W. S. Bellows Construction Co.

National Labor Relations Board - Board Decisions

Jul 28, 1943

51 N.L.R.B. 820 (N.L.R.B. 1943)

In the Matter of BROWN & ROOT, INC., W. S. BELLows, ANNA W. BEL-
LOWS, ELIZABETH BELLOWS WILLIAMS , WARREN S. BELLOWS, Jr., AND
FRANK W. BELLOWS , A CO-PARTNERSHIP DOING BUSINESS AS W. S. BEL-
LOWS CONSTRUCTION COMPANY AND COLUMBIA CONSTRUCTION COM-
PANY and JAMES F. HOFFMAN AND PAUL J. BRISTOL, INDIVIDUALS
Case No. C-2609.-Decided July 28, 194x.3
DECISION,
AND,
ORDER
On May 13,1943, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondents had
engaged in and were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondents filed exceptions to the
Intermediate Report and a brief in support of the exceptions, and re-
quested permission to present oral argument before the Board. A
brief was likewise filed by Local No. 450 of the International Union
of Operating Engineers, whose motion to intervene was granted by
the Board for the purpose of filing briefs and participating in oral
argument. On July 1, 1943, pursuant to notice served upon all the
parties, a hearing for the purpose of oral argument was held before
the Board at Washington, D. C. The respondents and Local No. 450
appeared and participated therein.
The 'Board has considered the operations in which the respondents
are engaged, and, contrary to the, finding of the Trial Examiner, is of
the opinion that the state of the evidence concerning commerce dis-
closed by the record does not warrant a finding that the operations of
the respondents affect commerce within the meaning of the Act,' nor
that the assertion of jurisdiction would effectuate the policies of the
Act. We shall therefore dismiss the complaint in its entirety.
1 See Pedersen v. Delaware Lackawanna & Western Railroad Company, 299 U. S. 146.
Raymond v . Chicago, Milwaukee & St. Paul Railway Company, 243 U S. 43; Oregon Short
Line R. Co. v. Gubler, 9 F. (2d) 494; cert. denied , 273 U. S 709; Overstreet, et at v.
North Shore Corporation, 63 S. Ct. 494.
51 N. L. R. B., No. 126.
820
W. S. BELLOWS CONSTRUCTION, COMPANY 821
ORDER
Upon the basis of the foregoing findings and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor Rela-
tions Board hereby orders that the complaint against Brown & Root,
Inc., W. S. Bellows, Anna W. Bellows, Elizabeth Bellows Williams,
Warren S. Bellows, Jr., and Frank W. Bellows, a Co-partnership do-
ing business as W. S. Bellows Construction Company and Columbia
Construction Company, be and it hereby is, dismissed.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.,
INTERMEDIATE REPORT
Mr. Bliss Daffam, for the Board.
31r. TV. N. Arnold, Jr., of Houston, Texas, for the respondents.
Mr. Lloyd E. Stiernberg, of Harlingen, Texas, for Hoffman and Bristol.
STATEMENT OF THE CASE
Upon an amended charge duly filed on November 21, 1942, by, James F. Holtman
and Paul J. Bristol, individuals, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Sixteenth Region (Fort
Worth, Texas), issued its complaint dated November 27, 1942, against Brown &
Root, Inc., W. S. Bellows, Anna W. Bellows, Elizabeth Bellows Williams, War,
ren S . Bellows, Jr., and Frank W. Bellows , a Co-partnership doing business as
W. S. Bellows Construction Company and Columbia Construction Company,
herein called the respondents, alleging that the respondents had engaged in
and were engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (3) and Section 2 (6) aand (7) of the National
Labor Relations-Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint and notice of hearing thereon were duly served upon the respondents,
Hoffman, Bristol, and Commander A. C. Eberhard, U. S. N., officer in charge of
construction of the Naval Air Training Center, Corpus Christi, Texas.
With respect to the unfair labor practices the complaint alleges in substance:
(1) that the respondents, from on or about January 14, 1942, to the date of the
complaint, urged, persuaded, and warned their employees to refrain from be-
coming or remaining members of a union or engaging in concerted activities ;
questioned their employees concerning union membership and other concerted
activities ; threatened their employees with discharge or other reprisals if they
became members of a union or engaged in other concerted activities ; and vilified,
disparaged, and expressed disapproval of labor organizations and concerted
activities by the employees; (2) that the respondents, on or about July 11, 1942,
discharged Paul J. Bristol and James F. Hoffman, and at all times thereafter
refused to reinstate them, because they engaged in concerted activities with
other employees for the purposes of collective bargaining and other mutual aid
and protection; and (3) that the respondents, by the above stated conduct, dis-
criminated in regard to the hire and tenure of employment of Bristol and Hoff-
man and interfered with, restrained, and coerced their employees in the exercise
of the rights guaranteed in Section 7 of the Act.
822 DECISIONS OF NATIONAL LABOR RELATIONIS BOARD
The respondents filed a motion, dated December 9, 1942, to dismiss the com-
plaint for lack of jurisdiction. The respondents, without waiving their motion
to dismiss, filed an answer dated December 9, 1942, denying that they are engag-
ing in commerce within the meaning of the Act and denying that they engaged
in the alleged unfair labor practices.
Pursuant to notice, a hearing was held at Corpus Christi, Texas, from December
11 to 17, 1942, before William F. Guffey, Jr., the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The Board, and the respondents
were represented by counsel and participated in the hearing.' Full opportunity
to be heard, to examine and cross-examine Witnesses, and to introduce evidence
bearing on the issues was afforded all parties. At the beginning of the hearing
the respondents' motion to dismiss the complaint was referred to the Trial Exam-
iner for appropriate action. The Trial Examiner reserved ruling thereon. The
motion is hereby denied. The respondents refused to supply data with respect
to their operations unless and until the United States Navy Department author-
ized the release of such data. On December 17, 1942, the hearing was indefinitely
recessed pending the Navy Department's authorization to submit such data. On
or about March 25, 1943, a stipulation with respect to the respondents' operations
was filed with the Board. Pursuant to telegraphic notice issued on March 30,
1943, the Trial Examiner issued an order dated April 12, 1943, closing the hear-
ing. At the beginning of the hearing counsel for all parties were advised that
they might file briefs with the undersigned. No briefs have been filed.
Upon the,entire record in the-case an'd from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENTS
The respondent Brown & Root, Inc., is a Texas corporation, having its principal
office and place of business at Austin, Texas. The, respondent W. S. Bellows
Construction Company is a co-partnership having its principal office and place of
business at Houston, Texas. The respondent Columbia Construction Company
is a Nevada corporation authorized to do business in the State of Texas, having
an office and place of business at Dallas, Texas.
At all material times the respondents were co-adventurers engaged, under a
cost plus fixed-fee government contract, in the construction and erection of a
Naval Air Training Center at Corpus Christi, Texas. The project involves the
erection of a large number of buildings including barracks, hangers, utility shops,
and recreation buildings, grading and paving runways, the building of seaplane
hangars, and the dredging of a basin in Corpus Christi bay to provide a -landing
and take-off area for seaplane training purposes. This proceeding involves only
the employees on the respondents' dredge boat, Temple, which was engaged in
the dredging operations. The Naval Air Training Center is exclusively a Naval
project to provide training facilities for aviation pilots and is not permitted to
be used and is not used for commercial traffic. In the construction of the Naval
Air Training Center, the respondents use equipment and material some of which
is shipped to Corpus Christi from points located outside the State of Texas. For
reasons of national security the record does not show the exact volume or dollar
value of the materials used in the construction of the project. The parties stipu-
lated, however, that a substantial amount of materials and equipment is used in
I Counsel for Hoffman and Bristol entered an appearance of record, but was present
during the first session of the hearing.
W: S. BELLOWS CONSTRUCTION, COMPANY 823
the construction of the Center and that 25 percent, by dollar value, of the total
amount is shipped to Corpus Christi from points outside the State of Texas.
The respondents contend that they are not subject to the jurisdiction of the
Board because the materials purchased by the respondents are purchased exclu-
sively for the use of a department of the United States Government and are
used in a project under the supervision and control of a department of the
United States Government. The respondents further contend that they are
not employers but are either agents or personal servants of the United States
Navy Department and that the employees who work on the project are hired,
discharged, and paid subject to the supervision and approval of the United
States Naval Officer in charge of the construction of the Naval Air Training
Center.
The materials used in the construction of this project are purchased by the
respondents on purchase order forms bearing the respondents' names. These
forms contain a provision that the materials are purchased "for the sole account
and use of the United States." The materials, however, are consigned to the
respondents and are paid for by check drawn on the respondents' account and
signed by one or more of the respondents' officials. The Naval officer in charge
of construction merely reviews the purchase orders to see if they are in the form
required by the respondents' contract. Each week the respondents submit a
voucher to the officer in charge of construction for the money spent for materials
and the respondents are thereupon reimbursed from government funds.
The employees who work on the project are recruited and hired by the
respondents, subject to the subsequent approval of the Naval officer in charge
of construction. They are paid by checks drawn on the account of the respondents
and signed by one or more of the respondents' officials. The employees may be
discharged by the respondents without the approval of the Naval officer In
charge of construction except in the event that the dischargee is a key employee,
or in the event the dischargee applies for a hearing upon application for rein-
statement. In the latter event, the officer in charge of construction appoints an
investigation board whose personnel includes one Naval officer. This Board
conducts a hearing on the application for reinstatement and issues a decision in
the matter which is either approved or disapproved by the officer in charge of
construction.
The undersigned finds no merit in the respondents' contentions that they
are not subject to the jurisdiction of the Board. The Navy Department's
supervision of the respondents' operations is not materially different from the
supervision of the War and Navy Departments in many manufacturing plants
operating under government contract over which the Board has taken jurisdic-
tion. The Board has found manufacturing concerns to be engaged in interstate
commerce, within the meaning of the Act, although the raw materials used by
them, the finished products produced by them, and the production plants, machin-
ery, and equipment are at all times the property of the United States Govern-
ment or some department thereof.2 The Board has also found persons to be
employers within the meaning of the Act although the employees must be ap-
proved by the appropriate Naval official before they are hired and are subject to
summary dismissal by the Naval official." The undersigned finds no grounds
for distinction between the instant case and cases cited. The undersigned finds
that the respondents are engaged in commerce within the meaning of the Act
It is further found that the respondents are employers within the meaning of
the Act.
S Matter of U. S. Cartridge Company, etc., 42 N. L R B 191; Matter of The Lukas-Harold
Corp, etc, 44 N L. R. B. 730
3 Matter o f H. H. Dickson , etc, 41 N L R B. 1230
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In connection with the construction of the Naval Air Training Center, the
respondents commenced operations of the dredge boat Temple, about November
1940. The operations of the dredge were in charge of A. E. Olson, the respond-
ents' superintendent of dredging.' James F. Hoffman, an employee, testified
without contradiction, and the undersigned finds, that the employment appli-
cation cards which the employees were required to file, required the applicant
to state whether he belonged to any labor organization. Paul J. Bristol, an
employee testified that at about the time he began working for the respondents
in November 1940, someone remarked about this question on the application card
and that Superintendent Olson thereupon said that "there would be no organi-
zation down there, that he wouldn't stand for any union shift down there at
all." Bristol further testified that at safety meetings, which the employees
were required to attend about once a week, Olson frequently said that union
leaders were "racketeers" and "thugs" and on one such occasion Olson said
that any employee who joined a union would be discharged.
Hoffman testified that he began working for the respondents about November
26, 1940, and that shortly thereafter Olson in the presence of several employees
said that if any of the employees "ever talked or even thought union" he would
discharge them and that he would not employ anyone "belonging to a union
under any consideration." Hoffman further testified that at a safety meeting in
the latter part of November 1941, Olson said that lie would "tie that damn dredge
up and drag it out before he would work with anyone connected with the union
in any way." Hoffman also testified that in January 1942, Olson had some diffi-
culty with one of the dragline operators, who was a union member, and on that
occasion Olson said that if he had his way about it, he "would run every one of
the men on the job connected with the union in any way off the job" and that "the
union was nothing but a Hitler organization." According to Hoffman, Olson
made similar anti-union remarks at more than half of the safety meetings.
Jimmy Baker, an employee, testified that at one of the safety meetings in May
1942, Olson was having trouble with one of the dragline operators who was
•a member of a union, and that Olson on that occasion said that if the employees
on the dredge joined a union he would discharge every one of them. Baker
further testified that at one of the safety meetings, Olson cursed the employees
of the respondents' machine shop who were union members, and said that "they
wasn't no good, that he didn't like no union, never did like one."
Carl Money, an employee, testified that shortly after the dredging operations
began, Olson threatened to discharge any employee who joined a union and that
thereafter he made similar statements at the safety meetings. John Gilbert, an
employee, testified that at several different safety meetings Olson referred to
unions as "a bunch of racketeers" and said that "they was after your money
and it looked kind of foolish for a man to pay for a job." Arnold Vaughn, an
employee, testified that in August 1942, Olson asked him if he had joined the
Union,' and when Vaughn replied that he had not, Olson said that he was not
telling Vaughn whether to join or not to join and added, "I don't believe it will
' It is admitted that Olson is a high-ranking supervisory employee. The undersigned
finds that the respondents are answerable for his conduct in labor relations matters.
6
At the time of the occurrence of most of the events herein related, the dredge employees
were unorganized. About July 14, 1942, the dredge employees began joining Hoisting and
Portable Engineers Union,,Local No. 450. At the time of the hearing that union was
the collective bargaining representative of the dredge, employees
W. S. BELLOWS CONSTRUCTION COMPANY 825
do you any good ." James Craig , an employee , testified that in July or August,
Olson told him that "no bunch of thugs and racketeers " could tell him whom he
could employ . Julius Barecky , an employee , testified that he began working for
the respondents in August'or September 1942, and that on the second day he
worked Olson asked him if he belonged to the Union , that he replied that he
did not, and that Olson then told him that he might be asked to join and then
said "don't sign the paper , yon might get laid off."
About the middle of May 1942, the dredge employees attempted to get the
respondents to pay them overtime pay for overtime work and to pay already
accrued overtime pay. Bristol and Hoffman were the leaders of this activity.
Superintendent Olson spoke to his superiors about the overtime pay and when
his efforts appeared fruitless , he told Bristol that he had no objection to Bristol's
attempt to obtain the additional pay. Bristol testified that 4 or 5 days after
Olson told him that it was all right for him to try to get ` the overtime pay,
Olson told him that he should make no further attempt to get overtime pay be-
cause he (Olson ) had learned from "some big shot up in the office" that Bristol
should "drop it or [he ] would be discharged." According to Bristol, Olson said
he had had a hard time keeping Bristol from being discharged at that time
because the respondents did not want the employees to try to get overtime.
Hoffman testified that when the employees were discussing overtime pay in
May, Olson came to his home on three different occasions and inquired con-
cerning the identity of the leaders in that activity , and on the last of these
three occasions told Hoffman that he thought that he was going to be able to
keep Bristol employed although he had orders from "higher up" to discharge
him and that "he was no good for the organization ." According to Bristol's
testimony the employees thereupon temporarily ceased their attempts to obtain
overtime pay but they continued to talk among themselves about the matter.
In June 1942, the employees resumed their attempts to obtain overtime pay,
again under the leadership of Hoffman and Bristol . The alleged discriminatory
discharge of Hoffman and Bristol on July 11 because of this activity is discussed
hereafter. On July 9 and 10, Jimmy Baker and two other employees actively
assisted Hoffman and Bristol in circulating a petition authorizing an attorney
to take appropriate action to obtain overtime pay. D . C. Craig, an employee,
testified that 2 or 3 days after Bristol and Hoffman were discharged , Olson asked
him to catch Baker asleep during working hours because Baker "was no good
to the organization ," and Olson wanted to discharge him. James Craig testified
that he was present when Olson made this request of D. C . Craig, that Olson
told D. C. Craig that he had found out that Baker helped circulate the overtime
petition , that Baker was "no good for the organization," and that he wanted
D. C. Craig to catch Baker asleep because he wanted "to get rid of him." George
Parker testified that he "used to be foreman of the dump " and that Olson went
out on the dump a few days after Bristol and Hoffman were discharged and
said that he would like to discharge everybody who had signed the petition for
overtime pay and that since Baker was "more or less secretary to Mr . Bristol
and Mr . Hoffman" Parker should "find something on him" so Olson could dis-
charge him.
Olson denied that he ever told any of the employees at safety meetings or
elsewhere that they would be discharged if they joined a union, and testified
that he told them that they could join the Ku Klux Klan or anything they
wanted to as long as they did their work . He also denied that he ever told
D. C. Craig or anyone else that Baker was secretary to Bristol and Hoffman
and that he wanted them to catch him asleep so that he could fire him. H. L.
Thompson , chief engineer on the respondents' dredge , and J. R. Douglas, a deck
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman on the dredge, testified that they regularly attended the safety meet-
ings and that they, never heard Olson threaten to discharge any employees for
joining a union. Thompson, a witness for the respondents, testified, however,
that he had heard Olson criticize the respondents' machinists, and the union
to which they belonged, for the manner in which the machinists did their work,
and that Olson on one occasion said that if all the employees "joined the union
he was going to quit." Olson admitted that with reference to strikers he has
said in the presence of certain employees that "they ought to take all those guys
and put them in the Army and put them in the front line trenches," and that
he may have referred to unions as "racketeers." Olson also testified that at
one of the safety meetings he told all the foremen and all the employees present
that there was a lot of sleeping going on and the next time he found anyone
asleep he was going to discharge both the guilty employee and, the foreman
The undersigned' does not credit Olson's testimony, contrary as it is to the
great weight of credible evidence. His admissions and the testimony of Thomp-
son that Olson threatened "to quit" if the employees joined a union, demonstrate
Olson's anti-union animus and cast doubt upon the credibility of Olson's denial
of the anti-union statements attributed to him. Olson's part in the discharge
of Bristol-and Hoffman, as will shortly appear, further discredit his testimony
with respect to the anti-union statements set out above.
The undersigned credits the foregoing testimony of Hoffman, Bristol, Baker,
Money, Gilbert, Barecky, Vaughn, James Craig, D. C. Craig and Parker, and
finds that Superintendent Olson interrogated certain of the respondent's em-
ployees concerning their union membership and activities ; that he vilified, dis-
paraged, and expressed, disapproval of labor organizations within the hearing
of certain of the respondents' employees ; and that he urged, persuaded, and
warned certain of the employees to refrain from becoming union members and
from engaging in other concerted activities. It is further found that by reason
of Olson's conduct and by using -employment applications which question ap-
plicant's concerning union membership, the respondents have interfered with,
restrained, and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
B. The discriminatory discharge of Paul J. Bristol and James F. Hoffman
Bristol and Hoffman were discharged on July 11, 1942. The complaint alleges
that they were discharged, and were thereafter refused reinstatement, because
they engaged in concerted activities with other employees for the purposes of col-
lective bargaining and other mutual aid and protection. It is clear from the
record that the concerted activities referred to in the complaint was, the con-
certed attempt to secure overtime pay for overtime work. The respondents, in
their answer, deny this. allegation of the complaint and aver that Bristol and
Hoffman were discharged for insubordination and failure to perform the duties
assigned to them.
In June 1942, as stated above, the employees resumed their attempts to ob-
tain overtime pay for overtime work. Bristol and Hoffman were the two most
outstanding leaders in this activity. Among other things, Hoffman tentatively
retained an attorney to take the necessary steps to obtain overtime pay for
the employees. About July 7 or 8, Hoffman told Bristol that he had retained the
attorney and showed Bristol the petition which the attorney had sent him to'be
circulated among the employees for the purpose of obtaining their signatures
authorizing the attorney to represent them. Hoffman and ^ Bristol agreed to
circulate the petition among the employees, and passed word among the em-
ployees to meet at a local trailer camp on the evening of July 9 for the purpose
W. S. BELLOWS CONSTRUCTION COMPANY 827
of signing the petition. On the evening of July 9, all but about 5 or 6 of the
dredge employees signed the petition. Olson testified that on the evening of
July 9, he asked James L. Brown, an employee, what the employees were "talking
about" and what was "going around", and that Brown replied that he would find
out about it the next morning. Brown testified that on the evening of July 9,
Olson phoned him and asked him if he had heard about the employees "writing
that petition" but Brown could not recall anything further concerning the
conversation.
On July 10, Bristol and Hoffman were working on the shift that finished work
at 8 o'clock a. in. On that date the dredge was moored at the dock for repairs.
About 7:40 that morning, both Bristol and Hoffman had been relieved by the
on-coming shift and were standing with other employes on, the bank near the
dredge.°
Bristol testified that at about 7: 40 a. in. on July 10, when the shifts were
changing, Olson parked his car some distance from the dredge and walked toward
the dredge at a rapid rate of speed, and when Olson reached the gang plank leading
to the dredge he said to the employees, "I want, to thank each and every one of
you for stabbing me in the back. You are all lower than a bunch of snakes in
the grass and I want to thank you again for stabbing me in the back, me and my
family." Bristol testified that Olson then went on to the dredge where he
engaged in some loud talking and upon leaving the dredge repeated substantially
the same remarks that he had made before and then added, "I think you are
all a fine bunch of bastards." Hoffman, Baker, Money, D. C. Craig, Brown and
Thompson a witness on behalf of the respondents, testified substantially the same
as Bristol concerning Olson's statement to the employees at the dredge . Thomp-
son testified that Olson said, "I want to thank you boys for going at my back
and stabbing me in the back and signing this petition. You should have come
to me. I think anybody that did that is just lower down than a snake's belly."
Baker testified that while Olson was on the dredge he approached M. H. Polk, an
employee, and asked Polk "did you sign that, too" and when Polk replied, "Yes,"
Olson said, "Well, you stabbed me in the back just like the rest of them did."
James Craig testified that Olson came into the engine room on the dredge and
asked Polk if he had signed the petition, that Polk answered that he had and
that Olson then asked him why he did it. D. C. Craig testified that Olson asked
him if he had signed the petition.
Olson admitted that he told the employees that he wanted to thank them for
stabbing him in the back. He also admitted that he used even stronger language
than "snake's belley" in the epithets he addressed to the employees. Olson testi-
fied that when he went on the dredge, he asked Polk if he knew "anything about
what was going on" and that this question had reference to the group of employees
congregated outside the dredge with "two papers." According to -Olson, Polk
said that he did not know what was going on and that Olson would have to find
out for himself. Olson testified that he did not find out what was going on until
later and that he did not make any statements to any employees about their
having signed a petition. The undersigned finds that Olson made the statements
set forth above. It is further found that Olson asked some of the employees if
they had signed the overtime petition.
After Olson completed his remarks to the employees at the dredge, he returned
to the field office walking at a rapid rate of speed. Bristol, Hoffman, and Brown
° It is clear from the evidence , and the undersigned finds, that the employees were per-
mitted to, and customarily did, leave 'their stations on the dredge as soon as their relief
reported for work and that this frequently occurred 15 or 20 minutes before the, scheduled
quitting time.
828 DECISIONS OF NATIONAL LABOR RELATIONGS BOARD
followed him to the office. Bristol, Hoffman, and Money testified that before the
group of employees followed Olson to the office, Bristol asked Olson to come back
and talk the matter over with the employees. Olson did not return and talk fur-
ther with the employees ; he testified that he did not hear Bristol's request.
When Olson and the three employees reached the office, they engaged in
some conversation outside the office and then entered the office where Hoffman,
Bristol , and Brown complained to Olson about the way he had just spoken to
the employees at the dredge. Bristol testified that during the discussion in the
office, Olson said, "Well, I hope you all get it ; you have hurt me and my family."
Douglas, a deck--foreman who appeared at the hearing on the respondents'
behalf, testified that he stood just outside the office and heard Olson and the
others talking in loud voices, and that he heard Olson say, "Well, if you had went
at it in the right way," and that he heard Bristol say, "Well, we did go at it
in the right way." Bristol testified that toward the end of the discussion in the
office, Olson "calmed down." Hoffman testified that near the end of the discus-
sion in the office, Olson apologized to the three employees there and said, "I am
sorry it came up like it did and I hope you get your time and half pay." Near
the conclusion of the conversation, G. A. Schwope, the respondents' general
superintendent, entered the office and Bristol and Hoffman left.
Later in the morning of July 10, Hoffman and Bristol returned to Schwope's
office. Schwope called Olson to the office and asked him what had occurred
earlier in the morning. Bristol testified, without contradiction, that Olson
told. Schwope that Hoffman and Bristol were rebellious 7 and he wanted to get
rid of them. There was then some discussion concerning the-matter which,
according to Bristol "drug into personalities," and Olson said that Bristol and
Hoffman could not go back to work until they apologized to him. Hoffman testi-
fied, without contradiction, that Olson said that. Hoffman and Bristol were "no
good for the organization" and refused to return them to work until they apol-
ogized to him. Olson admitted telling Schwope that he would not take the two
men back until they apologized. Schwope told Bristol and Hoffman that he
would give them further information concerning the matter later in the day.
That afternoon, Schwope told Bristol and Hoffman to return to his office on
the following morning.
On July 10, Schwope discussed the incident with several of the employees and
made a report on the matter to W. A. Woolsey, one of the respondent's officials
Woolsey told the Naval Officer in charge of construction substantially what
Schwope had reported to him, and stated that it was Schwope's opinion, after
talking to some of the other employees, that Bristol and Hoffman should be
discharged. The officer in charge of construction then indicated to Woolsey"that
he thought Bristol and Hoffman should be discharged. Woolsey then informed
Schwope that "it had been decided that there was sufficient grounds for dis-
charge" of Bristol and Hoffman.
On July 11, Schwope told Bristol and Hoffman that they were being dis-
charged for misconduct, insubordination, and failure to perform their duties.
He told them, however, that he did not want to place those reasons on the dis-
charge notices because he did not want "to work any undue hardships on them
or persecute them for this thing." After some discussion, it was agreed that
"reduction of force" would be entered as the cause of the discharge.
The evidence concerning Bristol's and Hoffman's alleged insubordination
and failure to perform their duties is conflicting. Olson testified that when
he went on the dredge on July 10, he found tools scattered all over the dredge
'Bristol testified that he was not sure the word "rebellious" was used by, Olson but
that was the purport of his statement.
n
W. S. BELLOWS CONSTRUCTION COMPANY 829
in violation of the known rule that all tools must be returned to their proper
places when not in use. Thompson corroborated Olson in this respect. Thomp-
son and Olson also testified that when Olson left the dredge he asked Hoffman
why he had left the tools on the dredge. Thompson and Olson further testified
that on the night of July 9, Bristol and Hoffman failed'to do all of the work
that had been assigned to them. Olson testified that he did not speak to them
about their failure to complete their work because the argument between Olson
and the employees started before Olson had time to do so.
The above-related testimony of Olson and Thompson is contradicted by
several witnesses. According to the testimony of Bristol, Hoffman, Baker, and
Money the dredge tools were in their proper places before they left the dredge.
Bristol and D. C. Craig testified that it was customary to leave the tools that
were actually being used, and which were to be turned over to the on-coming
shift, lying on the deck of the dredge.' Bristol testified that all the assigned
work had been completed when he left the dredge except that which was im-
possible to do because certain parts were not available. Bristol's testimony in
this respect is corroborated by Hoffman, Money, and Baker. Bristol and
Hoffman testified that Olson did not mention the employees' failure to com-
plete their work or the fact that the tools were scattered on the dredge when
lie was talking to the employees.
Upon all the relevant evidence, the undersigned finds that Bristol and Hoff-
man did not unwarrantedly fail to complete the work assigned to them for
the night of July 9, and that no more tools were scattered on the dredge on the
morning of July 10 than was customary in similar circumstances. It is un-
necessary to resolve the conflict in the evidence as to whether Olson mentioned
the tools when he left the dredge. Assuming, arguendo, that he did speak to the
employees about the tools, Olson's conduct remains without satisfactory ex-
planation. Tools scattered on the dredge would not explain Olson's outburst
before he boarded the dredge, nor is it reasonable to believe that that circum-
stance alone would provoke Olson to make the type of remarks he made on leav-
ing the dredge. Olson admitted that the remarks he made to the employees
at the dredge were directed specifically to Hoffman and Bristol When
Brown injected himself into the controversey in the office, Olson told 'him that
he was discussing the matter with Bristol and Hoffman, not Brown. Olson
explained this statement by testifying that his earlier remarks had reference
to the employees' failure to do their work and that they were addressed to
Hoffman and Bristol because they, and not Brown, were on duty when the
work should have been done. The undersigned does not credit this explanation.
Olson admitted that the work of Hoffman and Bristol was satisfactory. It is
incredible that failure to complete a task on one occasion and leaving tools
misplaced one time on the part of two satisfactory employees would cause their
superior to call them the unsavory names which Olson applied to Hoffman
and Bristol.
The undersigned finds that on the morning of July 10, Olson had learned
that Bristol and Hoffman had circulated the overtime petition among the
employees and were taking concerted action for the purpose of obtaining
overtime pay. It is further found that Olson was incensed at this activity,
and that it was the cause of his outburst against Bristol and Hoffman in the
presence of several other employees.
Olson testified that when he returned from the dredge 'and asked Hoffman
why he had not replaced the tools, Hoffman became abusive and threatened
Olson. According to Olson, Hoffman used some obscene language and among
other things said, that he had had enough of Olson's "God damn ordering" that
he "wasn't taking any more" from Olson, that the employees "were taking over,"
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he told Olson, "I have got a notion to knock your God damn head off" and
then added "Come on, Paul, let's get him." Olson's testimony in this respect is
corroborated by Thompson and Brown. According to Olson he then started
toward the office, some of the employees followed him, met him at the office, and
made threatening gestures toward him. The respondents adduced some evidence
for the purpose of showing that the employees pursued Olson to the offir a with
hostel intent. Douglas testified that when Olson and the other employees reached
the field office, he heard Hoffman tell Olson, "I will knock your block off." Hoff-
man denied making the threats that Olson, Thompson, Brown, an Li Douglas
attributed to him. Money, Baker, and D. C. Craig, who were standing within
hearing distance of Hoffman while he was at the dredge, testified that they did
not hear Hoffman make the claimed threatening remarks. There is no evidence
that Bristol make any such remarks to Olson. The only evidence adduced to
corroborate Olson's testimony that threatening gestures were made is Thompson's
testimony that after the group had reached the office he saw "a man roll up his
sleeves like he was going to hit" Olson, and D. C. Craig's testimony that he
"believed" he saw Hoffman shaking his fist on the way to the office when Hoffman
"was quite a way behind Olson." This testimony of Thompson and Craig, how-
ever, is completely negatived by their further and specific testimony that they
did not see Hoffman make any threatening gestures toward Olson Thus, the
testimony of Thompson and Craig lends little, if any, support to Olson's claim
that Hoffman threatened to strike him. Hoffman testified that he wore his
sleeves cut short in the summer time, and denied that he rolled up his sleeves
or made threatening gestures toward Olson. Bristol, Money, and Douglas testi-
fied that they did not see Hoffman make any threatening gestures toward Olson.
There is no evidence that Bristol threatened to strike Olson. The only evidence
of misconduct by Bristol is Olson's testimony that when the group was in the
office, he bttempted to use the phone and Bristol "Jerked" the phone from Olson's
hand Bristol and Hoffman denied that Bristol interfered with Olson's use of
the phone. Brown testified that Bristol told Olson to put the phone down and
that it was he [Brown] who "hit his [Olson's] hand" on the phone. According
to Baker, while the group was still at the dredge, Brown cursed Olson and said,
"Let me ask that son of a so-and-so" about the matter under discussion. The
undersigned finds that Hoffman. Bristol, and Brown were annoyed by Olson's
statements to the employees and that they attempted to talk to Olson about the
matter, and that Hoffman made certain remarks of a threatening nature to
Olson. It is further found that neither Hoffman or Bristol made any threatening
gestures toward Olson and that the language that Hoffman used in speaking to
Olson was provoked by the vile appelations which Olson applied to the employees
and was no more than the, expectable retort from a dredge worker in the
circumstances.
The question remains whether Hoffman and Bristol were discharged for the
reasons assigned by the respondents or because they engaged in concerted activity.
Olson admitted that the apology he required of Bristol and Hoffman before he
would put them back to work was an apology for trying to hit him. It has been
found that neither Hoffman nor Bristol made any attempt to hit Olson. The
undersigned is not impressed with the respondents' attempt to show that Bristol
and Hoffman chased Olson to the office for the purpose of doing violence to him.
It is found that they were trying to overtake him for the purpose of talking to him
further about the remarks he had made to the employees. The undersigned is
convinced that Bristol and Hoffman were not discharged because of their state-
ments or actions during the incident with Olson. This conclusion is supported
by the fact that Brown, who called Olson a "son of a so-and-so" and who. hit
W. S. BELLOWS CONSTRUCTION, COMPANY 831
Olson on the hand when he tried to use the phone in the office, but who had
nothing to do with the overtime petition except to sign it as did almost all of the
other employees, was not discharged or penalized in any way. It has been
found that Bristol and Hoffman did not fail to do work which they were able
to do on the night of July 9 and that no more tools were left on the dredge than
was customary in similar circumstances. Moreover, it is admitted that Olson
never mentioned failure to perform their duties to Bristol and Hoffman. When
Schwope interviewed Olson, Bristol and Hoffman about the incident, there was
no mention made of the tools or the employees' failure to perform their duties.
Bristol and Hoffman applied for reinstatement and were given a hearing
before an investigation board'concerning the cause of the discharge. This board
was appointed by the Naval Officer in charge of construction and was com-
posed of four representatives of the respondents and one Naval Officer. Ac-
cording to Bristol's credible and undisputed testimony, he and Hoffman were
not questioned at the investigation board hearing concerning the tools or their
failure to do their work! The undersigned so finds. The record does not show
what the other witnesses at that hearing testified. On July 18, the investigat-
ing board issued a decision refusing reinstatement on the ground that Bristol
and Hoffman had not properly discharged their duties on July 10 and Hoffman
had attempted to strike Olson. On July 28, the officer in charge of construction
approved the decision.
It is found that the respondents failed satisfactorily to support their claim
that Bristol and Hoffman were discharged because' of their misconduct, in-
subordination, and failure to perform their duties. The Trial Examiner is
of the opinion that Bristol and Hoffman were discharged because they engaged
in concerted activities for the purpose of securing overtime pay. This is clear
from the statements that Olson made on the morning preceding the discharge
and from the fact that he tried to find some excuse for discharging Baker as
soon as he discovered that Baker had assisted Bristol and Hoffman in the
circulation of the overtime petition. The undersigned finds that the respondents
did not discharge Bristol and Hoffman because of their failure properly to
perform their duties.
It is found that the respondents discharged Bristol and Hoffman and there-
after refused to reinstate them because of their leadership in the employees'
concerted activities for the purpose of obtaining overtime pay for overtime
work, including the circulation of the overtime petition on the evening of
July 9. By discharging Bristol and Hoffman for that reason the respondents
have interfered with, restrained and coerced their employees in the exercise
of the rights guaranteed in Section 7 of the Act, thereby violating Section 8
(1) of the Act.` The undersigned further finds that by discharging Bristol and
Hoffman for that reason the respondents have discouraged concereted activity
for the purposes of collective bargaining which has the effect of discouraging
the formation of and membership in a labor organization which is the customary
instrumentality utilized by employees to achieve collective bargaining, and
therefore constitutes an unfair labor practice, within the meaning of Section 8
(3) of the Act i0
8 The nature of the questions put to Bristol and Hoffman does not appear in the record.
It is a fair inference, however, that the employees were questioned concerning thejuly 10
incident.
'Matter of M F. A. Milling Company, etc., 26 N. L. R. B. 614 ; Matter of Indianapolis
Glove Company, etc., 5 N. L. R. B. 231, 238.
m Matter of Stehli and Co , Inc., etc., 11 N. L. It. B. 1397, 1451 ; see also, Matter of
General Shale Products Corporation , etc., 26 N. L. R. B . 921, 928-9.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section II above, occurring in
connection with the operations of the respondents described in Section I above,
have a close, intimate, 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.
IV. THE REMEDY
Since it has been found that the respondents have engaged in and are en-
gaging in certain unfair labor practices, it will be recommended that they cease
and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
It has been found that the respondents discharged and thereafter refused to
reinstate Paul J. Bristol and James F. Hoffman because they engaged in con-
certed activities for the purposes of collective bargaining and other mutual aid
and protection. ' It will therefore be recommended that the respondents offer
Bristol and Hoffman immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to any seniority or other rights
and privileges they may have, and to dismiss, if necessary, any employees who
have been hired to fill positions previously held by them. The undersigned will
further recommend that the respondents make Bristol and Hoffman whole for
any loss of pay they have suffered by reason of their discharge by payment to
each of them of a sum equal to the amount which he would normally have earned
as wages from the date of his discharge to the date of the respondents' offer of
reinstatement, less his net earnings during said period."
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Paul
J. Bristol and James F. Hoffman because they engaged in concerted activities for
the purposes of collective bargaining and other mutual aid and protection, thereby
discouraging the formation of or membership in a labor organization, the re-
spondents have engaged in and are engaging in unfair labor practices, within the
meaning of Section 8 (1) and (3) of the Act;
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondents have engaged in
and are engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act ; -
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondents, Brown & Root, Inc., W. S. Bel-
1. n By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondents , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union , Local 2590, 8 N. L. R . B. 440. Monies received for
work performed upon Federal, State, county , municipal , or other work-relief projects shall
be considered as earnings. See Republic Steel Corporation v N. L. R B, 311 U. S. 7.
W. S. BELLOWS CONSTRUCTION COMPANY 833
lows, Anna W. Bellows, Elizabeth Bellows Williams, Warren S. Bellows, Jr.,
W. S. Bellows Construction Company and Columbia Construction Company,
Naval Air Training Center, Corpus Christi, Texas, and their officers, agents,
successors , and assigns shall :
1. Cease and desist from :
(a) Discharging, refusing to reinstate, or in any other manner discriminating
in regard to the hire and tenure of employment of their employees because of
their concerted activities for the purposes of collective bargaining or other mutual
aid or protection, thereby discouraging the formation of or membership in a labor
organization ; -
(b) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the rights to self-organization, to form, join, or assist
labor organizations , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act.
(a) Offer to Paul J. Bristol and James F. Hoffman immediate and full rein-
statement to their former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges and, if necessary, dismiss any
employees who have been hired to fill the positions previously occupied by said
employees ;
(b) Make whole Paul J. Bristol and James F. Hoffman for any loss of pay they
may have suffered by reason of the respondent's discrimination in regard to their
hire and tenure of employment by payment to each of them of a sum equal to
that which he would normally have earned as wages from the date of his dis-
charge to the date of the respondents' offer of reinstatement, less his net earnings
during such period ;2
(c) Immediately post in conspicuous places at their field office at, the Corpus
Christi Naval Air Training Center and on board the dredge boat Temple and
maintain for a period of at least sixty (60) consecutive days from the date of
posting, notices to their employees stating: (1) that the respondents will not
engage in the conduct from which it is recommended that they cease and desist
in paragraphs 1 (a) and (b) hereof; (2) that the respondents will take the
affirmative action set forth in paragraphs 2 (a) and (b) hereof; and (3) that
the respondents' employees are free to engage in concerted activities for the
purpose of collective bargaining or other mutual aid and protection and that
the respondents will not discriminate against any employee for engaging in such
activity ;
(d) Notify the Regional Director for the Sixteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what steps
the respondents have taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondents notify said Regional Director
in writing that they will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the respondents to take'
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board , Series 2-as amended, effective October 28,
1942-any property may within ten (10) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
22 See footnote 11, supra.
834 DECISP0NS OF NATIONAL LABOR RELATIONS BOARD
of said Rules and Regulations , file with the Board , Shoreham Building, Wash-
ington , D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding ( including rulings upon all motions or objections ) as he relies
upon , together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board , request therefor must be made in writing to the
Board within ( 10) days after the date of the order transferring the case to
the Board.
WILLIAM F. GuFFEY, JR.,
' Dated May 13, 1943.
Trial Examiner.
0