Williams Brothers Asphalt Paving Co.

National Labor Relations Board - Board Decisions

Feb 2, 1960

126 N.L.R.B. 388 (N.L.R.B. 1960)

388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following ,
CONCLUSIONS OF LAW
1 Motion Picture Operators Union of Essex County, Local 244, International.
Alliance of Theatrical Stage Employees and Moving Picture Operators of the United
States of America and Canada, AFL-CIO, is a labor organization within the mean-
ing of Section 2 (5) of the Act
2 Stanley Warner Corporation is engaged in commerce within the meaning of
Section 2 (5) of the Act
3 By attempting to cause Stanley Warner Corporation to discriminate against
Joseph Weiner in violation of Section 8(a)(3) of the Act, the Respondents have
engaged in unfair labor practices within the meaning of Section 8(b) (2) of the Act.
4 By maintaining and enforcing agreements, arrangements, practices, or under-
standings with Stanley Warner Corporation requiring membership in good standing
in, or clearance by, Local 244 as a condition of hiring projectionists in Stanley War-
ner theaters in Essex County, New Jersey, the Respondents have engaged in unfair
labor practices within the meaning of Section 8(b) (2) of the Act
5 By requiring Stanley Warner Corporation to contribute to Local 244's welfare
and health fund for the sole benefit of members in good standing of Local 244 and
their dependents, the Respondents have engaged in unfair labor practices within
the meaning of Section 8(b) (2) of the Act
6 By restraining and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act the Respondents have engaged in unfair labor practices within
the meaning of Section 8 (b) (1) (A) of the Act
7 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication I
Richard , Robin and Colin Williams , Copartners d/b/a Williams
Brothers Asphalt Paving Company and Local 324, Interna-
tional Union of Operating Engineers , AFL-CIO
Richard, Robin and Colin Williams, Copartners d/b/a Williams
Brothers Asphalt Paving Company and Dale G. Tracy
Richard, Robin and Colin Williams, Copartners d/b/a Williams
Brothers Asphalt Paving Company and Jack Blew. Cases
Nos 7-CA-2083, 7-CA-20811, and 7-CA-92086. February 2, 1960
DECISION AND ORDER
On July 10, 1959, Trial Examiner George A Downing issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom, and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto Thereafter, the Respondent filed
exceptions to the Intermediate Report, a supporting brief, and several
motions to reopen the record
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Jenkins, and Fanning]
426 NLRB No 49
WILLIAMS BROTHERS ASPHALT PAVING COMPANY 389
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
-mediate Report, the exceptions and brief, motions,' and the entire
record in this case, and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner, with the following modifica-
tions and additions.
1. The record shows that, during the calendar year 1958, Respond-
ents made purchases of equipment and supplies originating outside the
.State which were valued in excess of $50,000. Accordingly, on the
basis of our indirect inflow standard, we find that it will effectuate
the purposes of the Act to assert jurisdiction.'
2. We do not agree with the Trial Examiner that Respondents
violated Section 8(a) (3) and (1) by failing to rehire Dale Tracy for
the 1958 season.
(a) It was established that the Respondents' business is seasonal,
that the seasonal employees are terminated each fall, and that re-
employment is made upon application the following spring. Dale
Tracy was first hired in 1955, and worked each season thereafter
until the end of the 1957 season. In April 1958, substantially before
hiring was commenced for the 1958 season, Tracy visited the Re-
spondents' office seeking employment. He spoke to Richard Williams.
Tracy testified that in answer to his request for employment, Williams
said, "The way it looks, I guess we ain't going to have much work
anyway." Tracy judged from Richard's attitude that he was being
rejected and made no further attempt to reapply. We find in these
circumstances that there was no warrant for any belief by Tracy
that further applications would have been futile when the Respond-
ents commenced seasonal hiring. Accordingly, Tracy failed in our
opinion, to exercise due diligence in applying for employment.
(b) The Trial Examiner found that Tracy's adherence to the Union
was known to the Respondents, in view of the following evidence : The
Respondents in July 1957 conducted a private election among the
employees to determine whether or not they desired to be represented
by the Union. Tracy testified that he signed his ballot, and that after
the election, Respondents took possession of these ballots. Tracy also
testified that shortly after the election, Colin Williams asked him
i The various motions to reopen the record are denied for the reason that they fail to
show that the evidence now sought to be adduced was not available at the time of the
hearing See N L.R.B. v. Tyrrell County Lumber Company, 203 F 2d 951 (CA. 4) ;
James Julian, Frank Julian and Charles Julian, copartners d/b/a Julian Aluminum
Foundry Company, 120 NLRB 1319.
2 We do not adopt the finding in the Intermediate Report that prior to his conversation
with Colin Williams, Earl Houseman was approached by union agents. The record shows
that during this incident the union agents conferred with several employees on the
jobsite, but not Houseman . This modification, however, does not affect our final con-
clusions herein.
3 Bussey-Williams Tire Co., Inc ., 122 NLRB 1146.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what he thought of the Union, and he said, "Well, I have been in
unions before and I believe in them. If one contractor can be union,
it seems like they all should." We do not agree this evidence is suffi-
cient to impute to the Respondent's knowledge of Tracy's union ac-
tivities. Even were we to accept the Trial Examiner's finding that
Tracy, among others, signed his ballot, there is no evidence that Tracy
had cast his vote in favor of the Union. Nor do we find that Tracy's
remark to Colin Williams in and of itself was of such a nature as to
support the finding that Respondents had knowledge of his union
activities. For the foregoing reason, we shall dismiss the complaint
as to Tracy.
[The Board dismissed the complaint in Case No. 7-CA-2084.]
ORDER
Upon the entire record in this proceeding, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondents, Richard,
Robin and Colin Williams, Copartners d/b/a Williams Brothers As-
phalt Paving Company, Ionia, Michigan, its officers, agents, succes-
sors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local 324, International Union
of Operating Engineers, AFL-CIO, or in any other labor organiza-
tion of their employees, by refusing to rehire employees because of
their union membership and activities, or discriminating in any other
manner in regard to hire or tenure of employment, or any term or
condition of employment, to discourage membership in a labor organ-
ization, except as authorized by Section 8(a) (3) of the Act, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
(b) Promising reemployment on condition that employees with-
draw from the Union, threatening reprisals again8t employees be-
cause of their union membership and activities, or threatening to cut
the working hours if the Union should come in.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form, join, or assist Local 324, International Union of Operating
Engineers, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from all such
activities except to the extent that such right may be affected by an
agreement authorized by Section 8(a) (3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act of 1959.
WILLIAMS BROTHERS ASPHALT PAVING COMPANY 391
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Jack Blew immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any
loss of pay he may have suffered by payment to him of a sum of money
equal to that which he normally would have earned from the date of
the discrimination against him to the date of the offer of reinstate-
ment, loss his net earnings during said period (Crossett Lumber Com-
pany, 8 NLRB 440), said backpay to be computed on a quarterlybasis
in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all records necessary to analyze the amount of backpay due and the
rights of Jack Blew under the terms of this Order.
(c) Post at their plant at Ionia, Michigan, copies of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being signed by the Respondents' representative, be posted by
Respondents immediately upon receipt thereof and maintained by
them for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondents to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondents have taken to comply therewith.
`In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Local 324, Interna-
tional Union of Operating Engineers , AFL-CIO, or in any other
labor organization of our employees, by refusing to rehire em-
ployees because of their union membership and activities, nor
will we discriminate in any other manner in regard to hire or
tenure of employment , or any term or condition of employment,
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discourage membership in a labor organization, except as
authorized by Section 8 (a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT promise reemployment on condition that em-
ployees withdraw from the Union, threaten reprisals against
employees because of their union membership and activities, or
threaten to cut working hours if the Union should come in.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to form, join,
or assist said Local 324, International Union of Operating Engi-
neers, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities except to the extent that such right may
be affected by an agreement authorized by Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL offer to Jack Blew immediate and full reinstatement
to his former or substantially equivalent position, without prej-
udice to his seniority or other rights and privileges, and make
him whole for any loss of pay he may have suffered as a result of
our discrimination against him.
All our employees are free to become, or remain, or refrain from
becoming or remaining members of the above Union, or any other
labor organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8(a) (3) of the Act, as
modified by the Labor-Management, Reporting and Disclosure Act of
1959.
RICHARD, ROBIN AND COLIN WILLIAMS,
COPARTNERS D/B/A WILLIAMS BROTH-
ERS ASPHALT PAVING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended ( 61 Stat. 136), was heard in Ionia, Michigan , on April 28 and 29,
1959 , with all parties represented . The issues as raised by the pleadings and as
litigated at the hearing were whether Respondents discriminatorily refused reem-
ployment to Jack Blew and Dale G. Tracy in May 1958 , in violation of Section
8(a) (3) of the Act, and whether they engaged in various acts of interference, re-
straint, and coercion as specified in the complaint , in violation of Section 8(a)(1).
WILLIAMS BROTHERS ASPHALT PAVING COMPANY 393
Respondents' defense in Tracy's case was that they did not rehire him because of
"his habits of personal cleanliness." In Blew's case Respondents' final contention
was that they did not rehire him solely because of the wage rate which he demanded,
though their answer had assigned a different ground.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS OF FACT
1. RESPONDENTS' BUSINESS
Respondent copartners, whose principal office and place of business is at Ionia,
Michigan, are engaged in the business of surfacing roads in the State of Michigan
and supplying crushed stone for such operations. Substantial quantities of such
work are performed on State and county highways within the State of Michigan
which are constructed with Federal funds and/or constitute links in the national
highway system. During the calendar year 1958 Respondent performed such services
valued in excess of $100,000 on State highways and also performed such services
valued in excess of $100,000 on county roads. During the same calendar year,
Respondent made extrastate purchases of equipment and supplies valued in excess
of $50,000.
Respondents are therefore engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 324, Operating Engineers , herein called the Union, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondents' business is concerned mainly with the blacktopping of State and
county roads. It is a seasonal operation, running normally from about the middle
of May to the first of November, though seasonal preparations, including the as-
sembling of a crew, usually begin in April and though some four or five employees,
including supervisors, are retained through the winter months. Normally some 30
employees are employed at the peak, divided between the asphalt and gravel plants
and the road jobs. Respondents normally hire some 12 or 15 men at the beginning
of the season, roughly half of whom have worked for Respondents in previous
seasons. It is customary for the old employees who desire reemployment to apply
at the beginning of the new season.
Though the unfair labor practices herein revolve around Respondents' failure to
reemploy Blew and Tracy at the beginning of the 1958 season, much of the evidence
relevant to the alleged discriminatory motivation concerned events which occurred
during the 1957 season and may be properly considered (though outside the Section
10(b) period) because of its direct bearing on the issue of motivation. Federal
Trade Commission v. Cement Institute, 333 U.S. 683, 705.1
A. Background evidence; the 1957 season
Both Blew and Tracy worked for Respondents during the 1957 season, as well as
in earlier seasons, and both were acknowledged to be good workmen.
In July 1957, Anthony Giaimo, business agent of the International Union of
Operating Engineers, began an organizational campaign among Respondents' em-
ployees and sometime later requested, and was refused, recognition. Both Blew and
Tracy joined the Union and Blew became known to Respondents as one of its lead-
ing proponents. Blew testified that shortly after he signed the 'application card,
Colin inquired whether he had joined the Union and who else had joined. Blew
answered only for himself.
Shortly after that, Respondents conducted an election among the employees of
the asphalt plant. At Colin's request, employee Clare Hubert assisted him in con-
ducting the election. Approximately 12 employees cast their ballots on slips of
paper marked with "Yes" and "No" boxes opposite the questions, "Have you joined
i The charges were filed September 11, 1958, and served on September 13. Though the
complaint charged a course of interference, restraint, and coercion back to August 1947,
no findings of unfair labor practices can be made prior to March 13, 1958. Findings may,
however, properly be made on "independent" violations of Section 8(a) (1) which occurred
after the latter date despite the failure of the charges to include them. N.L.R B. v.
Pant Milling Company, 360 U.S. 301 (decided June 15, 1959) ; National Licorice Co. v.
N.L.RB., 309 U.S 350, 369
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the International Union of Operating Engineers ?" and "Do you want Union repre-
sentation ?" The ballots were counted by Hubert, Leon Fredericks , and another
employee, and resulted in a count of approximately eight votes for the Union to four
against it . The ballots were then delivered to Respondents.
Tracy testified that he signed his ballot , but Respondents denied knowledge of
that fact and produced five ballots at the hearing, none of which was signed. Leon
Fredericks, who participated in the counting , testified for Respondents that none
of the ballots which he saw was signed ; but Hubert, called in rebuttal , testified
that he also signed his own ballot and that he saw two or three signed ballots, though
not his own. Hubert testified that he counted only some of the ballots and that
the remainder were counted by the other two employees . The entire testimony
can be reconciled , of course , on the basis of the latter explanation , which would
account for Fredericks ' failure to see any signed ballots . In view of Hubert's
corroboration of Tracy, Respondents ' possession of the cards , and its production
of only 5 ( unsigned ) cards out of 12,2 Tracy's testimony is credited , and it is found
that Respondents had knowledge of Tracy's vote.
There was other evidence that Respondents knew of Tracy's adherence to the
Union and of Blew's leadership in the campaign . Tracy testified that about 2 weeks
later, the State Labor Board conducted another election (which resulted in a 7-7
tie vote ) and that following that election Colin asked him his opinion about the
Union and that he replied that he had belonged to unions before and believed in
them , and that if one contractor could be union , they all should be. Colin replied,
"If it hadn't been for Jack Blew, he was the whole instigator of it, it never would
have happened." 3
Blew testified that as the men were starting back to work after the State election,
Colin said to him, "Well, Jack, you didn' t get the union , did you?"
Blew, who was one of five employees ( including three foremen ) who had worked
during the winter of 1956-57, testified that when Colin laid him off at the end of the
'57 season, Colin told him that if he had not "got tangled up with this union busi-
ness," he could have worked all winter long as he had the previous winter. Colin
denied that there was any conversation about winter work at the time but made
no specific denial of his alleged reference to Blew's connection with the Union.4
Neither did Colin deny the remark which Blew attributed to him after the State
election . Blew's testimony is credited.
Tracy testified that at the time of the layoff at the end of the 1957 season, Colin
remarked that he hoped to be seeing the employees next year. Colin admitted
making such a remark, but he testified that it was addressed to the group and not
to any individual employee.
B. The 1958 season
Pursuant to custom , both Tracy and Blew applied to Respondents prior to the
beginning of the 1958 season . The evidence concerning Tracy's application is brief
and not in conflict. Tracy called on Richard at the office early in April and asked
for a job . Tracy testified that Richard acted as if he did not want to speak and
that he said only that the way it looked there would not be much work and that
Respondents had not gotten anything up to that time . Tracy admitted that Richard
did not say he was refusing to hire Tracy, but he judged from Richard's attitude that
he was being rejected. In any case , Tracy left and did not reapply.
Richard testified only that he could not recall talking with Tracy on the occasion,
though he agreed that he might well have done so.
Blew testified that he called Colin on the telephone in April and asked about
coming back to work. Colin replied that it would be about another month before
the plant would start and that he would call Blew. On May 19, Blew went in
pursuant to Colin's call and talked with Colin and Robin , but two other incidents
which preceded his visit should first be noted.
Giaimo went to the plant just prior to Blew's visit and renewed a request for recog-
nition which he had made the previous year. He testified that Colin and Robin in-
formed him they wanted no part of the Union. Giaimo then asked why they did
2 Respondents claimed that the remaining cards had been lost.
8 There was also evidence that Respondents at one time suspected Clarence Carr, a new
employee , of instigating the union activities
4 Colin had given the Board an affidavit in which he assigned financial reasons as the
basis of Respondents ' failure to keep Blew during the winter , but he admitted on cross-
examination that Respondents hired Ed Ilirski for the off -season at the same rate they
paid Blew.
WILLIAMS BROTHERS ASPHALT PAVING COMPANY 395
not rehire Blew and two other employees ( Sweet and Carr ) .5 Though the brothers
replied that they had no work , Giaimo testified that the gravel plant was operating
and that other equipment was being readied for a job. Giaimo informed the
brothers that if he could prove that their failure to rehire the men was union activity,
he would file unfair labor practice charges. The discussion became extremely heated,
and at the conclusion , Colin followed Giaimo to the gate and stated that he had a
shotgun which he would use if he ever caught Giaimo on the property again.
The chief conflict under the testimony of Colin and Robin related to the threat
to shoot Giaimo. Colin testified that they did not have a gun and that Gtaimo
was not threatened with shooting "by any of us." He admitted , however, that Robin
made some reference to the probability that some of the men on the job would shoot
Giaimo if they knew he was out there trying to cause trouble. Robin denied both
threatening to shoot Giaimo and hearing any reference to shooting. He admitted,
however, that at one time during the heated argument , he ordered Giaimo off the
property and told him that if he was not careful he might get killed before he left
there.
It is thus plain from all the versions that Giaimo 's visit ended with threats of
violence which followed his suggestion that unfair labor practice charges might be
filed.
Clare Hubert , who had just been rehired , testified that a few minutes after he
saw Giamino at the plant, he and Colin had a discussion concerning the Union during
which Colin said that if there were to be a Union in the plant, he (Colin) would
organize it.
Blew testified that when he arrived , Colin referred to the fact that Giaimo had
been there and had demanded that Respondents reemploy Blew and two other
employees . Colin said that no union man could tell him how to run the business
or who to hire and that they had told Giaimo that if he came back on their property
again they would shoot him. Robin stated in turn that if they found out which
employee started "this union business" Respondents would blackball them from all
jobs in the territory and that he did not see why "a good guy" like Blew had gotten
mixed up in the union business . Blew testified further that he was asked what wage
rate he wanted , and he replied that as Respondents had State work he thought the
rate should be $2.50 per hour. Colin replied that the rate on State work was only
$2.12 and asked if Blew would work for that . Blew agreed . Colin informed Blew
that if he would get a withdrawal card and "forgot about this union business" he
could come back to work, but Blew refused Colin then stated that Respondents
could get all the help they wanted on Blew's job for a $1 an hour, and Blew replied,
"Good, you get them," and walked out. He did not contact Respondents further
nor did they contact him.
Both Colin and Robin denied that anything was said about blackballing
employees or about Blew getting a withdrawal card. They testified that they had in
fact decided to reemploy Blew but that Blew demanded $2 50 an hour , and that
they had no work at that rate . They denied that Blew offered to work for $2.10
(his previous rate ) or $2.12 or $2 . 09 or any other rate except $2.50. They also
denied that the $2.12 rate was mentioned and testified that they knew of no such
rate pertaining to their jobs. Colin 's final testimony was that the sole reason they
did not employ Blew was because he wanted $2.50 an hour.
,One key to resolving the foregoing conflict is whether there was in fact any such
rate as $2.12 which was applicable to Respondents ' State jobs and of which Re-
spondents claimed ignorance . We start with an admission by Colin that the State
rates on State roads were the same as Davis-Bacon rates on Federal fund jobs.
Russell Conolly , business representative of Road Construction Laborers of Michigan,
Local 1191 testified in rebuttal that the $2.12 rate was actually in effect for the full
1957 season , that it was the State "prevailing wage" which appeared in all bids let
by the State , and that it was the same as the Davis-Bacon rate. A further key was
supplied by Respondents themselves in their letter of September 15, 1958, to the
Board, in which they made no reference to an alleged disagreement over Blew's rate
but assigned instead an entirely different and inconsistent reason for not rehiring
Blew. See Concluding Findings, infra. The foregoing facts persuade me that
Respondents ' witnesses did not give a truthful account of their conversation with
Blew. I therefore conclude and find that Blew in fact agreed to work for $2.12 an
hour as offered by Respondents.
There remains the further issue whether Respondents imposed the condition that
Blew obtain a withdrawal card from the Union . The record plainly established that
5 Glaimo testified he did not refer to Tracy because he was under the impression that
Tracy was returning to work.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents were not only opposed to the Union, but violently opposed to it, as
shown by their reaction to Giaimo's visit. Furthermore, immediately after that visit,
Colin made it plain to Hubert that there would be no union in the plant except
such as Respondents might themselves organize and at one point Colin told Blew
that so far as Respondents were concerned, "this union business is settled." The
requirement that Blew obtain a withdrawal card from his Union fitted plainly into
the pattern of Respondents' conduct as shown by the entire record, namely, to prevent
the employees from bargaining collectively through representatives of their own
choosing. Blew's testimony is therefore fully credited.
One further incident showed that Respondents' attitude continued well into the
1958 season. Earl Houseman testified that he was hired on June 12, that in July
he was approached on the job near Cass City by agents of Teamsters and Operating
Engineers, and that thereafter Colin told him that if the Union came in, Respondents
would have to cut the plant to 40 hours and would run two shifts if they had to.
Colin admitted making the statement, but testified that he intended no discrimina-
tion against the Union and was referring to the necessity of reducing costs by elim-
inating overtime work.
C. Concluding findings
The record overwhelmingly supports the conclusion that Respondents' failure to
rehire Blew was discriminatorily motivated. Their course of conduct during the
1957 season, including the blaming of Blew as the "instigator" of the organizational
campaign and the failure to retain him through the winter season because of "this
union business" was plainly indicative of such a motivation. But when all that is
coupled with Respondents' continued antiunion conduct during the 1958 season and
the express conditioning of Blew's employment on abandonment of his union mem-
bership, the conclusion is inescapable.
Respondents' defenses, which are presently based on their version of the May 19
interview, not only fell with the credibility resolution, but were further refuted by
their letter of September 15, 1958, to the Board. That letter made no reference
to the claim that Blew was not hired because he demanded $2.50, but explained
instead that Blew was one who had become "so obsessed" with Giaimo's promises
that his work had suffered considerably and that he was not rehired, "not because
he tried his very best to help Giaimo force a union into our organization, but be-
cause of an unhealthy careless attitude he acquired as a result of his association with
Mr. Giaimo."
Presumably, it was that defense which Respondents sought initially to support at
the hearing by evidence concerning certain accidents which Blew had in 1957, but
that defense was completely demolished by Colin's final testimony that Blew was not
rehired solely because he demanded $2.50, and by two recommendations which
Respondents subsequently gave Blew. In one of those Respondents recommended
Blew as "an efficient and reliable operator" of heavy equipment and in the other as
"a conscientious and capable individual" and as "a satisfactory employee."
Though Tracy was not shown to have been as active in union leadership as Blew
was, yet his adherence to the Union was well known to Respondents as a result of
the signed ballot and Colin's subsequent interrogation concerning his union senti-
ments and his forthright replies. Those circumstances, coupled with Respondents'
strong antiunion animus as shown by the entire record, including the conditioning
of Blew's employment on withdrawal from the Union and Colin's announced inten-
tion to Hubert to permit only a union of his own creation, plainly established for
the General Counsel a prima facie case that Respondents failed to hire Tracy for
the 1958 season because of his membership in and adherence to the Unions We turn
then to the matters which Respondents assert in defense.
The circumstances surrounding Tracy's application must be viewed in the light
of the evidence surrounding his previous year's hiring and Respondents' defense
that they did not recall him because of disapproval of his personal habits, i.e., lack
of cleanliness. The evidence showed that Tracy was hired for the '57 season by
Richard, without prior consultation with his partners. Though Richard was told
by Colin and Griswold (Respondents' foremen) that they wished he had not recalled
Tracy because of his habits and though Colin warned Tracy in mid-July concerning
0 That Respondents did not choose to eliminate all employees whose adherence to the
Union was known to them is not, of course, a circumstance indicative of innocence as
concerned their conduct regarding either Tracy or Blew. N L.R B. v. W. C. Nabors
Company, 196 F. 2d 272, 276 (C.A. 5), cert. denied 344 U.S. 865, enfg. 89 NLRB 538,
542; N L.R B v. Shedd-Brown Mfg. Co., 213 F. 2d 163, 174-175 (C.A. 7), enfg. 102
NLRB 742, 764.
WILLIAMS BROTHERS ASPHALT PAVING COMPANY 397
cleanliness and the change of clothing, Respondents not only retained him throughout
the season but gave him a raise in September. Furthermore, they did not inform
Tracy at the end of the season that he would not be rehired for the next season. To
the contrary, Tracy was one of a group to whom Colin expressed the hope that they
would return.
If there were any continued objections by Respondents to Tracy's personal habits
and if Respondents actually entertained any intention of not recalling him, certainly
that was the logical time to inform him. There remained in addition 6 months of
the off-season during which Respondents might have notified him not to report.
Again in mid-April, when Tracy applied at the customary time to Richard, who was
fully aware of the alleged objections to Tracy, Richard made no reference to those
objections or to Respondents' alleged intention not to rehire him because of them,
but cursorily turned him away with the claim that Respondents would not have
work. Yet when Richard wrote Respondents' letter of explanation to the Board some
6 months later, he claimed instead that Tracy was not recalled because of objections
concerning "his habits of personal cleanliness." Significantly, also, there was no
claim by Richard that Tracy had not applied.
It is inconceivable, if Respondents' objections were bona fide, that they would
have retained Tracy throughout the 1957 season (admittedly a slack one), would
have laid him off at the end of the season without notifying him not to reapply,
would have remained silent through another 6 months of the off-season, and would
finally, upon his appearance for the new season, have assigned the specious claim
that they had no work. Respondents' evidence thus lent further support to the Gen-
eral Counsel's case that Respondents' action was discriminatorily motivated?
It is therefore concluded and found on the entire evidence that Respondents re-
fused to rehire Dale G. Tracy in April and Jack Blew on May 19, 1958, because of
their union membership and activities to discourage membership in the Union.
It is further concluded and found that by conditioning Blew's rehiring upon his
withdrawal from the Union, by threatening reprisals against employees because of
their union activities, and by threatening to cut the working hours if the Union
should come in, Respondents interfered with, restrained, and coerced employees in
the exercise of the rights guaranteed in Section 7 of the Act. The latter findings
are based only on Respondents' conduct during the 1958 season which fell within the
Section 10(b) period.
IV. THE REMEDY
Having found that Respondents engaged in certain unfair labor practices, I shall
recommend that they cease and desist therefrom and that they take certain affirma-
tive action of the type conventionally ordered in such cases which I find necessary
to remedy and to remove the effects of the unfair labor practices and to effectuate
the policies of the Act. For reasons which are stated in Consolidated Industries, Inc.,
108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease and desist
order.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By refusing to rehire Dale G. Tracy and Jack Blew because of their union
membership and activities, Respondents engaged in discrimination to discourage
membership in a labor organization and thereby engaged in unfair labor practices
proscribed by Section 8(a)(3) and (1) of the Act.
3. By promising reemployment on condition that employees withdraw from the
Union, threatening reprisals against employees because of their union membership
and activities, and threatening to cut the working hours if the Union should come
in, Respondents engaged in unfair labor practices proscribed by Section 8(a)(1)
of the Act.
7 The giving of implausible, inconsistent, or contradictory explanations of a discharge
may be considered in determining the real motive ; it is a circumstance indicative of anti-
union motivation. N.L R B. v. Condenser Corporation of America, 128 F. 2d 67, 75
(C.A. 3) ; N.L.R.B. v. Radcliffe et al, 211 F. 2d 309, 314 (C.A. 9) ; Sandy Hill Iron &
Brass Works, 69 NLRB 355, 377-378, enfd. 165 F. 2d 660 (C.A. 2) ; cf. N.L.R.B. v.
International Furniture Company, 199 F. 2d 648, 650 (C.A. 5), enfg. 98 NLRB 674;
N.L.R.B. v. U & J Camp, Inc., at at., d/b /a Kibler-Camp Phosphate Enterprise, 216 F. 2d
113, 115 (C.A. 5), enforcing 107 NLRB 1068.
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices having occurred in connection with the
operation of Respondents' business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6) and (7)
of the Act.
[Recommendations omitted from publication.]
Swift & Company and National Brotherhood of Engineers,
Firemen & Power Equipment Operators, Petitioner. Case
No. 30-RC-1760. February 2, 1960
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Allison E. Nutt, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Bean, and Fanning].
Upon the entire record 1 in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The Petitioner, referred to herein as NBE, and the Intervenor,
United Packinghouse Workers of America, Local 88, AFL-CIO, are
labor organizations claiming to represent certain employees of the
Employer.2
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act for the reasons given
below.
The Petitioner seeks to sever the employees in the engineroom
department of the Employer's packing plant at Denver, Colorado,
from a production and maintenance unit represented by the Inter-
venor. The Employer and Intervenor moved to dismiss the petition,
contending inter alia, that NBE, ostensibly organized to represent
powerhouse employees, is fronting for an industrial union, National
'After the hearing the Petitioner requested the Board to issue a consolidated decision
for this case and for Iowa Packing Company, Division of Swift 4 Company, Case No.
18-RC-4039, which was then pending before the Board . The request to consolidate the
two cases was, in effect, denied by the issuance of a separate Decision and Order in the
Iowa Packing case on December 31, 1959 (125 NLRB 1408), but the Board considered
the record made in this proceeding before issuing the decision in Iowa Packing. The
testimony of Claude H. Ericson , a witness in the earlier proceeding, was incorporated
into this record by the agreement of the parties.
2 The Employer and the Intervenor refused to stipulate that NBE was a labor organiza-
tion. However , we affirm our finding in Iowa Packing Company, supra, that NBE is a
labor organization within the meaning of Section 2(5) of the Act.
126 NLRB No. 50.