A. S. Hubbs Contracting

National Labor Relations Board - Board Decisions

Mar 8, 1967

163 N.L.R.B. 292 (N.L.R.B. 1967)

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its plant in Skokie , Illinois, copies of the
attached notice marked "Appendix B."34 Copies of said
notice , to be furnished by the Regional Director for
Region 13 , after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof , and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps have been
taken to comply therewith."-'
I FURTHER RECOMMEND that Respondent 's separate
defense in its answer as amended at the conclusion of the
hearing be , and the same is hereby , dismissed.
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, Room 881,
United States Courthouse and Federal Office Building,
219 South Dearborn Street, Chicago, Illinois 60604,
Telephone 828-7597.
A. S. Hubbs, an Individual , d/b/a A. S. Hubbs
Contracting and Peter George Pochatko.
Case 31-CA-306.
" 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 Appeals Enforcing an Order" shall
he substituted for the words "a Decision and Order."
:11 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read: "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE HAVE taken steps to withdraw, cancel, and
remove , retroactively to June 3, 1965, the rider to your
group insurance policy which on June 3, 1965, we
reinstated into effect . All payments of insurance
benefits made to employees under that rider , as well
as all payments made under the rider of February 23,
1965 , will be recomputed so that all employees will be
paid the differences between benefit payments
received by them under the rider and the benefit
payments they would have received if the rider had
not been in effect , plus interest.
WE WILL NOT without prior notice to, and giving
reasonable opportunity to bargain by, your Union,
Local 1031 , International Brotherhood of Electrical
Workers, AFL-CIO, change your terms and
conditions of employment , such as the insurance
benefits under your group insurance policy.
WE WILL NOT modify or attempt to modify our
collective agreement with you , without giving advance
notice to your Union , offering to bargain , and in other
respects complying with the requirements of
Section 8(d) of the National Labor Relations Act, as
amended.
THE SCAM INSTRUMENT
CORPORATION
(Employer)
Dated By
(Representative) (Title)
March 8,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH, AND MEMBERS
FANNING AND BROWN
On November 17, 1966 , Trial Examiner James R.
Hemingway issued his Decision 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 attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to
the Decision and a supporting memorandum.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 and
memorandum, and the entire record in this case, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the
following modification:
We agree with the General Counsel that the Trial
Examiner's Recommended Order provided an
inadequate remedy by limiting Pochatko's backpay
period to November 29, 1965, the last day for which
his services had already been specifically requested
by Respondent. It is undisputed that between
August 2 and November 22, 1965, Respondent
repeatedly requested the Union to dispatch
Pochatko when a driver was needed, and that such
specific requests were a result of its evaluation of
the quality of his work. As nothing intervened to
suggest a change in this respect, we find that but for
his concerted activity and resulting discharge,
Respondent would have continued to request
Pochatko by name for similar work after
November 29. Accordingly, in order adequately to
163 NLRB No. 42
A. S. HUBBS CONTRACTING
remedy the effect of the unfair labor practice
committed, we shall extend the backpay period from
the date of discharge, November 26, 1965, until
February 9, 1966, when Pochatko was no longer
available for this type of work, and order backpay for
those successive jobs of Respondent where
Respondent, on the basis of past experience, would
have been expected to request the Union to dispatch
Pochatko.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent, A. S. Hubbs, an individual, d/b/a A. S.
Hubbs Contracting, its agents , successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein
modified:
Delete subparagraph (a) of paragraph 2 of the Trial
Examiner's Recommended Order and insert in lieu
thereof the following:
"(a) Make whole Peter George Pochatko for any
loss he may have suffered by reason of his discharge
on November 26, 1965, by payment to him of a sum
of money equal to that which he normally would
have earned in Respondent's employ after
November 26, 1965, on any jobs where Respondent,
on the basis of past experience, would have been
expected to request the Union to dispatch him, until
Pochatko became unavailable for such work on
February 9, 1966, less his net earnings , if any, during
said period. Loss of pay shall be computed in
accordance with the manner established by the
Board in F. W. Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent per annum until
paid, as provided in Isis Plumbing & Heating Co.,
138 NLRB 716."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES R. HEMINGWAY, Trial Examiner: The Charging
Party, Peter George Pochatko, filed a charge on
February 1, 1966, against A. S. Hubbs Trucking &
Contracting, alleging a violation of Section 8(a)(1) and (3) of
the Act. Upon this charge, a complaint issued on April 8,
1966, against A. S. Hubbs, an individual doing business as
A. S. Hubbs Contracting, herein called the Respondent,'
alleging violation of that section and those subsections of
the Act.
The complaint alleged in substance that on
November 26, 1965, the Respondent had discharged said
Pochatko and Arthur Massaro because they sought
payment of wage claims under the terms of a collective-
' The variance between the name of the Respondent in the
charge and in the complaint is an immaterial one and no point was
293
bargaining agreement between Respondent and
Construction Teamsters Local No. 606, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Union, and
threatened its employees with loss of employment if they
asserted wage claims under the terms of the said
collective-bargaining agreement . The Respondent filed an
answer on April 18, 1966, admitting the discharge of said
Pochatko and Massaro but denying that the discharges
were for the cause alleged.
Pursuant to notice, a hearing was held at San
Bernardino, California, on August 31, 1966. At the close of
the General Counsel's case, counsel for the General
Counsel moved to delete the name of Arthur Massaro from
the complaint. The motion was granted. At the close of the
hearing, the parties waived oral argument but asked time
within which to file briefs. Such time was granted. A brief
was received from the General Counsel only. Following the
close of the hearing, the General Counsel moved to correct
the transcript. The motion is granted. To the extent that
the motion differs from schedule B, it is denied.
From my observation of the witnesses and upon the
entire record in the case, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits (for want of
any denial), and I find that Respondent is, and at all times
material herein has been, an individual proprietorship
doing business under the trade name and style of A. S.
Hubbs Contracting, with its principal place of business
located in Colton, California, where it engages in
equipment contracting and hauling.
Respondent, during the past 12 months, which period is
representative of all times material herein, performed
services valued in excess of $50,000 for firms within the
State of California, each of which annually performs
services outside the State of California valued in excess of
$50,000.
Jurisdiction of the Board is uncontested. I find that the
Board has jurisdiction and that it will effectuate the
policies of the Act to assert jurisdiction.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization having a master labor
agreement with Southern California General Contractors
for the term from July 1, 1965, to May 1, 1968, which
contract covers three employer associations, including
Engineering and Grading Contractors Association, Inc.,
and which covers subcontractors who agree to be bound
thereby. Under this contract, the Union maintains a hiring
hall and refers workmen requested by employers. The
Respondent, although not for 5 years a member of
Engineering and Grading Contractors, uses the Union's
hiring hall as the source of labor, and he admittedly
operates under the terms of the aforesaid contract. I find
that Respondent, either expressly or tacitly, had agreed
with the Union to be bound by the terms of the aforesaid
contract with respect to truckdrivers requested through
the Union's hiring hall.
made of it by Respondent See Edward's Super Market and Elm
Farm Foods Co, 133 NLRB 1633
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Discrimination
1. Applicable provisions of union contract and practices
thereunder
The applicable provisions of the union contract under
which the Respondent operated are as follows:
1401.8 Travel: Workmen and employees shall travel
to and from their work on their own time and by
means of their own transportation.
1401.17 When equipment is moved . . from yard to
job site, or visa versa, by an employee covered by this
Agreement ... such transportation shall be under the
wage scales and conditions of this Agreement.... If
the driver does not return in such equipment covered
by this Agreement, he will also be given return
transportation, or a reasonable allowance therefor,
from the point of delivery of the equipment direct to
his starting place and pay therefor at the regular
straight-time hourly rate for the actual hours spent in
traveling....
Under the terms of this contract, an employee's
workday would begin, on the first day employment, at the
yard at the time that he reports for work, and it would
include his time in moving equipment from the yard to the
site of the particular job he is to work on. At the end of the
first day, if space was available at the jobsite for the
equipment, the practice would be to leave the equipment
at that place overnight, in which case the employer should
furnish transportation to the driver back to the yard where
the driver left his private automobile or where he started.
The end of the workday in that instance, under the
contract, would be the time when the employee would
return to the yard at the end of the day. Thereafter, on the
same job, the driver would go in his own car or other form
of transportation direct to the jobsite at his own expense,
and he would return home from the jobsite by his own
transportation until the end of the job, when he would have
to return the equipment to the employer's yard. On the
final day, therefore, the driver would receive
compensation until he had returned the equipment to the
yard. On a job such as the one on the highway it is possible
that no parking place would be available for overnight
parking. In such case, the employer would be obliged
either to pay for transportation of the equipment back to
the yard or would have to make special arrangements for
parking at some location near the jobsite . In the case at
hand , if the Respondent had intended that the equipment
should be left on the highway site, it would have been
incumbent upon the Respondent to make arrangements to
transport the truckdriver back to the yard where he had
left his car . Except for the one time when arrangements
were made to leave the equipment at the Winchester Gun
Club, it does not appear that the Respondent made any
special arrangements either for parking the truck
overnight or for transporting the truckdriver back to the
yard.
2. Discharge of Pochatko
Peter George Pochatko, in November 1965, was a
member of the Union. On August 2, 1965, Pochatko was
L Pochatko testified that Respondent 's office manager had told
him of the compliments and told him that he would be requested
thereafter.
dispatched by the Union to the Respondent upon the
latter's request for a driver of a 10-wheeled dump truck.
Pursuant to a provision of the aforesaid contract,
Respondent thereafter, between August 2 and
November 21, 1965, having had favorable comment about
Pochatko from the foreman on the job, specifically
requested the Union to dispatch Pochatko when such a
driver was needed.2 There were eight such instances after
the first dispatch and before November 22, 1965, when the
Respondent requested the Union to dispatch Pochatko,
but the record does not disclose the length of time of each
employment since no other dispatch slip was needed so
long as the employment was continuous. Since the
Respondent had a number of pieces of equipment, the
Respondent also called upon the Union to supply other
drivers. There is no evidence that any other driver was
requested by Respondent by name. It is clear that a driver
would be called for by name only if the employer
particularly liked his work.
On November 22, 1965, the Respondent again called
upon the Union to dispatch Pochatko. The Union did so,
but the job for which Pochatko was called did not work
that day. As was permitted when a man had already been
dispatched, the Respondent called Pochatko personally on
the afternoon of November 23, 1965, and sent him with a
truck to a job for the State Division of Highways near
Running Springs in the San Bernardino Mountains about
20 miles (a 30- to 35-minute trip) from Respondent's yard
at Colton. Pochatko was on this job, helping to clean mud
slides from a highway, each day between November 23
and 26. On each of these days except one, Pochatko
reported for work at Respondent's yard, drove the truck
assigned to him to Running Springs, and returned to the
Respondent's yard after work The one exception was a
day when word was sent to the jobsite that Pochatko and
another driver should park, after work, at the Winchester
Gun Club, the location of which is not shown in the record.
It is not clear whether both were directed to park their
trucks and if Pochatko was given a ride in the private
automobile of the other truckdriver or if Pochatko alone
parked his truck and rode in with the other driver in the
latter's truck. The record also does not establish the date
of this instance. Pochatko thought it was on either
November 24 or 25. On each of the 4 days, as was required
by Respondent, Pochatko turned in to Respondent's office
manager his own time slip showing his hours for the day. It
is impossible to figure out on which day Pochatko parked
at the Gun Club by comparing the time slips turned in by
Pochatko with the time slips prepared by the Highway
Division showing the time of each truck at the jobsite,
because, on each of Pochatko's 4 days on that job,
Pochatko's time slip showed from 1/2 to 1 hour earlier
starting time and later quitting time than the State's time
slip showed-November 23, 1 hour earlier start, 1/2 hour
later quitting time ; November 24, 1/2 hour earlier start, 1/2
hour later quitting time; November 25, 1 hour earlier start,
1-1/4 hour later quitting time; November 26, 1 hour earlier
starting time, 1 hour later quitting time. The extra time,
Pochatko testified, was accounted for by gassing his truck
in the morning, driving to the job, and at night, driving
back to the yard (except for the 1 day when he parked at
the Gun Club)3 and sometimes cleaning the truck bed of
mud and snow before quitting at night. The difference in
quitting time of 1-1/4 hours on November 25, Pochatko
' On that day he would, under the Union' s contract , have been
entitled to travel time back to the yard, where he had parked his
own car
A. S. HUBBS CONTRACTING 295
testified, was partly due to the fact that he and another
truckdriver had spent 1/4 hour looking for the foreman to
check them off the job, but, when the foreman had signed
the Highway Division's time slip that evening, he had
shown the time only when the trucks were operating at the
jobsite; so it did not show the extra 15 minutes lost by the
drivers while waiting for a time slip.
On Friday, November 26, when the foreman gave
Pochatko his time slip at 2 p.m ., when he was dismissing
him for the day, he told Pochatko that on the following
Monday, November 29, he should come to the job at
Panorama, where mud was likewise to be cleared from the
highway.
When Pochatko returned to the Respondent's yard on
November 26, he handed to the office manager his time
slip together with the one or ones which he had been
requested by the office manager that morning to get from
the State Division of Highways, and, at the same time, he
notified the office manager of the State's request for
Pochatko to be at the Panorama job the following Monday.
The office manager, Owen Rogers, said, "All right."
Hubbs, who was present that afternoon, looked over the
tickets Pochatko had turned in and asked Pochatko why
he had charged for more time on his company ticket than
was shown on the State Highway ticket. Pochatko testified
that he answered that, under the Union's contract, the
Respondent was obliged to pay his traveltime from the
time he left the Respondent's yard until he got to the
jobsite as long as he was driving Respondent's equipment.
According to Pochatko, Hubbs told him that he was not
going to pay any more than the State paid. Whereupon,
Hubbs turned to Rogers and said, "Make out this man's
time," meaning pay him off because he was being
discharged, for otherwise, according to Respondent's
practice, Pochatko's pay would have been held back until
the following week. Pochatko further testified credibly
that , after telling Rogers to make out Pochatko's time,
Hubbs remarked to Rogers, "If anyone else turns in more
time than it shows on the [State] ticket, lay them off."
Other drivers were present at the time.
Hubbs' account of this conversation was garbled and
virtually unintelligible. When first asked to relate it, he
digressed and testified that, at or about noon on
November 26, he had received a telephone call from an
unidentified representative of the State Highway Division
who had told him that the next week they would need some
more trucks at Panorama , "and this job [ Running
Springs] was completed there, but they didn't want-if we
would send this truck that was up there, Truck No. 122.
They didn't want the same driver...." At this point
Hubbs began to digress further and was interrupted by his
counsel, who subsequently asked, "And incidentally, the
number of the truck, 222, that is the truck that Pochatko
had, is that right?" Hubbs answered affirmatively. It is
true that Pochatko was driving truck number 222, but
Hubbs, in his earlier testimony about the call from the
State agent had given the truck number as 122, which
truck had been driven on November 25 by a driver named
Sanditch, who did not work on the Running Springs job on
November 26. When Hubbs again was asked by his
counsel to relate what had occurred when Pochatko was in
his office later that day, Hubbs' reply was: "Well, he came
in there. I looked at the tickets, and I was-knew that they
[?] were going to give him his time, because the
subcontractor [ ?] had to go out, and in fact the State said
they would use four or five trucks, and I told them we
didn't have any more trucks, that we had to send that
truck back. Consequently we had to have another driver,
because he had requested another driver." When his
counsel got Hubbs back on the track again, Hubbs
testified, after looking at Pochatko's ticket:
which was six, and which naturally didn't appeal to
me, but I didn't make an issue out of it . I turned to
Owen Roberts, who makes out checks and I told him
to make out his check, and we wouldn't be able to use
him on the State work any more. But we did use him
on other work later as I recall.4
The only part of Pochatko's testimony that Hubbs
specifically denied was that he had said he would never
pay more than the State paid him and that anyone who
claimed more than what the State showed on the "State
allowance" was to be laid off. Asked if he had laid
Pochatko off because Pochatko had asked for traveltime.
Hubbs answered, "No." Pochatko's account is accepted
as the more credible. Never thereafter did Respondent ask
the Union to dispatch Pochatko. He was dispatched to the
Respondent once when Respondent asked for a lowboy
driver, but Respondent had not asked for Pochatko by
name.
Hubbs testified that there was no necessity for Pochatko
to bring the truck back to the yard every night because it
did not need repairs and it could be gassed at or near
Running Springs. Pochatko was asked on cross-
examination if other trucks had been left at the Running
Springs jobsite overnight and he answered that some had
been, but he was not asked whose trucks those were, and
this was never established For all that appears, the trucks
which were parked there could have been State-owned
vehicles only, and they could have occupied whatever
parking area was available. There is no evidence that any
of the trucks parked overnight were trucks of Respondent.
Hubbs, in his testimony, was apparently seeking to
justify Pochatko' s termination on November 26, 1965, on
the ground that he had received a call from some
unidentified person on the State highway project
instructing the Respondent not to return "the same
driver" to the job on Monday. Both because of the way in
which Hubbs testified and because there was no attempt
made to corroborate such a story, I doubt the accuracy
thereof. Not only did Pochatko's testimony that the
foreman had asked him to return to the job on the
following Monday sound truthful, but there was at least
this amount of corroboration for Pochatko's testimony;
The State always paid the employer for transportation for
the truckdriver to the job on the first day and from the job
back to the yard on the last day of service. The timeticket
of the State Division of Highways on November 26, 1965,
showed no traveltime allowed for the driver's return trip. It
is inferable that the foreman would have shown traveltime
for Pochatko's return trip on the 26th had he not expected
him to return on Monday, November 29. Furthermore,
anyone as careful about his compensation as Pochatko
was would, if he had not expected to return on the
following Monday, have seen to it that his traveltime
return was shown by the State on its timeticket. I find that
if the State Division of Highways, in fact, told Hubbs it
' The one occasion when Pochatko had worked for Respondent for a dump truck or water truck Pochatko's name was highest on
after November 26, 1965, was one day in January 1966, when the Union's out -of-work list of those drivers qualified to drive a
Respondent , without asking for Pochatko, had requested a driver lowboy , so the Union dispatched him
for a "lowboy," which required a higher license than was needed
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wanted a different driver, it was speaking of a driver other
than Pochatko.
It has occurred to me that Rogers, Respondent's office
manager, might have made the arrangements for Pochatko
to park his truck at the Winchester Gun Club, expecting
Pochatko to do so not merely on one night but on each
night thereafter as long as he continued on the job. But
Rogers was not called as a witness, and Hubbs was not
familiar with the arrangements made with the Winchester
Gun Club; and the date when the truck was parked there
is not shown. So far as the record shows, therefore,
Pochatko never deviated from his instructions. Although
questions asked of Pochatko on cross-examination
suggested that the Respondent thought Pochatko should
have left his truck at the jobsite, I am unable to reach the
conclusion that Pochatko should have left his truck at the
Running Springs jobsite, because the evidence does not
show the availabilty of space at Running Springs beside
the highway for overnight parking, and it does not show
that on the first night of the job, November 23, the
Respondent had furnished return transportation to
Pochatko from Running Springs to Colton. Although, on
the morning when Pochatko picked up truck 222 at the
Gun Club, he would have been obliged to go there in his
own transportation and would not have been entitled to
traveltime while going there, he would have been entitled
to pay as soon as he started operating the truck at the Gun
Club and started to the jobsite. Since there is no evidence
of the distance from the Gun Club to the Running Springs
jobsite, it cannot be determined whether or not Pochatko
claimed more time on that morning than he would have
been entitled to. Presumably, he would, on that morning,
have had to drive the truck first to a place where he could
fill the gasoline tank, and this, as well as travel from the
Gun Club to the jobsite, would have consumed extra time.
Although some of the time claimed by Pochatko on his
own time slip, on the surface, appears rather liberal, the
Respondent at no time claimed that Pochatko had padded
his claim for payment. Even by his own testimony, Hubbs
revealed his displeasure as stemming from the claim for
any traveltime not paid by the State; so his objection was
not to the amount of traveltime claimed by Pochatko but to
the claim for any traveltime. Although Hubbs did not
dispute Pochatko's claim any further after questioning it,
and although Respondent paid Pochatko on the basis of
his claim, I am sure, and I find, that Respondent would not
have terminated Pochatko at the time it did but for Hubbs'
displeasure at being called upon to pay the contract rate
for traveltime.
The evidence suggests that Hubbs might have assumed
that Pochatko could have parked at the jobsite and that he
either assumed that Pochatko's transportation back had
been properly arranged for by his office manager or else
Hubbs completely overlooked, or was unfamiliar with, the
contract provision calling for traveltime back to the
Respondent's yard the first night that the truck was
parked at the jobsite. Even if Pochatko might have
claimed traveltime on 1 or 2 days when he should not have
been entitled to it, a fact not established by the record, he
was entitled to some travel time for which the State would
not pay and which Hubbs was obligated under the contract
to pay. In any event, therefore, Pochatko had a basis for,
and a right to assert a claim for, traveltime for which
Hubbs did not wish to pay. On all the evidence, I find that
the Respondent terminated the services of Pochatko
because Pochatko asserted a claim under the union
contract, a right protected in Section 7 of the Act.
The Board has heretofore held that when an employee
attempts to enforce or implement the terms of a collective-
bargaining agreement which is applicable to him as well as
to other employees of the employer he is engaging in
protected concerted activity which is but an extension of
the concerted activities that gave rise to that agreement.5
The General Counsel contends that Respondent violated
both Section 8(a)(1) and (3) by discharging Pochatko. Since
the remedial order appropriate for a discharge in violation
of Section 8(a)(1) of the Act provides, for all practical
purposes, the same relief as one bottomed on a violation
of Section 8(a)(3) of the Act, if found, I find it unnecessary
to reach or pass on the question whether the
Respondent, by the same conduct, also violated Section
8(a)(3) of the Act.6
I further find, however, that by Hubbs' instruction to the
office manager to lay off any employee who, in effect,
claimed more than was shown on the time ticket of the
State Division of Highways, Respondent interfered with,
restrained, and coerced employees in the exercise of their
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent 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.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Peter George Pochatko on
November 26, 1965, because he engaged in protected
activities under the Act, and by threatening other
employees with discharge if they engaged in like conduct,
the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7 of the Act and has thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The unfair labor practices herein found are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
that Respondent, A. S. Hobbs, an individual, doing
-'Anaconda Aluminum Company, 160 NLRB 35, B & M Farmers Union Cooperative Marketing Ass'n, 145 NLRB 1,
Excavating, Inc, 155 NLRB 1152, New York Trap Rock BunneyBros Construction Company, 139 NLRB 1516
Corporation, Nytralete Aggregate Division, 148 NLRB 374, 6 B & M Excavating, Inc , supra Bonney Bros Construction
Company, supra
NORFOLK LIVESTOCK SALES COMPANY
business as A. S. Hubbs Contracting, its agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
Peter George Pochatko or any other employee in regard to
hire or tenure of employment, for engaging in any activity
protected by Section 7 of the National Labor Relations
Act, as amended.
(b) Interfering with, restraining, or coercing employees
in the exercise of the right to self-organization, to form
labor organizations, to bargain collectively through
representatives of their own choosing and 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 requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Make whole Peter George Pochatko for any loss he
may have suffered by reason of his discharge on
November 26, 1965, by payment to him of a sum of money
equal to that which he normally would have earned in
Respondent's employ on the job for the State Division of
Highways, less his net earnings, if any, during said
period.7 Loss of pay shall be computed in accordance with
the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, with interest at the rate of 6
percent per annum until paid, as provided in Isis Plumbing
& Heating Co., 138 NLRB 716.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due.
(c) Post at its office and yard in Colton, California,
copies of the attached notice marked "Appendix."e Copies
of said notice, to be furnished by the Regional Director for
Region 31, after being duly signed by the Respondent,
shall be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 31, in
writing, within 20 days of the receipt of this Decision, of
what steps it has taken to comply herewith.'
' I find it impossible, on the evidence adduced, to fashion a
remedy which would be based on the assumption that Pochatko
would have been preferred by Respondent over any other
truckdriver for employment after November 29 and would have
been requested by name in preference to any other driver
9 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 Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
' In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read. "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
297
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discharge or otherwise discriminate
against any employee in regard to hire or tenure of
employment or any term or condition of employment
because he has engaged in any concerted activity
protected by Section 7 of the National Labor
Relations Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed in Section 7 of
the National Labor Relations Act, as amended, except
to the extent that those rights may be affected by an
agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the aforesaid Act.
WE WILL make Peter George Pachatko whole for
any loss of pay he may have suffered because of his
discharge on November 26, 1965, in violation of the
said Act.
A. S. HUBBS, AN INDIVIDUAL,
' d/b/a A. S. HUBBS
CONTRACTING
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 10th Floor
Bartlett Building, 215 West Seventh Street, Los Angeles,
California, Telephone 688-5850.
Norfolk Livestock Sales Company and
Bernard Vyhlidal . Case 17-CA-2866.
March 8, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 17, 1966, Trial Examiner John G.
Gregg issued his Decision 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 attached Trial Examiner's Decision. He
further found that Respondent had not engaged in
certain other unfair labor practices and
recommended that the allegations of the complaint
163 NLRB No. 44