Triton Construction Co.

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 376 (N.L.R.B. 1971)

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Triton Construction Company and Kenneth E. Ratts . APPENDIX
Case 12-CA-4942
June 21, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND BROWN
On March 2, 1971, Trial Examiner Samuel Ross
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was engag-
ing in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter Re-
spondent filed exceptions to the Decision and a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed.' The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the brief, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Triton Construction Company, Brooksville, Florida,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order, as modified below.
Substitute the attached notice for the Trial Ex-
aminer's notice.
' Contrary to the Respondent's contention, we find that the Trial Exam-
iner did not err in taking judicial notice of the prior Board proceeding in
Triton Construction Company, Case 12-CA-4728 Paramount Cap Manu-
facturing Company v. N.L.R.B., 260 F 2d 109, 113 (C.A. 8), N.L R.B. v.
Reed & Prince Manufacturing Company, 205 F 2d 131, 139-140 (C A. 1)
Although the Trial Examiner herein made no reference to the finding of the
Trial Examiner in the prior case that Jerry Clayton was present at a union
organization meeting in December 1969, there was no finding in that case,
nor is there any evidence in this case, that the Respondent or any of its
agents knew about Clayton's attendance at the meeting or that Clayton
engaged in any other union activity.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
present their evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice
and we intend to carry out the order of the Board.
The' Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT discourage union activity or
membership in International Union of Operating
Engineers, Local 925, AFL-CIO, or any other
labor organization by discriminating against you if
you choose to engage in union activity or join that
Union or any other union.
Since the Board decided that we discriminated
against Kenneth E. Ratts to discourage union ac-
tivities, WE WILL offer him full reinstatement to
his former job, and WE WILL pay him for any loss
he suffered because we fired him.
WE WILL respect your rights to self-organiza-
tion, to form, join or assist any labor organization,
or to bargain collectively in respect to terms or
conditions of employment through the Union
named above, or any representative of your choice,
or to refrain from such activity, and WE WILL
NOT interfere with, restrain, or coerce our em-
ployees in the exercise of these rights.
You and all our employees are free to become mem-
bers of any labor organization, or to refrain from doing
so.
TRITON
CONSTRUCTION
COMPANY
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named in-
dividual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
191 NLRB No. 76
TRITON CONSTRUCTION CO. 377
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Room 706, Federal Office Building, 500 Zack
Street, Tampa, Florida 33602, Telephone 813-228-
7227.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner: Upon a charge filed by
Kenneth E. Ratts, an individual, on August 27, 1970, the
General Counsel of the National Labor Relations Board is-
sued a complaint on October 30, 1970, which alleges that
Triton Construction Company (herein called Respondent or
the Company), had engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act. More specifically, the com-
plaint alleges that on or about April 1, 1970, the Respondent
terminated the employment of the Charging Party, Kenneth
E. Ratts, and thereafter failed and refused to reemploy him
because of his membership in and assistance to International
Union of Operating Engineers, Local 925, AFL-CIO (herein
called the Union). The Respondent filed an answer to the
complaint which denies that the Company is engaged in com-
merce within the meaning of the Act, and denies the substan-
tive allegations of the complaint.
Pursuant to due notice, a hearing on the complaint was
conducted before me at Tampa, Florida, on December 17,
1970. Upon the entire record and my observation of the
witnesses and their demeanor, and after due consideration of
the brief filed by the Respondent, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent is a Florida corporation whose principal
office is located at Brooksville, Florida, Until on or about
April 3, 1970, when Ratts' employment by Respondent ad-
mittedly was terminated, the Company was engaged in two
businesses, to wit: the development of real estate; and the
strip mining, processing, and sale of limestone rock and
products. On or about April 1, 1970, the Respondent sold
some of its strip mining equipment and ceased engaging in the
mining and sale of limestone rock and products as a separate
business. However, it continued thereafter, albeit at a reduced
scale of operations, to strip mine and process limestone rock
as a part of its real estate improvement and development
business.
As noted above, the Respondent denies that its operations
"during the 12 month period material herein" affect com-
merce within the meaning of the Act. The gravamen of the
instant unfair labor practice complaint is the termination of
Ratts' employment by Respondent. That termination undis-
putedly occurred on or about the date when Respondent sold
its strip mining equipment, and thus, "the 12 month period
material herein" clearly is that which preceded that date.
Prior to that sale and Ratts' termination, the Respondent's
operations concededly met the Board's standards for the as-
sertion of jurisdiction over, it. Thus, on July 9, 1968, in Case
12-RC-3112, the Respondent executed a stipulation for cer-
tification upon consent election, in which it stipulated that
"during the last 12 months," it had purchased goods and
materials valued in excess of $50,000 from points outside the
State of Florida, or from suppliers who had received the
goods and materials from without the State.' In addition, in
a prior unfair labor practice case against Respondent,' its
answer filed on March 26, 1970, admitted the complaint's
allegation of interstate purchases in excess of $50,000, and
further admitted that it was "an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act."'
The foregoing establishes, at least prima facie, that at the
times material herein, or in other words during Ratts' em-
ployment by it, the Respondent was engaged in commerce
within the meaning of the Act.
According to the Respondent's president, Charles M.
Sasser, Jr., since the sale of the strip mining machinery, the
Company's purchases of goods and materials from outside
the State of Florida have been less than previously. However,
Sasser's testimony did not disclose the amount of Respond-
ent's current interstate purchases, and no records were pro-
duced to show either the extent of the reduction in such
purchases, or that the Respondent's operations no longer
meet the Board's standards for the assertion of jurisdiction.
Accordingly, in the light of the Respondent's prior stipula-
tion and admission, and the absence of probative evidence to
the contrary, I find that, at the times material herein, the
Respondent was engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act, and I further find that the assertion ofjurisdic-
tion in this case would effectuate the purposes of the Act.4
II. THE LABOR ORGANIZATION INVOLVED
At all times material herein, International Union of Oper-
ating Engineers, Local 925, AFL-CIO (herein called the
Union), has been and is a labor organization within the mean-
ing of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background
In the operation of its business, the Respondent has per-
formed strip mining operations at a number of quarry sites.
In this connection , it utilized various types of machinery and
equipment,' and employed operators to run them . Among the
quarry sites which the Respondent operated was one at Her-
nando Beach, Florida.
In July 1968, the Seafarers' International Union of North
America, AFL-CIO, filed a petition with the Board to be
certified as the collective -bargaining representative of Re-
spondent's production and maintenance employees at its Her-
nando Beach operation.6 However it was badly defeated at the
See G.C. Exh. 4.
: Triton Construction Company and James E. Crosby, an Individual,
Case 12-CA-4728.
' See G.C. Exhs . 2(a) and 2(b)
4 Even assuming, arguendo, that the Respondent had produced probative
testimony that its current operations did not meet the Board's self-imposed
jurisdictional commerce standards, since Respondent admittedly met those
standards when Ratts' termination (the alleged unfair labor practice) oc-
curred, I would still regard the assertion of jurisdiction as required in order
to effectuate the Act's policies. Cf Eugen Pedersen v. N.L R.R., 234 F 2d
417 (C A. 2)
3 The said equipment included machines known as Northwest 95 drag-
lines, front end loaders , crushers , and scale houses.
6 Case 12-RC-3112.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board election held on August 1, 1969.' The Charging Party,
Kenneth E. Ratts, was an observer for the Seafarers in that
election.
A second attempt to organize the Respondent's Hernando
Beach employees began on or about December 10, 1969. On
that occasion Ratts and two other of Respondent's employees
met by prearrangement with a representative of Local 925 of
the Operating Engineers, signed authorization cards desig-
nating that Union as their collective-bargaining agent, and
received 'a supply of authorization cards from the Union for
distribution among the Respondent's other employees at Her-
nando Beach. Following that meeting, Ratts and James E.
Crosby, another participant in the meeting with the Union's
representative, distributed the Union's authorization cards to
Respondent's Hernando Beach employees.
According to the Decision in the prior unfair labor practice
case against Respondent,' the Company effectively countered
the renewed attempt at union organization by threats to dis-
charge employees who distributed authorization cards and to
shut down the job if it "went union," and by peremptorily
discharging Crosby because of his activity in support of the
Union. In his Decision, the Trial Examiner further found that
the Respondent's president, Sasser, had prepared a final pay-
check for the termination of Ratts' employment because of
his union activities, but had been talked out of doing so by
Foreman Whitman who had told Sasser "he believed he could
talk Ratts out of the Union and get Ratts to forget it."
B. The Termination of Ratt's
Employment by Respondent
Before the termination of his employment on April 3,
1970,9 Ratts had worked 4 years for the Respondent as an
operator of a dragline machine known as a Northwest 95.
About 90 percent of Ratts' work consisted of digging and
stripping limestone rock at' Respondent's quarries and job-
sites. In 1968 and 1969, Ratts worked at Respondent's Her-
nando Beach operation under the supervision of James Whit-
man, Respondent's pit foreman at that site. In March 1970,
after the issuance of the Board's complaint in the prior unfair
labor practice case but before the hearing, Ratts was trans-
ferred to Respondent's Leisure Beach operation at Hudson,
Florida, where he thereafter continued to work as an operator
of a Northwest 95 dragline.10 Ratts' supervisor at Leisure
Beach was Respondent's general superintendent, Billy J. Lo-
gan. Both Logan and Respondent's president , Sasser, admit-
tedly regarded Ratts as "one of the best lime rock men in the
pit" in respect to production, and Ratts also concededly was
one of their "oldest" men in terms of length of service with
Respondent.
On or about April 1, in connection with a decision to go
out of the business of mining limestone rock for resale, the
Respondent sold to W. L. Cobb Construction Company some
machinery and equipment which it used in that business at
' According to the Board's administrative records, there were 28 eligible
voters, of which 6 voted for the Seafarers' Union, 17 voted against, and there
were 4 challenges.
8 See fn 2, supra. The Decision of Trial Examiner Paul E. Weil issued
on July 17, 1970. No exceptions thereto were filed by the Respondent and
it was adopted by the Board in an unpublished order dated September 4,
1970. The record in that case discloses that the Respondent called no
witnesses and adduced no testimony to controvert that on which the Trial
Examiner based his findings and decision.
9 All dates hereinafter refer to 1970 unless otherwise noted. Although the
complaint alleges "about April 1" as the date of Ratts' termination, the
record discloses the correct date to be April 3.
to There is no allegation or contention that Ratts' transfer to Leisure
Beach was motivated by antiunion considerations.
Hernando Beach." The equipment thus sold to Cobb in-
cluded the Respondent's Northwest 95 dragline at Hernando
Beach operated by employee Jerry F. Clayton. Because of the
sale of that machine to Cobb, the Respondent had one more
dragline operator in its employ than it needed. On the other
hand (according to Sasser and Logan), Cobb assertedly
needed an operator for the newly acquired Northwest 95
dragline, and had asked Sasser "for any good men that you've
got to come with it because we don't have anybody to operate
On or about April 3, Foreman James Whitman told Jerry
F. Clayton that Superintendent Logan wanted to know
whether he preferred to go with his dragline machine and
work for Cobb, or whether he preferred to transfer to a like
job for Respondent at its Leisure Beach operation. Clayton
replied that he preferred transferring to employment by Cobb
because "I knew everybody over there at Cobb's," and I
didn't have a way to go to Leisure Beach." However, later
that day at or about 5:45 p.m., Clayton was notified by Fore-
man Whitman that Logan had decided to transfer Clayton to
Leisure Beach where he would operate Ratts' machine, that
Clayton could either accept that transfer or be out of a job,
and that Ratts was going to work for Cobb as the operator
of Clayton's dragline machine which Cobb had'purchased.
That same day, Clayton delivered his Northwest 95 dragline
to Cobb."
At or about 4:30 that same afternoon, Superintendent Lo-
gan called Ratts "off of" his dragline machine at Leisure
Beach and told him that "as of 5 o'clock this evening, I
[Ratts] was working for W. L. Cobb." Ratts replied that he
"wasn't crazy about working for Cobb," and that he "would
rather stay where I was at." Logan then told Ratts that he
had promised Cobb that "he would send them the best opera-
tor he had with the machine," and that Ratts would make
more money working for Cobb. Ratts then said that he
"would rather not go," that he "would rather stay where I
was at," but that since he "liked Bill Logan," and since "he
[had] promised I would go try it.1115
At that time, the Respondent had in its employ at Her-
nando Beach a maintenance man by the name of Paul Rosser.
According to Rosser's credited testimony, on the evening of
Friday, April 3, when "the machinery went over to W. L.
Cobb," he overheard a conversation in the shop at Hernando
Beach between Foreman Whitman and a person whom
Rosser could not identify, in which Whitman said that he had
been told by Logan that Ratts was being sent to work for
W. L. Cobb, and Clayton was being transferred to take over
Ratts' job at Hudson (Leisure Beach) "because it was their
best change to get rid of Mr. Ratts."is
11 As previously noted under sec. I, supra, the Respondent continues to
strip mine and process limestone rock for its own use in the business of
improving and developing real estate.
The Cobb Company was then engaged in similar strip mining operations
at a quarry "across the road" from Respondent's Hernando Beach pit.
" The quotes above are from Sasser's testimony. Logan testified in this
regard that Charles Hope, the general pit superintendent of Cobb, told him
that "he would like to have a man that was familiar with the equipment"
whom Logan "did not need "
13 As previously noted, Cobb's quarry site was located at Hernando
Beach just across the road from Respondent 's pit where Clayton then
worked.
11 The findings in the foregoing paragraph are based on Clayton's cred-
ited testimony which was not controverted by Respondent, notwithstanding
that Whitman testified in its behalf.
11 The findings above are based on Ratt's credited testimony. Logan's
version of this conversation was substantially to the same effect.
,s Whitman did not deny making the statement as quoted above, but he
testified that he did not remember, either saying "that this was the time to
get rid of Ratts," or being so told by Logan. Based on my observation of both
TRITON CONSTRUCTION CO. 379
C. Ratts' Brief Employment by Cobb
That same evening of April 3, Ratts "checked in with
Cobb" and was told to report for work the following morning
which was Saturday, April 4. Ratts reported as directed and
worked 10 hours operating the dragline which Cobb had
purchased from Respondent. He resumed work the following
Monday morning and worked for 4 hours when he was told
by Cobb's foreman that the superintendent wanted to talk to
him. Ratts shut down the machine and went to Cobb's office
where he was told by the superintendent that he handled the
machine capably, but that Cobb would not need Ratts' ser-
vices for 30 days. Ratts asked the superintendent why he was
not needed, and he was told that Cobb "didn't have any work
for the machine to do." Accordingly, Ratts "closed the ma-
chine up and boomed it down."
Later that day, Ratts had occasion to drive by-Cobb's
jobsite and observed that "the boom was in the air and the
machine was working." Since that day, Cobb has never re-
called Ratts to work for it.
D. The Respondent's Refusal To Reemploy Ratts
On Monday, April 6, after Ratts left the Cobb jobsite, he
drove to Leisure Beach to see Respondent 's superintendent,
Logan. Ratts then observed that Clayton was operating the
Northwest 95 dragline machine which Ratts had formerly
operated. Ratts then told Logan what had transpired at
Cobb's jobsite, and that he "was ready to come back." Logan
replied that he was sorry, but that he had "nothing open.""
Ratts then obtained other temporary employment.
In the latter part of May, Ratts heard that Respondent
needed a dragline operator and he drove to several of its
jobsites looking for Logan in order to apply for the job. Ratts
finally found Logan at Hernando Beach and told him that he
had heard there was a vacancy for a dragline operator. Ac-
cording to Ratts' credited testimony, Logan acknowledged
that he had a vacancy on a Northwest 95 dragline at Re-
spondent's Ridge Manor project." It was then Monday, and
Logan told Ratts that the job would start 3 days later on the
following Thursday, and that he would send someone by
Ratts' house to let him know. Thursday came and went but
Ratts received no notification to report for work. Conse-
quently, since Ratts expected the notification to come from
Whitman, whose route home required him to pass Ratts'
residence, Ratts visited Whitman the following evening and
asked him if he had received any word regarding Ratts' reem-
ployment. Whitman replied that he had not heard anything
about it.
The Respondent never thereafter offered Ratts reemploy-
ment, notwithstanding that it admittedly hired two operators
for Northwest 95 dragline machines, both after Ratts' termi-
nation and his repeated applications for reemployment. The
record in respect to the Respondent's subsequent hiring of
dragline operators discloses as follows:
On June 18 , the Respondent's foreman, George M. Bowen,
hired W. C. Lancaster to operate a Northwest 95 dragline at
the Company's Ridge Manor project. According to the cred-
ited testimony of Bowen, the vacancy for which Lancaster
Rosser and Whitman , and their demeanor while testifying , I credit Rosser,
and I do not credit Whitman's lack of remembrance.
The findings above are based on Ratts' credited testimony . Logan's
version of Ratts' application for reemployment was substantially the same,
except that , according to Logan, the first such application occurred about
May 1 or 2. I regard Ratts' testimony in this regard as more reliable than
Logan's, especially since the latter admitted an inability to recall the precise
date.
18 Ratts had previously worked for Respondent at that project under
Respondent's foreman , George M. Bowen
was hired had existed since "around the middle of May,"
"when- the other operator left," and Superintendent Logan
knew of the vacancy throughout its existence . Before he hired
Lancaster, Bowen had told Logan that he thought he could
get Lancaster, a former employee of Respondent, to come
back, and Logan replied that Lancaster might "not stay," but
"if he stays a while that will help us out that much." Lancas-
ter had not applied to Respondent for the job. According to
his uncontroverted and credited testimony , Lancaster was
then working for another employer, and he was twice solic-
ited at home to work for Respondent by an employee who
was sent to him for that purpose by Bowen, Respondent's
foreman.
As previously anticipated by Logan, Lancaster only
"stayed" with Respondent for 6 weeks, and the Company
thereupon, on August 3, hired one Dempsey Knox to work
at its Ridge Manor project. As previously noted , Ratts was
never rehired.
E. Contentions of the Parties
The complaint alleges that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by terminating Ratts' employ-
ment on or about April 1, and by thereafter failing and refus-
ing to reemploy him because of his union activities and the
Respondent 's opposition to the representation of its em-
ployees by the Union. The Respondent contends that the
General Counsel has failed to support this allegation of the
complaint with the required preponderance of the testimony.
More specifically , the Respondent urges: (1) that Ratts volun-
tarily left the Respondent's employ and was not discharged;
(2) that Ratts' only union activity of which Respondent had
knowledge occurred 2 years before Ratts' termination; (3)
that, when Ratts applied for reemployment, the Respondent
had no need for an additional dragline operator; (4) that
Logan, to whom Ratts applied for reemployment, "had noth-
ing to do" with the subsequent hiring of "two new dra_gl.ine
operators and didn't even know of the openings"; and finally,
(5) that the failure to reemploy Ratts was in part based on his
inability to "perform as a dragline operator on other than
solid ground.""
As will appear hereinafter, all of the reasons asserted by
Respondent for Ratts' termination and the failure to reem-
ploy him are regarded as specious , contrived, and pretexts to
conceal the real motivation for Respondent's conduct in re-
spect to Ratts' employment.
F. Analysis of the Record and
Concluding Findings
The Respondent first contends that its termination of
Rattts' employment did not violate the Act because he left its
employ voluntarily and was not discharged. Contrary to this
contention, I have found above that Ratts was given no
choice in the matter of leaving Respondent 's employ; that he
was told by Logan that, "as of 5 o'clock"' of .that evening of
April 3, he "was working for W. L. Cobb"; and that, when
Ratts then expressed a preference for remaining where he
was,, he was. persuaded to reluctantly accept the transfer by
Logan's statements that he already had promised Cobb to
send them Ratts, his best dragline operator, and that Ratts
would make more money working for Cobb. In the light of
the foregoing, I regard Respondent 's contention that Ratts
voluntarily left its employ as specious , contrived, and without
merit.
19 The quotes above are from Respondent's brief, pp. 7 and 8.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As noted above, the Respondent next contends that its only
knowledge of union activity by Ratts was that he was an
observer for a union in a Board election 2 years before his
termination. However, contrary to that contention, the Deci-
sion in the prior unfair labor practice case discloses that
Respondent also had knowledge of Ratts most recent union
activities in December 1969, that the Respondent's president,
Sasser, had prepared a final paycheck for the termination of
Ratts because of said union activities, but that he was talked
out of firing Ratts only because Foreman Whitman thought
"he could talk Ratts out of the Union and get Ratts to forget
it." It is thus apparent that, contrary to its contention, the
Respondent also had knowledge of Ratts' support of the
Union in the most recent effort to organize its employees less
than 4 months before Ratts' termination.
We come then to a consideration of the Respondent's as-
serted reason for selecting Ratts for transfer to Cobb's employ
when it sold Cobb some rock mining equipment including a
Northwest 95 dragline. It is not disputed that the sale of that
machine created a surplusage of one dragline operator in the
Respondent's employ. Cobb assertedly had merely requested
Respondent to send it "a good man" with the machine, one
who was not needed, and "was familiar with the equipment."
The question thus presented is why the Respondent selected
Ratts for transfer to Cobb and not Clayton.
As the operator of the machine that was sold to Cobb,
Clayton obviously was the employee most familiar with it. At
the time of the sale, Clayton was working for Respondent at
Hernando Beach just across the road from Cobb's pit where
the sold machine was to be operated, and thus his transfer
would require no change in the location of his employment.
When Clayton was asked by Respondent's foreman, Whit-
man, whether he "wanted to go" with his machine to work
for Cobb, or whether he preferred to transfer to Respondent's
Leisure Beach operation, Clayton had told Whitman that he
"knew everybody at Cobb," that he had no means of trans-
portation "to go to Leisure Beach," and that he preferred to
go over to Cobb. Conversely, Ratts, as previously noted,
admittedly told Superintendent Logan that he preferred to
remain in Respondent's employ at his job at Leisure Beach.
Thus, it was contrary to the preference of both said employees
that the Respondent sent Ratts to Cobb, and told Clayton
that he either had to transfer to Leisure Beach to take over
Ratts' job, or he would be out of work. The Respondent made
that decision notwithstanding that Ratts concededly was one
of its most senior employees with substantially greater length
of service than Clayton,20 and despite its admission that Ratts
was "one of its best" dragline operators in the production of
limestone rock, and that-it still needed to produce such rock
in connection with its continuing real estate and land im-
provement business.
The Respondent's only explanation for this strange selec-
tion for termination, contrary to the wishes of both of the
employees involved and its own apparent self-interest, is that
it had promised to send Cobb one of its best rock men,
referring thereby to Ratts. However, according to the tes-
timony of both Sasser and Logan, Cobb's request was only
that Respondent send them a"good" employee who was
"familiar with the equipment," and was not needed, and not
that Respondent furnish its "best," or even "one of its best
men." Clearly, Clayton must have been regarded by the Re-
spondent as a "good man" or he would not have been re-
tained by it when it sold its machine to Cobb. Obviously,
20 Ratts had worked for Respondent as a dragline operator for 4 years.
Clayton's total employment by Respondent was about 8 months. The record
does not disclose how much of that 8-month period postdated Ratts' termi-
nation.
Clayton also "was familiar with the equipment," since he had
operated it. Moreover, the Respondent's business still re-
quired the services of good rock men. Under all the circum-
stances, I regard Respondent's attempted explanation of its
selection for termination and retention as patently implausi-
ble. I just do not believe that, absent other considerations, an
employer faced with the necessity of selecting one employee
for retention and another for layoff would choose the better
one for termination. I therefore regard this asserted reason
for Ratts' selection for termination as an implausible pretext
which was contrived by the Respondent to conceal the real
reason for his termination.21
In Shattuck Denn Mining Corporation v. N.L.R.B., the
court appropriately said:22
Nor is the trier of the fact-here the trial examiner-
required to be more naif than is a judge. If he finds that
the stated motive for a discharge isfalse, he certainly can
infer that there is another motive. More than that, he can
infer that the motive is one that the employer desires to
conceal-an unlawful motive-at least where, as in this
case, the surrounding facts tend to reinforce that infer-
ence. [Emphasis supplied.]
In the light of the pretextual and discredited reason assigned
by Respondent for Ratt's termination, its real motive for
selecting Ratts for termination and for refusing thereafter to
reemploy him is not difficult to perceive. The Respondent is
opposed to the representation of its employees by any union.
In August 1968, it knew that Ratts was a supporter of, and
acted as observer for, the Seafarers Union in a Board election
which that Union lost. One year and a half later, in December
1969, Ratts was one of three employees of Respondent who
started and actively supported an attempted organizational
campaign undertaken by the Operating Engineers Union."
As found in the Decision in the prior unfair labor practice
case,24 the Respondent effectively scotched this'renewed at-
tempt at union organization by coercively interrogating em-
ployees about their interest in and support of the Union, by
threats to discharge employees who distributed union author-
ization cards and to shut down the job if it "went union," and
by discharging James E. Crosby because of his activity in
support of the Union. As further disclosed by that Decision,
the Respondent's president also took steps to discharge Ratts
and Tinch for their union activity, and even prepared their
final paychecks, but was talked out of terminating them by
two of his foremen, one of whom (Whitman) told Sasser that
"he believed he could talk Ratts out of the Union and get
Ratts to,forget it...... According to the record in the prior
case, Tinch quit the Respondent's employ shortly thereafter
or or about December 23, 1969. Thus, of the principal propo-
nents of the Union, only Ratts was, still in the Respondent's
employ when the Respondent 3 months later went out of
" As previously noted, the Respondent in its brief (p. 8) appears to
contend that Ratts later was denied reemployment in part because "he was
a poor employee outside this [rock digging] phase of the business," and his
"poor employment record outside the limerock pit." The apparent basis for
this assertion is the undisputed fact that about 90 percent of Ratts' work for
Respondent had consisted of digging hmerock in its pits. However, Ratts
testified without contradiction that , in connection with Respondent's land
development business , he also had performed work for it such as digging
canals and seawall footings, and setting seawall slabs , water tanks, and a
drum shaft machine . There is no testimony by any witness that Ratts' work
in either phase of Respondent 's business was poor, and none that Ratts was
neither terminated or denied reemployment because he was a poor em-
ployee. I therefore reject this contention as without any basis or support in
the record.
3 362 F.2d 466, 470 (C.A. 9).
" The other two employees were James E. Crosby and Daniel G Tinch.
^' See fns. 2 and 8, supra.
TRITON CONSTRUCTION CO.
business of mining of limestone rock for resale and sold some
of its mining equipment to Cobb." At that time, the com-
plaint in the prior case which charged Respondent, inter alia,
with unlawfully discharging Crosby was still pending,hear-
ing. The sale of the equipment thus provided Respondent
with an opportunity to rid itself of Ratts, its remaining active
union proponent, and quite obviously this opportunity was
seized by it. Thus, on the evening of Friday, April 3, when
"the machinery went over to W. L. Cobb," maintenance man
Paul Rosser overheard a conversation in which Foreman
Whitman said that he had been told by Superintendent Logan
that Ratts was being sent to work for Cobb, and Clayton was
being transferred to Leisure Beach to take over Ratts' job,
"because it was their best chance to get rid of Mr. Ratts." In
the light of all the foregoing, and because I can perceive no
other plausible reason why Respondent did not retain Ratts
and send Clayton to Cobb in accordance with their prefer-
ences and its own self-interest, I am firmly persuaded that the
selection of Ratts for termination was motivated by antiumon
considerations.
As previously- noted, the Respondent failed and refused
after April 3 to reemploy Ratts notwithstanding his repeated
applications to return to work for it, and despite the fact that
Respondent later hired two dragline operators. Based on the
testimony of Superintendent Logan, the Respondent attempts
to explain its failure to hire Ratts by contending first, that it
had no need for his service at the time he applied; second, that
Logan, to whom Ratts applied, "had nothing to do" with the
subsequent hirings and "didn't even know of the openings"
for which Respondent hired other dragline operators; and,
finally, that the failure to rehire Ratts was in part based on
his incompetence when he operated a dragline "on other than
solid ground." Contrary to Logan's testimony on which these
contentions are based, the record clearly discloses that the
Respondent had a vacancy for a dragline operator when Ratts
applied, and that Logan not only had knowledge of the exist-
ence of the vacancy, but also participated in the hiring of a
dragline operator other than Ratts to fill the opening. More-
over, the record does not support the contention that Ratts
was refused reemployment because of an asserted lack of
ability to operate a dragline on other than solid ground. In
respect to Respondent's failure and refusal to reemploy Ratts
after April 3, the record discloses as follows:
1. As found above, Ratts was terminated by Respondent at
the close of the day on Friday, April 3, assertedly because
Logan had promised to send W. L. Cobb one of his best
dragline operators, referring to Ratts. Ratts had not wanted
to leave Respondent's employ, but he had been persuaded by
Logan to accept the transfer to Cobb, inter alia, by the state-
ment that Ratts would make more money in Cobb's employ.
On the next regular workday, Monday, April 6, at or about
midday or early afternoon, Ratts told Logan at Leisure Beach
that Cobb had no job for him, at least none for 30 days, and
that he would like to return to work for Respondent. Logan's
reply to Ratts was that he had no opening. Although this was
technically true, it was only because Clayton, a comparatively
new employee of Respondent, had been transferred from Her-
nando Beach to Ratts' job and was operating Ratts' dragline
at Leisure Beach. Obviously, Logan easily could have re-
versed his decision of the previous Friday and could have
reemployed Ratts, an admittedly superior' employee. Under
the circumstances, I do not believe that Logan's refusal on
Monday to restore Ratts to the job which, by flattery and the
assurance of greater earnings, he had induced Ratts to leave
2' There is no allegation in the complaint and no contention that either
the discontinuance of mining for resale or the sale of the mining machinery
was motivated by antiunion considerations.
381
only the previous Friday was based on the lack of an opening.
2. However, even assuming that Logan's failure on April
6 to restore Ratts to his former job was lawfully motivated
by the lack of an opening, that excuse cannot explain the
Respondent's failure to reemploy him thereafter when vacan-
cies for a dragline operator admittedly arose twice and were
filled by hiring other employees. The first such vacancy oc-
curred in mid-May at the Respondent's Ridge Manor project,
and admittedly was not filled by the Respondent until June
18. Ratts learned about the opening and he applied for the job
in the latter part of May, first, to Foreman George M. Bowen
who admittedly possessed authority to hire. Ratts had previ-
ously worked for Bowen at Ridge Manor, and according to
Bowen, Ratts concededly was capable of performing the
work. Nevertheless, Bowen did not hire him, but suggested
instead that Ratts "go see" Superintendent Logan. Ratts did
so, and as found above, he was promised by Logan that he
would be notified when to report to work, but the promise
was never fulfilled. Instead, with Logan's prior knowledge
and consent, Bowen twice solicited W. C. Lancaster, a former
employee who then was employed by another employer, to
work for the Respondent as a dragline operator at Ridge
Manor, and hired him on June 18, notwithstanding that both
Bowen and Logan knew before Lancaster was hired that he
would only work for Respondent about 6 weeks and then
would have to be replaced. " In fact Lancaster did leave the
Respondent's employ after 6 weeks, and on August 3 the
Respondent again hired a dragline operator other than Ratts
to fill the vacancy at Ridge Manor.27
In the light of the foregoing, I specifically reject as un-
worthy of credence or belief Logan's testimony that Respond-
ent had no openings for a dragline operator when Ratts ap-
plied for reemployment, that he "didn't even know of the
openings," and that he had nothing to do with the filling of
such vacancies.
3. The Respondent's final contention is that Ratts was not
rehired after his April 3 termination because of an alleged
lack of ability to "perform as a dragline operator on other
than solid ground." The asserted basis for this contention is
that, during the 4 years of Ratts' employment by Respondent,
his dragline on three or four occasions slid off the supporting
"mats" which were used by him when the ground underneath
his machine was soggy"' None of the said incidents were of
recent date. Moreover, during the past year, Ratts stripped
two or three pits at Hernando Beach from mats without
incident, each such pit taking about 45 days. Significantly, the
vacancy at Ridge Manor for which Lancaster and not Ratts
was hired did not require working on mats.29 There is, in fact,
no testimony in the record that Ratts was not rehired because
of his asserted lack of ability to work on mats.
All of the foregoing, including the Respondent's continued
employment of Ratts for 4 years to perform work which
included occasionally working from mats, persuade me that
the contention that he was denied reemployment because of
any shortcomings in ability is merely another incredible pre-
26 Coincidentally, on June 9, Ratts testified in the prior unfair labor
practice case as a witness against Respondent.
:, The foregoing is based on the credited testimony of Bowen, Ratts, and
Lancaster.
" Mats are large timbers which generally are used by operators in sets
of six or seven to hold up their dragline when it operates on soggy ground
and thereby prevent it from bogging down in the mud.
29 Both Bowen and Lancaster testified that the work consisted of digging
rock from solid ground, and Foreman Bowen conceded that Ratts, who had
worked for him previously , could have performed the job.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
text devised by Respondent to conceal its real motive for his
termination and the failure to rehire him.30
As in the case of Ratts' termination, I am persuaded by the
false and pretextual reasons advanced for not reemploying
him after April 3, that it was motivated by Respondent's
opposition to the representation of its employees by any
union, by Ratts' known support of unions, and by the oppor-
tunity, presented to Respondent by the transaction with
Cobb, to get rid of the third and last of the active union
proponents in its employ without revealing its unlawful mo-
tive.31
Accordingly, I find and conclude that by terminating
Ratts' employment on April 3, and by thereafter refusing to
reemploy him because of his activities on behalf of the Union,
the Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(3) and-(1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce
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 certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
Having found that the Respondent discriminated against
Kenneth E. Ratts by terminating his employment and by
thereafter failing and refusing to reinstate him for antiunion
considerations, I will recommend that the Respondent be
ordered to offer him immediate reinstatement to his former
position or, if it no longer exists, to a substantially equivalent
position; without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of earnings he
may have suffered by reason of the discrimination by the
payment of a sum of money equal to the amount he normally
would have earned from the date of his termination,to the
date of reinstatement, less his net earnings during said period,
with backpay computed on a quarterly basis in the manner
established by the Board.32
I will also recommend that the Respondent preserve and,
upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security
payment records, timecards, personnel records and reports,
and all other records necessary to analyze and determine the
amount of backpay due under the terms of this recommended
remedy.
In view of the nature and extent of the unfair labor prac-
tices committed by Respondent in this and the prior unfair
labor practice case, the commission of other unfair labor
practices reasonably may be anticipated. I will therefore
recommend that the Respondent be ordered to cease and
desist from "in any other manner" infringing upon rights
guaranteed to employees by Section 7 of the Act, in addition
31 See fn. 21 , supra.
31 Shattuck Denn Mining Corporation v. N.LR .B., supra.
" F. W. Woolworth Company", 90 NLRB 289; backpay shall include the
payment of interest at the rate of 6 percent per annum to be computed in
the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
to the manner in which those rights were found to have been
violated herein."
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAw
1. Respondent, Triton Construction Company, is an em-
ployer engaged in commerce and in operations affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local 925,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the. Act.
3. By discriminating against Kenneth E. Ratts, by ter-
minating his employment, and by 'failing to reinstate him
because of his support of the Union, the Respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, the Respondent also has inter-
fered with, restrained, and coerced employees in the exercise
of rights guaranteed by Section 7 of the Act, and thereby has
engaged in and is engaging 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 commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and conclu-
sions of law, and upon the entire record in this case, I hereby
issue the following recommended:
ORDER34
Respondent, Triton Construction Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of
International Union of Operating Engineers , Local 925,
AFL-CIO, or of any other labor organization of its em-
ployees, or in any other manner discriminating in regard to
hire or tenure of employment or any term or condition of
employment:
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist
International Union of Operating Engineers, Local 925,
AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of `their own choosing, and to
engage in other concerted activities for, the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from engaging in such activities.
2. Take the following affirmative action to effectuate the
policies of the Act.;
(a) Offer Kenneth E. Ratts immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority or other rights and privileges enjoyed, and make him
whole for any loss of pay he may have suffered as a result of
the discrimination against him in the manner provided in the
section of this Decision entitled."The Remedy."
" lt'.LR.B. v.'Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4).
," In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations , automati-
cally become the findings, conclusions, and order of the Board , and all
objections thereto shall be deemed waived ' for all purposes.
TRITON CONSTRUCTION CO.
(b) Notify Kenneth E . Ratts, if presently serving in the
Armed Forces of the United States, of his right to full rein-
statement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act, as amended , after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying , all payroll
records, social security-payment records , timecards , person-
neh,records and reports, and all other records necessary to
analyze and determine the amount of backpay due under the
terms of this recommended Order.
(d) Post at its projects at Leisure Beach , Hernando Beach,
and Ridge Manor, Florida, copies of the attached notice
marked "Appendix."35 Copies of said notice ,_on.forms pro-
" In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading 'Posted by
Order of the National Labor Relations Board" shall be changed to read
383
vided by the Regional Director for Region 12, after being
duly signed by Respondent , shall be posted by it for a period
of 60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 12, in writing,
within 20 days from the date of the receipt of this Decision,
what steps have been taken to comply herewith.36
"Posted Pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
36 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read:
"Notify the Regional Director for Region 12, in writing , within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."