in the basement. Scott testified that in
his opinion it took these men twice as long to complete this work as it would the
average journeyman. He recollected another occasion where he witnessed Vaillan-
court installing pipe. According to Scott, it took Vaillancourt 51/2 hours to perform
the job, whereas he ventured a journeyman would normally complete the job in 2
hours. Scott also referred to a job which entailed the hanging of fixtures. Scott
testified that the men engaged in an excessive amount of time on this job, that he and
the foreman could have done it "at least half again as fast."
With respect to the foregoing, Scott testified that he discussed the matter with the
foreman "as to what we thought we could do to bring more production out of them
if possible, or as to what should be done if we couldn't bring more production out of
them." When queried as to how many times he discussed this matter with Sivage,
Scott answered , "I would say hundreds of times." I do not credit this latter testi-
mony by Scott. The offhand manner in which Scott responded to this question,
as I observed it, typified much of his other testimony. From my observation, Scott
generally did not impress me as a reliable witness.
C. Additional facts; concluding findings
Upon a consideration of all the evidence, it is my conclusion that the testimony
offered by the Respondent falls far short in establishing that Vaillancourt, Jaramillo,
and Douthit engaged in a slowdown. 22 As indicated in the preceding section, the
testimony offered by Sivage and Scott in support of this assertion, including Sivage's
notations on the construction report, are largely of a conclusionary nature. As to
anything that may be considered specific, it is significant that in his testimony Sivage
first referred to an occasion on December 15 when the employees allegedly took five
coffee breaks. Assuming this did occur, and whatever Sivage may have thought of
it at the time, it is clear from Vaillancourt's credited and unrefuted testimony that
Sivage condoned this conduct, or at least at this time no longer bore it against these
employees, by thereafter himself inviting the men for other-than-regular coffee
breaks during working hours. As to Sivage's assertion that the men took unnecessary
trips to get material from the van, this testimony is also lacking in probative value
since it was of a generalized nature and was not accompanied by any pertinent detail
or other relative comparison; and whatever the situation was with respect to the inci-
dent of Jaramillo's cutting six pieces of angle iron, Sivage's reference thereto appears
to be hardly more than an afterthought and certainly is not indicative of a general
slowdown by all three of these employees. Aside from the foregoing, the testimony
of Sivage and Scott concerning an alleged slowdown is substantially controverted by
another facet of the testimony. Thus, each of the alleged discriminatees credibly
testified that he had never received a reprimand or warning of any kind while
employed by the Respondent. Indeed, Sivage conceded that he had never warned
the men for any alleged work deficiency, either as to the quality of their work or the
a In assessing Respondent 's defense in this regard , I am mindful that Milosevich con-
ceded that early in the job, and thereafter , Respondent complained to him that some
employees referred by the Union were not putting in a full day's work. I am also mind-
ful that between September 30 and December 9, Respondent terminated five employees
(James Williams, Melvin Nelson , Ernest Castillo , William Elam , and Eli Omar ) either be-
cause of poor work performance or because of insufficient work output . However, each
of these were individual cases. These employees were not charged , as were Vaillancourt,
Douthit, and Jaramillo , with having engaged in a collective and deliberate slowdown.
STATE ELECTRIC COMPANY 513
quantity of their output.H If the work performance of these employees was at all
as unsatisfactory as generally testified to by Sivage and Scott, surely it would be
reasonable to assume that these supervisors would have manifested some overt dis-
satisfaction to these employees while they were still on the job.
Finally, Vaillancourt, Douthit, and Jaramillo impressed me as intelligent indi-
viduals. While I am inclined to credit the testimony of each of these employees
to the effect that they put forth their best efforts on the job and that they did not
engage in a slowdown, I specifically credit the statement of Vaillancourt who testi-
fied, "I tried my best to do the best day's work I knew how every day that I was
on the job." 24
Although I reject Respondent's assertion that the employees engaged in a slow-
down and were discharged for that reason, the burden remains on the General Coun-
sel to establish that the discharges were motivated by reasons proscribed by the Act.
As indicated below, I am persuaded that this burden has been met.
Upon a consideration of all the evidence, there stands out only one plausible expla-
nation for the precipitous discharge of the three employees on Thursday afternoon,
January 7. This, I find, was the incident of Sivage's conversation with Vaillancourt,
just 2 hours prior to the discharges, over the latter's having asked a carpenter on the
job if he (Sivage) and Scott had worked the night before. It is unrefuted that during
this conversation Vaillancourt again queried Sivage, as he had in the past, if Sivage
had worked the preceding evening. In view of the longstanding dispute between the
Respondent and the Union concerning this very subject, I have no doubt that Sivage
construed this as another in a series of protests by the Union that the men thus were
being deprived of their share of overtime under the contract. As heretofore noted,
it is unrefuted that Vaillancourt himself, since coming to the job as union steward,
had complained to Sivage about this matter on a number of prior occasions. That
Sivage was vexed by Vaillancourt's activity in this respect is evidenced by the fact
that it was he who came up to Vaillancourt on January 7, this after having learned
that, earlier in the day, Vaillancourt had checked with a carpenter concerning this
touchy subject of Respondent's dispute with the Union. Insofar as the Respondent
was concerned, I am convinced and find that this was the straw that broke the camel's
back and that as such it was the motivating factor for the discharge of the three
employees.25 The privilege of an employee to present a grievance to his employer,
or to speak for his fellow employees concerning a condition of their employment,
falls within the protected ambit of concerted activities as defined in Section 7 of
the Act 26 Whether his views on the subject are correct is irrelevant to the question
of whether the employees are engaged in protected concerted activities.27 Accord-
ingly, by discharging Vaillancourt for engaging in activity protected by the Act, I
find that Respondent thereby violated Section 8(a)(1) and (3) of the Act. Since
Vaillancourt clearly was also acting on behalf of Douthit and Jaramillo, the only
other Local 611 employees then on the job, I find that Respondent's discharge of these
latter two employees also constituted unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth in section III, above, occur-
ring in connection with the operations of the Respondent described in section I,
x' When asked if he had ever criticized these employees prior to their termination,
Sivage responded, "As far as direct criticism to them, there wouldn't be. I told them
to do, maybe fittings they had, or material, or various things that they were taking too
much time doing their work that they were capable of doing." [Emphasis supplied.]
While the latter part of this testimony is ambiguous, whatever Sivage meant by it, I am
satisfied, as the employees credibly testified, that they were never warned or criticized
by Sivage prior to their being discharged. Indeed, Jaramillo and Vaillancourt testified
without contradiction that they had been complimented by Scott for "installing the
straightest row of fixtures he had ever seen."
u Also belying the allegation of a slowdown is Jaramillo's credited testimony that
Sivage told him, at the time of his discharge, that the discharge was no reflection on his
work.
as Significantly, neither Sivage nor Scott could point to any work deficiency whatsoever
on the part of any of these employees on the day of the discharges.
28 (hbbs Corporation, 124 NLRB 1320; H. Muehlstein & Co., Inc., 118 NLRB 268.
27 Mushroom Transportation Co., Inc., 142 NLRB 1150.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to . lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act. I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent discriminated against Arnold Vaillancourt, James
E. Douthit, and Vences V. Jaramillo by discharging them, I shall recommend that
Respondent make them whole for any loss of earnings suffered by reasons of the
discrimination against them. In making them whole the Respondent shall pay to
them a sum of money equal to that which they would have earned as wages from the
date of such discrimination until the completion of the Los Alamos project, less their
net earnings during such'period. The backpay is to be computed on a quarterly
basis in' the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB
289, with interest thereon at 6 percent per annum as provided by the formula adopted
in Isis Plumbing & Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. The Unions are labor organizations within the meaning of Section 2(5) of
the Act.
3. By discriminating in regard to the tenure of employment of Arnold Vaillan-
court, James E. Douthit, and Vences V. Jaramillo, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(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.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in this case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the Respondent, State Electric Company,
its officers , agents, successors, and assigns , shall:
1. Cease and desist from discouraging membership of any of its employees in
International Brotherhood of Electrical Workers, Local Union No. 611, AFL-CIO,
or in any other labor organization of its employees, by discharging or in any other
manner discriminating against any individual in regard to hire, tenure of employ-
ment, or any term or condition of employment.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Make whole Arnold Vaillancourt, James E. Douthit, and Vences V. Jaramillo
for any loss of pay suffered by reason of the discrimination against them in accord-
ance with the methods set forth above in the section titled "The Remedy."
(b) Preserve and, upon request, make available to the Board and'its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
determine the amount of backpay due under the terms of this Recommended Order.
(c) Post at its place of business in Clovis, New Mexico, copies of the attached
notice marked "Appendix." 28 Copies of said notice, to be furnished by the Regional
Director for Region 28, shall, after being duly signed by Respondent's representa-
tives, be posted by the Respondent immediately upon receipt thereof, and be main-
tained by it for a period of 60 consecutive days thereafter, in conspicuous places,
2e If this Recommended Order Is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
in the notice In the further event that the Board's Order be enforced by it decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order 11
C.H.D. POOL EQUIPMENT, INC. 515
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.
(d) Notify the said Regional Director, in writing, within 20 days from the date of
the receipt of this Decision , what steps the Respondent has taken to comply
herewith.29
2D In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10, days from
the date of this Order what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended, we hereby notify our employees that:
WE WILL NOT interfere with , restrain , or coerce employees in the exercise
of their rights to engage in concerted activities for their mutual aid and pro-
tection , by discriminating in regard to their hire, tenure of employment, or any
term or condition of employment.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of their right to engage in, or refrain from engaging
in, any or all the activities specified in Section 7 of the Act.
WE WILL make whole Arnold Vaillancourt , James E. Douthit, and Vences V.
Jaramillo for any loss of pay suffered as a result of the discrimination against
them.
STATE ELECTRIC COMPANY,
Employer.
Dated------ ------------- By-------------------------------------------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office , 1015 Tijeras
Street NW., Albuquerque, New Mexico, Telephone No. 247-2505.
C.H.D. Pool Equipment, Inc. and International Brotherhood of
Electrical Workers, AFL-CIO, Local Union No. 1710. Case No.
?1-CA-6400. March 9,1966
DECISION AND ORDER
On November 9, 1965, Trial Examiner George L. Powell issued his
Decision in the above-entitled proceeding, finding that 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 attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
157 NLRB No. 48.
221-374-66-vol. 157-34