Warrior Constructors, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1967

168 N.L.R.B. 19 (N.L.R.B. 1967)

WARRIOR CONSTRUCTORS, INC. 19
Warrior Constructors , Inc. and Lewis E. Carroll testimony to the effect that Parker demanded that
International Union of Operating Engineers,
AFL-CIO, Local No. 450 and Lewis E. Carroll.
Case 23-CA-2528 and 23-CB-721
October 31, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On June 20, 1967, Trial Examiner James F.
Foley issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged
in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner further found that Respondent
Union had not engaged in certain other unfair labor
practices alleged in the complaint. Thereafter,
Respondent Employer filed exceptions to the Trial
Examiner's Decision and a supporting brief. The
General Counsel filed cross-exceptions and a sup-
porting brief, and an answering brief to Respondent
Employer's exceptions. The Respondent Union
filed a brief in reply to the General Counsel's cross-
exceptions.
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
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-
exceptions, briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner,' as
modified below:
We agree with the Trial Examiner's finding that
Respondent Union had nothing to do with Carroll's
discharge as a dragline operator, and did not violate
Section 8(b)(2) and (1)(A) in this respect. Ac-
cordingly, we shall dismiss this allegation of the
complaint. However, the Trial Examiner found that
the Respondent Employer violated Section 8(a)(3)
and (1) by discharging Carroll because he had less
seniority than Parker as a member of the Union.
This finding apparently was inferred from
' In the absence of exceptions thereto, we adopt pro forma the Trial Ex-
aminer's conclusions and recommendations based upon the demotion of
Carroll from the position of master mechanic
' This latter finding appears necessary to support the Trial Examiner's
theory of a discriminatory discharge, in view of his refusal to find that the
Respondent Union caused Carroll's discharge
' Add the following to the Section of the Trial Examiner's Decision enti-
tled "The Remedy" immediately after the last paragraph therein.
168 NLRB No. 5
Carroll be discharged as the price for Parker's stay-
ing on the job and from the further inference that
Turner made an unsuccessful attempt to change
Parker's attitude. We do not agree.
Assuming, arguendo, that Carroll was discharged
at Parker's request, there is no evidence in the
record to support the Trial Examiner's finding that
Carroll was discharged because he had less seniori-
ty in the Union than Parker.2 In the light of uncon-
troverted evidence that Carroll's discharge resulted
from a reduction in force, and the absence of proba-
tive evidence as to the factors considered, we can
only speculate whether Respondent Company con-
sidered seniority in the Union as a factor in effect-
ing the discharge. Thus, in this state of the record,
we find no warrant for inferring, as did the Trial Ex-
aminer, that Carroll was discharged for discrimina-
tory reasons. Accordingly, as the General Counsel
failed to establish by a preponderance of the
evidence that Respondent Employer was dis-
criminatorily motivated in discharging Carroll from
his job as dragline operator, we shall also dismiss
this allegation of the complaint.3
Amended Conclusions of Law
Delete the Trial Examiner's Conclusion of Law
6, renumber Conclusion of Law 7 as 6, and add the
following:
"7. Respondent Union has not violated Section
8(b)(2) and (1)(A) by causing Respondent Em-
ployer to discharge Carroll from the job of dragline
operator."
"8. Respondent Employer has not violated Sec-
tion 8(a)(3) and (1) by discharging Carroll from the
rank-and-file job of dragline operator."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its order the Recom-•
mended Order of the Trial Examiner as modified
below, and hereby orders that the Respondent,
Warrior Constructors, Inc., Houston, Texas, its of-
ficers, agents, successors, and assigns , and the
Respondent, International Union of Operating En-
gineers, AFL-CIO, Local No. 450, Houston, Tex-
as, its officers, agents, and representatives, shall
take the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Delete from the "A" portion of the Trial Ex-
"Respondent, International Union of Operating Engineers,
AFL-CIO, Local No . 450's liability shall terminate 5 days after it
furnishes Warrior Constructors , Inc., with a written statement notify-
ing said Employer that it has no objection to reinstatement of Carroll
as a master mechanic.
"It is noted that the obligation of respondent Employer to reinstate
Carroll to the position of master mechanic shall continue until such
date as that job is eliminated for legitimate reasons."
336-845 0 - 70 - 3
20 DECISIONS OF NATIONAL
aminer's Recommended Order the present para-
graph 2(d) and reletter the succeeding paragraphs
consecutively.
2. Delete from Appendix A attached to the Trial
Examiner's Decision the last indented paragraph.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges viola-
tions not found herein.
TRIAL EXAMINER'S DECISION
JAMES F. FOLEY, Trial Examiner: These cases,
23-CA-2528 and 23-CB-721, were brought before the
National Labor Relations Board (herein called the Board)
under Section 10(b) of the National Labor Relations Act,
as amended (herein called the Act), 61 Stat. 136, 73 Stat.
519, against Warrior Constructors, Inc. (herein called
Employer), and International Union of Operating En-
gineers, AFL-CIO, Local No. 450 (herein called Union),
on a consolidated complaint issued November 25, 1966,
by the General Counsel of the Board (through the Re-
gional Director for the Board's Region 23 at Houston,
Texas), and answers filed by Respondent Employer and
Respondent Union filed December 5 and December 2,
1966, respectively. The allegations of the complaint
against Respondent Employer are premised on a charge
filed by Lewis E. Carroll on October 7, 1966, and the al-
legations of the complaint against Respondent Union are
premised on a charge also filed by Carroll on October 7,
1966. It is alleged in the complaint that since on or about
October 3, 1966, Respondent Union has violated Sec-
tions 8(b)(I)(A) and 8(b)(2) of the Act by causing and at-
tempting to cause Respondent Employer to demote
Charging Party Carroll from his position of master
mechanic to that of a dragline operator and then to
discharge him, and to refuse to reinstate him as an em-
ployee, and as master mechanic, because he was not a
member of Respondent Union for 3 years or more. It is
also alleged in the complaint that since on or about Oc-
tober 3, 1966, Respondent Employer has violated Sec-
tion 8(a)(1) and (3) of the Act by complying with the
Respondent Union's request that it demote and then
discharge Carroll, and refuse to reinstate him as a
dragline operator, and to return him to the position of
master mechanic, because he was not a member of the
Union for 3 years or more. In their answers, Respondent
Union and Respondent Employer denied the allegations
of the complaint against them.
A hearing on the complaint and answers was held be-
fore me on February 15, 1967, in Houston, Texas.
General Counsel, Respondents, and Charging Party were
afforded an opportunity to offer evidence, make oral ar-
gument, and file briefs. General Counsel and Respond-
ents filed briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT EMPLOYER
Respondent Employer, a Texas corporation, with its
principal office and place of business in Houston, Texas,
is engaged in the business of a general contractor in the
construction industry. During the year 1966, it performed
services with a value in excess of $50,000. Pursuant to a
contract with the National Aeronautics and Space Ad-
ministration of the United States for the construction and
LABOR RELATIONS BOARD
installation of certain facilities at the Manned Spacecraft
Center in Houston, Texas.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
'A. The Evidence
The only oral testimony is the testimony of Charging
Party Carroll. He testified for the General Counsel. The
only documentary evidence is the contract (herein called
the Contract) between the Respondent Union, on the one
hand, and Associated General Contractors, Houston
Chapter, and Construction Employer's Association of
Texas, on the other hand, executed April 1, 1964, and ef-
fective until March 31, 1967, and renewable from year to
year absent 60 days' notice. The Contract was in effect in
October 1966, the period in which the alleged unfair labor
practices occurred. Respondent Employer is a party to
the Contract.
Carroll's Unrebutted Testimony
Carroll has been a member of the Respondent Union
since December 1965, and an employee of the Respond-
ent Employer since January 1966. He has had some 15
years' experience at the trade of operating engineer. Dur-
ing this time, he operated all types of heavy equipment,
and became skilled in the operation and maintenance of
this equipment. Carroll began his employment with
Respondent Employer at its construction project at the
University of Houston. About the middle of September
1966, Respondent Employer reassigned him to its con-
struction project at the Manned Spacecraft Center,
Houston, Texas. At this project, he operated a dragline
for about 3 days and was then promoted to master
mechanic. On reporting to work on October 3, 1966,
after working as master mechanic for about 2 weeks, Car-
roll was informed by Roy Turner, the Respondent Em-
ployer's field superintendent, that there was a "beef' on
the job among the operators. Turner asked Carroll to find
out what he could about it, and to see if he could
straighten it out.
Carroll talked to some of the operators under his super-
vision,' and learned that Sims, the master mechanic he
succeeded, wanted his job back. Sims, it appears, had
given the job up voluntarily in order to avail himself of
certain overtime work on the night shift. In talking to the
operators, Carroll approached an operator by the name of
Parker, who, like Sims, had just returned to the day shift
from the night shift where overtime work had been availa-
ble. Carroll got up on Parker's rig and asked him what the
difficulty was. Parker replied that Carroll was the "god-
damn beef." He said that according to the Union, Carroll
I Under the Contract, an employer must employ a master mechanic if
there are four or more operating engineers employed The master
mechanic is in charge of the engineers He distributes the paychecks and
is under the supervision of only the field superintendent and the project
superintendent He may work with his hands if less than six engineers are
employed The General Counsel conceded that Carroll was a supervisor
within the meaning of Section 2(1 1) of the Act, while performing the du-
ties of master mechanic It is undisputed that master mechanics are super-
visors under the Contract
WARRIOR CONSTRUCTORS, INC. 21
did not have the right to be master mechanic . When Car-
roll asked him to explain this remark , Parker said , "Well,
it's in your union book . You ought to read it once in a
while." They both looked at section 15(g) of the Contract.
It provides that "All master mechanics and assistant
master mechanics must be practical mechanics of the
craft they represent and have three years or more of ex-
perience at their trade." Parker then said, "That is not all
. you have been running around here scabbing on peo-
ple and knocking other people out of work, starting light
plants and power plants ." Carroll interrupted Parker,
called him a "damn liar," and said that he had not started
any equipment he was not assigned to stop before he
became master mechanic . Parker retorted , " Don't call me
a damn liar," and pushed Carroll with his open hand. Car-
roll hit Parker with his fist, and the two exchanged body
blows until Carroll subdued Parker. Carroll told Turner
what happened , and said to him that he intended to
telephone the Respondent Union 's business agent. When
he went to the telephone , he found Steward DeBorde
using it , and reporting the incident to the Union.
At approximately I 1 a.m., on October 3, Respondent
Union's Business Agents W. O. Bloodworth and Gordon
Hyatt arrived on the jobsite . Bloodworth and Hyatt
talked to other operators, and then to Carroll. Carroll re-
lated to Bloodworth and Hyatt what had occurred. De-
Borde was with them. Bloodworth asked Carroll if he was
aware that Parker could file charges against him. Carroll
asked if he had the same right , inasmuch as Parker had hit
him first , and Bloodworth replied that he could file
charges against Parker. Bloodworth , Hyatt, and DeBorde
told Carroll that he had not been in the Union long
enough to be master mechanic . The four of them ex-
amined Section 15(g) of the Contract. They then
proceeded to the office of Superintendent Henry Hill,
where they had a conversation with him. Bloodworth first
told Hill that Carroll could not be master mechanic
because he had not been a member of the Respondent
Union long enough . Carroll showed Hill section 15(g) of
the Contract . Hill asked Bloodworth for an explanation.
Bloodworth said that Hill would "have to get another
master mechanic ." Hill asked Bloodworth if he could
leave Carroll on the job for the rest of the day, and Blood-
worth said that he could. Bloodworth also said to Hill that
he "could do what he wanted to about the fight ," that he
had the authority to fire either Parker or Carroll or both.
Carroll said to Bloodworth that he was not trying to
mislead the Company into making it think that he was a
qualified master mechanic , but, that if Bloodworth's in-
terpretation of section 15(g) of the Contract was correct,
he had simply misinterpreted it. Bloodworth replied,
"That 's just the way it is, that is one of our practices."
After Carroll left Hill's office, Turner approached him
and asked how things came out. Carroll replied that
Bloodworth had told Hill that Carroll "hadn't been in the
Union long enough to be master mechanic ." Hill joined
the two, and Turner suggested that the three "try to
straighten this thing out with Mr. Parker." The three went
over to where Parker was working, and Turner called for
Parker to join them . Turner told Carroll and Parker that
the two were both good men , and that he would hate to
lose either one of them . Turner also said he hoped that the
two could "straighten this out ," and requested them "to
shake hands and just forget this thing ever happened."
Carroll offered to shake hands, but Parker refused.
Parker said that if Carroll was not fired , he would quit.
Carroll talked to Turner later that day, at which time
Turner said that he would get a chance to talk to Parker
again , and would straighten the matter out, that he should
go over to the other part of the job, and start working.
Carroll said that Turner could give him his check if he
thought that he was the guilty party. Turner said that he
was "not to worry about any checks ." Before quitting
time, Turner informed Carroll that he would be reas-
signed to a dragline the next morning . Turner also stated
that Parker would be master mechanic the next morning,
but that Carroll would be under his supervision, and not
Parker's. Carroll replied that he had reported on the job
as a crane operator , and that it was agreeable with him to
continue in that capacity. Carroll added, however, that he
still thought that the Union was misleading them by hold-
ing that he was not eligible for the job of master mechanic,
and not in the Union long enough to hold it.
Carroll worked as a dragline operator on October 4 and
5. Nothing happened until the workday ended on October
5. Then he was discharged by Turner. Turner got up on
Carroll's rig, and said to Carroll that he was being
discharged because there was "distinction" on the job.
Carroll testified that he understood Turner to mean dis-
sension . Ed Price , who was appointed master mechanic
on October 5, handed Carroll his final paycheck. Shortly
after his discharge, Carroll went to Hill's office and asked
Hill the reason for his discharge . Hill replied , "Well,
reduction in force, reducing forces." Carroll said there
were men on the job who had been there less time than he
had, and with less qualifications , and that he had been
sent to the job from another construction job of the
Respondent Employer's with the recommendation of the
superintendent of the other job. Hill replied , "Well, that's
just the way it's got to be. That is the way it is." Carroll
had another conversation about the matter. It was with
Hill and Turner. In this final conversation, Turner told
Carroll not to cause any disturbance, acknowledged that
Carroll was well qualified in his field , and stated that he
would recommend Carroll to any company in town. Hill
also told Carroll that he would give him a recommenda-
tion. Hill even asked Turner if Carroll could go back to
the "University job," but Turner replied that he had
called the superintendent of the University of Houston
job, and he had said that no operators were needed.
B. Analysis and Concluding Findings
On October 3, 1966, Respondent Employer's Field Su-
perintendent Turner demoted Charging Party Carroll
from his supervisory job of master mechanic, to which he
had been appointed 2 weeks before, to the rank-and-file
job of a dragline operator. The demotion was at the
request of Respondent Union. The latter's Business
Representative Bloodworth told Respondent Employer's
Project Superintendent Hill that the request was made
because Carroll had not been a member of Respondent
Union for the required 3 years. He also said that the 3-
year requirement was one of its practices . Earlier on Oc-
tober 3, union representatives had informed Carroll he
could not be a master mechanic because he did not have
the required 3 years of membership. At the time of Car-
roll's demotion, employee Parker was promoted to Car-
roll's position. Parker's altercation with Carroll because
of Carroll's appointment as master mechanic had trig-
gered the request of Respondent Union. It had occurred
prior to all of the October 3 activity. Parker strongly
protested to Carroll his appointment because of the lack
of 3 years ' membership.
After Carroll worked for 2 days at the job to which he
had been demoted, Turner discharged him. Turner told
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him there was dissension on the job. Employee Ed Price,
who had replaced Parker as master mechanic, gave him
the check for the money Respondent Employer owed
him Project Superintendent Hill told Carroll that the
reason was a reduction in force He did not answer Car-
roll's statement that there were men on the job with less
time and qualifications, except to say that the termination
had to be. Turner acknowledged that Carroll was well
qualified, and he and Hill said they would provide him
with a recommendation to any company in town. Turner
asked him not to make any trouble.
Respondent Employer's Turner had attempted to settle
the differences between Carroll and Parker, but although
Carroll was willing, Parker was not, and said he would
quit if Carroll was not discharged. This occurred on the
evening of October 3, 2 days before the discharge.
Turner said to Carroll at that time that he would work
things out with Parker, and refused Carroll's offer to ter-
minate his employment. However, Turner did not suc-
ceed in placating Parker, and Carroll's discharge fol-
lowed.
Respondent Union has violated Section 8(b)(1)(A) of
the Act by enforcement of its policy of denying the posi-
tion of master mechanic to employees who have not been
its members for 3 years. This conduct restrains and
coerces employees with respect to rights they have under
Section 7 of the Act.2 I also find and conclude that the
conduct of Respondent Union violates Section 8(b)(2)
and (1)(A) of the Act as it caused Respondent Employer's
conduct which discriminates against employee Carroll
and encourages membership in the Respondent Union in
violation of Section 8(a)(3) and (1) of the Act. The
Respondent Union's conduct is on all fours with its con-
duct in Local 450, Operating Engineers (Tellepsen Con-
struction Company),3 which the Board found violated
Section 8(b)(2). There, employee Rittenberry was denied
a promotion to master mechanic because he was not a
member in its organization for 3 years.
It can be argued that the facts are different because in
the Tellepsen case employee Rittenberry was only a
rank-and-file employee while in the case here employee
Carroll was a supervisor when the status of master
mechanic was first denied to him. In Tellepsen, the com-
pany notified respondent union that it intended to
promote Rittenberry and respondent union prevented it.
In the case here, Respondent Employer appointed Car-
roll to the position of master mechanic, a supervisory
position, without notifying Respondent Union, and Car-
roll held the position about 2 weeks before Respondent
Union learned of his promotion. But he held the rank-
and-file job of dragline operator when demoted at the
request of the Union, and was denied his right to the
master mechanic position during this time as well as dur-
ing the time he has been discharged as a rank-and-file em-
ployee to placate employee Parker. So the violation is the
same, and calls for the same remedy the Board provided
in Tellepsen
Respondent Employer has violated Section 8(a)(1) of
the Act by its denial to Carroll of the position of master
mechanic as this conduct interferes with, restrains, and
coerces employees with respect to rights they have under
Section 7 of the Act, particularly the right to their em-
ployment free of any requirement that they be members
of the Union, or members for any prescribed period of
time.4 Respondent's denial to Carroll of the position of
master mechanic at the request of Respondent Union also
violates Section 8(a)(3) and (1) of the Act. This denial
was in effect for the 2 days Carroll worked at the rank-
and-file job of dragline operator before he was
discharged, and has been in effect during his discriminato-
ry discharge.5
The evidence does not disclose that Respondent Union
had anything to do with Carroll's discharge. Business
Representative Bloodworth told Project Superintendent
Hill he could determine what action to take against Car-
roll and Parker, if any, because of the "fight" they had on
the morning of October 3. He said he could fire Carroll,
Parker, or both of them. The Union was interested in hav-
ing its practice enforced This did not require Carroll's
discharge. He had been one of its members for 10
months. As stated above, Respondent Employer sought
to retain both Carroll and Parker as employees, but
Parker demanded Carroll's discharge as the price for his
staying on. Although Respondent Employer's Turner
sought to change Parker's attitude, apparently he did not
succeed. He then discharged Carroll, a competent em-
ployee whom he and Project Superintendent Hill were
willing to recommend to other employers, because he had
less seniority than Parker as a member of the Union. This
was a discriminatory discharge in violation of Section
8(a)(3) and (I) of the Act.e
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in section
I 11, above, occurring in connection with Respondent Em-
ployer's operations described in section 1, 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.
V. THE REMEDY
Having found that Respondents engaged in conduct
violative of the Act, I shall recommend that Respondents
be ordered to cease and desist from engaging in such con-
duct, and take such affirmative action as appears necessa-
ry to effectuate the purposes of the Act. I shall recom-
mend that Respondent Employer be required to offer
Carroll without prejudice to his seniority and other rights
and privileges, immediate and full reinstatement to his
former position of master mechanic, or a substantially
equivalent position. I shall also recommend that Respond-
ents, jointly and severally, be required to make Carroll
whole for any loss of earnings he suffered by reason of the
discrimination against him by reason of the denial to him
' Local Union No 156, Sheet Metal Workers' I nternational Associa-
tion , AFL-CIO (Air Flow Slieet Mtal, Inc ), 160 N LRB 1653
' 122 NLRB 564, enfd 281 F 2d 313 (C A. 5), cert denied 366 U S
901
a Talladega Cotton Factory, Inc , 106 N LRB 295, enfd 213 F 2d 208,
215-217 (C A 5), Better Monkey Grip Company, 115 NLRB 1170, enfd
243 F 2d 836 (C A 5),cert denied 353 U S 864,355 U S 900, Jackson
Tile Manufacturing Company, 122 NLRB 764,'enfd 272 F 2d 181 (C A
5), Dal-Ter Optical Company , Inc, 131 NLRB 715, enfd 310 F 2d 58
(C A 5), Oil City Brass Works , 147 NLRB 627, enfd 357 F 2d 466
(C A 5)
See Local 450 , Engineer , supra, Local Union No 156 , Sheet Metal
Workers , supra, A Nabakowski Co, 148 NLRB 876, enfd 359 F 2d 46
(C A 6), and Union Starch & Refining Company , 87 NLRB 779, enfd
186 2d 1008 (C A 7), cert denied 324 U S 815.
1 Radio Officers' Union v N L R B, 347 U S 17
WARRIOR CONSTRUCTORS, INC 23
of the position of master mechanic. I shall also recom-
mend that Respondent Employer make Carroll whole for
his loss of earnings caused by his discriminatory
discharge. These compensations shall be determined in
the manner provided in F. W Woolworth Company, 90
N LRB 289, with interest at 6 percent per annum as pro-
vided in Isis Plumbing & Heating Co., 138 N LRB 716
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 Employer is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and
Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent Employer violated Section 8(a)(1) of
the Act, and Respondent Union violated Section
8(b)(1)(A) of the Act by enforcing Respondent Union's
policy of denying employees their right to be free to en-
gage or not engage in union activity guaranteed them in
Section 7 of the Act by denying them the right to hold the
position of master mechanic when they have not been
members of Respondent Union for 3 years, and per-
mitting employees to hold this position when they have
been members of the Union for 3 years.
3. Respondent Employer violated Section 8(a)(1) of
the Act, and Respondent Union violated Section
8(b)(1)(A) of the Act by Respondent Employer's demo-
tion, at the request of Respondent Union, of Carroll from
the supervisory position of master mechanic to the rank-
and-file job of dragline operator, and Respondent Em-
ployer's promotion of employee Parker to replace Car-
roll, because Carroll had not been a member of Respond-
ent Union for 3 years, and Parker had been a member
for 3 years.
4. Respondent Union violated Section 8(b)(2) and
(1)(A) of the Act by causing Respondent Employer to
deny to Carroll when he held the rank-and-file job of
dragline operator the position of master mechanic
because he had not been a member of the Respondent
Union for 3 years.
5. Respondent Employer violated Section 8(a)(3) and
(1) of the Act by denying to Carroll, while he held the
rank-and-file job of dragline operator, the position of
master mechanic, at the request of Respondent Union,
because he had not been a member of Respondent Union
for 3 years.
6. Respondent Employer violated Section 8(a)(3) and
(1) of the Act by discharging Carroll from the rank-and-
file job of dragline operator in order to retain Parker as an
employee, because of Parker's longer tenure as a member
of Respondent Union.
7. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of facts and conclusions of
law and pursuant to Section 10(c) of the Act, the Trial
Examiner hereby issues the following:
RECOMMENDED ORDER
A. Respondent Warrior Constructors, Inc., its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining , and coercing em-
ployees with respect to their right to become, or not
become, union members , or engage in, or not engage in,
union activity, guaranteed them in Section 7 of the Act,
by denying them the opportunity to become master
mechanics until they have been members of International
Union of Operating Engineers , AFL-CIO, Local No.
450, for 3 years , or any other period of time specified by
this Respondent Union.
(b)' Encouraging membership in Respondent Union by
denying employee Lewis E. Carroll, or any other em-
ployee, the position of master mechanic because he has
not been a member of Respondent Union for 3 years, or
any other period of time, or in any other manner dis-
criminating against Carroll with respect to his wages,
hours , and other terms and conditions of employment
because of lack of union membership or union activity.
(c) Engaging in like or related conduct that interferes
with, coerces , and restrains employees with respect to
their right to refrain from engaging in union or other con-
certed activity for mutual aid or protection guaranteed
them in Section 7 of the Act.
2. Take the following action which will effectuate the
policies of the Act:
(a) Reinstate Lewis E. Carroll to the position of
master mechanic , or substantially equivalent position,
without prejudice to his seniority or other rights and
privileges
(b) Notify Lewis E. Carroll if presently serving in the
Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the
Armed Forces.
(c) Make Lewis E. Carroll whole,jointly and severally
with Respondent Union, for any loss of earnings , includ-
ing interest , he suffered by reason of the denial to him of
the position of master mechanic, in the manner set forth
in the section of this Decision entitled "The Remedy."
(d) Make Lewis E. Carroll whole for any loss of
earnings, including interest, he suffered by reason of his
discriminatory discharge from the job of dragline opera-
tor, in the manner set forth in the section of this Decision
entitled "The Remedy "
(e) 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 relevant and material to Respondent Employer's
compliance with the provisions of this Order.
(f) Post at its plant in Houston, Texas, copies of the at-
tached notice marked " Appendix A."7 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 23, after being duly signed by an authorized Respond-
ent Employer's representative , shall be posted by the
Respondent Employer upon receipt thereof , and be main-
tained by it for 60 consecutive days thereafter , in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent Employer to insure that said
notices are not altered , defaced , or covered by any other
material
' In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Recom-
mended Order , what steps the Respondent Employer has
taken to comply herewith.8
B. International Union of Operating Engineers,
AFL-CIO, Local No. 450, its officers , agents, and
representatives , shall:
1. Cease and desist from:
(a) Restraining or coercing employees with respect to
their rights under Section 7 of the Act by denying them
the opportunity to become master mechanics untihthey
have been its members for 3 years , or any other period of
time
(b) Causing or attempting to cause Respondent Warrior
Constructors, Inc., to deny to Lewis E. Carroll, or any
other employee , the position of master mechanic until he
has been its member 3 years , or for any period of time, or
in any other manner engaging in discrimination against
employees in regard to their wages , hours, and other
terms and conditions of employment.
(c) By like or related acts, restraining or coercing em-
ployees in regard to their right to refrain from engaging in
union or other concerted activity for mutual aid or protec-
tion guaranteed them in Section 7 of the Act.
2 Take the following affirmative action which will ef-
fectuate the policies of the Act-
(a) Notify Respondent Warrior Constructors, Inc.,
that it has no objection to the employment of Lewis E.
Carroll as master mechanic, and mail a copy of the nofice
to Carroll.
(b) Make Lewis E. Carroll whole,jointly and severally
with Respondent Employer, for any loss of pay, including
interest , he may have suffered by reason of the denial to
him of the position of master mechanic, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) Post in conspicuous places at its business office in
Houston , Texas, where nofices to members are
customarily posted , copies of the attached notice marked
"Appendix B." 9 Copies of said notice , to be furnished by
the Regional Director for Region 23, after being duly
signed by an official representative of Respondent Union,
shall be posted by Respondent Union immediately upon
receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter , in conspicuous places, including all
places where notices to members are customarily posted
Reasonable steps shall be taken by Respondent Union to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Mail to the Regional Director for Region 23 signed
copies of the notice attached hereto as Appendix B for
posting by the Respondent Employer, if willing, at the of-
fice and places of business of Respondent Employer
where Appendix A is placed
(e) Notify the Regional Director for Region 23, in
writing, within 20 days from the date of this Recom-
mended Order , what steps the Respondent Union has
taken to comply herewith.1°
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 23, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith
See fn 7, supra
See fn 8, supra
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT interfere with, restrain, or coerce
them with respect to their right to become, or not
become, union members, or engage in, or not engage
in, union activity, guaranteed them in Section 7 of the
Act, by denying them the opportunity to become
master mechanics until they have been members of
International Union of Operating Engineers,
AFL-CIO, Local No. 450, for 3 years, or any other
period of time specified by this Union.
WE WILL NOT encourage membership in this
Union by denying employee Lewis E. Carroll, or any
other employee, the position of master mechanic
because he has not been a member of the Union for
3 ye4rs, or any other period of time, or in any other
manner discriminate against Carroll, or any other
employee, with respect to wages, hours, and other
terms and conditions of employment, because of lack
of union membership or union activity.
WE WILL NOT engage in like or related conduct
that interferes with, coerces, or restrains employees
with respect to their right to refrain from engaging in
union or other concerted activity for mutual aid or
protection guaranteed them in Section 7 of the Act.
WE WILL reinstate Lewis E. Carroll to the position
of master mechanic, or substantially equivalent posi-
tion, without prejudice to his seniority or other rights
and privileges.
WE WILL make Lewis E. Carroll whole,jointly and
severally with the Union, for any loss of earnings, in-
cluding interest, he suffered by reason of the denial
to him of the position of master mechanic.
WE WILL make Lewis E. Carroll whole for any
loss of earnings, including interest, he suffered by
reason of his discriminatory discharge from the job
of dragline operator.
WARRIOR CONSTRUCTORS,
INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify Lewis E. Carroll if presently
serving in the Armed Forces of the United States of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 6617 Federal
Office Building , 515 Rusk Avenue, Houston, Texas
77002, Telephone 228-0611.
APPENDIX B
NOTICE
WARRIOR CONSTRUCTORS, INC. 25
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION
OF OPERATING ENGINEERS , AFL-CIO, LOCAL No.
450
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order tc effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
engaging in union or other concerted activity for mu-
tual aid or protection guaranteed them in Section 7 of
the Act.
WE WILL make Lewis E. Carroll whole, jointly and
severally with Warrior Constructors , Inc., for any
loss of pay, including interest , he may have suffered
by reason of the denial to him of the position of
master mechanic.
WE WILL notify Warrior Constructors , Inc., that
we have no objection to the employment of Lewis E.
Carroll as master mechanic.
INTERNATIONAL UNION OF
WE WILL NOT restrain or coerce employees with OPERATING ENGINEERS,
respect to their right under Section 7 of the Act to AFL-CIO, LOCAL No. 450
refrain from engaging in union or other concerted ac- (Labor Organization)
tivlty by denying them the opportunity to become
master mechanics until they have been our members
for 3 years , or any other period of time.
WE WILL NOT cause or attempt to cause Warrior
Constructors, Inc., to deny to Lewis E. Carroll, or
any other employee , the position of master mechanic
until he has been our member for 3 years or any other
period of time , or in any other manner to engage in
discrimination against employees in regard to their
wages, hours, and other terms and conditions of em-
ployment.
WE WILL NOT restrain or coerce employees by like
or related acts in regard to their right to refrain from
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions , they may communicate
directly with the Board 's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas
77002, Telephone 228-0611.