Great Southern Construction, Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1983

266 N.L.R.B. 364 (N.L.R.B. 1983)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Great Southern Construction, Inc. and Operating
Engineers Locals 101 & 627, International
Union of Operating Engineers, AFL-CIO; Pipe-
liners Local Union 798, United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada; Laborers International Union of
North America, Local 1290, AFL-CIO and
Pipeliners Local No. 798, United Association of
Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States
and Canada
Off-Shore Drilling & Allied Workers, National
Maritime Union of America, AFL-CIO and
Operating Engineers Local 101 & 627, Interna-
tional Union of Operating Engineers, AFL-
CIO; Pipeliners Local Union 798-United Asso-
ciation, AFL-CIO; Laborers International
Union of North America, Local 1290, AFL-
CIO. Cases 17-CA-10274-1, 17-CA-10274-2,
17-CA-10306, and 17-CB-2416
March 7, 1983
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
JENKINS AND ZIMMERMAN
On April 16, 1982, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, Off-Shore Drilling &
Allied Workers, National Maritime Union of
America, AFL-CIO, herein called Respondent
Union, filed exceptions and a supporting brief, and
the General Counsel filed an answering brief. On
August 27 and 30, 1982, the General Counsel and
Respondent Union filed supplemental briefs to dis-
cuss the impact of the Board's recent Decision in
Abraham Grossman d/b/a Bruckner Nursing Home,
262 NLRB 955 (1982), on the instant case.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
The Administrative Law Judge found that under
Midwest Piping and Supply Co., Inc., 63 NLRB 1060
(1945), Respondent Employer violated Section
8(a)(1), (2), and (3) of the Act by recognizing and
executing a collective-bargaining agreement with
Respondent Union, and that Respondent Union
violated Section 8(b)(1)(A) and (2) of the Act by
accepting such recognition and executing the col-
266 NLRB No. 69
lective-bargaining agreement. We find on the basis
of our recent decision in Bruckner, supra, that Re-
spondents did not violate the Act by entering into
and executing a collective-bargaining agreement.
The pertinent facts are fully set forth in the Ad-
ministrative Law Judge's Decision. As of February
21, 1981,' 51 of Respondent Employer's 60 to 65
construction employees had signed union authori-
zation cards authorizing the Unions to act jointly
as their collective-bargaining representative. 2 On
this date, the Unions made a demand for recogni-
tion and bargaining to Respondent Employer's gen-
eral manager, Hurschel Carey. Carey examined the
cards, acknowledged that they represented a ma-
jority of the employees, but declined to recognize
the Union, saying he did not have such authority
and that they would have to talk to the company
president, B. F. Sadler. Later that day, Union Rep-
resentative Gerald Ellis telephoned Sadler and de-
manded recognition and bargaining. Sadler refused
citing his deep-seated hatred for Pipeliners Local
798 and the lack of approval by his backer, the
Getty Oil Company. Nevertheless, Sadler agreed
to meet with the Unions on February 25.
At the meeting held on February 25, Sadler re-
fused the Unions' request for bargaining. In re-
sponse to Sadler's refusal to bargain, the Unions
threatened economic action and stated that they
would file unfair labor practice charges against Re-
spondent Employer. Sadler stated that he did not
intend to sign any agreement or recognize any
union. Thereafter, the Unions set up picket lines.
Later that day Sadler sent a mailgram to Ellis in
which he stated, inter alia, that: (1) Respondent
Employer doubted that a majority of the employ-
ees had selected the Unions as their exclusive col-
lective-bargaining representative; (2) neither Man-
ager Carey nor any other company official had ex-
amined the authorization cards and that no author-
ized official had acknowledged that the Unions
represented a majority of the employees on Febru-
ary 21; and (3) the Unions should petition for a
Board-conducted election if they wished to estab-
lish majority status. No petition was filed by the
Unions.
On March 3, Respondent Employer recognized
Respondent Union as the exclusive collective-bar-
gaining representative of its construction employ-
ees pursuant to a card check of authorization cards
i All dates herein are 1981 unless otherwise noted.
2 The Unions were Operating Engineers Locals 101 and 627, Interna-
tional Union of Operating Engineers, AFL-CIO, Pipeliners Local Union
798, United Association of Journeymen and Apprentices of the Plumbing
and Pipefitting Industry of the United States and Canada, and Laborers
International Union of North America Local 1290, AFL-CIO.
364
GREAT SOUTHERN CONSTRUCTION, INC.
by neutral parties. 3 On March 7 Respondent Em-
ployer and Respondent Union entered into a col-
lective-bargaining agreement which included, inter
alia, a union-security clause and a provision provid-
ing for checkoff of initiation fees and dues.
As noted above, the Administrative Law Judge
found that by the above conduct Respondent Em-
ployer and Respondent Union violated the Act
under the doctrine of Midwest Piping, supra. How-
ever, the Board has reevaluated its experience with
the Midwest Piping doctrine and has determined
that a new policy with respect to the requirements
of employer neutrality in "initial organizing situa-
tions" is warranted. Thus, the Board will no longer
find 8(a)(2) violations in rival-union initial organiz-
ing situations where an employer recognizes a
labor organization which represents an uncoerced,
unassisted majority, before a valid petition for an
election has been filed with the Board. The Board
noted that this holding would not preclude the
finding of an 8(a)(2) violation where the employer
recognized a labor organization which did not ac-
tually enjoy majority support.
Applying these principles to the instant case, it is
clear that the General Counsel has failed to estab-
lish that Respondents have committed any viola-
tions of the Act, At the outset we note that no
union filed a valid representation petition with the
Board, which otherwise would have triggered the
imposition of strict employer neutrality.4
The General Counsel, however, argues that even
under Bruckner a violation should be found because
the record is devoid of any evidence establishing
that Respondent Union enjoyed majority support.5
I The parties stipulated that the cards were checked by neutral parties
and on that basis Respondent Employer accorded recognition to Re-
spondent Union. The Administrative Law Judge rejected Respondent
Union's contention that recognition was accorded to it based on the fact
that a majority of the employees had signed authorization cards. In this
regard, the Administrative Lass Judge notes that the General Counsel
specifically refused to stipulate that the card check revealed that a major-
ity of the employees had signed authorization cards
4 See Bruckner, 262 NLRB at 958, which holds that, once notified of a
valid petition, an employer must refrain from recognizing any of the rival
unions
5 We note that while there was testimony that a majority of Respond-
ent Employer's employees signed cards authorizing the Charging Party
and there was a stipulation that Respondent Employer recognized Re-
spondent Union on the basis of a card check by a neutral party, neither
the General Counsel nor the Charging Party introduced into evidence
the signed authorization cards establishing the majority status of the
Charging Party. Nor were any cards authorizing Respondent Union sub-
mitted In such circumstances swe are unwilling to analyze this case under
the principles of N.L. R. v. Gissel Packing Co.. Inc., 395 U.S. 575 (1969).
concerning the propriety of a bargaining order to remedy unfair labor
practices or Crest Containers Corporation, 223 NLRB 739 (1976), concern-
ing recognition in the context of dual authorization cards. We are espe-
cially unwilling to do so because no party raised these theories and the
case was litigated solely on the basis of the Midwest Piping doctrine Ac-
cordingly. we are constrained to apply only the standards set forth under
Bruckner.
Member Jenkins concurs in the result. but does not rely on Bruckner.
In this regard, the General Counsel stresses that
the Administrative Law Judge specifically found
that the record does not establish that Respondent
Employer recognized Respondent Union based
upon a showing that a majority of the employees
had designated Respondent Union as their bargain-
ing representative. Alternatively, the General
Counsel argues that, even if Respondent Union en-
joyed majority support, such support was achieved
after the Unions had demonstrated to Respondent
Employer that a majority of its employees support-
ed them. We reject the General Counsel's argu-
ments. First, the parties stipulated that Respondent
Employer granted recognition to Respondent
Union on the basis of a card check by neutral par-
ties. The General Counsel refused to stipulate spe-
cifically that the card check revealed Respondent
Union represented a majority of the unit employ-
ees. It is on the basis of this refusal to stipulate
rather than on any affirmative evidence that the
Administrative Law Judge found no record sup-
port for the majority status of Respondent Union.
Further, the General Counsel presented no evi-
dence of coercion or unlawful employer assistance
or support of Respondent Union. In the absence of
evidence to the contrary, we find that Respondent
Employer granted recognition to a labor organiza-
tion with an uncoerced, unassisted majority.
With respect to the General Counsel's alternative
argument, it is clear that Respondent Employer
had no obligation of neutrality and therefore was
free to recognize whichever of the two Unions it
deemed represented a majority of its unit employ-
ees. True, the Board, in Bruckner, cautioned that
the safe course for an employer faced with rival
claims of majority support would be to refuse rec-
ognition. However, this was addressed to the em-
ployer's risk of violating Section 8(a)(2) by recog-
nizing a union which did not in fact enjoy majority
support. As noted above, there is no evidence that
Respondent Union did not have majority status.
Thus, Respondent Employer properly recognized
the labor organization it perceived represented a
majority of its employees.
On the basis of the foregoing, we find that Re-
spondent Employer and Respondent Union did not
violate Sections 8(a)(l), (2), and (3) and 8(b)(l)(A)
and (2) of the Act, and we shall therefore dismiss
this portion of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that Respondent
365
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer Great Southern Construction, Inc., Wel-
lington, Kansas, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Delete paragraphs A, l(d) and (e) and para-
graphs A, 2(b) and (c) and reletter accordingly.
2. Delete section B of the recommended Order
and Appendix B.
3. Substitute the attached notice for Appendix A
of the Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint alle-
gations as to Respondent Union be dismissed in
their entirety.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in
Operating Engineers Local Unions 101 and
627, Pipeliners Local Union 798, and Laborers
Local Union 1290, or in any other labor orga-
nization of our employees, by laying off or dis-
charging our employees or by otherwise dis-
criminating in regard to hire or tenure of their
employment or any term or condition of em-
ployment.
WE WILL NOT engage in the surveillance of
our employees' union activities.
WE WILL NOT question our employees about
their union membership or activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL offer Claude Daniell, Jerry
Young, John L. Yarbrough, John Glen Yar-
brough, and James W. Yarbrough immediate
and full reinstatement to their former positions
or, if such positions do not exist, to substantial-
ly equivalent positions, without prejudice to
their seniority or other rights and privileges
previously enjoyed, and WE WILL make each
of them whole for any loss of earnings they
suffered as the result of our discrimination
against them, plus interest.
GREAT SOUTHERN CONSTRUCTION,
INC.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in the above-captioned cases held on December
15, 1981, is based upon unfair labor practice charges filed
against Great Southern Construction, Inc., herein called
Respondent Employer, and Off-Shore Drilling & Allied
Workers, National Maritime Union of America, AFL-
CIO, herein called Respondent Union, and collectively
called Respondents. On April 3, 1981, the charges in
Cases 17-CA-10274-1 and 17-CA-10274-2 were filed by
Operating Engineers Local 101 & 627, International
Union of Operating Engineers, AFL-CIO, herein called
Operating Engineers Locals 101 and 627; Pipeliners
Local Union 798, United Association of Journeymen and
Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, herein called Pipeliners
Local 798; and Laborers International Union of North
America, Local 1290, AFL-CIO, herein called Laborers
1290; collectively called the Unions. On April 3, 1981,
the Unions filed the charges in Case 17-CB-2416. On
April 20, 1981, Pipeliners Local 798 filed the charge in
Case 17-CA- 10306.
On May 13, 1981. the Regional Director of the Na-
tional Labor Relations Board, Region 17, on behalf of
the Board's General Counsel, issued complaints against
Respondents in the aforesaid cases which on June 5,
1981, were consolidated by the Regional Director for a
hearing before an administrative law judge. In Cases 17-
CA-10274-2 and 17-CA-10306 the complaint alleges
that Respondent Employer violated Section 8(a)(l) of
the National Labor Relations Act, herein called the Act,
by interrogating employees about their union sentiments
and activities and by engaging in the surveillance of em-
ployees' union activities. The complaint in these cases
further alleges that Respondent Employer violated Sec-
tion 8(a)(3) and (1) of the Act by discharging employees
Claude C. Daniell, James W. Yarbrough, John L. Yar-
brough, John Glenn Yarbrough, William Jerry Young,
and Steve Treadwell because of their union activities and
sentiments. In Cases 17-CA-10274-1 and 17-CB-2416
the complaint alleges that Respondent Employer violated
Section 8(a)(1) and (2) and Respondent Union Section
8(b)(1)(A) and (2) of the Act when Respondent Employ-
er granted recognition to Respondent Union as the ex-
clusive collective-bargaining representative of a unit of
Respondent Employer's employees and thereafter en-
tered into a collective-bargaining contract which con-
tained a union-security provision covering these employ-
ees despite the existence of a real question concerning
the representation of the employees. Respondents filed
answers denying the commission of the alleged unfair
labor practices.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
post-hearing briefs, I make the following:
Respondents admit that each of the unions involved in this proceed-
ing-Operating Engineers Locals 101 & 627, Pipeliners Local 798, Labor-
ers Local 1290 and Respondent Union-are labor organizations within
the meaning of Sec. 2(5) of the Act. Likewise Respondents admit that
Respondent Employer meets one of the National Labor Relations Board's
applicable discretionary jurisdictional standards and is an employer en-
gaged in commerce within the meaning of Sec. 2(6) and (7) of the Act
366
GREAT SOUTHERN CONSTRUCTION, INC.
FINDINGS OF FACT
I. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence: A Chronology
Respondent Employer is a construction contractor.
Respondent Employer is constructing a pipeline from
Medford, Oklahoma, to Conway, Kansas, herein some-
times called the project. The office for the project is lo-
cated in Wellington, -Kansas. Respondent Employer's
general superintendent in charge of the project is Hurs-
chel Carey. The pipe foreman is Nick Eddy who is also
known as Dennis Farrar. The welding foreman is Gary
Williams. Respondent Employer's president is B. F.
Sadler. Carey, Eddy, and Sadler are admittedly supervi-
sors within the meaning of Section 2(11) of the Act. Re-
spondent Employer in its answer to the complaint denies
that during the time material herein Williams was a statu-
tory supervisor. There is insufficient evidence to estab-
lish that Williams, during the time material herein, was a
statutory supervisor.
On or about February 12, 1981,2 representatives of the
Unions met and decided to organize Respondent Em-
ployer's construction employees employed on the
project. Earlier in February, Harold Palmer, a repre-
sentative for Operating Engineers Local 101, asked Re-
spondent Employer's president, B. F. Sadler, whether
there was a possibility for Respondent Employer and
Operating Engineers Locals 101 and 627 to enter into a
collective-bargaining agreement covering the project.
Sadler responded in the negative. He explained to
Palmer that he had bid the job "so cheap" that there was
no way he could pay union wage rates.
From approximately February 12 to approximately
February 21 representatives of the Unions solicited the
employees employed by Respondent Employer on the
project to sign cards authorizing the Unions to act joint-
ly as their collective-bargaining representatives. During
this period between February 17 and February 20, repre-
sentatives of the Unions held organizational meetings in
the trailer of employee Young, where employees Young
and Daniell lived, and in the mobile home of employee
John L. Yarbrough, herein called Yarbrough Sr., where
Yarbrough Sr. lived with his two sons, John Glenn Yar-
brough and James William Yarbrough, who were also
employees of Respondent Employer. Young, Daniell,
and the three Yarbroughs signed union authorization
cards.
On February 18, at the end of the workday, Pipe
Foreman Eddy informed several employees including
Daniell and Young, who were welders, and Yarbrough
Sr. who was Young's helper, that they would not work
for the next 3 or 4 days because Respondent Employer
was going to do its repair work and that while the em-
ployees were off from work they would be paid showup
time.
On February 20, at or about mid-morning, Young,
Daniell and Yarbrough Sr. spoke to President Sadler in
the Company's parking lot about the fact that they were
not working. Young asked why Daniell and himself were
2 All dates herein, unless otherwise specified, refer to 1981.
not working when other welders were working who
were not as good as Young and Daniell. Sadler stated
that he did not know. He explained to Young that he
had just returned from Tulsa, Oklahoma, and stated he
would check into the matter. Young then asked whether
Sadler intended to sign a union contract. He told Sadler
that he had heard Sadler intended to do so. Sadler stated
he did not intend to sign a contract with the Union be-
cause there were too many wounds which had not
healed and that he still had some "axes to grind," in par-
ticular with Pipeliners Local 798. Sadler also stated that
the Unions were trying to organize his employees and
asked whether Young and Daniell were members of
Local 211, the Pipefitters Local Union located in Texas
where Young and Daniell lived. Sadler informed Young
and Daniell that the reason he was asking whether they
were union members was that he had heard that some of
the employees were union members. Young answered
that they were not members of Local 211. Sadler asked
whether Young and Daniell were afraid of the Union
and told them he thought they were about the best weld-
ers in his employ and that he needed them and wanted
them to remain in his employ. Young told Sadler that
they were not afraid of the Union. Sadler ended the con-
versation by indicating that the reason for his above-de-
scribed remarks was that he thought the Union would
picket the project and that he wanted to know where
Young and Daniell stood and wanted them to know
where he stood. 3
On February 20, immediately after the aforesaid con-
versation, Yarbrough Sr. phoned Union Representative
Palmer and informed him that Sadler had indicated he
did not intend to sign a contract with any union. That
evening Palmer visited Young and Daniell at their trailer
and told them that the Unions intended to show the em-
ployees' authorization cards to Sadler the next day, Sat-
urday, February 21, rather than Monday. Yarbrough Sr.
and his son, James William Yarbrough, visited Young
after Palmer had already been there for approximately 10
minutes. As Yarbrough Sr. drove his automobile into
Young's driveway, Yarbrough and his son observed that
Respondent Employer's general superintendent, Hurschel
Carey, whose trailer was located approximately 150 feet
from Young's, was standing between 6 and 10 feet from
the window of Young's trailer and appeared to be look-
ing into the window. When Carey observed the auto-
mobile approaching, he walked away towards his own
trailer. The Yarbroughs informed Young, Daniell, and
Palmer that Carey had been standing outside of the trail-
er window. 4
The next morning, February 21, at approximately 7
a.m., several representatives from the Unions visited the
Respondent Employer's facility in Wellington, Kansas.
Gerald Ellis, the business manager for Operating Engi-
neers Local 627, acted as spokesperson. He asked Re-
3 The description of the above-described conversation is based on a
synthesis of the undenied testimony of employees Young. Daniell. and
Yarbrough Sr.
4 The description of Carey's conduct described above is based on a
synthesis of the undenied testimony of Yarbrough Sr and his son sho
impressed me as credible witnesses.
367
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
spondent Employer's general superintendent, Carey, if he
could speak to him after he dispatched the employees to
work. Thereafter, at approximately 7:30 a.m., Ellis ad-
vised Carey that the Unions had organized Respondent
Employer's construction employees and that 51 of the
employees had signed cards authorizing the Unions to
represent them. Ellis gave these cards to Carey, who,
after looking at about one-half of them, handed them
back. Carey acknowledged that the Unions represented
the employees because Respondent Employer employed
between 60 and 65 employees and stated that he knew
the Union's representatives had been on the job for sev-
eral days organizing the employees. Ellis handed the
cards to another business representative who read out
loud the names of each one of the employees who had
signed a card and asked Carey if they were on Respond-
ent Employer's payroll. Carey stated that all but one
were still on Respondent Employer's payroll. Ellis de-
manded that Respondent Employer begin bargaining
with the Unions for a collective-bargaining agreement
covering its employees. Carey replied that he did not
have the authority to recognize the Unions and that the
Unions' representatives would have to talk with Sadler,
Respondent Employer's president, whose office was in
Jenks, Oklahoma. Later that day, at approximately 3
p.m., Ellis phoned Sadler and informed him of his con-
versation with Carey and told him that the Union
wanted to sit down and negotiate an agreement with Re-
spondent Employer. Sadler answered that he had a deep-
seated hatred for Pipeliners Local 798 and under no cir-
cumstances would he recognize Pipeliners Local 798.
Ellis stated that the Unions had proved that they repre-
sented a majority of the employees. Sadler stated that he
did not doubt what Ellis was saying but that he would
not "work with" Pipeliners Local 798 and could not "go
union" without the approval of his backer, the Getty Oil
Company. Sadler, however, apparently agreed to meet
with Ellis and the other representatives of the Unions on
Wednesday, February 25, at Respondent Employer's fa-
cility in Wellington, Kansas.
On February 21, Ellis, after speaking with Sadler, sent
a mailgram to Sadler which summarized what was stated
at Ellis' earlier meetings with Superintendent Carey and
Sadler. The mailgram ended as follows:
IN ACCORI)ANCE WITH MY I)EMAND FOR BARGAIN-
ING AND OUR TEI.1 PHONI- CONVERSATION TODAY
THIS Wil1. CONFIRM OUR AGREEMENT TO MEET AT
YOUR WAREHOUSE IN WEXIL.LINGTON, KANSAS ON
WEDNESDAY, FEBRUARY 25, 1981 AT 7:30 A.M. WITH
[IHE INTI'NI)D I) PURPOSI OF NEiGOTIATING AND CON-
SUMAIING A(GR;EiltNI'S IOR YOUR EMPIOYEES ON
IHE ABOVI NOTiII) G-E'IiY PROJECT BY THE
[UNIONS]. THE EIMPI.OYt IFS SIGNING UNION AU THOR-
IZA1TION CARI)S ARt AS FOI.I.OWS: [Mailgram names
51 employees including the alleged discriminatees
James William Yarbrough, Claude C. Daniell, John
Glenn Yarbrough, John Yarbrough and William
Jerry Young.] Wl- -rH [UNIONS] ARE LOOKING FOR-
WVARI) 10 (CONSL MMATING AGREEMEN TS WITH
YOUR COMPANY FOR YOUR FMPI.OYEL:S PFR THEIR
RI QUILSTI, ANDI) WE ARI. LOOKING FOR AN AMICABLE
I.ABOR REL ATIONS ClIMATE WITH YOUR COMPANY.
SATISFACIORY PRODIUCTIVIrTY FOR YOUR COMPANY
AND YOUR EMPLOYEES UNDER THE TERMS NEGOTI-
ATEDI BARGAINING AGREEMENTS IS OUR INTENDED
PURPOSE AND AIM.
On February 21, at approximately 7 a.m., Superintend-
ent Carey informed welders Young, Daniell, and Lugin-
bill and Young's helper, Yarbrough Sr., and Luginbill's
helper that they were laid off because Respondent Em-
ployer was reducing the size of its crew. Shortly thereaf-
ter in the Company's office, Carey also told welder's
helper John Glen Yarbrough, Yarbrough Sr.'s son, that
he was laid off because there were too many defective
welds on the pipeline which they were going to have to
go back and repair before they could start up again. In
the same breath, however, Carey, referring to Yarbrough
Sr. who was standing outside the office, stated to John
Glenn Yarbrough, "if you want to work here, you need
to get rid of that red headed [expletive deleted]." John
Glenn Yarbrough left the office and as he was walking
toward the parking lot Pipe Foreman Eddy stated to
him, "I thought you wanted to work." When Yarbrough
indicated he, in fact, wanted to work, Eddy, referring to
Yarbrough's father, Yarbrough Sr., stated "you are with
that union organizing [expletive deleted], you must not
want to work bad." John Glenn Yarbrough answered
that he could not help it if Yarbrough Sr. was his father
and assured Eddy he wanted to work. Eddy answered,
"you don't have to worry about working on this job be-
cause there is not any union [expletive deleted] going to
work on this job." Eddy then spoke to Yarbrough Sr. he
called Yarbrough Sr. a "union organizing [expletive de-
leted]." Yarbrough Sr. replied he was not per se for the
Union but would not cross a union picket line. Eddy told
him "you don't have to worry about working on this job
anyway, you sorry red headed [expletive deleted]."
On February 21, Yarbrough Sr.'s other son, James
William Yarbrough, who was employed by Respondent
as a laborer, went to the Company's yard at approxi-
mately 6:45 a.m. to see if there was work and was in-
formed that he was scheduled to drive one of the Com-
pany's trucks that day. At approximately 7 a.m. Yar-
brough went to the office and asked Pipe Foreman Eddy
if, as he had been previously instructed, he would drive a
truck that day. Eddy answered in the affirmative, but
then told him to wait outside the office for a minute.
Eddy spoke briefly to Superintendent Carey after which
Eddy asked Yarbrough, "if [he] had any contact with the
Union." Yarbrough answered in the affirmative. Eddy
told him that personally Eddy thought he was a pretty
good worker and if it were left up to Eddy he would
have kept Yarbrough on the crew, but that Superintend-
ent Carey felt that since Yarbrough's father and brother
were engaged in instigating for the Union that it was
best to lay off Yarbrough as well as his father and broth-
er.
On February 25, representatives from the Unions in-
cluding Mike Ellis, the business manager of Operating
Engineers Local 627, met as scheduled with Respondent
Employer's president, B. F. Sadler, and Superintendent
Hurschel Carey. Ellis, who was the Unions' spokesper-
368
GREAT SOUTHERN CONSTRUCTION, INC.
son, informed Sadler and Carey that the Unions had
gotten authorization cards from 51 of Respondent Em-
ployer's employees and jointly represented a majority of
the employees and asked that Respondent Employer
enter into contract negotiations with the Unions covering
the employees. Sadler replied that because of his past dif-
ferences with Pipeliners Local 798 and Respondent Em-
ployer's poor financial condition that he did not intend
to recognize the Unions. At this point all of the Unions'
representatives except for the representatives from Pipe-
liners Local 798 left the room in an effort to see whether
Local 798 and Sadler could resolve their differences.
This proved unsuccessful, so Ellis returned and informed
Sadler that if Respondent Employer did not recognize
the Unions that the Unions would have to take economic
action and that the Unions intended to file unfair labor
practice charges against Respondent Employer. Sadler
told Ellis that the Unions should do what they wanted to
do but that Sadler did not intend to sign an agreement
with "anybody" and did not intend to recognize "any
union." Hearing this, the Unions' representatives left the
room and established picket lines at Respondent Employ-
er's warehouse and at the jobsite. The picket signs stated
that Respondent Employer was refusing to bargain with
the Unions.5
On February 25, after his above-described meeting
with the Unions' representatives, Sadler sent a mailgram
to Ellis which reads as follows:
DEAR MR. ELLIS PL.EASE BE ADVISED THAT [RE-
SPONDENT EMPLOYER] DOUBTS THAT AN UN-
COERCED MAJORITY OF OUR EMPLOYEES HAVE SE-
LECTED [THE UNIONS] TO REPRESENT THEM FOR
PURPOSES OF COL .ECTIVE BARGAINING. ACCORDING-
LY WE ARE DECLINING TO RECOGNIZE THESE
UNIONS AS REPRESENTATIVES OF OUR EMPLOYEES.
BE FURTHER ADVISED THAT AT NO TIME DID H.W.
CAREY OR ANY OTHER OFFICIAL OF [RESPONDENT
EMPLOYER] EVER EXAMINE THE AUTHORIZATION
CARDS THAT YOUR ORGANIZATION CLAIMS TO POS-
SESS AND FURTHER H.W. CAREY AND NO OTHER AU-
THORIZED OFFICIAL OF THIS COMPANY HAS EVER
ACKNOWLEDGED THAT YOUR ORGANIZATIONS REP-
RESENTS A MAJORITY OF OUR NONSUPERVISORY EM-
PLOYEES AS OF 2-21-81 OR ANY OTHER DATE. BE
FURTHER ADVISED THAT IF YOU SEEK TO ESTABLISH
THAT YOU REPRESENT A MAJORITY OF OUR EMPLOY-
EES, YOU SHOUI.D PETITION THE NLRB SO THAT A
SECRET BALLOT El ECTION CAN BE CONDUCTED.
On February 25, after the above-described meeting be-
tween Sadler and Carey with the Unions' representa-
tives, Carey sent identical mailgrams to the three Yar-
broughs, Young, and Daniell, which read as follows:
YOU ARE ADVISED THAT WE NOW HAVE AN IMME-
DIATE OPENING OF EMPLOYMENT FOR YOU. IF YOU
ARE INTERESTED IN REEMPILOYMENT WITH [RE-
SPONDENT EMPLOYER] PLEASE CONTACT THIS
A majority of the employees who were working for Respondent Em-
ployer on the project on February 25 ceased work when the picketing
commenced
OFFICE AT [PHONE NUMBER]. IF WE HAVE NOT
HEARD FROM YOU BY 7 A.M. ON MONDAY, MARCH 2,
1981 WE WILL ASSUME THAT YOU ARE NOT INTER-
ESTED IN REEMPLOYMENT.
On March 2 at approximately 6:30 a.m., in response to
Carey's mailgram, employees Young, Daniell, and the
three Yarbroughs reported for work. They were met
outside Respondent Employer's office by Carey who
asked them what they wanted. Young told him that they
were there in response to Carey's February 25 mailgram
stating that there were immediate job openings for them.
Carey asked them to wait and went back into the office.
He returned shortly accompanied by Pipe Foreman
Eddy.
Carey informed Young, who was a welder, that
Young and Young's helper, Yarbrough Sr. could go to
work.
Carey informed Daniell, who was a welder, there was
no job for him inasmuch as the inspectors had barred
him from the job because of his poor welding. Carey
stated he did not learn of this until after sending the Feb-
ruary 25 mailgram.
Carey informed James William Yarbrough, who was a
laborer, that there was no work for him because they
were repairing the defective welds that day for which
work Carey was using a skeleton crew and that he pre-
ferred using the laborers with more experience than Yar-
brough for this type of work. Carey instructed Yar-
brough to check with him the next day about work.
Carey informed John Glenn Yarbrough, who was a
welder's helper, that Carey had to use another welder's
helper because the other helper had more seniority.
Carey assured Yarbrough that another welder would be
there the next morning and that Yarbrough would go to
work then.
When Carey stated that Young and Yarbrough Sr.
would be going to work, Pipe Foreman Eddy asked
them, "how in hell can you [expletive deleted] walk
across the picket line when you are union," and stated
that since they carried union books and could not cross
the picket line that Carey was crazy to hire them. Carey
told Eddy to shut his mouth because, he assured Eddy,
Young and Yarbrough, Sr., would not last on the job
until noontime. Eddy followed Young and Yarbrough
Sr. when they went to the supply center to draw their
supplies. Eddy asked Young why he had returned to
work. Young told him that Carey had sent him a mail-
gram stating there was a job available and he needed the
work. Eddy asked whether Young carried a union book
in his pocket. When Young answered "yes," Eddy asked
him how, with a union book, Young was going to cross
the picket line and what the Unions would say about his
crossing the picket line. Young told Eddy that, if Eddy
were interested, he should ask the Unions' representative.
On March 2, shortly after Young and Yarbrough Sr.
started work, Respondent Employer's president, B. F.
Sadler, drove up to their worksite and called them over
to his automobile. Sadler threatened to file conspiracy
charges against them and asked if Young knew what he
was talking about. Young answered "no." Sadler stated
that the Unions had sent Young to work in order to sab-
369
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otage Sadler's pipe. Young denied this. Sadler asked
whether Young had talked to any representative of Pipe-
liners Local 798. Young answered "no." Sadler warned
Young that he could continue working but that Sadler
would file a conspiracy charge if there were any bad
welds or if Young and Yarbrough Sr. were slow in
moving from one work station to the next station or en-
gaged in any other conduct which hindered the progress
of the pipeline. Sadler asked whether Young had a Local
798 book in his pocket. Young admitted this was true.
Sadler asked why Young was crossing the picket line.
Young replied that the representatives of the Unions said
he could cross the line to work. Young told Sadler that
he should speak to the Unions' officials if he wanted to
know any more. Sadler asked Yarbrough Sr. if he had
signed an authorization card for the Unions. Yarbrough
Sr. answered in the affirmative. Sadler repeated that he
could bring both Yarbrough Sr. and Young up on con-
spiracy charges and did not want any bad welds or
"slow wobbling," a reference to moving from one work
station to the next work station slowly. Sadler ended this
conversation by stating, "you give me a day's work for a
day's pay and we will get along."
On March 2, approximately every 15 minutes or so for
the remainder of the morning, Sadler drove slowly by
where Young and Yarbrough Sr. were working and
would visually observe their work. This was in sharp
contrast to Sadler's past practice of rarely inspecting em-
ployees' work. In addition the X-ray rigs used to inspect
the welds had been moved unusally close to where
Young and Yarbrough were working.
On the morning of March 2, approximately 2 hours
after his first conversation with Young and Yarbrough
Sr., Sadler once again stopped his automobile at their
worksite and spoke to them a second time. He repeated
his warning that he intended to file conspiracy charges
against them if their work was unsatisfactory. He also
told Young that he thought Local 798 was using him as
a puppet and that Young was too good a welder to be
used as a puppet. Sadler told Young that if Young would
throw away his book with Local 798 that Sadler would
reimburse him for the money he had spent in getting the
union book and would guarantee his employment with
Respondent Employer. Young declined this offer. Sadler
ended the conversation by informing Young that so long
as Young did not damage the pipe there would not be
any trouble but threatened Young with conspiracy
charges if he made any bad welds or otherwise per-
formed any unsatisfactory work.
During the lunch period on March 2, Pipe Foreman
Eddy asked Young why he still remained on the job
when he was not wanted. Young stated that he was not
bothering anyone and needed the job. Eddy indicated
that he wished Young would leave the job.
On March 2, shortly after the lunchbreak, Sadler re-
turned to where Young and Yarbrough Sr. were work-
ing and got out of his automobile and, after inspecting
Young's welds, informed Young that so far everything
looked good and told him to keep it that way. Sadler
once again stated that he thought Local 798 was using
Young as a puppet. Shortly after this, Sadler again re-
turned to where Young and Yarbrough Sr. were work-
ing and got out of his automobile and once again inspect-
ed Young's welds, at which point Young told Sadler, "I
think the best thing for both of us is for me to get my
money and just go on." Sadler answered, "that is the
best thing you've done all day," and told Young that it
would be better for everyone if Young left but that if
Young gave up his union book he could continue to
work for Respondent Employer. Sadler also remarked to
Yarbrough Sr. "I guess you'll be going too." Yarbrough
Sr. answered, "I suppose so." Sadler stated he would in-
struct the bookkeeper to make out their paychecks and
asked them if they would work for the approximately 2
hours left that day. They agreed. In fact, Young and
Yarbrough Sr. worked for the rest of the afternoon and
not once thereafter did Sadler inspect Young's work or
drive by the area where they were working.
James William Yarbrough and John Glenn Yarbrough,
on March 2, as described supra were informed by Super-
intendent Carey there were no jobs available for them on
that day. For the remainder of that week, March 3
through 6, they repeatedly asked Carey for work with-
out success. Carey, in rejecting James William Yar-
brough's daily request for work, either told him that
only a skeleton crew was being used to do repair work
and that Carey needed laborers for this work with more
experience than Yarbrough or that due to the rain and
mud not many employees were working. In rejecting
John Glenn Yarbrough's daily request for work Carey
either told him that there were no welders for him to
work with or that due to the rain and mud they were
only doing repair work.
On or about March 3 Respondent Employer recog-
nized Respondent Union as the exclusive collective-bar-
gaining representative of all of its construction employ-
ees on the project pursuant to a check of authorization
cards by neutral parties.6 On March 7 Respondents en-
tered into a collective-bargaining agreement covering all
of Respondent Employer's construction employees effec-
tive from March 7 until September 6 which, among
other provisions, includes a 7-day union-security agree-
ment and a provision providing for the checkoff of initi-
ation fees and dues. The contractual union-security pro-
vision reads as follows:
It shall be a condition of employment that all em-
ployees of the Contractor covered by this Agree-
ment who are members of the Union in good stand-
ing on the effective date of this Agreement shall
remain members in good standing and those who
are not shall on or after the seventh (7th) day fol-
This finding is based on a stipulation entered into by all of the parties
to this proceeding. I reject Respondent Union's contention that Respond-
ent Employer recognized Respondent Union based on a card check
which revealed that Respondent Union had secured authorization cards
from a majority of Respondent Employer's employees and that all but
two of the cards were dated either March 2 or March 3. The record
shows that counsel for the General Counsel specifically refused to stipu-
late that the card check revealed that Respondent Union had secured
cards from a majority of the employees and that nonetheless Respondents
accepted the stipulation as proposed by the General Counsel. Also, even
though Respondent Employer refused to stipulate that all but two of the
cards were dated either March 2 or March 3, Respondent Union accept-
ed the stipulation.
370
GREAT SOUTHERN CONSTRUCTION, INC.
lowing the effective date of this agreement or the
execution date, whichever comes later, become and
remain members in good standing of the Union. It
shall be a condition of employment that all employ-
ees of the contractor covered by this agreement and
hired on or after its effective date or execution date,
whichever comes later, shall on or after the seventh
(7th) day following the beginning of such employ-
ment become and remain members in good standing
of the Union.
B. Conclusionary Findings and Discussion
I. Cases 17-CA-10274-1 and 17-CB-2416
The consolidated complaint issued in the above-cap-
tioned cases alleges that Respondent Employer violated
Section 8(a)(1) and (2) of the Act by granting recogni-
tion and entering into a collective-bargaining agreement
with Respondent Union covering Respondent Employ-
er's construction employees, which agreement contained
a union-security provision, notwithstanding the existence
of a real question concerning representation when it en-
gaged in the aforesaid conduct, The consolidated com-
plaint further alleges that Respondent Union violated
Section 8(b)(1)(A) of the Act by obtaining recognition
from Respondent Employer as the exclusive representa-
tive of Respondent Employer's construction employees
and by entering into a collective-bargaining agreement
with Respondent Employer covering these employees,
notwithstanding the existence of a real question concern-
ing representation when it engaged in the aforesaid con-
duct. The complaint also alleges that Respondent Union
violated Section 8(b)(2) by entering into the aforesaid
agreement, notwithstanding the existence of a real ques-
tion concerning representation, because said agreement
contained a union-security proviso.
The theory of the complaint in these cases is based on
the Board's doctrine established in Midwest Piping and
Supply Co., Inc., 63 NLRB 1060 (1945). Under the Mid-
west Piping doctrine, "an employer faced with conflicting
claims of two or more rival unions which give rise to a
real question concerning representation may not recog-
nize or enter into a contract with one of these unions
until the right to be recognized has finally been deter-
mined under the special procedures provided by the
Act." 7 Retail Clerks Union, Local 770 v. N.L.R.B., 370
7 Where, as in the instant case, no election petition has been filed, the
Board's representation processes have not been invoked and the Board
has no jurisdiction to order an election to resolve such a question. In this
circumstance, the Employer may choose to recognize one of the compet-
ing unions; however, he does so at the peril of having violated the Act if
the Board, in a subsequent unfair labor practice proceeding, determines
that a question of representation existed at the time of recognition. Wil-
liam Penn Broadcasting Co., 93 NLRB 1104, 1105, fn. 5 (1951); National
Carbon Division, 100 NLRB 689, 698-699 (1952); cf International Ladies
Garment Workers' Union v. N.L.R.B., 366 U.S. 731, 740 (1961). For this
reason, it has been suggested that, where neither contending union has
filed a petition, the employer's most prudent course is to itself file a peti-
tion with the Board. See N ,L.R.B. v. Hunter Outdoor Products, Inc., 440
F.2d 876, 880 (Ist Cir. 1971); NVL.R.B. v. Downtown Bakery Corp., 330
F.2d 921. 928 (6th Cir. 1964): N.L.R.B. v. Signal Oil & Gas Co., 303 F.2d
785, 788, fn. 3 (5th Cir. 1962)
F.2d 205, 207 (9th Cir. 1966). If an employer ignores this
doctrine and improperly recognizes one of the unions in-
volved, it violates Section 8(a)(2) and (1) of the Act.
Likewise, a union's acceptance of recognition, or its ex-
ecution of a contract where a real question concerning
representation exists, is similarly destructive of employ-
ees' rights and therefore violates Section 8(b)(1)(A) of
the Act. For, by accepting recognition by the employer
as the exclusive bargaining representative of all the em-
ployees in the unit, the union precludes the employees
from expressing their free choice in selecting either that
or any other union as their bargaining representative. In-
ternational Ladies Garment Workers' Union v. N.L.R.B.,
366 U.S. 731, 738 (1961); N.L.R.B. v. Downtown Bakery
Corp., 330 F.2d 921, 928 (6th Cir. 1964); N.L.R.B. v.
Raymond Buick, Inc., 445 F.2d 644 (2d Cir. 1971). And
where the improperly recognized union successfully ne-
gotiates a contract containing a union-security clause, re-
quiring the employees to join the union as a condition of
their employment, the employer and union have con-
spired to unlawfully discriminate against employees with
regard to their terms and conditions of employment in
violation of Section 8(a)(3) and Section (b)(2) of the Act.
Local Lodge 1424, International Association o.' .fachinists,
AFL-CIO v. N.L.R.B., 362 U.S. 411, 412-414 (1960);
N.L.R.B. v. Food Employers Council, Inc., 399 F.2d 501,
502 (9th Cir. 1968).
In the instant case it is undisputed that within I week
after the Unions requested Respondent Employer to rec-
ognize them as the joint representatives of Respondent
Employer's construction workers and negotiate a con-
tract covering these employees that Respondent Employ-
er granted recognition to Respondent Union as the ex-
clusive bargaining representative of the employees and
that 4 days later it executed a contract with Respondent
Union which contained union-security and checkoff pro-
visions. Thus, the crucial issue for decision herein is
whether a real question concerning representation existed
when Respondent Employer recognized Respondent
Union as the exclusive bargaining representative of the
employees. The sole requirement necessary to raise a real
question concerning representation within the meaning of
the Midwest Piping doctrine is that the claim of the rival
union must not be "clearly unsupportable or specious, or
otherwise not a colorable claim." American Can Compa-
ny, 218 NLRB 102, 103 (1975); The Boy's Markets, Inc.,
156 NLRB 105, 107 (1965); Playskool, Inc., 195 NLRB
560 (1972), enforcement denied 477 F.2d 66 (7th Cir.
1973).
I am of the opinion that the Unions' activities raised a
substantial claim to represent Respondent Employer's
construction employees employed on the project and am
also of the opinion that when Respondent Employer
granted recognition to the Respondent Union and en-
tered into a collective-bargaining agreement with that
Union, Respondent Employer knew that a real question
concerning representation existed. Thus, from approxi-
mately February 12 to approximately February 21 the
Unions conducted an organizational campaign among
Respondent Employer's construction workers employed
on the project and solicited the employees to sign cards
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorizing the Unions to jointly represent them for pur-
poses of collective bargaining. On February 21, the
Unions demanded that Respondent Employer recognize
and bargain with the Unions as joint representatives of
the Employer's construction workers employed on the
project. In support of their demand the Unions submitted
to the Respondent Employer for its inspection 51 cards
signed by the employees authorizing the Unions to repre-
sent them. 8 On February 21, Respondent's president, B.
F. Sadler, informed the Unions that he did not doubt
their claim that they represented a majority of his em-
ployees, but stated that he rejected their demand for rec-
ognition and bargaining because of his animosity toward
one of the Unions, Pipeliners Local 798, and because he
could not "go union" without the approval of the con-
tractor for whom he was installing the pipeline. On Feb-
ruary 25 representatives of the Unions personally met
with Sadler and renewed their demands for recognition
and bargaining. Once again Sadler refused to recognize
and bargain with the Unions. He based his refusal on his
hatred of Pipeliners Local 798, the poor financial condi-
tion of the Company, and, on February 25 shortly after
this meeting, Sadler, by mailgram, questioned the
Unions' majority status and suggested that the Unions es-
tablish their representative status by filing a petition for
an election with the National Labor Relations Board. On
February 25, following Sadler's refusal to bargain with
them, the Unions commenced to picket the project with
signs stating that Respondent Employer was refusing to
bargain with them. All of the foregoing factors clearly
placed Respondent Employer on notice that the Unions
maintained, if not a majority status, at least a continuing
and substantial interest in representing its employees and
that the Union's request for recognition and bargaining
raised a real question of representation concerning the
Company's construction workers employed on the
project. In these circumstances, Respondent Employer
breached its duty of neutrality and violated Section
8(a)(2) and (1) of the Act when less than I week after
refusing to recognize and bargain with the Unions it
abruptly recognized Respondent Union as its construc-
tion employees' bargaining representative and signed a
contract with that union covering these employees. Like-
wise, in view of the existence of a real question concern-
ing representation, Respondent Union violated Section
8(b)(1)(A) by demanding and accepting recognition from
Respondent Employer and by entering into the contract
with Respondent Employer. I also find that Respondent
Employer violated Section 8(a)(3) of the Act and that
Respondent Union violated Section 8(b)(2) of the Act by
entering into a contract which contained a dues-checkoff
provision and a union-security provision which required
employees, as a condition of their continued employ-
8 As described in detail supra, Respondent Employer's project superin-
tendent, Carey, in his conversation with the representatives of the
Unions, indicated that all but one of the 51 employees whose signatures
appeared on the cards 'were still employed by Respondent on February
21 and acknowledged that the Unions had secured cards from a majority
of the employees inasmuch as Respondent Employer employed between
60 and 65 employees.
ment, to establish or apply for membership in Respond-
ent Union.9
I have considered and rejected Respondent Union's
contentions that the record fails to establish that the
Unions' organizational activity was sufficient to support
a finding of a real question concerning representation;
that the Midwest Piping doctrine is inapplicable because
Respondents entered into a collective-bargaining rela-
tionship based on a showing that Respondent Union had
been designated as the collective-bargaining representa-
tive by a majority of the employees; that Section 8(f) of
the Act exempts contractors and unions in the construc-
tion industry from the applicability of the Midwest Piping
doctrine; and that there is no basis for finding an 8(b)(2)
violation because there is no evidence that the contrac-
tual union-security agreement was ever enforced.
The record, as described in detail supra, establishes
that from approximately February 12 to approximately
February 21 the Unions solicited Respondent Employer's
construction employees employed on the project to sup-
port the Unions and to sign cards authorizing the Unions
to represent them jointly as their collective-bargaining
representative and that on February 21 the Unions, in
support for their demand for recognition and bargaining,
showed Respondent Employer cards purportedly signed
by 50 of the Company's approximately 60 to 65 construc-
tion workers, and that in response to Respondent Em-
ployer's refusal to recognize and bargain with them, the
Unions established picket lines at the project protesting
Respondent Employer's refusal to bargain, and that a
majority of the workers honor the picket line. These cir-
cumstances overwhelmingly establish the existence of a
real question concerning representation during all times
material herein.
I recognize that several courts have held that, even in
the presence of rival organizing campaigns, Midwest
Piping does not preclude an employer from granting rec-
ognition to one of the competing unions where the em-
ployer's action is based on a clear demonstration of ma-
jority support for that union. See, e.g., N.L.R.B. v. Inter-
Island Resorts, Ltd., 507 F.2d 411, 412 (9th Cir. 1974),
and cases cited therein. This is not such a case. As I
have found supra, the record does not establish that Re-
spondent Employer recognized Respondent Union based
on a showing that a majority of the employees had desig-
nated that union as their bargaining representative.
The complaint does not specifically allege that this conduct violated
Sec. 8(a)(3), alleging only a violation of Sec. 8(a)(2) and (1) and Sec.
8(b)(2). However, the Board has held that, so long as the complaint clear-
ly describes the conduct alleged to constitute an unfair labor practice, the
General Counsel's failure to allege which subsection of the Act has been
violated or the General Counsel's allegation of a violation of the wrong
subsection, does not preclude the Board from considering and deciding
the issue, provided, of course, that the charged party was not misled and
the issue Aas fully litigated Unit Train Coal Sales. Inc., 234 NLRB 1265,
1272 (1978). The complaint herein specifically alleges as unlawful the
conduct found herein to be violative of Sec. 8(a)(3), and merely fails to
allege a violation of this particular subsection of the Act. Under the cir-
cumstances Respondent Employer was not misled and was accorded a
fair opportunity to fully litigate the issue See Unit Train Coal Sales, Inc.,
234 NLRB at 1272. Moreover, the identical matter was specifically al-
leged as a violation of Sec. 8(b)(2) and Respondent Union fully litigated
the issue.
372
GREAT SOUTHERN CONSTRUCTION, INC.
The 8(f) proviso validating prehire exclusive recogni-
tion agreements in the construction industry by its ex-
pressed terms does not apply to prehire agreements vio-
lative of Section 8(a) of the Act.' ° Accordingly, the
Board has held that Section 8(f) does not exempt con-
tractors and unions in the construction industry from the
requirements of the Midwest Piping doctrine. See Couch
Electric Company, 143 NLRB 662, 669 (1963); Komatz
Construction, Inc., 191 NLRB 846, 851 (1971); see also
Associated General Contractors of California, et al, 220
NLRB 540, 548, fn. 9 (1975), enforcement denied on
other grounds 564 F.2d 271 (9th Cir. 1977).11
Lastly, the fact that the record is silent as to whether
or not Respondents enforced the provisions of the con-
tractual union-security and checkoff agreements is no de-
fense to a finding that Respondent Union violated 8(b)(2)
and Respondent Employer violated Section 8(a)(3) by
entering into these agreements. For, as the court stated
in N.L.R.B. v. Forest City/Dillon-Tecon Pacific, 522 F.2d
1107, 1109-10 (9th Cir. 1975):
Since the purpose of the union security and check-
off agreements was to compel new employees to
join the union and to pay fees and dues, and since
the union had every incentive to enforce these pro-
visions, we can only presume that the agreements
were carried out and that the new employees were
coerced to join the union ...
Indeed, the union security clause and the dues
checkoff provision are fundamental to the continued
healthy existence of the union because they assure
membership and money. Once in the contract it is
difficult to imagine any set of circumstances where
the provisions would not be enforced. Enforcement
constitutes coercion; the presence of the provisions
in the contract implies enforcement.
2. Case 17-CA-10274-2
(a) On February 21 Respondent Employer lays off
employees Young and Daniell and the three
Yarbroughs
The considerations set forth below persuade me the
General Counsel has made a prima facie showing that the
union activities of employees Young and Daniell and the
three Yarbroughs were a motivating factor in Respond-
ent Employer's decision on February 21 to lay them off.
Respondent Employer was opposed to its employees
being represented by the Unions and was particularly
hostile toward Pipeliners Local 798.
10 In pertinent part, Sec. 8(f) of the Act reads as follows:
It shall not be an unfair labor practice .. for an employer engaged
primarily in the building and construction industry to make an agree-
ment covering employees engaged . . in the building and construc-
tion industry with a labor organization of which building and con-
struction employees are members (not established, maintained, or as-
sisted by an action defined in Section 8(a)(4) of this Act as an unfair
labor practice) because (I) the majority status of such labor organiza-
tion has not been established under the provisions of Section 9 of this
Act prior to the making of such agreement .
t In my opinion the cases cited by Respondent Union. IBEC Housing
Corp.., 245 NLRB 1282 (1979), and Corrugated Structures, Inc., 252 NLRB
523 (1980), are inapposite
On February 18 and 19, representatives of the Unions
held organizational meetings at the trailer where Young
and Daniell lived and at the mobile home where the Yar-
broughs lived. Young and Daniell and the three Yar-
broughs signed cards designating the Unions as their col-
lective-bargaining representatives. Young and Daniell
joined Pipeliners Local 798.
By at least February 20 Respondent Employer had
learned the Unions were engaged in a campaign to orga-
nize its employees. On that date Respondent Employer's
president, B. F. Sadler, questioned Daniell and Young
about their union membership and indicated to them that
he had learned that some of the employees were union
members.
On February 20, in the evening, Respondent Employ-
er's project superintendent, Carey, engaged in the sur-
veillance of a meeting between Young and Daniell with
Union Representative Palmer which took place in
Young's trailer. Carey left only when Yarbrough Sr.'s
automobile approached Young's trailer. It was the next
morning when they reported for work that Daniell and
Young were abruptly laid off.
On February 21, contemporaneous with the layoff of
the three Yarbroughs, Pipe Foreman Eddy apologized to
James Yarbrough for having to lay him off, but ex-
plained to him that Superintendent Carey felt that since
James Yarbrough's father and brother were union insti-
gators that it was best to lay James Yarbrough off in ad-
dition to his father and brother. Also, on February 21,
Eddy stated that John Yarbrough did not want to work
on the project because he was with his father, Yar-
brough Sr. who was a union organizer. Eddy told John
Yarbrough, "You don't have to worry about working on
his job because there is not any union [expletive deleted]
going to work on this job." Eddy, at the same time,
using obscene language, spoke to Yarbrough Sr. and
called him a union organizer and told him he did not
have to worry about working on the job.
The aforesaid undisputed evidence presented by the
General Counsel effectively shifted the burden to Re-
spondent Employer to show that it would have laid off
Young and Daniell and the three Yarbroughs on Febru-
ary 21 even in the absence of their union activity.' 2 Re-
spondent Employer presented no evidence to explain
why the five employees were laid off. Neither President
Sadler, Superintendent Carey, nor Pipe Foreman Eddy
testified. Nor does the testimony of the General Coun-
sel's witnesses establish that the February 21 layoff of
Daniell, Young and the three Yarbroughs was motivated
by legitimate business reasons. In view of these circum-
stances I conclude that Respondent Employer has failed
to meet its burden of showing that either Daniell or
Young or any one of the three Yarbroughs would have
been laid off in the absence of their union activities.
12 The timing of the layoff of Daniell and Young coming hard on the
heels of Superintendent Carey's surveillance of their meeting with Union
Representative Palmer and the remarks made by Pipe Foreman Eddy on
the day of the layoff. when viewed in the context of the union activities
of the five alleged discriminatees on behalf of the Unions and Respondent
Employer's opposition to the Unions, establish the General Counsel's
prima facie case
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) On March 2 Respondent Employer discharges
employee Daniell
On February 25, Superintendent Carey sent a mail-
gram to employee Daniell stating in pertinent part that
"we now have an immediate opening of employment for
you" and informed Daniell that if Carey did not hear
from him by 7 a.m. on March 2 that he would assume
Daniell was not interested in reemployment. When Dan-
iell reported for work on March 2, Carey refused to
employ him. Carey told Daniell that the reason for the
refusal was that the inspectors had barred Daniell from
the job because of his poor welding.
I am of the opinion that Respondent Employer's
March 2 refusal to employ Daniell despite the fact that
on February 25 it informed him there was a job availa-
ble, when viewed in the context of Respondent Employ-
er's February 21 layoff of Daniell because of his union
activities, warrants a finding that the General Counsel
has made a prima facie showing that Daniell's union ac-
tivities were a motivating factor in Respondent Employ-
er's decision on March 2 to refuse to reemploy him. Re-
spondent Employer offered no evidence to support the
assertion Carey made to Daniell that the inspectors had
barred him from the job due to his poor welding and the
record otherwise does not support Carey's assertion. In
view of the foregoing, I find the General Counsel has es-
tablished by a preponderance of the evidence that Re-
spondent Employer discharged Claude Daniell on March
2 because of his union activities and his prounion senti-
ments. I therefore find that by engaging in this conduct
Respondent Employer violated Section 8(a)(3) and (1) of
the Act as alleged in the complaint.
(c) On March 2 Respondent Employer discharges
James William Yarbrough and John Glenn Yarbrough
On February 25, Superintendent Carey sent identical
mailgrams to James William Yarbrough and John Glenn
Yarbrough stating in pertinent part that "we now have
an immediate opening of employment for you" but that
if Carey did not hear from them by 7 a.m. on March 2
he would assume they were not interested in reemploy-
ment. When they reported for work on March 2 Carey
informed James William Yarbrough and John Glenn
Yarbrough that there was no work for them that day. He
told James William Yarbrough there was no work for
him because Respondent Employer was only employing
a skeleton crew to cut out defective welds and that
Carey preferred to use employees with more experience
than Yarbrough to do this work. He told John Glenn
Yarbrough there was no work for him because he had to
use another welder's helper as this welder's helper had
more seniority than Yarbrough.
During the remainder of the week, March 3 through 6,
the Yarbroughs asked Carey on a daily basis for work,
but without success. In rejecting James William Yar-
brough's daily request for work Carey either told him
that a skeleton crew was doing repair work for which
Carey needed more experienced employees than Yar-
brough or that due to the rain and mud not many em-
ployees were working. In rejecting John Glenn Yar-
brough's daily request for work Carey either told him
there was no welder available for him to work with or
that due to the rain and mud they were only doing
repair work. Since without work the Yarbrough brothers
were unable to afford the expenses associated with living
away from home, on March 6 they returned home.13
I am of the opinion that Respondent Employer's refus-
als from March 2 through March 6 to employ James and
John Yarbrough despite the fact that Respondent Em-
ployer on February 25 had informed them there were
jobs available for them, when viewed in the context of
their earlier layoff by Respondent Employer on account
of their union activities, warrants a finding that the Gen-
eral Counsel has made a prima facie showing that the
union activities and prounion sentiments of James Yar-
brough and John Yarbrough were a motivating factor in
Respondent Employer's decision on March 2 to refuse to
reemploy them. Respondent Employer offered no evi-
dence to explain why the Yarbrough brothers were re-
fused reemployment from March 2 through 6, despite the
fact that on February 25 Respondent Employer invited
them to return to work because there were jobs available
for them. Neither President Sadler, Superintendent
Carey, or Pipe Foreman Eddy testified. Nor does the
record otherwise establish that Respondent Employer's
refusal to employ the Yarbrough brothers from March 2
through 6 was motivated by legitimate business consider-
ations.
Based upon the foregoing, I find that a preponderance
of the evidence establishes that Respondent Employer on
March 2 discharged James William Yarbrough and John
Glenn Yarbrough because of their union activities and
prounion sentiments. I further find that by engaging in
this conduct Respondent Employer violated Section
8(a)(3) and (1) of the Act as alleged in the complaint.
(d) On March 2 Respondent Employer discharges
Young and Yarbrough Sr.
On February 9 Young and Yarbrough Sr. were hired
by Respondent Employer. Young was employed as a
welder and Yarbrough Sr. as a welder's helper. During
their entire employment with Respondent Employer they
worked as a team. On February 21 they were laid off
due to their union activities and on March 2 were reem-
ployed but the same day quit their employment. The
General Counsel contends that they were constructively
discharged. Conceptually constructive discharge occurs
when an employee quits "[because] an employer deliber-
ately makes [his or her] working conditions intolerable."
J. P. Stevens & Co., Inc. v. N.L.R.B., 461 F.2d 490, 494
(4th Cir. 1972). It becomes unlawful when this is done
because of an employee's union activity. Id. According-
ly, when it is shown that an employer imposed onerous
working conditions on an employee it knew had engaged
in union activity, which it reasonably should have seen
would induce that employee to quit, a prima facie case of
constructive discharge is established, requiring the em-
ployer to produce evidence of legitimate motivation. I
am persuaded that on March 2 Respondent Employer
created an intolerable employment situation for Young
13 The Yarbroughs resided approximately 350 miles from the project.
374
GREAT SOUTHERN CONSTRUCTION, INC.
and Yarbrough Sr. and did so with intent of forcing
them to quit their employment because of their union ac-
tivities. In so concluding, I have relied upon the factors
set forth immediately below.
On March 2, when Superintendent Carey assigned jobs
to Young and Yarbrough Sr., Pipe Foreman Eddy stren-
uously objected on account of their union membership.
In response, Carey assured Eddy, in the presence of
Young and Yarbrough Sr., that Young and Yarbrough
Sr. would not last on the job past noontime. Thereafter,
Respondent Employer, during the approximately 6 hours
Young and Yarbrough Sr. worked before quitting that
day, engaged in a course of conduct calculated to make
Young and Yarbrough Sr. feel that Respondent Employ-
er was keeping their work under close surveillance for
the purpose of finding a reason to justify their dis-
charges. Thus, before lunchtime President Sadler on sev-
eral occasions warned Young and Yarbrough Sr. that he
would file conspiracy charges against them if their work
performance was not satisfactory. In the same breath,
Sadler offered to guarantee Young's employment if he
withdrew from the Union. And, as part and parcel of his
threat to file conspiracy charges against Young and Yar-
brough Sr. if their work was not satisfactory, Sadler
drove by their workplace approximately every 15 min-
utes or so to inspect their work and placed the X-ray
equipment used to inspect their work unusually close to
where they worked. During the lunch period, Pipe Fore-
man Eddy told Young that Young was not wanted on
the job and asked him to leave. When work resumed
after lunch Sadler resumed his surveillance of Young's
and Yarbrough Sr.'s work and when Sadler was in the
process of inspecting their work for the second time in
quick succession Young declared, "I think the best thing
for both of us is for me to get my money and just go."
Sadler's reply was that Young's decision to quit was the
best thing Young had done all day, that it would be
better for everyone if Young quit, but stated that if
Young withdrew from the Union he could remain in Re-
spondent Employer's employ. Sadler's response clearly
indicates that Sadler did not regard Young's decision to
quit to be a voluntary one, but a decision which Sadler's
actions had forced Young to make because of Young's
union membership.
Based on the foregoing, and the fact that Respondent
Employer laid off Young and Yarbrough Sr. on Febru-
ary 21 because of their union activities, I find that the
General Counsel has established a prima facie case that
Young and Yarbrough Sr. were discharged on March 2
because of their union activities. 4 Since Respondent
4 I recognize that the greatest part of Respondent Employer's harass-
ment on March 2 was directed towards Young, rather than Yarbrough
Sr. Nonetheless, I am persuaded that the record, as described in detail
above, establishes that Respondent Employer constructively discharged
Yarbrough Sr. because of his union activities. In any event, since the
record also establishes that the direct proximate cause of Yarbrough Sr.'s
termination was Respondent Employer's illegal discharge of Young,
Yarbrough Sr.'s termination is illegal regardless of whether it is viewed
as a quit or a constructive discharge. Thus. the record reveals that Young
and Yarbrough Sr worked as a team and that without Young there was
no work for Yarbrough Sr As Yarbrough Sr. testified, "Since [Young]
was my welder I would have no job as a helper. Without a welder you
don't have a job as a helper .. . A man has sense enough to know if
you don't have a welder, then you don't have a job." When Sadler
Employer presented no evidence that the March 2 dis-
charge of Young and Yarbrough Sr. was motivated by
legitimate economic considerations, I further find that by
discharging Young and Yarbrough Sr. on March 2 be-
cause of their union activities and prounion sentiments
Respondent Employer violated Section 8(a)(3) and (1) of
the Act.
(e) Respondent Employer engages in surveillance of
employees' union activities and sentiments
The complaint alleges that on February 20 Respondent
Employer, through Superintendent Carey, engaged in
the surveillance of employees' union activities in viola-
tion of Section 8(a)(l) of the Act. In support of this alle-
gation the General Counsel presented undisputed evi-
dence that on the evening of February 20 Superintendent
Carey was observed by employees Yarbrough Sr. and
James Yarbrough standing between 6 and 10 feet from
the window of employee Young's trailer looking into the
trailer. Employees Young and Daniell at the time were
meeting with Union Representative Palmer inside the
trailer. Although Carey lived in a trailer located in the
same trailer court as Young's, Carey was not called to
explain why, on February 20, he was looking into the
window of Young's trailer. Under these circumstances I
find that by virtue of Carey's conduct Respondent Em-
ployer violated Section 8(a)(l) of the Act by engaging in
the surveillance of employees' union activities.
The complaint alleges that on February 21 Respondent
Employer, through Pipe Foreman Eddy, interrogated
employees about their union sentiments and activities in
violation of Section 8(a)(1) of the Act. In support of this
allegation the General Counsel presented undisputed evi-
dence that on February 21 Pipe Foreman Eddy asked
employee James Yarbrough "if he had any contact with
the Union," and that when Yarbrough answered in the
affirmative Eddy told Yarbrough he was being laid off
because Superintendent Carey felt that Yarbrough's
father and brother were union instigators and that it
would be best to lay off Yarbrough along with his father
and brother. Under these circumstances I find that by
virtue of Eddy's above-described conduct Respondent
Employer violated Section 8(a)(1) of the Act by interro-
gating employee James Yarbrough about his union senti-
ments and activities.
The complaint alleges that between February 19 and
February 21 and on March 2 and 3 Respondent Employ-
er, through President Sadler, interrogated employees
about their union membership and activities in violation
of Section 8(a)(1) of the Act. In support of this allegation
counsel for the General Counsel presented undisputed
evidence that on February 20 and March 2 Sadler ques-
tioned employees about their union sentiments and activi-
ties. On February 20, Sadler asked employees Young and
forced Young to quit his employment and then stated to Yarbrough Sr..
"I guess you'll be going too," Sadler must have known that Yarbrough
Sr., like Young, would reluctantly terminate his employment. Under
these circumstances, where, as here, Yarbrough Sr's termination would
not have occurred but for Young's illegal discharge, Yarbrough Sr.'s ter-
mination also violated Sec. 8(a)(2) and (1) of the Act. See NLR.B. v.
Rich's Precision Foundry, 667 F.2d 613 (7th Cir. 1981).
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniell if they were members of Local 211 and whether
they were afraid of the Unions. Sadler explained to
Young and Daniell that his reason for asking these ques-
tions was that he had heard that some of the employees
were union members and that he thought the Unions
would picket the project and he wanted to know where
Young and Daniell stood. On March 2 Sadler asked em-
ployee Young whether he had a Local 798 book in his
pocket and asked him why he had crossed the Union's
picket line. Sadler also asked employee Yarbrough Sr.
whether he had signed a union authorization card. The
record reveals no justification for the above-described in-
terrogation of employees Young, Daniell, and Yarbrough
Sr. about their union sentiments and activities.' 5 More-
over, the interrogation took place in the context of Re-
spondent Employer's layoff and discharge of employees
for engaging in union activities. In view of these circum-
stances I find that by virtue of Sadler's above-described
conduct Respondent Employer violated Section 8(a)(l)
of the Act by interrogating employees about their union
sentiments and activities.
3. Case 17-CA-10306
The complaint in the above-captioned case alleges that
Respondent Employer violated Section 8(a)(3) and (1) of
the Act by discharging employee Steve Treadwell. The
only testimonial evidence presented by the General
Counsel in support of this allegation was employee Dan-
iell's undenied testimony that on February 16, before the
employees started work, Daniell was talking with several
employees when Treadwell drove into the company
parking lot. Preston Neal, one of the employees who was
talking with Daniell, upon observing Treadwell drive
into the lot, asked Daniell who he was. When Daniell
identified Treadwell, Neal pointed him out to Pipe Fore-
man Eddy and informed Eddy, "he's got a 798 book in
his pocket, if you don't want any trouble, you better
then sure enough test him."' 6 Eddy answered, "I will
see what I can do about it." This testimony, by itself or
when considered in the light of the whole record, is in-
sufficient to establish that Treadwell was discharged or
that he was discharged because of his union membership
or activities.
Treadwell, who submitted an affidavit to the Board on
April 8, died sometime between that date and December
9. On December 9 counsel for the General Counsel noti-
fied Respondent Employer's counsel that because Tread-
well had died that the General Counsel intended to offer
his affidavit into evidence pursuant to Rule 804(b)(5) of
the Federal Rules of Evidence. The General Counsel did
not provide Respondent Employer's counsel with a copy
of the affidavit or otherwise notify him about the con-
tents of the affidavit until December 15, the date of the
'5 Insofar as Sadler, through his February 20 questioning, was attempt-
ing to ascertain the strike intentions of employees Young and Daniell, the
interrogation was impermissible because the record fails to establish that
at the time the questions were asked that Sadler had a reasonable basis to
fear an imminent strike. Also, the questioning took place in the context of
Respondent Employer's other coercive conduct, the layoff and discharge
of employees because of their union activities. See Mosher Steel Company,
220 NLRB 336 (1975).
IF The record shows that all welders, before they are hired by Re-
spondent Employer. must be tested.
hearing in this case, at which time counsel for the Gen-
eral Counsel, in support of this allegation, offered Tread-
well's affidavit into evidence. Respondent Employer's
counsel urged that the affidavit was inadmissible hearsay
under the Federal Rules of Evidence and should not be
received by the Administrative Law Judge. I reserved
ruling.
Counsel for the General Counsel offered Treadwell's
affidavit into evidence pursuant to Rule 804(b)(5) of the
Federal Rules of Evidence. l7 Rule 804(b)(5) represents
the 1975 codification of the common law "residual" ex-
ception to the hearsay rule; under the residual exception,
hearsay statements may be judicially admissible even
though they do not meet any of the several specific ex-
ceptions to the hearsay rule. See Sen. Rept. No. 93-1277,
93d Cong. 2d sess. 19, citing Dallas County v. Commer-
cial Union Assurance Co., 286 F.2d 388, 396-397 (5th Cir.
1961). 11 Moore's Federal Practice, Section 803(24) [7]
(p. VIII-203). Pursuant to Rule 804(b)(5) hearsay is ad-
missible if it possesses circumstantial guarantees of trust-
worthiness, and if its probative equivalent cannot other-
wise be secured through the reasonable effort of the pro-
ponent. See Dallas County v. Commercial Union Assur-
ance Co., supra. In addition, two other requirements are
expressed by Rule 804(b)(5): (1) Admission of the prof-
fered hearsay must serve "the general purpose of [the
Rules of Evidence] and the interests of justice"; and (2)
the proponent must notify the adverse party in advance
of trial of his intention to offer the hearsay statement and
"the particulars of it."
In the instant case counsel for the General Counsel did
not offer "the particulars" of Treadwell's affidavit to Re-
spondent Employer's counsel until the day of the hearing
when, for the first time, counsel was furnished with a
7 Rule 804(b)(5) states:
Rule 804. Hearsay Exceptions: Declarant Unavailable
(a) Definition of unavailability-"Unavailability as a witness" in-
cludes situations in which the declarant-
(5) is absent from the hearing and the proponent of his statement
has been unable to procure his attendance . by process of other
reasonable means.
(b) Hearsay exceptions-The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(I) Former testimony ....
(2) Statement under belief of impending death ....
(3) Statement against interest . .
(4) Statement of personal or family history . .
(5) Other exceptions. A statement not specifically covered by any
of the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A) the
statement is offered as evidence of a material fact; (B) the statement
is more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable ef-
forts; and (C) the general purpose of these rules and the interests of
justice will best be served by admission of the statement into evi-
dence. However, a statement may not be admitted under this excep-
tion unless the proponent of it makes known to the adverse party
sufficiently in advance of the trial or hearing to provide the adverse
party with a fair opportunity to prepare to meet it, his intention to
offer the statement and the particulars of it, including the name and
address of the declarant.
376
GREAT SOUTHERN CONSTRUCTION, INC.
copy of the affidavit. Counsel for the General Counsel
argues that counsel for Respondent was not prejudiced
by the General Counsel's failure to supply a copy of the
affidavit prior to the day of the hearing inasmuch as Re-
spondent Employer did not call one witnesss. I disagree.
It is sheer conjecture whether Respondent Employer
would or would not have called any witnesses in con-
nection with Treadwell's alleged discharge if Respondent
Employer's counsel had been afforded an opportunity to
read the affidavit sufficiently in advance of the hearing. I
am not willing to presume that if Rule ,804(b)(5) had
been complied with that Respondent Employer would
not have defended against the material 'contained in
Treadwell's affidavit by either calling witnesses and/or
by cross-examining the witnesses called by fhe General
Counsel.
I reject the General Counsel's offer of the Treadwell
affidavit for the reason that by failing to make the par-
ticulars of the affidavit known to Respondent Employer
sufficiently in advance of the hearing herein, its admissi-
bility does not meet the standards of admissibility set
forth in Rule 804(b)(5). s In concluding that Treadwell's
affidavit was inadmissible I have taken into consideration
those cases which indicate that the Board may, under
certain circumstances, exercise discretion applying the
Rules of Evidence governing Federal District Court pro-
ceedings, including those governing admission of hearsay
evidence. See, for example, N.L.R.B. v. Capitol Fish Co.,
294 F.2d 868, 872 (7th Cir. 1961); Teamsteri Local Union
769 v. N.L.R.B., 532 F.2d 1385, 1392 (D.C. Cir. 1976);
N.L.R.B. v. Addison Shoe Corp., 450 F.2d 115, 117 (8th
Cir. 1971). See also Opp Cotton Mills, Inc. v. Administra-
tor, 312 U.S. 126, 155 (1941). However, the circum-
stances of this case do not warrant a more liberal ap-
proach to the admissibility of the hearsay evidence
herein than is mandated by the Federal Rules of Evi-
dence.
Based upon the foregoing, I shall recommend that the
allegation of the complaint concerning Treadwell's dis-
charge be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Respondent Union and each of the Charging Party
Unions herein are labor organizations within the meaning
of Section 2(5) of the Act.
3. By recognizing Respondent Union and by executing
a collective-bargaining agreement with Respondent
Union which contains union-security and dues-checkoff
I8 Justak Brothers and Company, 253 NLRB 1054, 1080 (1981), enfd.
108 LRRM 2178, 3183-84 (7th Cir. 1981), relied on by the General
Counsel is distinguishable. There, the General Counsel did not know
until after the trial began that the affiant was unavailable and he notified
company counsel of his intent to introduce the affidavit and gave him a
copy of it 3 days in advance of seeking its admission into evidence, there-
by satisfying the notice requirements under Rule 804 Here, the hearing
lasted only I day. The General Counsel made no suggestion that the
hearing be adjourned in order to give Respondent Employer's counsel a
sufficient opportunity to digest the materials contained in the affidavit,
consult his client about these matters, and decide what, if any, evidence
to present to controvert the materials contained in the affidavit.
provisions, at a time when a question concerning the rep-
resentation of its employees existed, Respondent Em-
ployer has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (2), and (3) of the Act.
4. By accepting recognition from Respondent Employ-
er and by entering into a collective-bargaining agreement
containing union-security and dues-checkoff provisions
with the Respondent Employer, at a time when a ques-
tion concerning representation of Respondent Employ-
er's employees existed, Respondent Union has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act.
5. By laying off employees Claude Daniell, Jerry
Young, John L. Yarbrough, John Glenn Yarbrough, and
James W. Yarbrough on February 21, 1981, and dis-
charging them on March 2, 1981, because of their union
activities and sentiments, Respondent Employer has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
6. By engaging in surveillance of its employees' union
activities and by interrogating its employees about their
union sentiments and activities, Respondent Employer
has engaged in unfair labor practices within the meaning
of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
I have found that Respondent Employer recognized
Respondent Union and thereafter entered into an agree-
ment with it on March 7, 1981, all during the pendency
of a question concerning the representation of the em-
ployees covered thereby. By such conduct Respondent
Employer has violated Section 8(a)(2) and (1) of the Act.
In order to dissipate the effect of Respondent Employ-
er's unfair labor practices, I shall order Respondent Em-
ployer to withdraw and withhold all recognition from
Respondent Union and to cease giving effect to the
aforementioned agreement, or to any renewal, modifica-
tion, or extension thereof, until such time as Respondent
Union shall have been certified by the Board as the ex-
clusive representative of the employees in question.
Having found the recognition of Respondent Union by
Respondent Employer to have been invalid and the col-
lective-bargaining agreement containing union-security
and dues-checkoff provisions to be in violation of Sec-
tion 8(a)(l) and (3) of the Act, I shall order Respondent
Employer jointly and severally with Respondent Union
to reimburse all present and former employees, except
those who joined or signed authorization cards for Re-
spondent Union prior to the execution of the collective-
bargaining agreement on March 7, 1981, for moneys paid
by or withheld from them on or after March 7, 1981, for
initiation fees, dues, or other obligations of membership
in Respondent Union, with interest thereon computed in
the manner provided in Florida Steel Corporation, 231
NLRB 651 (1977).
I have also found that Respondent Union accepted
recognition and thereafter on March 7, 1981, entered into
a collective-bargaining agreement containing union-secu-
377
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rity and dues-checkoff provisions with Respondent Em-
ployer at a time when there existed a question concern-
ing representation of the employees covered thereby. By
such conduct Respondent Union violated Section
8(b)(1)(A) and (2) of the Act. In order to dissipate the
effect of Respondent Union's unfair labor practices, I
shall order Respondent Union to cease maintaining or
giving effect to its current collective-bargaining agree-
ment with Respondent Employer or any renewal or ex-
tension thereof, until such time as the Respondent Union
shall have been certified by the Board as the exclusive
representative of the employees in question. In addition,
I shall order that Respondent Union jointly and severally
with Respondent Employer reimburse all present and
former employees in the manner and to the extent set
forth above.
Having found that Respondent Employer's layoff of
employees Claude Daniell, Jerry Young, John L. Yar-
brough, John Glenn Yarbrough, and James W. Yar-
brough on February 21, 1981, and their discharge by Re-
spondent Employer on March 2, 1981, violated Section
8(a)(3) and (1) of the Act, I shall order that Respondent
Employer offer reinstatement to each of them to their
former positions or, if those positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges previously
enjoyed, and that they each be made whole for any loss
of earnings or other benefits suffered by them as a result
of the discrimination against them, as prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in Flor-
ida Steel Corporation, 231 NLRB 651 (1977). See, gener-
ally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER' 9
The Respondent Employer, Great Southern Construc-
tion, Inc., Wellington, Kansas, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Operating Engineers
Local Unions 101 and 627, Pipeliners Local Union 798
and Laborers Local Union 1290, or in any other labor
organization of its employees, by laying off or discharg-
ing employees or by otherwise discriminating in regard
to hire or tenure of employment or any term or condi-
tion of employment.
(b) Engaging in surveillance of its employees' union
activities.
(c) Interrogating its employees about their union mem-
bership or activities.
(d) Assisting or contributing support of the Off-Shore
Drilling & Allied Workers, National Maritime Union of
America, AFL-CIO, by recognizing this labor organiza-
J" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
tion as the exclusive representative of any of its employ-
ees for the purpose of collective bargaining at at time
when a question concerning representation exists.
(e) Giving effect to or enforcing the collective-bar-
gaining agreement executed with Respondent Union on
March 7, 1981, or to any modification, extension, renew-
al, or supplement thereto, unless and until Respondent
Union has been certified by the National Labor Relations
Board as the exclusive bargaining representative of such
employees; provided, however, that nothing herein shall
require Respondent Employer to vary or abandon any
existing term or condition of employment.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Claude Daniell, Jerry Young, John L. Yar-
brough, John Glenn Yarbrough, and James W. Yar-
brough immediate and full reinstatement to their former
positions or, if such positions do not exist, to substantial-
ly equivalent positions, without prejudice to their senior-
ity or other rights and privileges previously enjoyed, and
make each of them whole for any loss of earnings in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Withdraw and withhold all recognition from the
Off-Shore Drilling & Allied Workers, National Maritime
Union of America, AFL-CIO, as a representative of its
employees for the purpose of collective bargaining unless
and until said labor organization has been duly certified
by the National Labor Relations Board as the exclusive
representative of such employees.
(c) Jointly and severally with Respondent Union reim-
burse all present and former employees for all initiation
fees, dues, and other moneys, if any, paid by or withheld
from them in the manner provided in "The Remedy"
section of this Decision.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of moneys due
under the terms of this Order.
(e) Post at its place of business in Wellington, Kansas,
copies of the attached notice marked "Appendix A."20
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by Re-
spondent Employer representative, shall be posted by
Respondent Employer immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent Employer to ensure
that said notices are not altered, defaced, or covered by
any other material.
20 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
378
GREAT SOUTHERN CONSTRUCTION, INC.
(f) In the event that it is no longer in business in Wel-
lington, Kansas, Respondent Employer shall mail a copy
of "Appendix A" to all individuals who were construc-
tion employees of Respondent Employer between Febru-
ary 21, 1981, and the date that Respondent Employer
ceased operating in Wellington, Kansas. Copies of said
Appendix, on forms provided by the Regional Director
for Region 17, after being duly signed by an authorized
representative of Respondent Employer, shall be mailed
immediately upon receipt thereof as herein directed.
(g) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
[Section B of the recommended Order omitted from
publication.]
379