Starrett Brothers and Eken, Inc.

National Labor Relations Board - Board Decisions

Jan 31, 1951

92 N.L.R.B. 1757 (N.L.R.B. 1951)

In the Matter of STARRETT BROTHERS AND E1UIN, INCORPORATED and
OFFICE EMPLOYEES INTERNATIONAL UNION, LOCAL No. 30, A. F. L.
Case No. 21-CA-567.-Decided January 31, 1951
DECISION AND ORDER
On June 23 , 1950 , Trial Examiner Sidney L. Feiler issued his Inter-
,mediate Report in the above -entitled proceedings , finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner further found that the
Respondent had not discriminated against Flores and Todd, and
recommended that the complaint be dismissed insofar as it alleges that
their discharges were discriminatory . Thereafter, the Respondent
filed exceptions to parts of the Intermediate Report, and a supporting
brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-,
mediate Report , the exceptions and brief , and the entire record in the
case,2 and hereby adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner only to the extent that they are con-
sistent with our Decision and Order herein.
1. The Trial Examiner has found that the Respondent , during the
course of a legitimate reduction in force, selected five time checkers
for discharge because of their union activity , and thus violated the
Act. We cannot agree. Although a careful examination of the entire
record in this case reveals no justification for reversing the Trial Ex-
aminer 's credibility findings, we are not persuaded that the selection
of these men for discharge was discriminatory.
With the single exception of Bevers , all 23 time checkers and the
chiefs of shack were members of the Union. As the Trial Examiner
has found , the record is conflicting concerning the exact duties and
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Herzog and
Members Houston and Reynolds].
2 As the record, exceptions, and brief adequately present the issues and positions of
the parties, the Respondent's request for oral argument is denied.
92 NLRB No. 267. 1757
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibilities of the chiefs of shack, but it is apparent that this posi-
tion was considered to be more desirable and carry more responsibility-
than the position of field checker. For this reason we conclude, as the-
Respondent argues, that friction might have resulted from the con-
solidation of the 5 time .shack into 3, if employees who had been chiefs.
of shack had been transferred to field time checking. We further-
believe that it was reasonable to assume , as the Respondent claims,.
that a former chief of shack would have resented taking orders as a
field checker from one of the men who had formerly been chief of
another shack.
A weighing of the experience, ability, and working records of the
chiefs of shack who were discharged against those of the two men who,
were placed in these positions after the consolidation, does not make
suspect the selection of the two new chiefs of shack. Bevers, who was.
made chief in field time office No. 2 after the consolidation, was senior
to all the time checkers. He had more than 8 years of timekeeping-
experience, was formerly the Respondent's chief time clerk, and
originally established for the Respondent the five time shacks on the-
project. Lockyer, who was placed in charge of field time office No. 3,
was a licensed contractor with more than 20 years' general experience
in all phases of construction work. On the other hand, of the three,
chiefs of shack who were discharged, Denning was the senior with 6
years' experience; Kennedy had 2 years and Eastwood 1. In these
circumstances, and absent any evidence of antiunion animus on the-
part of the Respondent, the selection of Bevers and Lockyer for the
new jobs over Denning, Kennedy, and Eastwood does not appear to
have•been unreasonable.
However, the Trial Examiner found that the Respondent had a.
discriminatory motive because it discovered that Denning, Kennedy,.
and Eastwood, along with Andrews and Moore, were active in or-
ganizing for the Union at the payroll office.3 We are not persuaded,_
in view of the foregoing discussion and the entire record in the case,.
that the General Counsel has proven that these three men would not
have been selected for discharge regardless of their union activity.
Accordingly, we cannot find that their selection was discriminatory.
Moore and Andrews, unlike the three employees discussed above,.
were regularly assigned to field time checking. Presumably they could
have been transferred to one of,the new shacks with less resultant
friction than would have been caused by a transfer of any of the chiefs.
of shack. However, so far as the record shows, the Respondent was
3 We find no support it: the record for the Trial Examiner's finding that Denning took
an active part in the attempts to organize the payroll office. The only evidence linking
Denning with those efforts is LaFoy's testimony that on one occasion in Denning's shack
"someone" spoke to him about joining the Union.
STARRETT BROTHERS AND EKEN, INCORPORATED 1759
not aware that either of these men had had any prior timekeeping
experience. Discrediting, as the Trial Examiner has done, Brown's
and C. Williams' testimony that these men were not efficient time-
checkers; we still cannot find on the record before us that they were
selected for discharge because of their union activity.
2. The Trial Examiner has found that the Respondent's chief time-
keeper, Floyd Brown, in violation of Section 8 (a) (1) of the Act,
prohibited union solicitation on the Respondent's premises during
nonworking time. The complaint contains no allegation that the
Respondent has independently violated that section of the Act.
Although considerable testimony was adduced at the hearing con-
cerning Brown's promulgation of the so-called no-solicitation rule,
the General Counsel did not argue that Brown's conduct in this respect
constituted an independent violation of Section 8 (a) (1) of the Act.
Moreover, at the conclusion of the General Counsel's case, he moved
to amend the complaint, but not by adding an independent 8 (a) (1)
allegation. Although the Trial Examiner concluded that such a find-
ing is proper because this issue was fully litigated, we do not agree.
In these circumstances we all believe that the Respondent was justified
in conducting its case on the assumption that it was not charged with
a separate violation of the Act by reason of Brown's promulgation
of the so-called no-solicitation rule.
3. In view of the foregoing findings, we shall dismiss the complaint
in its entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint against the Re-
spondent, Starrett Brothers and Eken, Incorporated, Los Angeles,
California, be, and it hereby is, dismissed.
MEMBER HOUSTON, dissenting in part :
I concur in the majority opinion except insofar as it fails to find
that the Respondent has discriminated against the five time checkers
in violation of the Act. The Trial Examiner, upon the entire record
"and from his observations of the witnesses," inferred and found that
the Respondent was actuated by a discriminatory motive. This does
not seem unreasonable to me, nor does the majority find otherwise.
' Our decision in this respect is not to be considered as inconsistent with the principle,
frequently recognized but inapplicable to the present circumstances, that a variance be-
tween the allegations of a complaint and the findings is immaterial where the issues have
been fully litigated . See N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333 ;
N. L. R. B. v. Express Publishing Co., 312 U. S. 426.
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I would therefore affirm the Trial Examiner's finding that these
employees were discriminated against because of their union activity.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Ben Grodsky ,, for the Genial Counsel.
Messrs. Carl M. Gould and William Whitsett , of Hill, Morgan and Farrer, Los
Angeles , Calif., for the Respondent.
Mrs. Anne K. Sweet, Los Angeles , Calif., for the Union.
STATEMENT. OF THE CASE
Upon a first amended charge filed by Office Employees International Union,
Local No. 30, A. F. L., hereinafter referred to as the Union, the General Counsel
of the National Labor Relations Board,' by the Regional Director. for the
Twenty-first Region (Los Angeles, California), issued a complaint dated Janu-
ary 19, 1950, against Starrett Brothers and Eken, Incorporated, herein referred
to as the Respondent, 'alleging that the Respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act.
With respect to unfair labor practices the complaint alleges in substance that
the Respondent by and through its agents and employees discharged George F.
Eastwood, Ben J. Moore, Edward F. Kennedy, Jesse D. Andrews, and George
V. Todd on or about September 2, 1949, and -thereafter failed and refused to
reemploy them because they engaged in concerted and union activities. During
the hearing the undersigned, over objection, permitted the General Counsel to
amend the complaint by adding to the list of alleged discriminatees the names
of Leo Denning and Arthur Flores who were allegedly terminated on or about
September 9, 1949. The Respondent was granted a 21/2-day recess for any
additional preparation required.
In its answer the Respondent admits certain jurisdictional allegations but
denies the commission of any unfair labor practices?
Pursuant to notice a hearing was held at Los Angeles, California,. on February
14 and February 20 through March 7, 1950, before the undersigned, Sidney L.
Feller, the Trial Examiner designated by the Chief Trial Examiner. The General
Counsel and the Respondent were represented by counsel and the Union by a
representative. Full opportunity, to be heard and to examine and cross-examine
witnesses was afforded all parties.
At the conclusion of the General Counsel's case-in-chief the undersigned, over
objection, granted the General Counsel's motion to conform the pleadings to the
proof .as to formal matters. The Respondent then moved to dismiss the com-
plaint on the merits, which motion was denied. At the conclusion of the taking
of testimony the General Counsel again moved to conform the pleadings to the
proof as to formal matters. This motion was granted as to all pleadings. The
Respondent then moved to dismiss the complaint both on jurisdictional grounds
and on the merits. Decision was reserved on this motion and it is disposed of
by the findings, conclusions, and recommendations herein. The Respondent then
i The General Counsel and the attorney representing him at the hearing are referred to
as the General Counsel. The National Labor Relations Board is referred to as the Board.
2 There being no'objection the undersigned granted a motion by the General Counsel to
strike a portion of the answer seeking to incorporate by reference an affidavit previously
submitted to Board representatives.
. STARRETT BROTHERS AND EKEN, INCORPORATED 1761
moved to strike certain testimony relating to the promulgation of a no-solicita-
tion rule. This motion was denied. Oral argument was then presented on behalf
of the General Counsel and the Respondent. Opportunity was afforded the
parties to file briefs and/or proposed findings of fact and conclusions of law or
both. A brief was received from the Respondent.
Upon the entire record and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a New York corporation engaged in the construction of
residential and commercial buildings. It has constructed projects in several
States of the United States and in Havana, Cuba, and it stands ready to contract
for building operations to be performed in any part of the United States.
The present proceedings are concerned primarily with the operations of the
Respondent in Los Angeles, California, where it is engaged as contractor for
the Metropolitan Life Insurance Company in the construction of a large resi-
dential development known as the Park LaBrea Project. Park LaBrea, when
completed, will consist of 18 thirteen-story tower buildings containing 2,808
apartments. There will also be garages, two-story units, and a maintenance
and administration building. The project was started in April 1948 and will be
completed in 1951. The total cost of the construction is estimated as in excess
of $30,000,000. 0
Under date of November 25, 1949, the Respondent submitted a statement to
the Board in connection with another proceeding in which detailed information
was furnished as to the operations at Park LaBrea. The following is an excerpt
from that statement dealing with the purchase of materials for the work and
the method of operations :
For our own work and for some of the work of our subcontractors, we
purchase the materials required. Material which we purchase and install
ourselves is only a small fraction of the total cost of the operation. The
subcontractors furnish both material and labor, and we are in no position
to give the dollar value of material which is installed in place by subcon-
tractors, and we have no knowledge as to whether such material originates
in the State of California or elsewhere. Further, as to such material origi-
nating without the State of California, we have no knowledge as to whether
such material comes to rest before it is brought to the Project, or whether
it arrives direct from some. manufacturer. The following is a statement of
materials and their origin :
Elevators-Ohio
Kitchen cabinets-Pennsylvania
Folding doors-Indiana
Hardware-Connecticut
Elevator bucks and doors-Ohio
Windows (Aluminum)-Florida
Refrigerators-Ohio
Plumbing materials-Wisconsin
The quantity of materials involved in this Project may best be illustrated
by the number of refrigerators required and shipped from Ohio, namely,
approximately 2808.
1762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
Some of these materials come direct to the job from their place of origin
through various channels of transportation. Some of the materials manu-
factured without the State so far as we know come from places within the
State and are shipped to the job from such places by their warehouse, stor-
age yards or other places of rest. A certain amount of material is bought
locally in the State of California, and a certain amount is bought in the
City of Los Angeles and comes to the job from 'plants in the State of Cali-
fornia, or plants, warehouses or sources of supply within the City of Los
Angeles.
At this time it is difficult if not impossible to fix percentage of materials
purchased by us which come from without the State, and the percentage
that come from within the State, including the City of Los Angeles, and in
this connection we, of course, could not fix the volume or percentage of mis-
cellaneous purchases by our subcontractors for the performance of their
contracts which come from without the State or from plants within the State.
The General Counsel asserts and the Respondent denies that it is engaged in
commerce within the meaning of the Act.
The Board has decided that under certain circumstances it would assert juris-
diction in cases involving the construction industry. The operations of the
Respondent, considered in their totality, are very similar to those of other large
construction companies over whom the Board has asserted jurisdiction! As
to the Park LaBrea Project itself, tl}e afore-mentioned statement submitted
by the Respondent to the Board states that important items of equipment nec-
essary to complete the project were and are manufactured and shipped to Cali-
fornia from other States. While the dollar value of these items has not been
furnished it is obvious from the size of the project that the expenditures for
these items are and will be substantial.
The Board, in a prior proceeding, has considered the operations of the Respond-
ent in the construction of a large residential project in New York City.' In that
case total expenditures for materials exceeded $20,000,000 in value, of which from
25 to 35 percent represented shipments from points outside the State of New
York. The Board concluded that the stoppage of the Respondent's operations
by threatened industrial strife would result in substantial interruption to and
interference with the free flow of commerce. It therefore concluded that the
Respondent's operations affected commerce within the meaning of the Act. In
the present case, while the total value of materials required from other States
has not been furnished, it is clear that the amount is substantial. The under-
signed further concludes that the same factors that impelled the Board to take
jurisdiction in the prior case are present here. Accordingly, the undersigned
finds that the Respondent's operations affect commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
Office Employees International Union, Local No. 30, A. F. L., is a labor organi-
zation admitting to membership employees of the Respondent.
3 The Austin Company, 70 NLRB 851, enfd. 165 F. 2d 592 (C. A. 7) ; Ozark Dam Con-
structors , 77 NLRB 1136; J. H. Patterson Co., 79 NLRB 355.
* Starrett Brothers & Eken, Incorporated, 77 NLRB 275.
STARRETT BROTHERS AND EKEN, INCORPORATED
III. THE UNFAIR LABOR PRACTICES
1763
A. Introduction
All the dischargees were employed in the payroll operations of the Respondent.
'Six of them, Eastwood, Kennedy, Denning, Flores, Andrews, and Moore were
employed as time checkers. The seventh, Todd, was employed as a payroll
-clerk. Checkers were assigned to field time offices or "shacks," as the men
called them, at different points in the project. Generally their work consisted
In handing out and collecting identification tags from mechanics employed in
the project, checking the work of the mechanics in the field operations, and
-preparing certain reports which were forwarded to the payroll office. These re-
ports were received in the payroll office and from them payroll data and cost
records were assembled. As of September 1, 1949,6 the day before 5 of the
7 discharges were made, there were 23 checkers on the payroll. The exact num-
ber in the payroll office was not established but it was over the number em-
ployed as checkers. Both of these groups were under the supervision of Floyd
Brown, whose title was chief timekeeper. He was responsible to William Bing-
lam, project auditor.
. While Brown testified that he did not have full authority to hire and discharge
employees, the record shows that he did most of the interviewing of appli-
cants and had an effective voice in their hire and termination. The record
amply demonstrates that he exercised control over all the employees in the
payroll department whose work has been outlined here and that he exercised
discretion as to methods of operation. The undersigned concludes that he
was at all times here relevant a supervisor within the meaning of the Act.
Brown, in his supervision of the checkers, was assisted by Carl C. Williams,
chief time checker, herein referred to as C. Williams. Williams transmitted
instructions to the checkers, assisted them in their work, and made recommen-
dations to Brown concerning the assignments of the checkers. On occasion he
assisted in interviewing new applicants. It is unnecessary to decide for the
purposes of this proceeding whether .Williams was a supervisor within the
meaning of the Act but he did serve as a link between Brown and the checkers
in the field and was in a position where he could evaluate the work of the
checkers.
B. Organizational activity among the checkers
The checkers began discussing the question of joining a union sometime in
the early part of August. On August 16 a group of the men , including Kennedy,
Moore, and Andrews, met with Eastwood at his home and decided to proceed
with union organization . The next night Kennedy, Moore, and Andrews, as well
as Denning and others , went to union headquarters and after a discussion with
Mrs. Anne K. Sweet, business representative of the Union, they decided to join
the Union and to try to organize the other checkers , as well as the clerical em-
ployees engaged in payroll and related work . The men proceeded to obtain
signed membership cards from the other checkers on the next day. By the
following Monday, August 22, all the checkers except one had signed member-
ship cards. They were instructed to wear union buttons openly beginning on
that day, and the record establishes that most of them did so.
" All dates hereafter are in 1949 unless the contrary is indicated.
1764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On that same day attempts were made to organize the employees in the payroll
office itself. During their lunch hour, Eastwood, Moore, Kennedy, and Andrews
went to the office and talked to the office workers there who also were on their
lunch hour. On the next day Eastwood, Moore, and Kennedy again talked to
the employees in the office.
Brown denied that he was ever told or learned who the union leaders were.
However, one of the office employees, Ralph LaFoy, testified that he was ap-
proached by Eastwood, Moore, and Kennedy and that they asked him to join the
Union and gave him a union card. About a week later, he testified, he was told
at one of the shacks where Denning, Moore, and Flores were assigned that as
far as Brown was concerned it was all right if LaFoy joined the Union. LaFoy
spoke with Brown and told him that he had been approached by Eastwood, Moore,.
and Kennedy and of the remark made to him concerning Brown's attitude.
Brown then told him, according to LaFoy, that it was up to him to decide what
to do.° Brown did not testify concerning these alleged conversations with LaFoy,.
a witness produced by the Respondent, and the latter's testimony is credited.
Maurice L. Williams, herein referred to as M. Williams, chief payroll clerk
and Brown's chief office assistant, testified that he was solicited to join but he
denied that he passed along to Brown the names of those who had approached
him.
On Tuesday, August 23, Brown personally went.to each of the timekeeping
shacks and announced a rule on union activity. At that time there were six
time shacks, five for the regular mechanics, designated N-1 through N-5, and one
for those engaged solely on concrete work, called the concrete shack. Brown.
went from shack to shack making his announcement. Several of those who heard
him speak testified that he declared that he would not permit any solicitation
on company property at any time. These included Andrews, Herbert G. Tausch,.
and C. Williams.
Moore also testified that when Brown spoke at his shack he declared that there
would be no more organizing on company time or property ; that if he had -been
present at the payroll office the men would not have been allowed to attempt to
organize there ; that the Respondent's contract with skilled trades unions, under
the master Associated General Contractors' Contract, protected the Respondent
against any organization of its clerks and timekeepers, and that the attempt to
organize them was a sneak, Japanese, Pearl Harbor attack. Eastwood; who was
present at the same time, testified that Brown asked who had been the instigator
of the Union and also declared, "George, I don't want any organizing of any
union in my office on your own time or company time." He also corroborated.
Moore as to Brown's characterization of the organizing activity. Flores, who was
the other man present at that time, testified that Brown announced that there
would be no more union talk or organizing on the job, and that the men went
about their organizing in a sneak way which reminded him of Pearl Harbor.
Brown also declared, according to Flores, that he did not approve of the Union.
Kennedy testified that when Brown came to his shack he stated that someone
had taken advantage of his. absence and had used his office to organize em-
ployees. Kennedy stated that he had gone into the office and did not know
whether he could organize on. company property and that since Brown objected
6 LaFoy testified that he spoke to Brown three times concerning remarks made to him.
In later testimony he stated that he was not certain of the exact number of times he did
speak to Brown. The undersigned, from a study of his testimony, concludes that he did
check with Brown as to the statements made to him at Denning 's shack and by Eastwood.
Moore, and Kennedy.
STARRETT BROTHERS AND EKEN, INCORPORATED 1765
to it he would tell the others not to go to the office any more.. Brown again
stated, according to Kennedy, that the men had taken advantage of his absence
and had, coerced the office employees. Kennedy denied that there had been any
coercion and Brown warned him not to let him hear of any other similar oc-
casions. According to Kennedy, he, Moore, and Eastwood then continued their
organizing efforts in a park circle near Brown's office. Arthur Storberg, who
was in Kennedy 's shack, testified that Brown declared that the men could not
organize on company time and property. John M. Lockyer and Jess M. Bevers,
other checkers, testified that Brown prohibited union talk only during working
hours.
Brown testified that he told the men that there would be no organizing activity
on company time and property in his office. He denied making any statement
that the organizing activity was a sneak, Pearl Harbor attack. In later testi-
mony, he stated that there was a sign at the office prohibiting unauthorized
admittances, that there were important papers in the office, that he had received
information from M. Williams, LaFoy, and others that checkers had been com-
ing into the office and causing a disturbance by carrying on union activities
while Brown was out to lunch. After he got these reports, Brown testified, he
communicated with representatives of the Associated General Contractors with
whom the Respondent was and is affiliated and was advised that the checkers
had no right to come into the office at any time on union activities, and then,
according to Brown, he proceeded to make an announcement in each shack.
He told the men that he had a general statement to make not directed against
anyone but to everyone in general that it had been brought to his attention that
a disturbance had been caused in his office while he was out to lunch, and he
wanted those who did it to quit that activity and that he wanted no organizing
while the men were on duty or on company property. Brown testified that when
he mentioned the phrase "company property" he was referring to his office but
the testimony of at least some of the checkers, which the undersigned credits,
indicates that in some of the shacks Brown did not make it clear that there was
an absolute prohibition against organizing activity in his office only and that
the men might, on certain other occasions, carry on union activities on other
parts of the company property. The undersigned finds that Brown's prohibition
of union activity at any time on company property went beyond permissible
limits and was violative of the Act. Brown was not sure as to just what he
said in each shack and gave different versions of the general announcement he
made. The undersigned credits the testimony of Eastwood, Moore, and Flores,
that at their shack Brown characterized the organization effort as a sneak,
Pearl Harbor attack.
Tausch testified that on Monday, August 22, he wore a union button openly
and that while he was at the payroll office on business Brown questioned him as
to what the union button was for and Tausch replied that it was a union button.
Brown also questioned him as to where he had got the button and where he had
signed up. Tausch told Brown that he had received his membership card from
Moore. Brown also asked him what benefit he thought he would derive from
his union membership. He made no reply to Tausch's answer to that question.
Brown admitted that he might have questioned Tausch concerning his union
button but maintained that he did so, if at all, out of idle curiosity. Tausch's
testimony is credited.
According to C. Williams' credited testimony, Brown, on several occasions,
asked him how the Union was getting along and at one time stated that he
understood that the Union was having a meeting or had had a meeting. Wil-
1766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
Hams did not fix the dates of these conversations . Brown admitted that these
conservations might have taken place but testified that he was interested only
in how the union activity might affect the work.
Moore testified that on Tuesday morning, August 23, he was talking to some
men about the Union and handing out union cards when Brown drove by. The
undersigned credits Brown 's denial that he saw Moore engaged in that activity.
C. The discharge of the checkers
1. Economic necessity for the discharge of checkers
The General Counsel originally took the position that there was no economic
basis for a discharge of checkers at the time the discharges took place. At the
close of the hearing he took the position that although there was perhaps some
basis for an adjustment in the number of checkers, the number of those laid off
was in excess of that required by any economic necessity and demonstrated that
the layoff was not motivated by operational requirements . The Respondent
contended that a reduction in force was necessary at the time the layoff took
place.
Brown testified that approximately in mid-July he was told by James H.
Griffiths, superintendent of construction , that there would be a reduction in the
number of construction workers. Brown , according to his testimony, then
made a study of the number of checkers that would be needed with the reduced
force and also how'many time shacks would be needed and what new locations
should be used. He made his reports to William Bingham, project auditor; and
his supervisor . Bingham was deceased at the time of the hearing . Again,
according to Brown, a decision as to the relocation of the time shacks and the
personnel to be retained was reached in the beginning of August. It was de-
cided that the number of time shacks , which then consisted of five regular
shacks and the concrete shack, should be cut down to three and that two new
locations should be used.
The changeover was delayed again, according to Brown, because mechanics
could not be obtained to complete the shack setups. This , according to Brown,
was the sole reason for the delay in discharging checkers . Actually the change-
over was made on September 2 and four of the six discharges of checkers were
made on that same day . Flores and Denning were discharged a week later but
Brown testified that they would have been discharged on September 2 if they
had been present on that day also.
Brown's testimony was corroborated by that of Griffiths , who testified that
early in July he told Brown that the peak of employment was over and that
there would be substantial reductions in the number of mechanics within the
next 60 days . He also testified that he had meetings subsequently with Brown
and Bingham at which the coming reductions in force were discussed and the
relocations of the time shacks, but that he did not participate in the selection of
the dischargees.
M. Williams testified that the reduction in force was discussed by him and
Brown as early as sometime in July and corroborated Brown as to the time
' selections were made for discharge.
The Respondent 's payroll figures shed additional light on the necessity for a
reduction in the number of checkers , since witnesses for the Respondent and
the General Counsel were in general agreement that on construction projects
such as the one here in question the number of checkers customarily employed
is approximately 1 for each 100 mechanics . There were 3 special situations
STARRETT BROTHERS AND EKEN, INCORPORATED 1767
present here which must be taken care of, however, in any comparison of
figures. Three checkers were regularly assigned to the concrete crew after
May; 2 previously. This crew, unlike the other mechanics, did not work
in any one prescribed area but did concrete work throughout the project. The
checkers assigned to that crew had to follow them to their different job locations.
These checkers also had to prepare reports on the work of the concrete crew
which were different from those prepared by the other checkers. The testimony
establishes that the checkers working with the concrete crew were considered
to be doing specialized work. The hoist engineers and riggers were another
special group to•whom 1 checker was regularly assigned. There was also another
checker who was a materials checker and did not check the time of any of the
mechanics. The following table illustrates the situation from May :
Total number of construction Hoist engineers
Net number of
generalcon-
Number of
checkers
assigned to
employees* and riggers
Concrete crew struction general con-
employees struction
employees
May: 2,336----------------------------- • 40 194 2.102 •"18
June: 2,400---------------------------- 53 211 2,136 19
July: 2,197----------------------------- 71 226 1, 900 20
Aug.: 1,727----------------------------- 72 201 1,454 18
Sept. : 1,633---------------------------- 71 196 1,366 18
Oct.: 1,550----------------------------- 70 181 1, 299 10
Nov.: 1,417----------------------------- 69 185 1,058 9
Dec.: 1,312---------------------------- ---------------- ---------------- ---------------- 9
'Numbers in each case are the highest number employed in the month.
**In May, only two checkers were assigned to the concrete crew; thereafter three performed that work.
These figures also include C. Williams, Brown's assistant in time-checking operations.
After the September layoffs, the checking force was increased by four; one
employee transferred to the checking force, in December 1949, two others were
transferred during this year, and there was one new person hired in February
1950. The three transferees had been employed in the payroll office. However,
during that same period, three of the checkers who had been employed as of
September 1, 1949, had been removed from the rolls for various reasons.
Brown admitted that after the consolidation there was some complaint that
the mechanics were encountering delay in checking in and that he found it
necessary to open one and possibly two additional checking-in windows. How
ever, he testified, these additional facilities were handled by the regular staff and. -
he was able to discontinue them eventually.
The undersigned is not satisfied that the preponderance of the evidence estab-
lishes, as the General Counsel contends, that the checking staff was cut more
than the needs of economy dictated. The Respondent's payroll figures show
that the checking staff in July, August, and September was above the quota
figures sought to be maintained by Brown. After the September. layoffs the
number of checkers was somewhat below the quota. However, this is partly
due to the fact that one checker voluntarily terminated after the September lay-
offs. Nevertheless, Brown was able to continue operations without making any
addition to his staff until sometime in December. The payroll figures show that
the Respondent was continuing to reduce the total number of construction 'em-
ployees, all during the latter part of 1949. Reducing the force somewhat below
the usual quota would not be calculated to cause any accounting problems and
would seem to be a reasonable move. Also, the number of shacks was halved.
This, in itself, would indicate that the number of checkers could be substantially
reduced. In view of all these factors the undersigned is not persuaded that the
1768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proof establishes that the reduction in force went beyond the requirements of the
Respondent 's business.'
2. Basis for the selection of checkers for layoff
The key issue in this case is the basis on which the men were selected for dis-
charge. In this connection Brown's testimony is of chief importance. Although
he testified that he could only recommend discharges to Bingham, Brown was
in direct charge of the checkers and according to his own testimony made the
survey which resulted in the determination of the identity of those checkers to
be discharged. Bingham made no independent survey but relied on Brown's
report.
Brown testified that when he was informed sometime in July that there would
be a substantial reduction in the number of mechanics he took action to determine
what checkers should be laid off in order to bring his force in line with the size
of the force of the mechanics. He instructed M. Williams, his chief payroll
clerk, to forward to him each day the official reports compiled in the field so
that he could check the ability of the checkers. In addition, according to Brown,
M. Williams made reports to him on the work of the checkers. As a result, again
according to Brown, a decision as to the size of the staff that would be retained
and those who would be released was arrived at as early as the beginning of
August at a conference between Brown and Bingham with M. Williams present.
Continuing his testimony, Brown gave further criteria which he used in
arriving at his evaluation of the men. He did not consider that the men had
any seniority rights since the Company had no such system and such practices
were not followed in the construction industry in general. His first considera-
tion was the ability of the person involved, although, if two men were equal, he
would give consideration to the length of their service. He also gave considera-
tion to the prior work experience of his personnel and in particular, their work
in the construction field. He reiterated that he could check the ability of the
men by examining the records submitted by them. Another point he kept in mind,
he testified, was that checkers, if possible, follow their brass, that is, they
should follow their construction mechanics whom they have learned to recog-
nize. Subfactors in work performance, according to Brown, were neatness,
accuracy, and cooperativeness. Also, honesty and diligence in checking men
in the field. Brown, according to his own testimony, made a point of making
trips to the field and checking personally on the work of the men. He also re-
ceived reports from his assistants. Brown testified that he gave the greatest
weight to job performance but also considered the prior work record of the men
as shown on their surety bond application.
M. Williams, in his testimony, corroborated Brown. He testified that he and
Brown in July and August had several conferences at which they discussed the
work of the men and who should be selected for layoff and that a final decision
was made by Brown in the first week in August.
As to the standards for layoff which Brown set forth in his testimony, the
testimony of other witnesses sheds considerable doubt on their effectiveness.
It was Brown's testimony that he carefully checked the written records coming
7 The Respondent 's records list Olin J. Casaday as having terminated his employment
on September 2 because of illness in his family. At first glance, it would seem that the
number of those scheduled for discharge should have been reduced because of this addi-
tional termination. However, this point was not litigated and the Respondent was not
put on notice that any such contention was being made. In view of that fact and the
circumstances indicating an economic necessity for the terminations, the undersigned
has not given any weight to any contention which might be made as to Casaday's
termination.
STARRETT BROTHERS AND EKEN, INCORPORATED 1769
from each time check shack in order to evaluate the work of each checker,
that each checker was required to put his name to any record on which he
worked, and that, while occasionally this rule was not followed, in general the
records were in proper order so that Brown could evaluate the work of each
checker. The testimony of witnesses for the General Counsel was to the effect
that records were worked on by all the checkers in the shack working in a
group or team and that the name which appeared on the written records was
most often that of the checker in the shack who worked primarily on the prep-
aration of written reports and did no direct checking in the field. The men
designated this checker as chief or head of shack. More will be said about this
title later.
That this latter version was the correct one is corroborated by the testimony
of two witnesses for the Respondent, less M. Bevers and John M. Lockyer,
two checkers whom Brown praised highly. Lockyer testified that in his shack
the checkers who went into the field to check the mechanics mode notes of the
presence of each mechanic and the work he was donig. At the shack, the
checkers would take turns reading the notes to the other checkers who would
make entries on official field check cards which were then forwarded to the
office while the original notes were destroyed. Again, according to Lockyer,
the name of his head of shack, Marceau, was signed to all the records and it
was impossible to know who actually wrote the entries except by recognizing
the handwriting. Bevers also testified that the men took turns in writing
reports.
The undersigned finds that at least prior to September 2, the method of
record keeping in the time shacks was generally such that an examination of
the written reports in themselves would not reveal the identity of the person
who actually made the entries on the records. It may be true, as M. Williams
testified, that when he discovered mistakes and went to the shack involved,
he could on inquiry find out who was guilty of the error but the undersigned is
satisfied from all the testimony that the examination of written records from
each shack was not an accurate gauge of the work of the checkers assigned
there.
Al. Williams admitted that often record sheets were not signed with the name
of the checkers who had made the entries, but that no issue was made of it
though it was not correct procedure. He asserted, at one point in his testimony,
that he knew the assignments of the field checkers and could tell, in at least
some instances, from the numbers on the sheets, which checker had made the
entries for the area involved. This testimony is refuted by Lockyer's credited
testimony. -
As to the other item in his general evaluation, Brown testified that the prior
work experience of the dischargees in relevant work experience ranged from
Denning's 6 years 2 months to none for Flores, Moore, and Andrews. , Checkers
who were retained either had less work experience than some of the dis-
chargees or were on equal terms with those dischargees who had no prior
relevant work experience, according to Brown:
Brown compared the dischargees with those who were retained. In general,
his reasons for preferring those in the latter group fell into three categories :
(a) Some of those retained had better or longer prior work experience than the
dischargees; (b) in those cases where this factor was not present, those retained
were better workers ; or (c) others retained were doing special kinds of check-
ing and substitutes would have required breaking in time which Brown did not
wish to allow.
929979-51-vol. 92-11.3
1770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Brown denied that seniority played any factor in his decisions , it should
be noted that some of the dischargees had been employed for a substantially
longer period than some of those who were retained. Denning, Eastwood, and
Kennedy were in this group . Those with the least seniority in the group of
dischargees , Flores and Moore , had been hired before five other checkers who
were retained . On the other hand, none of the checkers had been employed
by the Respondent at this project for any great length of time. The oldest in
point of seniority was Bevers who had been hired on June 21 , 1948. Most of
the checkers had been hired -in 1949.
In addition to the testimony concerning the procedure in general followed
by Brown in selecting checkers for discharge there was considerable testimony
concerning the individual records of those discharged . The cases of the dis-
chargees will now be considered individually.
a. Edward F. Kennedy
Kennedy was employed by the Respondent at the Park LaBrea Project from
October 1948 until September 2, 1949. Previously, from January 1947 until
October 8, 1948, he had been employed by the Respondent as a checker at-a
similar project, the Stuyvesant Project, in New York. He came to California
with a recommendation from his supervisors in New York and was hired as
a checker by Bingham . In March 1949, he was made chief of shack N-5 and
continued that assignment until his termination.
. There is a good deal of conflict concerning the duties and responsibility of
the position which was referred to by most of the employee witnesses as chief
or head of shack. In fact there is disagreement as to whether there even was
such a position. This question is important in the consideration of the case of
Kennedy, Eastwood, and Denning , since all three testified that they were heads
of shack at the time they were terminated . According to C. Williams, a chief
of shack was responsible for the work of the time checkers in each shack , assigned
the field checkers to job locations where they- were to perform their work, kept
the attendance record for the shack,' made up certain reports , and was respon-
sible for the remainder of the reports on which all the checkers did some work.
Again according to C. Williams, the heads of shack were selected by Brown
on the recommendation of Williams. All witnesses were agreed that there was
no payroll designation of chief or head of shack, but that all checkers had the
payroll designation of time checker . It was also undisputed that a. head of
shack because of his duties did not receive any higher salary than that of,the
other checkers. The assignment ' was sought after , according to C. Williams,
primarily because it carried more prestige.
Brown testified that there was no such position as chief of shack , that one
checker did remain in each shack to do the necessary paper work while the
others checked field stations but that otherwise there' was no difference between
the checkers, and that checkers were.trained to do both the paper and the field
work and should have been able to work interchangeably after about 4 weeks
on the job. Again according to Brown, there was no advantage in being assigned
to work inside a shack. He did, however, testify that he had selected the men
who would do that work and approved the placement of them.
Despite Brown 's testimony , the undersigned is convinced from all the testi-
mony that the title of head or chief of shack was commonly applied to the
checker assigned to work full time in a shack on paper work that, while this
title was not a payroll title, it was recognized and used by all persons connected
. STARRETT BROTHERS AND EKEN, INCORPORATED 1771
with the Respondent's payroll operations. The undersigned also concludes that
this position was recognized as carrying more prestige than that of the ordi-
nary checking assignment and that persons were assigned to such work who
were felt to be fully familiar with the Respondent's procedures and above the
average in ability.
There is ample proof for this latter statement in the testimony of the.
Respondent's own witnesses. For instance, Brown himself testified that al-
though he was training Lockyer to take charge of the paper work in a shack,.
he did not consider him ready for such advancement even after he had been:
working as a checker for several months. Again, in giving as one of his reasons
for dismissing both Kennedy and' Denning, Brown testified that he did not wish
to put them both in one shack and have one "over". the other. He attempted
to repudiate this particular testimony but the undersigned regards it as a
significant admission.
Lockyer testified that it would be "nice" to be known as head of a shack and
that the head of the shack gave out assignments to the other checkers.
M. Williams testified that there was no difference in the desirability between
the jobs of the ordinary checkers and that of a person put in charge of a time
shack. However, he also admitted that the entire record of a checker was
taken into account in making the selections for heads of shack.
The undersigned concludes that a head of shack had higher responsibilities
than the field checkers. He did not supervise the work of the field checker
except that he would designate the buildings or areas to be surveyed by each
checker. However, it was most important for the Respondent's purposes that the
records in each shack be kept properly and in balance. The head of shack had
a greater responsibility to see that these records were in order than the others
assigned to his shack. The testimony of Brown and M. Williams which stressed
that records were the sole responsibility of the individual checker who worked
on them and thereby minimizing the role of the head of shack in coordinating
the work gave a misleading picture of operations and the duties of chief of shack.
This erroneous testimony affected much of their testimony.
Both C. Williams And Brown were in agreement that Kennedy was a good
worker. In his early testimony on Kennedy, Brown testified that Kennedy was
a good worker, that there were errors in the records from his shack but that
they were minor, that Kennedy was a little argumentative but a good man all
in all, and that Brown had a problem in making the final decision concerning
him. He also testified that to keep harmony he did not feel that he could put
Kennedy or Denning in charge of a consolidated shack with the other working
"under" the person put in charge of the shack, that there was a possibility of
friction or one thinking that he had been reduced though the jobs in fact were
equal. Therefore, he testified, in order to keep matters running smoothly he
picked someone else to run the consolidated shack. In a significant reference
to Kennedy he testified that on instructions from Bingham he had checked
with Kennedy on one aspect of time checking methods at his other position.
In later testimony Brown reiterated his prior testimony that the decision as
to Kennedy was a difficult one, that his work was good and neat. However, he
testified, Kennedy was argumentative and argued on many occasions that
methods at the project were not the same as those that had been used back East
and argued to such an extent that Brown had to silence him. Brown further
testified that Kennedy made too many errors or more than he should have had
in relation to his work experience. He could not estimate how many errors of
1772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that type were committed by Kennedy but stated that every week there was
something from his shack.
Brown further testified that it was reported to him that the chief of guards
had to warn the checkers at Kennedy's shack not to bring beer into the project.
He did not know when this incident took place. According to Kennedy and
Storberg, another checker, there was only one such incident; an occasion when
Leo Roach, a checker and Brown's son-in-law, resigned his position. Both
testified that Roach brought a case of beer to the shack to celebrate his leaving
and stated that he had Brown's permission to do so. Brown's own testimony
indicates he learned of this incident after he had decided to release Kennedy
and that it played no part in his decision.
M. Williams corroborated Brown and testified that he had heard arguments
between Brown and Kennedy as to timekeeping methods. He could not fix the
dates when these arguments took %place. He, also testified that Kennedy pro=
tested the promotion of C. Williams and on that occasion Brown wrote out a
termination slip for Kennedy but that he persuaded Brown not to discharge
Kennedy." He further testified that he and Brown agreed that if Kennedy and
Denning were put in one time shack there might be trouble from the shack
because Kennedy was inclined to be argumentative and they thought both men
could not get along.
In his final references to Kennedy, Brown testified that there was a possibility
that if Denning and Kennedy were put in the same shack there would be friction.
He further testified, "I did know the disposition of Kennedy was. argumentative
and I knew that he more or less wouldn't want to work under the direction of
anyone, and by putting him out there, he would more or less create friction in
that shack." When he was asked why it was not possible to separate Denning
and Kennedy he replied, "No, it wasn't, because the setup was complete and I
couldn't justify laying off some other men who were doing a job where they
were located. If I had transferred either of them, it would have been a case
of putting them out where they would work out of the area shack, out of the
field time offices. That would mean they would have to get acquainted with
all the mechanics over there. They would also be working outside. It was
common knowledge there was an assumption that different ones were in charge
of shacks. They were not officially, but they would more or less-quite a good
possibility they would have resented working like that anywhere else. The
work out there is such that I just couldn't have that possibility."
Kennedy testified that in March 1949, he outlined the New York cost account-
ing system to Brown at the latter's own request, and that subsequently some of
the New York procedures were adopted at the project. Kennedy further testi-
fied that he had a conversation with Brown after his termination on or about
September 12 in which Brown told him that it was a hard decision in his case
and that he thought that since Lockyer was going to be in charge of a combined
shack which included the personnel of Kennedy's shack, he thought Kennedy
would not like the change. Kennedy replied that he wanted to work but Brown
made no comment. Brown did not testify concerning this conversation and the
undersigned credits Kennedy's testimony.
b. Leo D. Denning
Leo Denning was employed as a checker from March 18, 1949, until his termi-
nation on September 9, 1949. At the time of his termination he was acting as
8 Brown did not mention this alleged incident in his testimony.
.STARRETT BROTHERS AND EKEN, INCORPORATED 1773
head of a shack . Brown testified that he would have been terminated with the
group dismissed on September 2 if he had not been absent on that day and did
not return until the day of his discharge. -
Brown's evaluation of Denning ' s work and his reasons for not retaining
him to a certain extent parallel his testimony concerning Kennedy. He testi-
fied that there were errors committed in Denning 's shack but they were of a
minor nature and that Denning was 100 percent cooperative and that he, Brown,
had a problem in arriving at the decision he did. But again, he felt that he
could not put Kennedy or Denning in charge of one shack, the other one serving
under him . His explanation for not splitting up Kennedy and Denning which
testimony has been previously quoted, of course applies to Denning 's case here.
On the other hand in later testimony Brown declared while Denning had a
good work background he was irresponsible and was off from work a number
of times and that Brown had heard rumors that he had been drinking and
that interfered with his being in attendance on the job . Brown admitted that
he did not examine payroll records to determine the extent of Denning's ab-
sences nor could he give any details on Denning ' s work record except to state
that C. Williams had reported to him that he thought Denning had been drinking
on the job . Williams denied this testimony and the undersigned credits his
denial.
Denning testified at the hearing but gave no testimony relating to his work
record or his termination. He was called by the Respondent to testify con-
cerning the Respondent 's contention that Denning had offered to assist in its
case if a settlement were made with him. Denning denied that in conversations
with Brown and with Carl M. Gould of counsel to the Respondent he had offered
to make any such trade . He admitted that he had communicated with Brown
in an attempt to make an out-of-court . settlement . He denied , however, that
he had offered to assist the Respondent or intimated that he could be of assist-
ance to it in its case . Both Gould and Brown testified to the contrary and
the transcripts of their conversations with Denning, especially that between
Brown and Denning, support their testimony.
.At the time of these conversations the General Counsel had decided not
to include Denning in the complaint and Denning was seeking an independent
settlement . While Denning made certain general statements to the effect that
he could be of assistance to the Respondent , nowhere in the recorded conver-
sations is there any indication of any concrete factual information in Denning's
possession which would have a direct bearing on the issues in this proceeding.
The conversations therefore would only have a bearing in this proceeding for
the purpose of impeaching Denning's testimony , if he had given any relating to
the issues in the case . As indicated he did not give any such testimony.
c. George F. Eastwood
George F. Eastwood was employed from March 2 until his termination on
September 2. After 5 weeks of work as a checker he was assigned to be head
of a shack and continued in that assignment until his termination. He had
had prior checking experience which Brown himself evaluated as equivalent to 1
year. Both Brown and Eastwood had previously worked for the same concern.
At the time of his termination , Eastwood was in the top 50 percent of the
checkers in point of seniority.
Brown testified that Eastwood , who was then in charge of shack N-3, was a
willing enough worker but not equal in ability to Bevers whom Brown selected
to head a combined shack including shack N-3.
1774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both C. Williams and Brown agreed that in June or July Williams complained
to Brown concerning Eastwood. C. Williams testified that he had caught East-
wood and some other employees engaged in a dice game after working hours
in Eastwood's shack and that when he criticized Eastwood they had an argu-
ment. Williams then spoke to Brown about this in Eastwood's presence and
on the next day suggested that Eastwood be transferred.
Brown agreed with Williams' version of the dice game incident and also added
that about 3 to 5 weeks later Williams complained that he could not control
Eastwood and asked for his transfer or termination. He could not recall the
basis for Williams' complaint on the second occasion. Williams testified that
he only made one such complaint. The undersigned credits Brown's testimony.
In any event, Brown took no action against Eastwood on either of these oc-
casions. Brown testified that he took no action against Eastwood, at least
after the first incident, because he concluded that Eastwood's work was satis-
factory and that basically there was a clash of personalities between him and
Williams. He testified that after the second occasion he spoke to Eastwood
and told him to work in harmony with Williams.
Except for his comparison of Eastwood with Bevers, Brown furnished no
further details concerning Eastwood's work performance. He testified that
he learned that Eastwood had conducted a raffle in his shack but added that
he learned of this after Eastwood's discharge and that it of course could not
have played any part in his decision.
Eastwood testified that Brown had told him shortly before his discharge that
he was not anticipating a layoff of checkers but the undersigned credits Brown's
testimony that he made that statement to Eastwood in June when layoffs were not
anticipated. C. Williams testified that Eastwood was a good worker. M. Wil-
liams testified that there were more errors from Eastwood's shack than from
the others.
d. Jesse D. Andrews
Andrews was employed as a checker from March 30 until his -termination
on-September 2. At the time of his termination he was assigned to Denning's
shack and on designation by C. Williams was acting as head of shack in Den-
ning's absence. He had been acting in that capacity for the week prior to his
discharge. His job with the Respondent was his first checking job.
Brown testified that the work background of Andrews did not justify keeping
him over others and also that other checkers did better work. - In his other
references to Andrews, Brown indicated that it was Andrews' lack of any work
background as a checker that influenced him in making his decision as to An-
drews. Brown further testified that C. Williams assigned Andrews to act -as
head of Denning's shack but that he, Brown, did nothing about it since it was
an assignment which would only last for. a week although Andrews' ability did not
justify that assignment in his opinion. C. Williams maintained that Andrews
made a lot of errors.
e. Arthur A. Flores
Arthur Flores was employed as a checker from May 4 until his termination on
September 9. Brown testified that Flores was hired principally as an inter-
preter for Spanish-speaking employees, that he was no good as a checker and
was released at the first layoff.
Flores testified that this was his first job as a checker and he was hired after
C. -Williams introduced him to Brown. He denied that he spent any significant
portion of his time interpreting and maintained that in the months that he was
STARRETT BROTHERS AND EKEN, INCORPORATED 1775
employed as a checker, he interpreted for about three men. This testimony was
not controverted. Flores testified that he wore a union button but except for
this, there is no further evidence of any other union activity on his part. C. Wil-
liams testified that he would have included Flores in the first group of those
to be released even though he disagreed with Brown's other selections. .
f. Ben J. Moore
Ben Moore was employed from May 13 until September 2 as a time checker.
Be was assigned to the same shack as Eastwood and Flores. C. Williams rated
him as a good worker. Brown testified that Moore was a very "ordinary run"
checker doing a job and that when the need for him ended he would be the one
selected to be dismissed. Brown further testified that he did not apply himself
to his job, that he let his personal life interfere with the job, and that he could
not be depended upon to show up on Mondays. In later testimony, Brown testi-
fied that he recalled one particular occasion on which Moore was absent and that
was the absence he had reference to in his prior testimony. He later stated
that his decision was not affected by Moore's absence.
Brown also testified that Moore's surety application did not indicate to him
that Moore had relevant construction experience, that Moore's application
showed work experience as a bookkeeper, a clerk, and a cost accountant and it
did not show in what way his work experience was related to construction work.
Moore indicated in his testimony that his prior experience included work for
a construction firm and also work as a checker on another construction job.
However, his testimony does not show that he had any conversations with
Brown in which his work experience was made clear to Brown.
* a s • * t s
After the consolidation, there remained three field time offices. The shacks of
Eastwood, Kennedy, and Denning were merged into field time offices headed by
Lockyer and Bevers. Bevers, the only nonunion member of the checkers, had
been chief time checker before C. Williams and was the senior checker on the
staff. For some time before September 2, he had been performing miscellaneous
assignments. Lockyer had never acted as head of shack. He had had much
experience in the construction field. Not only did Brown testify as to his ability,
but C. Williams himself testified that at the time he had recommended that East-
wood be transferred he had suggested that Lockyer be made head of shack.
Lockyer was a union member but did not wear his button.
3. Analysis and conclusions
Several points are of special significance in the resolutions of the issues.
Brown testified in detail that ability was the most important factor to be consid-
ered in determining the checkers to be discharged and that he ordered that the
daily records from each shack be routed to him for inspection. Yet the over-
whelming weight of the evidence establishes that it was impossible to tell which
individual checker had prepared the entries on a particular sheet since the
checkers usually worked as a group and the naive on the sheets was usually that
of the head of shack.
As to the duties and responsibilities of the heads of shack, the testimony of the
chief witnesses for the Respondent was misleading and gave an erroneous impres-
sion as to the procedures in each shack and the position of the head of shack in
the checking system. From this confused testimony, it was impossible to deter=
mine the Respondent's conception of what was expected from the head of shack or
what was the individual responsibility of the field checkers.
1776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brown testified that he attempted to supplement his information as to the
performance of the checkers by making field trips approximately three times a
week. Yet his testimony reveals that he was uncertain as to how the field
checkers made their records in the field. On several points, he stated that C.
Williams would be more familiar with specific procedures.
The true situation, as. the undersigned evaluates the testimony, was that
Brown was a busy man to whom the field checking operations was only one
phase of the work under his supervision. He could not keep in close contact
with those operations. He had a subordinate, C: Williams, who served as liaison
man with the checkers. The undersigned rejects Brown's testimony that C. Wil-
liams had no duty to make any recommendations to him concerning the checkers.
The record shows that Williams did make recommendations on overtime assign-
ments and transfers. Brown might not have always followed these recommenda-
tions, but they were given weight. Yet Brown did not consult Williams in regard
to the selections for the first mass layoff that would be made from the staff.
Brown. maintained that he did not talk with Williams, because the latter had
friends among the checkers and would not be unbiased. The undersigned rather
concludes that Williams was not consulted because of his open union membership.
The testimony of M. Williams also did not impress the undersigned. He
attempted to corroborate Brown's testimony on the inspection of records and the
position of head of shack, items on which the undersigned has found Brown's
testimony unreliable. Williams' testimony did not impress the undersigned as
being fair and accurate, but rather an effort to bolster Brown's inaccuracies and
to place as much blame as possible on the dischargees for errors. In fact, if the
dischargees consistently committed as many and as serious errors as Williams
alleged, it is strange that disciplinary action was not taken against them. Yet
Eastwood, Kennedy, and Denning continued as heads of shack for months without
being demoted, transferred, or discharged..
The reasons given for the release of Kennedy and Denning are full of contra-
dictions, inconsistencies, and were changed as the testimony progressed. The
reason Brown stressed most was that he did not want to put Kennedy and Denning
in one shack for fear there might be friction. When he was asked why they could
not be separated, he replied that the "setup was complete," that they would have
to become familiar with a new group of mechanics, and might not like a transfer
to field checking. These reasons impress the undersigned as.unconvincing. The
setup was complete only because Brown had left Denning and Kennedy out of his
plans. In the reorganization, checkers would necessarily have to work with
different groups of mechanics. Brown himself testified to that effect.
The undersigned also is not impressed with Brown's final reason for not uti-
lizing these heads of shack-that they might be dissatisfied with a change to
field checking. He was willing to experiment with a new head of shack, Lockyer,
but was unwilling to give employees with substantial periods of service as heads
of shack a chance to remain with the Respondent. It may be that Brown felt
that Lockyer and Bevers would make better heads of shack than the three who
were dismissed. The fact that no change was made in heads of shack for months
casts . some doubt on this. At any rate, even though such a change were felt
desirable, the failure to retain the heads of shack in any capacity raises doubt
as to the aims of the Respondent.
What has been said about the failure to retain Kennedy and Denning applies
to Eastwood. He had served as head of shack for almost 6 months. He had had
prior relevant experience. While he had had difficulties with C. Williams in
June or July, Brown had not thought it necessary to take action against him:
STARRETT BROTHERS AND EKEN, INCORPORATED 1777
Although Brown testified that he preferred Bevers over Eastwood as head of
shack, there is a lack of substantial evidence to justify releasing Eastwood rather
than those who never had worked as head of shack, or had no prior relevant
work experience, or had not been with the Respondent as long as Eastwood.
As to Andrews and Moore, we have Brown's testimony that he released them
because the quality of their work was not good and because they lacked prior
work experience. M. Williams testified that there were many errors from
Moore's shack, but he gave no details as to Moore's work itself. Andrews, he
testified, made many errors. In view of the inaccuracies in the testimony of
M. Williams as to record keeping and the fixing of responsibility for errors, as
well as the general character of his testimony, the undersigned has not given
this testimony any weight.
It is important to note that all the dischargees, except Flores whose case will
be discussed later, took active parts in the attempt to organize the clerical staff
at the payroll office. Those employees were not organized. It is true, as the
Respondent maintains, that by September 2 the organization of the checkers
had been completed and that all, except Bevers, were members of the Union.
Selections for discharge would necessarily involve union members. However,
Eastwood, Moore, and Kennedy were, by their,own testimony as supported by
Tausch and LaFoy, Respondent's witnesses, most active in the effort to organize
the office workers. LaFoy had mentioned their names to Brown in this connection
and also had told Brown of additional efforts at Denning's shack to persuade
him to join.
Andrews was with the group which solicited for the Union in the Respondent's
payroll office. Brown received reports of these activities from LaFoy and M.
Williams. It is unreasonable to suppose that the names of those who participated
were not mentioned, as M. Williams contended.
Brown reacted vigorously to this organizing effort and in his speeches to the
checkers demonstrated his opposition to it. This is especially shown by his
characterization of it as a sneak, Pearl Harbor attack. The Respondent main-
tains that there is no proof that Bingham, Brown's supervisor, had any knowl-
edge of the union activities of the checkers. This is not a relevant consideration
in view of Brown's effective voice in the selection of the dischargees. The Re-
spondent further urges that the Respondent dealt with unions regularly and that
Bingham told Brown, according to the latter's unsupported testimony, that if
the men organized there would be an election. The Respondent also has weighed
LaFoy's testimony that Brown told him it was up to him to decide whether to
join the Union.
Upon consideration of all the evidence the undersigned concludes and finds
that the preponderance of the evidence establishes that Eastwood, Kennedy,
Denning, Moore, and Andrews were selected for discharge because of their union
membership and activities. The concrete evidence of reprisal for union activities,
as previously outlined, outweigh the protestations of good faith.
As to Flores, "there is a failure of proof that he engaged in any union activity
other than to wear a union button, as did most of the other checkers. C. Williams
himself (.lid not rate Flores' work highly. Although Flores maintained that he
did very little work as an interpreter, this does not negative Brown' s assertion
that he was hired with the thought in mind that he would be useful in that work.
With reductions in staff, the need for an interpreter also diminished. The
undersigned is not persuaded that the preponderance of the evidence establishes
that Flores was selected for discharge because of his union membership or
activities.
1778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that since the checkers were discharged as a
group the Respondent must 'be held to have discriminatorily discharged all the
checkers if it is found that some were so discharged. On the other hand, the
Respondent contends that if there has been a failure of proof as to any checker,
all the other cases of checkers must be dismissed. Both these contentions are
rejected. While there is some interrelation among the cases of the checkers,
each one, in the setting herein, must be decided on its own merits and a failure
of proof as to one does not dictate the ultimate finding as to the others. The
converse holds true also.
D. The discharge of George V. Todd'
George V. Todd was employed by the Respondent from April 25 until his
discharge on September 2. He worked in the payroll office as a clerk. His
principal duties were to make postings from the payroll sheets to individual
earning record cards. He was in nominal charge of that work to the extent
that he had a key to the locked ledgers where the cards, were kept and filed cards
for new employees in serial order. -
One day a week Todd and other clerks would work on the payroll sheets.
Todd's work consisted of entering payroll deductions from the salary of each
employee. The rest of the week he and usually two other clerks copied entries
from the payroll sheets to the individual earning cards . Although Todd stated
that he was employed to take charge of that posting and the Respondent sought
to hold him responsible for the errors of the other clerks, the evidence establishes
that Todd 's supervision was confined to handing each of two other clerks one-
third of the payroll sheets and the matching cards while he retained an equal
portion for himself. Each clerk then proceeded to work separately. Todd did
not review their work and there is no proof that he was expected to do so.
The Respondent maintained that Todd was discharged for cause and that
Brown requested Bingham to discharge him after having many disputes with
him and cautioning him to avoid making errors.
There was agreement among the witnesses that during Todd's employment
the following matters were discussed by him with at least one of his supervisors,
Brown or M. Williams :
Errors in work. Todd testified that on one occasion in May, Brown cautioned
him aganst making errors . He also admitted that M. Williams -found errors he
had committed , and warned him to be careful . He could not recall how many
such errors there were. Brown testified that he found at least 12 to 15 errors
in Todd's work, showed them to him, and warned him to be more careful. Rich=
berger, another clerk who did the same work as Todd , testified that he heard
Brown speak to Todd of errors in -the latter 's work. Another clerk, James
Dunbar, testified that Todd made at least 1 error on almost every payroll and
that Dunbar pointed these errors out to M. Williams.
. Use of personal tax deduction table. Todd admitted that he used his own
form of table for deductions for computing the Federal withholding tax instead
of the company form . His reason for doing so, he testified , was that the com-
pany form was assembled on a board in such a way that one line of figures could
not be read. An exhibit produced by the Respondent displayed the very error
to which Todd had reference. Todd further testified that when Brown learned
what he was doing , he insisted that Todd use the company form and Todd did
so. Todd maintained that this incident arose early in his employment and that
he also spoke with M . Williams about the use of his own table.
STARRETT BROTHERS AND EKEN, INCORPORATED 1779
,On the other hand, Brown testified that Todd did not want to use the company
form which was mounted on a board and argued the matter causing a disturbance.
Brown finally' insisted that Todd use the company tools when provided. M.
Williams testified that Brown had a discussion with Todd and persuaded him to
use the prescribed form.
Other subjects of discussion were:
Individual earning record cards. Brown testified that shortly after Todd was
employed, the latter found fault with the Respondent's individual earning
record card form and strenuously argued with Brown that it be changed.
Cumulating totals. M. Williams testified that Todd did not cumulate all the
totals on individual earning record cards and that two discussions were necessary
early in Todd's employment before he followed company procedure.
In addition to the above items, Brown testified that at the beginning of Todd's
employment he had an argument with Todd over his use of a scratch pad to do
calculations, that he directed Todd to use a calculating machine, and that after
some discussion Todd finally agreed to do so. M. Williams testified that Todd
used a scratch pad to compute certain figures which he was not required to
enter. Todd denied that he was cautioned against the use of a scratch pad,
asserted that he received little instruction on company procedure when he was
first hired, and that he followed instructions when he received them and did
use a calculating machine after Brown insisted he do so.
During the period of Todd's employment balances were "forced" for each of
two quarter-periods. One of these misdeeds-for so they are considered by
bookkeepers and accountants since they involve making false entries to create a
fictitious balance-was discovered while Todd was employed ; the other after he
left. Richberger attributed this work to Todd, but there is no substantial proof
that Todd was guilty and he denied ever forcing a balance.'
In support of its position, the Respondent presented the following documentary
evidence:
(1) A payroll sheet for the week ending August 28, 1949, on which Todd had
admittedly made eight errors by deducting 1 cent too much from the salaries of
four men in each of two columns.
Richberger testified that he found the error while posting to the individual
record cards and showed it to M. Williams.. Williams testified that the error
was discovered on August 30 and he told Brown of it on September 2. Accord-
ing to Brown, this was the last straw and caused him to request Todd's discharge.
(2) A payroll sheet for the week ending August 7, on which Todd made two
'errors similar to the above against the payroll of one employee.
M. Williams testified that this error was discovered .about.3 weeks later. and
that this error was a prime factor in the decision fo discharge Todd. That de-
cision, he testified, was arrived at on August 29 or 30.
(3) A series of individual earning record cards on which posting errors were
committed because of confusion in the cases of two individuals with the same
name. It was conceded that these errors were not discovered until. after Todd
o M. Williams testified that another clerk, Roper, reported to him that after Todd's
discharge and before he left the office, he saw an individual earning card on Todd's desk
among his personal papers and took it away from him. Richberger testified that he saw
the incident from his own desk, but he did not testify that he overheard any conversation
between'Roper and Todd. Roper was not in the Respondent's employ at the time of the
hearing and did not testify. Todd denied ever attempting to take the card or ever threat-
ening to take records, as Richberger testified.
The evidence against Todd is of hearsay variety. The undersigned credits Todd' s denial.
This incident , of course , did not bear on his discharge in any event. - - -
1780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was discharged, but the Respondent contended that these were offered as illus-
trating the kind of errors with which Todd was chargeable and which he com-
mitted during his employ.
(a) The card of Robert S. Jones
Earnings for two different individuals were put on this card . Todd was un-
certain as to whether some of the erroneous entries had been made by him.
Richberger maintained that he recognized Todd's writing at some of the entries,
but not at others.
(b) Two cards for Walter Jackson
In this case , individual earnings were not posted on the correct card. Rich-
berger admitted that he made the first erroneous postings on the cards , but main-
tained that Todd was at fault because the individual cards were not in proper
sequence with the payroll.
(c) Duplicate cards for Alfred L. Stubblefield , Elliott Thomas, George Takoo-
shian, and Thomas W. Cummings
In these cases a new card had been filled out for a rehire instead of using
his previous card. . In the case of Cummings , Brown admitted that this error
was made after Todd's discharge and was not chargeable to him.
There was a sharp dispute among the witnesses as to Todd ' s responsibility
for these errors and similar errors which the Respondent maintained were
committed during Todd 's employment , *,but which were discovered and corrected
at the time so that there was no later record of them . Brown testified that
Todd was in charge of the men doing the postings to individual earning cards
and that it was his duty to distribute the work and to check balances. Brown
further testified that there was a daily distribution of a record sheet, referred
to as a ditto sheet, which contained information on all personnel actions such
as hires, rehires , and changes in rates of pay and that Todd was responsible
for seeing to it that those changes were properly reflected on the individual
cards. In addition , he asserted , Todd also should have checked the file of all
employees when he received a new card to avoid duplications. M. Williams
went even further and asserted that it was Todd's responsibility to see that
earning figures were put on the correct cards . Further as to the hiring pro-
cedure, M. Williams testified that when a new man was hired , he was given
a number in the assignment shack. A typist then received his hiring slip. If it
indicated that the man had not previously worked for the Respondent a new
card was typed for him and given to Todd who checked the entries against the
hiring slip and then filed the card with the other active cards.
If the man was a rehire , the slip was given directly to Todd who would re-
move the card from the inactive file and place it in the active file.
This system undoubtedly worked well until a man was incorrectly listed as
a new hire. This error , M. Williams testified , should have been caught by the
clerk or typist who filed the hiring slip with other slips in alphabetical order.
While Williams testified that Todd would have had an equal opportunity to catch
the error , it is difficult to see how this could be so since Todd dealt only with the
active record cards and not the inactive ones:
Todd, on the other hand, testified that the ditto sheet contained only infor-
mation as to changes in rates and classification , but it did not list new hirings,
although it should have. According to Todd, it was the responsibility of the
person who hired a new man to note on his hiring slip whether or not he was
STARRETT BROTHERS AND EKEN, INCORPORATED 1781
a new employee or a rehire . The typist receiving the information would act
accordingly.
The undersigned 's conclusion from the testimony is that as to the avoidance
of duplicate cards for the same man there was confusion in the office as to the
ultimate responsibility for' the prevention of such errors . The first responsibility
clearly fell on the hiring officer who filled out the hiring slip, then on the typist
who filled out a new record card or had Todd remove a card from the inactive
file. The undersigned credits Todd's testimony that he was not expected to
recheck the work of these two other employees . His job included the filing of
the cards according to identification numbers and to make the changes re-
quired by ditto sheet entries. The undersigned rejects testimony seeking toy
establish that Todd had the duty to compare every card against the payroll to
see that all were in proper order. Since Todd had a full -time assignment work-
ing on the payroll and individual cards just as Richberger and another employee,
he obviously would not have had the time for such a job. There is no testimony
that Todd ever attempted to do such a sorting or that he was taken to task for
not doing so. Ultimately , the clerk actually making entries on the individual
cards could have avoided making entries on wrong cards by comparing the
names and identification numbers. Todd , Richberger , and other unidentified
clerks made entries perpetuating such errors. Other and similar errors, the
record shows, were committed after Todd left.
Basically , the Respondent 's case against Todd is founded on his use of meth-
ods and procedures early in his employment which were contrary to company
practice . He changed to accepted procedure when he was directed to do so.
On some points , he had strong opinions and. the discussions must have pro-
voked Brown .on occasion.
Todd also made some payroll entry errors. Whether he made more than the
other clerks has been left by the Respondent to the oral testimony of its wit-
nesses. The General, Counsel points out that the payroll records of the Re-
spondent would have been a more objective method of proving the allegation
that Todd regularly made errors . Payroll entries were in ink , errors would be
shown by erasure or ink eradicator marks, and the payroll clerk's number
appeared at columns on which he worked . The Respondent maintained that
its records were warehoused , were very extensive , and that it would have re-
quired much time and expense to produce them. While it may be conceded
that the Respondent's records were extensive, the payroll sheets themselves were
not and the failure to produce them or at least those for a representative period
casts doubt on the bona fides of this contention.
There also is a divergence in the testimony of Brown and M. Williams as to
when Todd 's discharge was decided upon and-which payroll errors led to that
decision.
However, there is a serious failure of proof as to Todd's case which, in the
opinion of the undersigned , requires a dismissal . There has been a failure of
proof that the Respondent had knowledge of Todd 's union or concerted activi-
ties.
The record does not show that Todd was a member of the Union. He did
attend a union meeting on August 24, the day after Brown 's talk in the time
shacks. At the meeting , according to the witnesses who were present there,
he made a forceful speech in favor of union organization . The difficulty with
the General Counsel's case as to Todd is that there is no substantial proof
that Brown or any other supervisory official learned of Todd's activities at
the meeting.
1782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Todd testified that two women employees from Bingham's office attended the
meeting and one of them, whom he identified as "Jean," took down the names of
the speakers.
Mrs. Jean Roe Fisher testified that she attended the meeting with Robert
Fisher, a checker, whom she later married. She denied taking any notes or
knowing Todd by name. She also testified that she was not in Bingham's office
but had some contact with him in her work. She denied passing on any infor-
mation concerning the meeting to any supervisory employee. Robert Fisher,
who was a member of the Union, corroborated her testimony.
Beth Mitchell testified that she attended the meeting with Jean Roe and
Fisher and denied that any of them wrote the names of speakers. Mitchell
testified that she was a member of the Union herself and later refused to cross
a picket line when the checkers went on strike.
The testimony of Mr. and Mrs. Fisher and Mitchell is credited.
Todd further testified that at least one other office employee attended the
meeting and that on the next day LaFoy told him that he had heard that Todd
had made quite a speech at the meeting and then LaFoy went into Brown's
office. LaFoy did not testify as to this alleged conversation, but the undersigned
does not consider this testimony significant in establishing a link to Brown.
The General Counsel argues that there was no cause for Todd's discharge,
but.that even if there was cause since the discharge came on the same day union
leaders were discharged and after Todd had spoken in favor of the Union it
indicates that he was not discharged for cause. The General Counsel further
contends that Brown's staff was small and that it may be assumed that union
activities among his staff would come to his attention. The undersigned finds
that such a deduction is unwarranted here 30 In view of the fact that there was
proof of some errors committed by Todd at the time of his discharge, the lack of
any definite proof that the Respondent learned of Todd's union or concerted
activities and the other factors previously discussed, the undersigned is not
persuaded the evidence establishes that Todd was discharged because of his
union or concerted activities.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the
several States, and such of them as have been found to be unfair labor practices,
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Since it has been found that the Respondent has engaged in certain unfair
labor practices it will be recommended that it cease and desist therefrom in order
to effectuate the policies of the Act.
It has been found that the Respondent discriminatorily discharged George F.
Eastwood, Ben J. Moore, Edward F. Kennedy, Jesse D. Andrews, and Leo Den-
ning. It will be recommended that the Respondent offer them immediate and
full reinstatement to their former or substantially equivalent positions," without
prejudice to their seniority or other rights and privileges, and that the Respond-
1o In a case cited by the General Counsel, L & H Shirt Company, Inc., 84 NLRB 248, it
was found that the facts warranted finding that an employer learned of union discussion
taking place in a plant. The situation here is entirely different.
11 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.
STARRETT BROTHERS AND EKEN, INCORPORATED 1783
ent make them whole for any loss of pay they may have suffered by payment
to each of them of a sum of money equal to the amount each would normally have
earned as wages from the date of the discrimination against him to the date of
the Respondent's offer of reinstatement, less his net earnings during such period.12
The loss of pay shall be computed on the basis of each separate calendar quarter
or portion thereof during the period from the Respondent's discriminatory action
to the date of a proper offer of reinstatement. It will be further recommended
that the Respondent make available to the Board, upon request, payroll and other
records to facilitate the checking of the amount of back pay due."
It has also been found that the Respondent in violation of the Act prohibited
union solicitation on its premises during nonworking time. The complaint did
not specifically allege that the no-solicitation rule was violative of the Act. How-
ever, this issue was fully litigated. Furthermore, the existence of the rule in its
present state constitutes a continuing impediment to the rights of Respondent's
employees under the Act. It will be recommended that it rescind the rule insofar
as it prohibits union solicitation on the nonworking time of its employees.
The scope of the unfair labor practices discloses a purpose to defeat self-
organization among the employees and generally to interfere with, restrain,
and coerce the employees of the Respondent in the exercise of their rights under
the act. The undersigned is convinced that if the Respondent is not restrained
from committing such conduct the danger of repetition in the future is to be
anticipated from the conduct in the past and the purposes of the Act will be
defeated. In order, therefore, to make effective the interdependent guarantees
of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and
thereby to minimize industrial strife, which burdens and obstructs commerce, and
to thus effectuate the policies of the Act, the undersigned will recommend that
the Respondent cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.14
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Office Employees International Union, Local No. 30, A. F. L., is a labor
organization within the meaning of the Act.
2. By discriminating in regard to the hire and tenure of employment of George
F. Eastwood, Ben J. Moore, Edward F. Kennedy, Jesse D. Andrews, and Leo Den-
ning, thereby discouraging membership in the Union, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(a) (3) of the Act.
3. By such discrimination, and by prohibiting union solicitation during the
nonworking time of employees on company property, the Respondent has engaged
and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. It has not been established that the Respondent discriminatorily discharged
Arthur Flores and George V. Todd.
[Recommended Order omitted from publication in this volume.]
12 Crossett Lumber Company, 8 NLRB 440, 497-8.
13 F. W. Woolworth Company, 90 NLRB 289; Cen-Tennial Cotton Oin Company, ' 90
NLRB 345.
14 May Department Stores v. N. L. R. B., 326 U. S. 376; Entwistle Manufacturing Com-
pany, 120 F. 2d 532 (C. A. 4), enforcing as modified, 23 NLRB 1058.