Clement Brothers Co., Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1967

165 N.L.R.B. 698 (N.L.R.B. 1967)

698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clement Brothers Company, Inc., and
International Union of Operating Engi-
neers, Local 926 and International Union
of District 50, United Mine Workers of
America, Party to the Contract.
International Union of District 50, United
Mine Workers of America (Clement
Brothers Company, Inc.) and International
Union of Operating Engineers , Local 926.
Cases 10-CA-6248, 10-CA-6342, and 10-CB-
1552.
June 21,1967
DECISION AND ORDER
On September 29, 1966, Trial Examiner Louis
Libbin issued his Decision in the above-entitled
proceeding, finding that the Respondent Company,
Clement Brothers Company, Inc., and the
Respondent Union, International Union of
District 50, United Mine Workers of America, had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent
Company had not engaged in certain other alleged
unfair labor practices. Thereafter, the Respondent
Company, the Respondent Union, the Charging
Party, International Union of Operating Engineers,
Local 926, and the General Counsel, filed exceptions
to the Trial Examiner's Decision and supporting
briefs.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as modified below.
As set forth in the Trial Examiner's Decision, the
Respondent Company, in March 1965,1 began
construction of a dam at Carters, Georgia. On
March 18, the Respondent Company and the
Respondent Union, District 50, entered into a
prehire contract covering employees to be hired on
the project. Thereafter, District 50 solicited
employees to sign authorization cards, which
constituted both membership applications and
checkoff authorizations. After coercing some
employees to join District 50, as detailed below, the
parties executed a collective-bargaining agreement
on May 24, effective for 3 years, under the terms of
which District 50 was granted recognition as
exclusive bargaining representative of the
employees. In June, the Charging Party began to
1 All dates refer to 1965, unless otherwise indicated
solicit employees on the project to sign membership
cards, while District 50 continued its membership
campaign. The unfair labor practices, as found
herein, occurred both before and after the
Respondent Company and the Respondent Union
executed the contract of May 24.
1. The Trial Examiner found, and we agree, that
the Respondent Company committed independent
violations of Section 8(a)(1) of the Act by the conduct
of its officials in unlawfully interrogating employees
on the project about their activity on behalf of the
Operating Engineers, and in threatening employees
with discharge or other economic reprisals for
supporting the Operating Engineers.
2. We also agree with the Trial Examiner that the
Respondent Company rendered unlawful assistance
and support to District 50 in violation of Section
8(a)(2) of the Act, and that District 50 violated
Section 8(b)(1)(A) of the Act, in the numerous
instances summarized in the Trial Examiner's
Decision. As described more fully in the Trial
Examiner's Decision, the Respondent Company
threatened employees with economic reprisals in the
form of discharge, layoffs, and reduction in work
hours, if they did not join District 50, or if they
supported the membership campaign of the
Operating Engineers; also, District 50 threatened
employees with loss of employment if they did not
sign District 50 cards.
3. We agree with the Trial Examiner, for the
reasons stated in his Decision, that the Respondent
Company, during the period August 1 to 13,
discharged employees Ira Alred, Sherman Silvers,
and Arnold Sanford because of their activities on
behalf of the Operating Engineers, in violation of
Section 8(a)(3) of the Act.
4. The Trial Examiner found that the Respondent
Company did not violate the Act by recognizing and
entering into a collective-bargaining agreement with
District 50 on May 24, 1965, and thereafter
maintaining such agreement. The Trial Examiner
found that District 50 had in its possession 129
signed authorization cards (in a unit of
approximately the same number of employees); he
reasoned that since the record showed that before
the agreement was signed, only 7 of these
authorization cards had been obtained through
coercion, 1 by Respondent Company, and 6 by
District 50, the coercion was not "so pervasive" as to
require the conclusion that District 50's majority
status was "wholly tainted." We disagree.
We have already found that in the weeks
preceding the execution of the contract, both
Respondent Company and District 50 coerced
employees into joining District 50. These incidents
are described in detail in the Trial Examiner's
Decision. Specifically, on April28, Respondent
Company's night superintendent, Frank Hughes,
165 NLRB No. 87
CLEMENT BROTHERS CO., INC. 699
told newly hired employee, James Rochester, that
the Company had a union at the plant, and that the
best thing Rochester could do was to join it and ask
no questions; Rochester accordingly signed a
District 50 card.
The record also shows six incidents of coercion by
District 50's job steward, Farthing, taking place
prior to the execution of the contract; all of these
resulted in employees' signing cards for District 50.
Thus, in early April, when employee Paul Goodson
asked Farthing what kind of union he was being
solicited to join, he replied, "Well, its a little of
company union we brought in here with us. We take
it around with us. We want you to sign it. We gotta
get 51% to sign it to keep another union out." A few
days later, upon receiving Goodson's admission that
he was ready to sign "if that's what I've got to do to
get on a machine [motor grader] or stay on a
machine," Farthing admitted, "that'll help." On
April 14, Farthing told employee Arlind Crisp that
"we got a little union here" and "I'd love for you to
join up with us. If we get 51% why we can keep
another organization out," and when Crisp asked if
he had to join, Farthing replied, "Yes, you will if you
work here." In mid-April Farthing warned
employees Newman Hudson and T. L. Bingham to
"sign or else"; on April 16 he cautioned employee
Arnold Sanford, in response to Sanford's question as
to whether he had to sign, "If you want to keep your
job, you do";2 and sometime during April he advised
employee E. C. Watson, in response to Watson's
question as to whether he had to join District 50, that
he had to if he wanted to stay there and "do good."
The Trial Examiner treated the question of
District 50's precontract majority as one which was
susceptible to resolution by a simple mathematical
formula; we conclude that the character of the
coercion should be more realistically measured in
terms of its pervasive effect. We have found that in
the period beginning approximately 8 weeks prior to
the signing of the contract, as the evidence
affirmatively shows, at least seven employees were
coerced into joining the Union. The likelihood that
the coercion taking place before the contract was
executed was substantially more widespread than
appears from the foregoing is suggested by
Respondents' coercive tactics continuing after the
contract was signed. Thus, the Respondent
Company, on approximately 18 separate occasions
between June and September 1965, unlawfully
threatened employees with loss of jobs and other
reprisals if they participated in any way in the
Operating Engineers' organizing campaign, which
commenced in June 1965. Respondent Company
made it clear that it was engaging in no idle threats;
in August 1965, as noted above, it unlawfully
discharged three employees because of their
activities on behalf of the Operating Engineers. It is
also apparent that Job Steward Farthing engaged in
a broad and continuing campaign to coerce
employees into signing District 50 cards: On
June 25, after the execution of the contract, he
violated the Act by telling employee Joe Butler that
he had to join District 50 if he was "planning to work
here for any length of time"; and on August 1, he
unlawfully told employee Gary Butler that he had to
join District 50 because "within a few weeks only the
ones who are working under this union will be on this
project."
In view of the foregoing, and the record as a
whole, we cannot find, as did the Trial Examiner,
that the coercion practiced by the Respondents did
not taint District 50's entire majority.3 We
accordingly find that the Respondent Company
violated Section 8(a)(2) and (1) of the Act by
recognizing District 50 as the collective-bargaining
representative of its employees and by executing
and maintaining a collective-bargaining contract
with District 50, at a time when District 50 did not
represent a free and uncoerced majority of such
employees; and that District 50 violated Section
8(b)(1)(A) by entering into and maintaining the
aforementioned collective-bargaining contract at a
time when it did not represent a free and uncoerced
majority of the Respondent Company's employees.4
THE REMEDY
In this case, as noted above, we have found that
the Respondent Company and District 50 engaged in
unfair labor practices by coercing employees into
joining District 50, by entering into the contract of
May 24, 1965, and by continuing the unfair labor
practice campaign thereafter. We shall, therefore, in
order to effectuate the basic policies of the Act,
order that the following remedial action be taken.
We shall order the Respondent Company to
withhold all recognition from District 50 as
representative of any of its employees for the
purpose of dealing with it concerning grievances,
labor disputes, wages, rates of pay, hours of
employment, and conditions of employment, unless
and until said labor organization shall have
demonstrated its exclusive majority status pursuant
to a Board-conducted election. We shall also order
the Respondent Company to cease and desist from
giving any force or effect to the collective-bargaining
agreement of May 24, 1965, or to any extension,
2 Respondents disclaim having any operative union - secunty
agreement material in this proceeding We accordingly find no
contract justification for Respondents ' statements to employees,
made both before and after the May 24 contract was signed We
also agree with the Trial Examiner , and essentially for the reasons
stated by him, that no unfair labor practice findings should be
made with respect to the union-security issue
S See Puerto Rico Food Products Corporation, 111 NLRB 293
Bernhard-Altmann Texas Corporation, 122 NLRB 1289, enfd
280 F 2d 616 (C A D.C ), affil sub nom International Ladies'
Garment Workers' Union, AFL-CIO v. N L R B, 366 U S 731
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewal, or modification thereof.5 However, nothing
herein shall be construed as requiring the
Respondent Company to vary any wage, hour,
seniority, or other substantive feature of its relations
with its employees which the Company has
established in the performance of this contract.6 We
shall order the Respondent Union to cease and
desist from acting as the collective-bargaining
representative of any of the Company's employees
unless and until said Union shall have demonstrated
its exclusive majority representative status pursuant
to a Board-conducted election. We shall also order
the Respondent Union to cease giving effect to the
collective-bargaining agreement of May 24, 1965, or
to any extension, renewal, or modification thereof.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Clement
Brothers Company, Inc., Atlanta, Georgia, its
officers, agents, successors, and assigns, and the
Respondent, International Union of District 50,
United Mine Workers of America, its officers,
agents, and representatives, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified:
1. Add the following as paragraphs A, 1, (f) and
(g), the present paragraph A, 1, (f) being relettered
(h):
"(f) Recognizing or contracting with International
Union of District 50, United Mine Workers of
America, or any successor thereto, as the
representative of any of its employees for purposes
of collective bargaining, unless and until said labor
organization has been certified by the National
Labor Relations Board as the exclusive bargaining
representative of such employees."
"(g) Giving effect to, performing, or in any way
enforcing its contract entered into on May 24, 1965,
or any modifications, extensions, or renewals
thereof, or any other contract, agreement,
arrangement, or understanding entered into with
International Union of District 50, United Mine
Workers of America, or any successor, relating to
grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of
employment, unless and until said labor organization
shall have been certified by the Board as the
exclusive representative of the Company's
employees; provided, however, that nothing in this
Decision and Order shall require the Respondent
Company to vary or abandon any wage, hour,
5 Although we are ordering Respondent Company to cease
giving effect to its contract with District 50 , we agree with the
Trial Examiner , and essentially for his reasons , that Respondents
be ordered to reimburse dues and other fees "only to those
seniority, or other substantive feature of its relations
with its employees which the Company has
established in the performance of this contract, or to
prejudice the assertion by employees of any rights
they may have thereunder."
2. Add the following as paragraph B, 2, (d), the
present paragraphs B, 2, (d), (e), and (f) being
relettered (e), (f), and (g):
"(d) Withdraw and withhold all recognition from
International Union of District 50, United Mine
Workers of America, or any successor labor
organization , as the representative of its employees
for purposes of collective bargaining, unless and
until said labor organization has been certified by
the National Labor Relations Board as the exclusive
representative of such employees."
3. Add the following as paragraphs B, 1, (b) and
(c), the present paragraph B, 1, (b) being relettered
as (d):
"(b) Acting as the exclusive bargaining
representative of any of the employees of
Respondent Clement Brothers Company, Inc., for
the purpose of dealing with said Company
concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of
employment, unless and until said Union shall have
demonstrated its exclusive majority status pursuant
to a Board-conducted election."
"(c) Giving effect to the collective-bargaining
agreement dated May 24, 1965, between the
Respondent Union and Clement Brothers Company,
Inc., or to any extension, renewal, or modification
thereof."
4. Insert the following as the third and fourth
indented paragraphs of Appendix B:
WE WILL NOT enforce or give effect to our
collective-bargaining agreement, dated May 24,
1965, with International Union of District 50,
United Mine Workers of America.
WE WILL withdraw and withhold all
recognition from International Union of
District 50, United Mine Workers of America,
as the collective-bargaining representative of
any of our employees for the purpose of dealing
with Respondent Company concerning
grievances, labor disputes, wages, rates of pay,
hours of employment, or other terms and
conditions of employment, unless and until the
National Labor Relations Board shall certify
said labor organization as such representative.
5. Add the following as the fifth and sixth
indented paragraphs of Appendix C:
WE WILL NOT act as the exclusive bargaining
representative of any of the employees of
Clement Brothers Company, Inc., Atlanta,
employees whose payments are shown to have been made under
coercion "Meyers Bros ofMtssourt, Inc, 151 NLRB 889,890
6 Durahte Co , Inc., 132 NLRB 425
CLEMENT BROTHERS CO., INC.
Georgia, unless and until we shall have
demonstrated our exclusive majority represent-
ative status pursuant to a Board-conducted
election among the employees of said Company.
WE WILL NOT give effect to the collective-
bargaining agreement dated May 24, 1965,
between Clement Brothers Company, Inc., and
ourselves, or to any extension, renewal, or
modification thereof.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed on
September 2 and October 25, 1965, by International Union
of Operating Engineers, Local 926, herein called the
Operating Engineers, the General Counsel for the National
Labor Relations Board, by the Acting Regional Director
for Region 10 (Atlanta, Georgia), issued complaints, dated
February 8, 1966, against Clement Brothers Company,
Inc., herein called the Company or Respondent Company,
and against International Union of District 50, United
Mine Workers of America, herein called District 50 or
Respondent District 50. With respect to the unfair labor
practices, the complaints, as amended, allege that
Respondent Company engaged in unfair labor practices
within the meaning of Section 8(a)(1), (2), and (3) of the Act,
and that District 50 engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act. In its
duly filed answers, as amended, each Respondent,
respectively, denies the unfair labor practice allegations.
Pursuant to due notice, a hearing was held before me at
Atlanta, Georgia, on May 24 to 26, 1966. All parties were
represented at the hearing and were given full opportunity
to participate and to adduce all relevant evidence. On
July 11, 1966, all parties filed briefs, which I have fully
considered. The Company's motion, filed on July 14,1966,
to strike that portion of the complaint which may relate to
violations of the proviso to Section 8(a)(3), is hereby denied
in view of my failure to find any violations in this respect.
For the reasons hereinafter stated, I find that Respondent
Company has violated Section 8(a)(1), (2), and (3) of the Act
in certain respects, and that Respondent District 50 has
violated Section 8(b)(1)(A).
Upon the entire record in the case,' and from my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent Clement Brothers Company, Inc., a North
Carolina corporation with its principal office and place of
business at Hickory, North Carolina, is engaged in the
building and construction industry as a general contractor.
During the 12 months preceding the issuance of the instant
complaints, a representative period, the Company
performed services in the construction of interstate roads
and dams of a value in excess of $50,000. The dam
construction project involved in this case, herein called
' Inadvertent errors in the typewritten transcript of testimony
have been noted and corrected in Appendix A [Appendix A
omitted from publication ]
701
Carters Dam project, was undertaken pursuant to a
contract with the U.S. Army Corps of Engineers for the
construction of an earth and stone dam at Carters,
Georgia, of a value in excess of $15 million.
Upon the above undisputed facts, I find that
Respondent Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaints allege, and all parties stipulated at the
hearing, that International Union of Operating Engineers,
Local 926, and International Union of District 50, United
Mine Workers of America, are each labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; The Issues
In March 1965, Respondent Company began
construction of an earth and stone dam at Carters,
Georgia, pursuant to a contract with the U.S. Army Corps
of Engineers. On March 18, 1965, Respondent Company
and Respondent District 50 entered into a prehire contract
for the employees to be hired at the Carters Dam project.'
Thereafter, District 50 solicited employees to sign cards
which constituted both membership applications and
checkoff authorizations. On May 24, 1965, the Company
and District 50 executed a collective-bargaining
agreement based on such cards signed by a majority of the
employees. Thereafter, employees were solicited and
began signing membership application cards for the
Operating Engineers. District 50 also continued to solicit
and to obtain signatures to its membership application and
checkoff cards. During the period from August 1 to 13,
1965, employees Ira Alred, Sherman C. Silvers, and
Arnold Sanford ceased working for the Company. On
August 24, 1965, the Operating Engineers filed a petition
for an election, which petition was withdrawn without
prejudice before the end of the month. The Operating
Engineers then filed the charges in the instant case.
The issues litigated in this proceeding are whether
(1) Respondent Company, through its admitted
supervisors, rendered unlawful assistance and support to
District 50; (2) the contract of May 24, 1965, was invalid
because (a) District 50 allegedly did not represent a free
and uncoerced majority and (b) District 50 allegedly was
unlawfully assisted in obtaining authorization and
membership cards; (3) Respondent Company discrimi-
nated with respect to the hire and tenure of employment of
employees Alred, Silvers, and Sanford; (4) admitted
supervisors of Respondent Company engaged in unlawful
interrogation threats of discharge, and of other reprisals;
and (5) Respondent District 50, through Job Steward
Farthing, engaged in conduct which restrained and
coerced employees if they did not sign District 50
membership application cards.
B. The Credibility of John Perry
John Perry was employed as a back dump truck driver
by Respondent Company at the Carters Dam project on
April 27, 1965. About 2 weeks later he became job steward
2 Under Section 8(f) of the Act, such an agreement is valid but
cannot be a bar to a petition filed under Section 9(c) or 9(e) of the
Act
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Respondent District 50 on the night shift. He
voluntarily left the Company's employ in February 1966.
Perry was the most important witness for the General
Counsel with respect to every allegation against
Respondent Company. As the Operating Engineers
concedes in its brief, "The testimony of John Perry ...
would, if credible, tie in all elements of the charges."
Perry testified that beginning with the day after he became
job steward, Project Superintendent Holland and
Supervisors Moore, Duke, and Hughes, individually, had
numerous conversations in which they told him about the
Company's policies with respect to District 50 and the
Operating Engineers. The substance of these
conversations allegedly was that the Company was in
favor of District 50 and opposed to the Operating Engi-
neers, that Perry should get all the men signed up for
District 50, that he should try to find out and report back
the names of those employees who were "pushing" the
Operating Engineers and who did not sign for District 50,
and that those who were "pushing" the Operating
Engineers would be gone "out the gate." He testified
that he relayed this information to most of the employees
whom he solicited to sign District 50 cards. He also
testified to conversations with Supervisor Hughes to
the effect that Alred, Silvers, and Sanford were dis-
charged because of their activities on behalf of the
Operating Engineers.
Hughes denied having had the conversations or made
the statements attributed to him by Perry. The other
named supervisors were not called as witnesses. The fact
that the other supervisors did not testify and that I
hereinafter discredit Hughes in other respects does not
automatically or necessarily require the acceptance of
Perry's testimony as trustworthy and credible. Each
Respondent vigorously and in considerable detail argues
in its brief that Perry is a biased and prejudiced witness
whose testimony must be rejected as unworthy of belief.
Perry did not impress me favorably by the manner in
which he testified and his demeanor on the witness stand,
particularly on cross-examination. He testified in a glib,
pat manner which at times appeared to lack conviction
and sincerity. On cross-examination, he displayed a very
vague and poor memory, repeatedly hedged and refused to
commit himself to specifics, at times fenced with counsel,
and at other times was cute, flippant, and argumentative.
The following are some of the additional factors which I
have also considered in assessing his credibility.
1. An Operating Engineers representative and attorney
visited Perry's home in the early summer of 1965 in an
effort to get him to help them. At that time, he refused.
During the period from November 1965 to January 1966
Perry made two trips to the offices of the Operating
Engineers in Atlanta, Georgia, at which time he was asked
to help the Operating Engineers get in at the Carters Dam
project. On the first trip, Perry gave no definite answer.
On the second trip, he agreed to give a statement to the
Board. Perry's pretrial affidavit was given to a Board agent
on January 10, 1966. During all this period, Perry still
continued to act as District 50 job steward on the night
shift. Without any prior notice, Perry voluntarily quit his
employment with the Company sometime in February.
About 2 weeks later, he joined the Operating Engineers
and was employed as an oiler by a construction company
represented by the Operating Engineers, a position which
he still held at the time of his testimony in this case.
2. On direct examination , Perry testified that Company
Supervisors Holland and Moore had only told him to try to
find out and to report back the names of employees who
were talking about or were "pushing" the Operating
Engineers and that they would be gone "out the gate." He
did not testify as to what any other supervisors told him.
However, on cross-examination, he for the first time added
that Supervisors Holland, Moore, Hughes, and Duke told
him to get the men signed up for District 50, and to let
them know if anyone did not sign for District 50 or was
"pushing" the Operating Engineers. It was also on cross-
examination that he for the first time testified that the
substance of his conversations with Hughes was that the
Company did not want the Operating Engineers in there
and that employees who were trying to get the Operating
Engineers in were in danger of losing their jobs if they
continued to do so.
3. On the one hand, Perry testified to the above-
described conversations with the above-named
supervisors, including Project Superintendent Holland
and Night Superintendent Hughes; on the other hand, he
admitted that on two occasions shortly after he became
District 50 steward, while he was soliciting for District 50,
Hughes told him to "quit messing with the Union" and
warned that "Mr. Holland is going to get rid of you if you
continue it."
4. On direct examination, Perry testified that he tried to
tell all the men whom he signed up for District 50 about
the Company's feelings and attitude with respect to
District 50 and the Operating Engineers as reported to him
by the above-named supervisors. On cross-examination,
he testified that he tried to tell most of the employees
about it. In his pretrail affidavit, he stated that he told this
to approximately 30 percent of the employees whom he
signed up. On cross-examination, he testified that it could
have been 30, 70, or 5 percent. Yet, when repeatedly
pressed on cross-examination, he was unable to be definite
about a single one of the approximately 25 employees
signed up by him to whom he allegedly relayed this
information. After further pressing by counsel, he finally
named Charles, Ronald, and Donald Walker. He testified
that "I could have told these men that I named. I'm not
going to say for sure that I did but I am pretty sure that I
did." Then when Perry was asked by counsel if he was
prepared to testify under oath that he told "any of the
Walker boys what the Company' s position was in regard to
Operating Engineers and District 50," he testified, "I can't
say definitely." All three Walker boys credibly testified
that they signed District 50 cards at the solicitation of Job
Steward Charles Farthing and that Perry had not talked to
them at all in this regard.
5. The failure of a single witness who testified about
Perry soliciting him to sign a District 50 card, as well as
the failure to produce a single witness to corroborate
Perry's testimony concerning what he allegedly told
employees whom he solicited
6. Perry testified that Night Superintendent Frank
Hughes told him that Arnold Sanford was "being fired for
supposedly trying to get men to sign up with Operating
Engineers," that Sanford "had been warned about it and
that he continued to do this and they were going to get rid
of him," and that they "were making arrangements to get
his checks tied up to sort of foul the boy up a little
further." However, in his detailed pretrial affidavit given
to a Board agent on January 10, 1966, there is no mention
of any statements by Hughes concerning Sanford. I cannot
accept Perry's explanation that he had forgotten about it
and that his memory was better at the time of the hearing
about 5 months later, especially since this affidavit does
CLEMENT BROTHERS CO., INC.
contain detailed alleged statements by Hughes concerning
the terminations of Alred and Silvers and the layoff of
Moncrief. Perry admitted that before he made his
affidavit, he had learned that the Operating Engineers had
filed charges with the Board. His testimony that he did not
know that Sanford's case was before the Board is not an
acceptable answer. For the fact that Moncrief's case was
not before the Board did not stop him from including
Hughes' alleged statements concerning the layoff of
Moncrief. It is significant in this connection that Hughes
was in charge of the night shift and that Sanford worked on
the day shift under the immediate supervision of Stacey
Williamson.
Upon consideration of all the foregoing, I am impelled to
the conclusion, which I herein make, that Perry is not a
reliable witness and that his testimony cannot be accorded
full credence. I therefore will not rely on any of Perry's
testimony in arriving at my findings hereinafter set forth.
C. Violations of Section, 8(a)(2) and 8(b)(1)(A)
The General Counsel contends that Respondent
Company violated Section 8(a)(2) of the Act because it
allegedly rendered unlawful assistance and support to
District 50 by the conduct of admitted Supervisors "Slim"
Holland, Crawford Moore, Frank Hughes, and Hope Lyles,
Jr., and by executing a collective-bargaining agreement
with District 50 on May 24, 1965, at a time when
District 50 had allegedly been assisted by the Company in
obtaining membership cards and allegedly did not
represent a free and uncoerced majority of the employees
in an appropriate unit. The General Counsel also contends
that Respondent District 50 violated Section 8(b)(1)(A) of
the Act by the conduct of its job steward on the day shift,
Charles Farthing, in allegedly threatening employees with
economic reprisals if they did not sign District 50
membership cards. For obvious reasons, Respondents'
conduct before and after the execution of the contract will
be treated separately.3
1. Conduct prior to the May 24 contract
a. By Respondent Company
Evidence adduced with respect to the Company's
conduct which the General Counsel contends occurred
before May 24, 1965, involved Labor Foreman Hope Lyles,
Jr., and Night Superintendent Frank Hughes.
(1) Foreman Lyles
Emmett Lewis was employed as a laborer sometime in
the latter part of May. He was unable to recall the exact
date. On the second day of his employment, his foreman,
Hope Lyles, Jr., came to him and told him he would have
to sign up with the Miners Union if he worked. When
Lewis stated that he would do so, Lyles sent him to Job
Steward Farthing who gave him a District 50 card which
Lewis signed under circumstances described infra.
The foregoing findings are based on the credited and
undisputed testimony of Emmett Lewis. In assessing
Lewis' credibility, I have considered the fact that Lyles
was no longer employed by the Company and that his
whereabouts were unknown at the time of the instant
a Unless otherwise indicated, all dates are in 1965
" Thus, Hughes testified on direct examination that Alred was
laid off for lack of work, and then admitted on cross- examination
703
hearing. Lewis impressed me as a sincere and honest
witness who was testifying to the true facts as he best
remembered them. I credit his testimony and find that
Foreman Lyles' statement constituted a threat that Lewis'
continued employment was conditioned upon his signing a
District 50 membership card.
Respondents contend that the record fails to establish
that the foregoing events occurred prior to May 24, 1965.
Lewis did not have an independent recollection of the
specific date when the foregoing incident occurred. On
cross-examination, he admitted that it was probably during
the last week in May when he started working for the
Company. Upon examining his signed District 50 card,
which is in evidence as General Counsel's Exhibit 5, he
testified that he could not determine whether the date
thereon was May 20 or 25. He identified his signature on
the card but testified that he did not think the date was his
writing. Neither Farthing nor any other witness testified as
to the date on which Lewis was solicited or signed the
card. Although the card appears to me to be dated May 20,
rather than May 25, I cannot exclude the possibility that it
was predated, as there is no evidence in the record as to
the date on which Lewis signed the card. Upon this state of
the record, I find, in agreement with Respondents, that the
General Counsel has failed to prove by a preponderance of
the evidence that the above-found threat of Foreman Lyles
was made on or before May 24, 1965.
(2) Night Superintendent Hughes
James Rochester was employed as a motor grade
operator on the night shift on April 28, 1965. Either that
day or the following day, Hughes spoke to him outside the
main gate at the dam. Hughes stated that the Company
had some kind of union there and that the best thing
Rochester could do was to join it and ask no questions.
The next day Rochester signed a District 50 card when
solicited by Job Steward Farthing.
The above findings are based on the credited testimony
of Rochester who impressed me as a candid and
straightforward witness entitled to full credence. Hughes
testified that Rochester asked him if they had a union, that
he replied there was, that Rochester asked which it was,
that Hughes stated it was United Mine Workers, that
Rochester stated he had a card for the Operating
Engineers, that Hughes replied that he had nothing to do
with either union, and that he suggested that Rochester
see the union steward. I was not favorably impressed by
the manner in which Hughes testified. Moreover, Hughes
demonstrated his unreliability as a truthful witness in
connection with Alred's termination.4 I do not credit
Hughes' version of the conversation to the extent that it
may conflict with that of Rochester.
Bill D. Simerly testified that the following incident
occurred on April 29, 1965. He and five or six other
employees rode to their worksite in a pickup truck driven
by Hughes. This was the normal daily procedure for
reaching the worksite. When they arrived at the worksite,
Hughes stopped the truck to let the men out, saw Job
Steward Farthing in the area, and stated that he had some
men who wanted to sign up for the Union. Simerly signed a
District 50 card at that time.
Hughes admitted that he customarily drove employees
that in his pretrial affidavit he had stated under oath that Alred
was terminated for unsatisfactory work
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the worksite because that was the only way to get there.
Hughes and Farthing denied that Hughes had ever made
the above-described statement to Farthing. Simerly
admitted that he had not previously said anything to
Hughes about wanting to sign a District 50 card, nor had
he heard any of the other men in the truck say anything to
that effect to Hughes. At first, Simerly testified that
Hughes merely told Farthing that he "had some men there
who wanted to see him." When asked to state again what
Hughes said, Simerly testified, "He said he had some men
there who wanted to sign up , wanted to see him." When
asked to repeat his answer, Simerly testified, "He said he
had some men who wanted to see him about signing up
with District 50." He then corrected his answer and
testified, "He didn't say District 50-he said sign up with
the Union." Also, while he testified on direct examination
that "we signed up a union card," he admitted on cross-
examination that he did not see any of the other men sign.
Moreover, whereas he stated in his pretrial affidavit in
October 1965 that he could not remember who was on the
truck with him at the time, he was able while testifying on
cross-examination some 7 months later to name three
persons he was pretty sure were with him and two others,
Rochester and Moncrief, who might have been with him.
The General Counsel failed to adduce any evidence to
corroborate Simerly even though Rochester and Moncrief
testified as witnesses for the General Counsel.
Upon consideration of all the foregoing and the
demeanor of Simerly while testifying, I find Simerly not to
be a reliable witness and will not rely on any of his
testimony in my findings herein.
b. By Respondent District 50
About 3 or 4 days before he started working for the
Company, Emmett Lewis was at the entrance gate looking
for a job and spoke to Farthing because he had heard that
District 50 had a contract with the Company and that
Farthing was the steward. Farthing told Lewis that he
would have to join District 50 before he went to work
there. Lewis replied that he would do so "if I could just go
to work." On the second day of his employment, Foreman
Lyles threatened that his continued employment was
conditioned upon his signing a District 50 membership
card, as previously found. When Lewis agreed to do so,
Lyles sent him to farthing , also as previously found. Lewis
asked Farthing if he had to join to work there. When
Farthing replied in the affirmative, Lewis signed a
District 50 card. However, as previously found, the
General Counsel has failed to prove that the foregoing
incident occurred on or before May 24, 1965.
On April 13, 1965, the first day of his employment,
bulldozer operator Newman Hudson was approached by
Job Steward Farthing and asked to sign a union card for
District 50. Hudson replied, "Let's just wait a few days
and we'll kind of get straightened out." Two days later,
Farthing approached Hudson again, gave him another
District 50 card to read, and told Hudson "to either sign it
or else." Hudson thereupon signed the District 50 card.
On April 14, Farthing talked to dozer operator
T. L. Bingham, who had only been working there a few
5 Based on Crisp's testimony Contrary to the contention of
counsel for District 50, it is obvious to me from an analysis of
Crisp's testimony on direct and cross examination that his
statement-" it's a right to work state"-was intended as a
comment which he was then making on the witness stand and not
as his testimony of what he said to Farthing on that occasion. I so
days, and told him that they had a labor union started
there and wanted everybody to sign up. Bingham replied
that he was not too interested right then, and would study
it over for a few days and let Farthing know. Farthing then
"twisted around there a minute" and said, "Well, you sign
or else." Bingham thereupon signed the District 50 card.
On April 16, Farthing approached water truck driver
Arnold Sanford, who had been employed there only a few
days, and stated that he would like to get Sanford to "sign
up for the Union," District 50. Sanford stated that he did
not know whether or not he wanted to sign . Sanford asked
if he had to. Farthing replied, "If you want to keep your
job, you do." Sanford thereupon signed a District 50 card.
On April 14, Farthing stopped dozer operator Arlind
Crisp while he was working, and said, "Arnnd, we got a
little union here" and "I'd love for you to join up with us. If
we get 51% why we can keep another organization out."
Crisp replied that he had been a union man for 18 years
and "would rather not fool with it." Crisp asked Farthing if
he had to join the Union.5 Farthing replied, "Yes, you will
if you work here." Crisp thereupon signed a District 50
card.
A few days after E. C. Watson started working in April,
Farthing came to his work place and asked if he wanted to
sign a District 50 union card. Watson stated that he was
busy and that as soon as he found time he would discuss it
with him. About 3 or 4 days later, on April 28, Farthing
came back and again asked Watson to sign a District 50
card. When Watson asked Farthing if he had to sign,
Farthing replied that he had to if he wanted to stay there
and do goods Watson thereupon signed a District 50 card.
About April 1, 1965, motor grade operator Paul Goodson
applied to Project Superintendent Holland for a job as a
motor grade operator. As no motor grader was available at
the time, Goodson worked for a few days as a guard, then
on the water truck, and finally on the motor grader. While
Goodson was employed as a guard, Farthing came up on a
scrapper and stopped behind the office building with two
other employees. Superintendent Holland drove up and
asked Goodson to see why the "pan" was stopped. When
Goodson went over to the three men, Farthing said, "We
want to get you in on this union." Goodson asked, "What
kind of union." Farthing replied, "Well, it's a little old
company union we brought in here with us. We take it
around with us. We want you to sign it. We gotta get 51%
to sign it to keep another union out." Goodson stated that
he was not interested in signing for District 50. A few days
later, Farthing again asked Goodson to sign a District 50
card. On that occasion, Goodson stated that he had not
made up his mind and wanted to think it over. On April 14,
Farthing asked Goodson if he had made up his mind yet
"about joining the Union?" Goodson stated that he was
ready to sign "if that's what I've got to do to get on a
machine [motor grader] or stay on a machine." When
Farthing replied, "that'll help," Goodson signed a
District 50 card.
The findings in the preceding paragraphs are based on
the credited testimony of Lewis, Hudson, Bingham,
Sanford, Crisp, Watson, and Goodson. Their demeanor on
the witness stand while testifying under oath leads me to
find
s Based on Watson's testimony Contrary to the contention of
counsel for District 50, there is no significant %ariation in any
material respect between Watson's testimony in this regard and
his prior written statements to the Operating Engineers and to the
Board's agent
CLEMENT BROTHERS CO., INC.
conclude that they are trustworthy witnesses entitled to
full credence. All of them testified under subpena and all
but Lewis and Sanford were still in the Company's employ
at the time of their testimony. Farthing admitted soliciting
and signing up the above-named employees for District 50
but denied making any of the statements attributed to him
with respect to job security or tenure or improvement or to
"sign or else." Farthing did not impress me as a sincere
and candid witness. He displayed an extremely poor
memory and was unable to be specific about what was said
when he signed up the above-named employees. I do not
credit Farthing's denials.
I find that Farthing's statements to Hudson and
Bingham that they "either sign or else" constitute, under
all the circumstances, a veiled threat to their job tenure or
security, or of some other form of economic reprisal, if
they did not sign District 50 union cards.' I also find that
the statement to Goodson constituted a promise that
signing a District 50 card would help him to obtain and
retain the job which he desired. I further find that the
statements to Lewis, Sanford, Crisp, and Watson
constituted outright threats of loss of employment unless
they signed a District 50 union card.
2. Conduct after the May 24 contract
a. By Respondent Company
Evidence adduced with respect to the Company's
conduct which occurred after the execution of the May 24
contract involved Project Superintendent Holland, Night
Superintendent Hughes, Foreman Lyles, and Project
Engineer Moore, all admitted supervisors of Respondent
Company.
(1) Project Superintendent Holland
Dozer operator James D. Alday signed a union card for
the Operating Engineers on June 8, 1965. About the
middle of July , Holland spoke to him as he was getting a
drink of water . Holland warned Alday that "if you don't
quit fooling with that little bit of union , you're going to get
your butt run off." Holland also added , "I can 't fire you"
for "preaching about it" but "I can lay you off and not call
you back ." When Alday stated that "that would be the
same thing," Holland replied , "that 'll be it."
Power shovel operator Sherman Silvers signed a card
for the Operating Engineers on June 8, 1965. Sometime in
July, Holland approached Silvers as he was starting work
and said , "Silvers, that other union that 's trying to get in
here ... I want to tell you right now that I can get all the
operators that I need by just going to the phone." Holland
added that he knew what was going on and that if Silvers
"was going to keep fooling around it " Silvers would "be
run off or be out of a job ." Silvers replied that he was a
member of the Operating Engineers and that Holland
would not have any trouble with him because "I had
washed my hands with it."
Dozer operator Ira Alred signed a union card for the
Operating Engineers on June 8, 1965, and passed out
cards for that union . Shortly before his layoff on August 1,
Holland told Alred that someone had told Holland that
Alred was "dabbling " with the Operating Engineers.
Holland warned Alred that if he valued his job, Alred had
"better cut that out" and let the Operating Engineers
705
alone. He added that if the Operating Engineers got in
there, Alred "wouldn't get the 32 or 40 hours a week."
On August 12, Holland said to motor grade operator
Paul Goodson, "I'm going to tell you now like I've told the
rest of these boys ... if you don't quit fooling with that
damned little of union and going to those damned little of
meetings, I'm going to fire you or lay you off and not call
you back." He added that "Clement done it before," and
warned that "he'll do it again." Holland also pointed out
that he had some 600 men working for him and that "if I
had to I'd fire these men on the job and replace them in 24
hours." Holland also emphasized that he "would be a
damn fool ... to sit on [his] ass and watch the Operating
Engineers come in here."
Bulldozer operator John Moncrief was laid off for a few
weeks in September 1965. When he reported for work
upon his recall, Holland called him aside and said that
Moncrief had been "fooling" with the Operating Engineers
because "some of his best friends had come to him and
told him" so. Holland told Moncrief, "I'm going to put you
back to work but ... I have the authority to hire or fire who
I please and I will."
On one occasion in June or July while mechanic
E. C. Watson was eating dinner, Holland came over and
sat down to eat with him. During the ensuing conversation,
Holland told Watson that "I don't know what to think of
that Paul Goodson who runs the motor grader messing
with this little old union around here ... that shovel
operator, Silvers, . . . I've done warned him two or three
times and ..,. if they don't quit, I'm just going to have to
get rid of them, that's all."
The above findings are based on the credited and
undenied testimony of Alday, Silvers, Alred, Goodson,
Moncrief, and Watson, all of whom impressed me as
credible witnesses. Project Superintendent Holland was
not called as a witness and no explanation was offered for
the failure to do so.
(2) Night Superintendent Hughes
During the last of May John Moncrief was working with
James Dawkins, Frank Cullum, and another employee on
the top of the mountain where they were about to strip the
dirt off the rock with a machine. Hughes called the men off
the machine to show them what to do. During this
occasion, Dawkins asked Hughes if he had to join
District 50. Hughes then told Dawkins and Cullum, in
Moncrief's presence, that if they wanted to continue
working there, they had better join District 50. On another
occasion in July, Hughes called Moncrief off his tractor
and asked him if he was "fooling around" with the
Operating Engineers. Moncrief replied that he was not.
James Rochester stopped his equipment to talk to
Moncrief for a few minutes on the day before the latter's
layoff in September. Hughes later stopped Rochester
while he was running his motor grader and asked if
Moncrief had been talking to him about the union again.
Rochester replied in the negative, explaining that they
were talking about a dispute which Jack Farmer, another
motor grader operator, had with District 50 Job Steward
Perry. Hughes said that Moncrief had been warned about
talking about the Operating Engineers on several
occasions, and warned that Project Superintendent
Holland had stated he "absolutely" was not going to put up
' See, e g , Local 404, International Brotherhood of Teamsters
(Brown Equipment & Mfg Co), 100 NLRB 801, 811
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with it and would run them off and hire a new crew if he
had to. On another occasion, Hughes told Rochester that
"there was some fellows there that were going to get into
trouble if they didn't quit talking about the Operating
Engineers and agitating," warning that Ira Alred and
Sherman Silvers might be laid off for that reason. Alred
and Silvers were laid off a few days later and never
recalled under circumstances hereinafter detailed.
Ira Alred signed a card for the Operating Engineers on
June 8 and then passed out cards for the Operating
Engineers. Shortly thereafter, Hughes asked Alred if he
had been "fooling" with the Operating Engineers. Hughes
added that Alred better "lay off of it" if he had, warning
that "they can't fire you for it but they can find some other
reasons to fire you." On another occasion during this
period, Hughes warned Alred that he and Sherman Silvers
"are on the spot," that "you're going to be in trouble if you
don't drop this talking about the Operating Engineers,"
and that two men had told Hughes that Alred and Silvers
"were passing out these cards" for the Operating
Engineers.
William Jones was hired as a bulldozer operator in early
July by Hughes. While Hughes was driving Jones around
looking over the job, Hughes asked Jones if he had ever
belonged to a union . When Jones replied in the negative,
Hughes stated that the Operating Engineers were trying to
come in there but that the Company did not want them and
they were not coming in. Hughes informed Jones that they
"had a little of company union there," and told Jones to
"go ahead and sign up." Hughes added that it would only
cost $4 a month and was less than what the other unions
cost.
When Euclid driver Jack Crump was hired by Hughes in
the last part of July, Hughes told him that the Company
had a little union in there, that there were "people on the
job messing around with the Operating Engineers," that
they "will be run off," and that "it would be best for you to
go in there and join District 50 and not mess around with
the Operating Engineers."
Sometime in July Hughes approached Sherman Silvers,
after having become aware that Silvers was engaging in
activities on behalf of the Operating Engineers, and told
Silvers that "if your union gets in here ... you'll get only 8
hours and day and maybe 5 days a week." At that time,
Silvers was working a 10-hour 5-day-a-week shift, and an 8-
hour shift on Saturdays.
Grade-all operator John A. Wiggins asked Hughes for a
job during July. Hughes at that time knew that Wiggins
was a member of the Operating Engineers. Hughes stated,
"You belong to the International Operating Engineers and
you will have to keep quiet about this if I can get you a
job." Hughes also added, "You'll have to join District 50
and forget your union while you work here." Wiggins
replied that he would join District 50 if Hughes would get
him a job. Wiggins was employed about a week later and
signed a District 50 card about 3 days after he started
working. About August 28, shovel operator Sharp, in
Wiggins' presence, asked Hughes for a job. Hughes told
Sharp he did not have anything then but that they might
start a shovel later and would put Sharp on. When Sharp
stated that he had never belonged to the Operating
Engineers because he thought he might have trouble
getting a job on the second phase of the dam, Hughes told
Sharp that he would have to belong to District 50 if he
went to work there, that he could not have anything to do
with the Operating Engineers Union, and that
Superintendent Holland would fire anyone who had
anything to do with the Operating Engineers on the job.
The foregoing findings are based on the credited
testimony of Moncrief, Rochester, Alred, Jones, Crump,
Silvers, and Wiggins, all of whom impressed me as being
truthful witnesses entitled to full credence. All testified
under subpena, and Moncrief, Jones, and Crump were still
in the Company's employ at the time of their testimony.
Night Superintendent Hughes denied having made the
statements or engaged in the conversations hereinabove
attributed to him. As previously found, Hughes did not
impress me as a reliable and truthful witness. I do not
credit his denials.
(3) Foreman Hope Lyles, Jr.
On June 26, Labor Foreman Lyles motioned for
bulldozer operator Newman Hudson to stop his machine
and get off. Lyles then told Hudson that he had been
appointed to talk to Hudson and to tell him not to talk
about the Operating Engineers because it might cause
Hudson to lose his job.
The foregoing findings are based on the credited and
undenied testimony of Hudson who impressed me as a
witness entitled to full credence. He testified under
subpena and was still employed by the Company at the
time of his testimony. Foreman Lyles, no longer employed
by the Company, did not testify.
(4) Project Engineer Moore
In July or August, Crawford Moore asked John Moncrief
if he was "fooling around" with the Operating Engineers.
When Moncrief replied in the negative, Moore asked him
"to tell me if you hear anybody fooling with the Operating
Engineers."
The above finding is based on the credited and
undisputed testimony of Moncrief. Moore was not called to
testify and Respondent Company gave no explanation for
its failure to do so.
b. By Respondent District 50
On June 25, while laborer Joe Butler was working on the
dynamite crew, Charles Farthing, job steward for
District 50, came up and motioned to Butler to come over.
When Butler came over, Farthing handed him a District 50
card and asked if he was interested in signing it. After
asking about the benefits, Butler asked if he had to join.
Farthing replied, "Yes, if you're planning to work here for
any period of time, you will have to join." Joe Butler
thereupon signed the District 50 card. Farthing then
talked to the entire crew, one at a time.
On August 1, Farthing called laborer Gary Butler aside
from his work and asked if he would like to join the union
they had there. Farthing handed Butler a District 50 card.
When Butler asked whether he had to join right now,
Farthing replied that within a few weeks only those who
were working under this union would be on the project.
Gary Butler thereupon signed a District 50 card.
The foregoing findings are based on the credited
testimony of Joe and Gary Butler who impressed me as
witnesses entitled to full credence. Contrary to the
contention of counsel for District 50 in his brief, there is no
significant variation on any material matter between their
testimony and their pretrial affidavits. Farthing admitted
signing up Joe and Gary Butler but denied making the
statements attributed to him. He could not recall anything
CLEMENT BROTHERS CO., INC.
that was said on those occasions. As previously found,
Farthing did not impress me as a credible witness, and I do
not credit his denials.
3. Concluding findings
a. As to Respondent Company
As previously found in considerable detail , Project
Superintendent Holland threatened employees with loss of
jobs by discharge , or by the use of a stratagem of a layoff
and failure to recall , in reprisal for activities on behalf of
the Operating Engineers , and on one occasion also
threatened a reduction in the work hours if the Operating
Engineers came in; Night Superintendent Hughes warned
applicants and employees that their work on the project
was conditioned on signing up with District 50, that it
would be best for them to join District 50, that they would
have to forget about the Operating Engineers while they
worked there , that they would "get into trouble" for
talking about the Operating Engineers , that a reason
would be found to be used as a pretext to discharge them
in reprisal for activities on behalf of the Operating
Engineers , and that if the Operating Engineers got in, they
would work fewer hours per week; Foreman Lyles
threatened one employee that he would have to sign up
with District 50 in order to continue to work there, and
warned another employee that talking about the Operating
Engineers might cause him to lose his job; and Project
Engineer Moore asked an employee to inform him of
anyone who was "fooling around" with the Operating
Engineers . I find that by the foregoing conduct,
Respondent Company rendered unlawful assistance and
support to District 50 in violation of Section 8(a)(2) of the
Act.8
b. As to Respondent District 50
District 50 Regional Director Herman Adkins appointed
Charles Farthing as job steward for District 50 at the
Carters Dam project on April 1, 1965, with instructions to
act as job steward on the job and to "sign the people up"
for District 50. Pursuant to these instructions, Farthing
thereafter solicited employees to sign District 50
membership application cards. He signed the May 24
contract on behalf of District 50 as "Shop Steward." It is
not disputed that Farthing performed the normal functions
of a union steward. I find that, at all material times herein,
Job Steward Farthing was an agent of Respondent
District 50 within the meaning of Section 2(13) of the Act,
and that said District 50 is responsible for Farthing's
statements and conduct made in the course of his
solicitations for District 50 .'
As previously found in detail, Farthing threatened
employees with loss of employment unless they signed
" Respondent contends that it was the Company's official
policy not to interfere with the employees' choice of unions and
that this was made known to the employees in a letter sent to the
employees and posted on the bulletin board at the jobsite I find
this not to be a valid defense The record merely shows that such
a letter was posted at the jobsite and that the project manager was
instructed to distribute it to employees There is no evidence that
it was in fact distributed to the employees or that they all saw it
In any event, the letter admittedly was not prepared until the end
of December 1965, long after the unfair labor practice charges had
been filed and received by the Company Finally, there is nothing
in the letter which may be considered as constituting a
repudiation or disavowal of the supervisors' conduct found in the
707
District 50 cards, warned that continuance of their
employment would be conditioned upon their signing a
District 50 card, made veiled threats to their job security
or tenure if they did not sign, and on one occasion
promised an employee that signing a District 50 card
would help him obtain and retain the job he desired. I find
that by the foregoing conduct, Respondent District 50
restrained and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of
Section 8(b)(1)(A) of the Act.10
c. As to the contract of May 24, 1965
The General Counsel contends that the contract of
May 24, 1965, is invalid and that therefore its execution
and enforcement is violative of the Act. Although
specifically stating that "we do not contest" that
District 50 had signed membership application cards from
a majority of the employees in an appropriate unit, the
General Counsel contends that such a majority was
coerced or tainted by the unlawful threats of discharge or
other reprisals to employees if they failed to sign a card
and by the unlawful assistance and support rendered by
Respondent Company in obtaining employee signatures to
these cards. Finally, the General Counsel contends that
the contract contains an ambiguous union-security clause
the net effect of which is to require membership in
District 50 as a condition of employment and that the
execution of such a contract with an assisted union is
violative of the Act for this reason alone
As the General Counsel recognized at the hearing, the
burden is upon the General Counsel to prove that
District 50 did not represent a free and uncoerced majority
at the time of the execution of the contract; it is not
incumbent upon Respondent to prove affirmatively that
District 50 did have such a majority. There is no evidence
in the record as to the exact number of employees in the
appropriate unit and the exact number of signed
District 50 cards at the time of execution of the contract.
Farthing testified that there were between 75 and 90
working on the day shift during May; and Hughes testified
that there were between 25 and 30 working on the night
shift during May. At the instant hearing, District 50 had in
its possession 129 signed authorization cards but the
record does not show how many of them were signed
before the execution of the contract. I have previously
found that prior to the execution of the contract, the card
of only one employee, James Rochester, was obtained
through assistance or coercion by Respondent Company
and the cards of six employees" were obtained through
coercion by District 50. There is no evidence in the record
as to whether the deduction of these seven cards would
destroy the numerical majority which District 50 claimed
to have and which the General Counsel does not dispute.
text
" See, e g , Truck Drivers and Helpers Local Union No 728,
Teamsters (Genuine Parts Company), 119 NLRB 399, 415, 416
"' I further find, based on the credited testimony of Sherman
Silvers, that Farthing asked Silvers to sign a District 50 card on
May 12, that Silvers asked if he had to sign it, that Farthing
replied that he did not but that it would be better if he did, and
that Silvers thereupon signed However, contrary to the General
Counsel's contention at the hearing but no longer urged in his
brief, I find that Farthing's reply, under all the circumstances, is
too equivocal to warrant a finding that it constituted restraint and
coercion violative of the Act
' i Hudson, Bingham, Sanford, Crisp, Watson, and Goodson
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor do I regard the coercion of seven employees among
such a large unit , employed on a jobsite covering an area
of about 2 miles, as being so pervasive as to compel the
conclusion that whatever majority District 50 may have
had was wholly tainted so as not to reflect the employees'
free choice. As previously noted, the only act of assistance
which I found was engaged in by Respondent Company
prior to the execution of the contract, was the statement of
Night Superintendent Hughes to James Rochester that the
Company had some kind of union there and that the best
thing Rochester could do was to join it and ask no
questions . This single isolated incident is insufficient to
taint the representative status of District 50 so as to render
unlawful the execution of the contract. I therefore
conclude and find that the General Counsel has failed to
prove by a preponderance of the credible evidence that
District 50 did not represent a free and uncoerced or
untainted majority at the time of its execution of the
contract so as to render it unlawful.12
With respect to the alleged ambiguous union-security
clause, article III consists of two sentences. The first
sentence provides that "it shall not be a condition of
employment unless and until State and Federal Law
permits" that good standing members on the effective date
of the agreement "shall remain members in good
standing" and that nonmembers on the effective date shall
become and remain members "after the seventh day
following the effective date." The second sentence states
that "it shall also be a condition of employment that all
employees covered by this agreement and hired on or after
its effective date shall after the seventh day following the
beginning of such employment become and remain
members in good standing in the Union." Although aware
that Georgia is a right-to-work State which does not permit
the execution of union-security contracts, it is because of
the second sentence that the General Counsel contends
that the net effect of the contract is to require membership
as a condition of employment.
The complaint nowhere refers to the contract as a
union-security agreement nor alleges that it contains a
union-security clause. It merely alleges that "on or about
May 24, 1965, Respondent Employer recognized and
executed a collective bargaining agreement with
District 50 covering its employees" in a specified
appropriate unit and that "by recognizing and executing
the collective-bargaining agreement . Respondent
Employer has assisted and supported District 50" in
violation of Section 8(a)(2) and (1) of the Act. After all
parties had rested their case, the General Counsel for the
first time announced that in his brief he would assert the
"theory that the Respondent Company has violated
Section 8(a)(3) by entering into an illegal union security
contract ... with an assisted union," and referred to
article III of the contract. Counsel for Respondent
Company stated that he was "not waiving any objection to
the untimeliness of any new theory." Both Respondents
now contend in their respective briefs that this theory is
untimely because it was never alleged in the complaint or
urged during the hearing, and assert that if they had had
the opportunity they would have adduced testimony to
show that the second sentence of article III contained
typographical or inadvertent omissions in that the word
"not" was inadvertently omitted from between the words
"also" and "be" and that the words " unless and until
" I would reach the same conclusion in all respects even if,
contrary to my previous findings, the card of Emmett Lewis were
State and Federal Law permits" were inadvertently
omitted from between the words "employment" and
"that." Thus, they contend that, except for these
inadvertent omissions , the second sentence would be
consistent and in conformity with the first sentence, as
intended by the parties, and would state that "It shall also
not be a condition of employment unless and until State
and Federal Law permits that," etc. Respondent Company
and Respondent District 50 have submitted affidavits from
Company President Clement and District 50 Regional
Director Adkins, respectively, to that effect and to the
intent of the parties in executing this agreement . Counsel
for District 50 further contends that in any event the
General Counsel has not proved that at the time of the
execution of the contract District 50 was a labor
organization that had been established, maintained, or
assisted by any action defined in Section 8(a) of the Act as
an unfair labor practice, which is the requirement in
Section 8(a)(3) relied on by the General Counsel for
rendering a union-security contract unlawful.
I find merit in the contentions of Respondents. I find
that, under the circumstances above set forth,
Respondents were taken by surprise and did not have an
opportunity to litigate the issue with respect to the union-
security clause, and that the arguments in support of the
contention that there were some inadvertent omissions
seem plausible . On this state of the record, no findings
may properly be made with respect to the union-security
issue.
I find that the General Counsel has failed to sustain the
allegations of the complaint that Respondent Company
unlawfully assisted and supported Respondent District 50
by recognizing and executing a collective- bargaining
agreement with it on May 24, 1965, and thereafter
maintaining said agreement.
D. Violations of Section 8(¢)(3)
Ira Aired was laid off on August 1, 1965, with a promise
of being recalled. Sherman Silvers was laid off on
August 2, also with a promise of being recalled. Arnold
Sanford ceased working for the Company on August 13.
The General Counsel contends, as the complaint alleges,
that all three were discriminatonly discharged in violation
of Section 8(a)(3) of the Act. At the instant hearing,
counsel for Respondent Company stated the Company's
position with respect to these three employees to be as
follows: Alred and Silvers were temporarily laid off. At the
time of their layoff, the Company offered them other work
which they refused. They "later took jobs with other
employers and elected not to return" to Respondent
Company. Arnold Sanford "voluntarily terminated" his
employment with Respondent Company.
1. Ira Aired
Alred was employed by the Company as a dozer
operator on the Carters Dam project in early May 1965. He
worked on the night shift under Night Superintendent
Hughes.
On May 11, a few days after he started working, he
signed a District 50 membership application card upon
being solicited by Job Steward Farthing. On June 8 he
signed a union authorization card for the Operating
to be counted as having been signed before the execution of the
contract
CLEMENT BROTHERS CO., INC.
Engineers. Shortly after Aired had signed a card for the
Operating Engineers, Hughes asked him if he had been
"fooling" around with the Operating Engineers; warned
that if he had, he better "lay off of it"; and pointed out that
while the Company could not fire him for his activities on
behalf of the Operating Engineers, "they can find some
other reason to fire you," all as previously found. Also as
previously found, Hughes told Aired in another
conversation during this period that he and Sherman
Silvers "are on the spot," that "you're going to be in
trouble if you don't drop this talking about the Operating
Engineers," and that two men had told Hughes that Aired
and Silvers "were passing out these cards" for the
Operating Engineers. Shortly before his layoff, Project
Superintendent Holland told Aired that Holland had been
informed that Aired was "dabbling" with the Operating
Engineers; warned that if Aired valued his job, he had
"better cut that out" and let the Operating Engineers
alone; and added that if the Operating Engineers got in,
Aired "wouldn't get the 32 or 40 hour a week," all as
previously found. Also as previously found, a few days
before Alred's layoff, Hughes told motor grade operator
Rochester that "there was some fellows there that were
going to get into trouble if they didn't quit talking about the
Operating Engineers and agitating," adding that Aired and
Silvers might be laid off for that reason.
On the evening of August 1, Hughes told Aired and
dozer operator William Jones that he had to lay them off
for about 3 weeks because it was necessary to cut down on
dozer men until the bottom of the river was cleaned off.
Hughes told Aired that he would definitely be called back
as soon as the bottom was cleaned out.13
Aired returned to his home in Alabama and shortly
thereafter found some work with the Tennessee Valley
Authority About 3 weeks later, he returned and met
Hughes whom he questioned about being called back.
Hughes assured Aired that he still would be called back,
explaining that they had not quite finished cleaning out the
bottom. 14
Hughes admitted that Jones, who had less seniority than
Aired, was put back as a dozer operator in about a week
after their layoff.15 Hughes also admitted that he never
made any attempt to call Aired back, that he hired more
dozer operators as he needed them, and that Aired was
never called back.
As previously noted, at the beginning of the hearing,
company counsel stated the Company's position to be that
Aired had been temporarily laid off for economic reasons.
In support of this position, Hughes testified on direct
examination that Aired was laid off for lack of work.
However, contrary to this testimony, Hughes admitted on
cross-examination that in his pretrial affidavit, dated
December 2, 1965, he stated as follows: "At the direction
of W. B. Holland, I terminated Alred's employment on
August 1, 1965. Ira Aired was terminated because he was
not doing satisfactory work." He further admitted that
when an employee is laid off for a week or so, it is
13 The findings in this paragraph are based on the mutually
consistent testimony of Aired and Hughes Hughes also testified
that at the time of the layoff he offered Aired temporary work as a
laborer. Aired denied that any such offer was made I credit
Aired's denial
" The findings in this paragraph are based on the credited
testimony of Aired Hughes testified that on this occasion Aired
stated that he had a job closer to home and did not care whether
he came back or not Aired emphatically denied ever telling
709
considered as a temporary layoff; but that when an
employee is "discharged," he is "terminated."
The General Counsel does not take issue with asserted
economic need for a layoff. He contends that the layoff
was used as a stratagem to effect a permanent termination
of Alred's employment because of his activities on behalf
of the Operating Engineers. I agree.
As previously found, Holland and Hughes were aware of
Aired's activities on behalf of the Operating Engineers and
had warned that it would cost him his job if he did not stop.
On one occasion, Hughes pointed out that the Company
could find some other reason to use as a pretext to fire him
for his activities on behalf of the Operating Engineers. On
two separate occasions, Project Superintendent Holland
had told employees Alday and Goodson, individually, that
"I can't fire you for preaching about it [the Operating
Engineers] but I can lay you off and not call you back" and
that could be the same as a discharge, as previously found.
Upon consideration of all the foregoing and the entire
record as a whole, I am convinced and find that the
Company had no intention of calling Aired back at the
time of his layoff, that the layoff was seized upon as a
stratagem to effect a permanent severance of his
employment, that in reality Aired was discharged on
August 1, 1965, and that the Company's actions in this
regard were motivated by its opposition to Aired's known
activities on behalf of the Operating Engineers. By such
conduct, Respondent Company discriminated with
respect to the hire and tenure of employment of Ira Aired,
thereby discouraging membership in the Operating
Engineers and encouraging membership in District 50 in
violation of Section 8(a)(3) of the Act.
2. Sherman Silvers
Sherman Silvers was employed by the Company at the
Carters Dam project as a power shovel operator on May 3,
1965. He worked on the night shift under Superintendent
Hughes.
About 3 or 4 days after he started working, District 50
Job Steward Farthing told Silvers that we "got a little
union here and we want to get all the men in it , if we can."
At Silvers' request, Farthing agreed to wait a few days. On
May 12, Farthing asked Silvers to sign a union card. In
response to Silvers' query as to whether he had to sign,
Farthing replied, "No, you don't have to but it would be
better if you did." Silvers thereupon signed the District 50
card. The findings in this paragraph are based on the
credited testimony of Silvers.
On June 8, Silvers signed a union card for the Operating
Engineers. He and Aired then began passing out cards for
the Operating Engineers. Thereafter, Project
Superintendent Holland approached Silvers as he was
starting work and said, "Silvers, that other union that's
trying to get in here.... I want to tell you right now that I
can get all the operators that I need by just going to the
phone," that Holland knew what was going on, and that if
Hughes that he did not want to be recalled or that he did not care
whether he came back or not As I have previously stated, I do not
regard Hughes to be a credible witness I do not credit his
testimony in this respect and credit Aired's denials
11 On the basis of Hughes' own testimony, this was before he
allegedly was informed by Aired that he did not care whether or
not he would be recalled It is also significant that in the case of
Sherman Silvers, counsel for the Company stresses the fact that
Silvers was junior in point of seniority
299-352 0-70-46
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Silvers "was going to keep fooling around it that other
union]" Silvers would "be run off or be put out of a job,"
all as previously found. At that time, Silvers replied that he
was a member of the Operating Engineers and had
"washed my hands with it." On one occasion in June or
July, during a conversation while they were eating dinner
together, Holland told mechanic E. C. Watson, "I don't
know what to think of that Paul Goodson who runs the
motor grader messing with this little old union around
here . that shovel operator, Silvers, . I've done
warned him two or three times and ... if they don't quit
. I'm just going to have to get rid of them, that's all,"
also as previously found. During this period, Hughes
warned dozer operator Ira Alred that he and Sherman
Silvers were "on the spot," and that two men had told
Hughes that Alred and Silvers " are passing out these
cards" for the Operating Engineers, as previously found.
Also, as previously found, a few days before Silvers' layoff
on August 2, Hughes told motor grader operator Rochester
that "there was some fellows there that were going to get
into trouble if they didn't quit talking about the Operating
Engineers and agitating," adding that Alred and Silvers
might be laid off for that reason.
At the time of Silvers' layoff, there were only two shovel
operators on the night shift, Silvers and one other
employee. On August 2, 1965, Silvers was laid off under
the following circumstances: Hughes informed Silvers that
the Company was going to run the shovels every other
shift, and discussed the possibility of alternating Silvers
with the other shovel operator so that each would work
every other night. Silvers asked Hughes, "Why not just lay
me off until you get ready to go back to work full-time?",
explaining that he believed he could find something to do
in the meantime. The next day, Hughes informed Silvers
that he had discussed Silvers' suggestion with Holland and
that Holland said it would be all right to lay Silvers off until
they got ready to work the two shovels full time. Silvers
was laid off and never recalled; instead, another man was
employed about 6 weeks later when the two shovels
resumed full-time operation. The findings in this
paragraph are based on the mutually consistent testimony
of Silvers and Hughes.
After his layoff, Silvers found employment in Rome,
Georgia. About 2 or 3 weeks later, he returned to the
Company's premises to get his last check. He met Holland
coming out of the gate, and said, "Now, Mr. Holland, when
you get ready to go back to work, get the bottom cleaned
out, why ... you've got my number in there. Just give me a
buzz," and "I'll be back." Holland promised to do so.
During this conversation, Silvers informed Holland that he
was then working in Rome, Georgia. The findings as to this
conversation are based on the credited and undisputed
testimony of Silvers. The Company did not call Holland as
a witness and gave no explanation for its failure to do so.
Hughes testified that about 2 or 3 nights after Silvers'
layoff, Silvers telephoned Hughes and informed Hughes
that he had another job in Rome, Georgia, and did not care
whether he came back or not. 16 Hughes further testified
that it was for that reason that the Company hired another
man when the shovels were put back into full-time
operation about 6 weeks after Silvers' layoff. Silvers
emphatically denied that he ever telephoned Hughes or
told Hughes that he had a job elsewhere and did not care
whether or not he came back. Aside from the demeanor of
the witnesses, a factor which causes me to credit Silvers,
the undisputed facts are inconsistent with Hughes'
version. I refer primarily to Silvers' reminder to Holland
that Silvers be informed when the shovel work would be
resumed and Holland's promise to do so, all of which is
undisputed and occurred about 2 weeks after the alleged
telephone conversation which Hughes attributed to
Silvers. Moreover, Silvers had told Hughes that it was
because he believed he could get work elsewhere in the
meantime , that he suggested he be laid off until the
shovels resumed full-time operation. In addition, Silvers
testified, without contradiction, that his home was closer
to the Company's project and that it was for that reason
that he desired to return. Upon consideration of all the
foregoing as well as the demeanor of the witnesses, I do
not credit Hughes' testimony and find that Silvers never
informed Hughes that he did not care whether he came
back or not.
The General Counsel does not dispute the Company's
contention that there was an economic need for a
temporary reduction in the work force. However, as in the
case of Alred, he contends that this opportunity was seized
upon as a convenient pretext to effect a permanent
termination of Silvers. I agree.
Both Holland and Hughes were aware of Silvers'
activities on behalf of the Operating Engineers, had
warned that he was "on the spot" because of it, and had
threatened loss of his job for continuing to engage in such
activities. As in the case of Alred, I find that when
presented with the opportunity for laying Silvers off
temporarily for economic reasons, the Company seized
upon it as a device for terminating his employment
permanently by never recalling him and thereafter hiring
someone else in his place, a stratagem which Holland and
Hughes had previously indicated they could resort to in
order to rid the Company of an employee who continued to
engage in activities on behalf of the Operating Engineers.
Upon consideration of all the foregoing and the entire
record as a whole, I am convinced and find that, as in the
case of Alred, the Company never intended to recall
Silvers at the time of his layoff, that in reality Silvers was
discharged on August 2, 1965, and that the Company's
actions in this regard were motivated by its opposition to
Silvers' known activities on behalf of the Operating
Engineers. By such conduct, Respondent Company
discriminated with respect to the hire and tenure of
employment of Sherman Silvers, thereby discouraging
membership in the Operating Engineers and encouraging
membership in District 50, in violation of Section 8(a)(3) of
the Act.
3. Arnold Sanford
Arnold Sanford was employed by the Company at the
Carters Dam project about April 14, 1965. After the first
day, he drove a water truck. He worked on the day shift
under the immediate supervision of Mechanic Foreman
Stacey Williamson.
Sanford signed a District 50 card on April 16 when Job
Steward Farthing told him he had to sign if he wanted to
keep his job, as previously found. In June, he became
active on behalf of the Operating Engineers. He signed an
'fi It seems significant that, as previously found, Hughes also
testified to the same effect with respect to Alred
CLEMENT BROTHERS CO., INC. 711
authorization card on June 14, attended union meetings,
and got at least six other employees to sign cards for the
Operating Engineers. On August 12, the very last day that
he worked there, he asked employee Ed Berger, as they
were riding in Sanford's truck, what he thought about
signing up for the other union, referring to the Operating
Engineers. Berger replied that he was satisfied with what
he had.
About a week before Sanford's employment
termination, Mechanic Foreman Stacey Williamson told
mechanic Watson that if Sanford did not "quit messing"
with the union they were trying to get in, "we're just going
to have to fire him." Williamson also stated that Sanford
"ought to quit" his union activities and that Watson, being
a friend of Sanford, should tell this to Sanford. Williamson
further told Watson that Sanford was a good boy and that
he hated to let him go but that, if he did not "quit messing"
with it [the union], he was just going to have to let him
got 7
On Thursday, August 12, there was an election for road
commissioner for the county in which Sanford resided. At
lunchtime, Sanford asked Project Superintendent Holland
if the Eucs were going to shut down at 3 p.m. Sanford's
query was prompted by the fact that when the Eucs, which
stir up the dust, were shut down, Sanford does not have to
do any watering. When Holland replied that the Eucs were
going to shut down, Sanford stated that he was going to get
off at 3 o'clock to go vote. Holland voiced no objection.
Sanford left at 3 to go to vote. The findings in this
paragraph are based on the credited and undenied
testimony of Sanford, as Holland was not called as a
witness.
Earlier that week, Sanford had made arrangements with
Bailiff Thornton to pay off a garnishment without it being
served upon the Company, after Sanford had been
informed by Williamson that Sanford would be fired if the
garnishment were served. However, about 9:30 p.m. on
August 12, Bailiff Thornton received a telephone call from
a person whom he could not identify, and was told that
Sanford was being fired and to bring the garnishment
papers down and leave them with the guard. That night,
Thornton left the garnishment papers with guard Larry
Wicker, stating that he had been instructed to leave them
with the guard. Wicker replied that he would turn them in
to the office in the morning. When Sanford arrived at the
jobsite about 8:30 the next morning, August 13, to see
about getting his paycheck, guard Larry Wicker informed
him outside the office that he had been garnisheed and
fired. Sanford went into the office, received both of his
checks which had already been prepared, and left the
premises. The findings in this paragraph are not in
dispute.
Respondent Company's counsel stated at the opening of
the hearing that the Company's position was that Sanford
was not discharged but had voluntarily quit. At one point
in his brief, company counsel states that "the testimony of
Sanford, himself, could hardly be improved upon as
establishing that he was discharged for cause"; at another
point, counsel states that "Mr. Sanford was not
discharged, but voluntarily quit." Foreman Stacey
Williamson denied that Sanford was discharged and
testified that Sanford had voluntarily "quit." The General
Counsel contends that the garnishment was seized upon as
a pretext to discharge Sanford because of his activities on
behalf of the Operating Engineers. I agree.
As previously found, only a week before Sanford's
termination, Williamson, his foreman, warned that he
would discharge Sanford if he did not quit "messing" with
the Operating Engineers, the union they were trying to get
in. Also, as previously pointed out, Williamson
affirmatively refused to deny that he gave such a warning
to mechanic Watson who also worked under his
supervision, and in fact admitted that he well might have
done so.
On the morning of August 13, Watson missed Sanford at
work because Sanford had frequently helped the
mechanics. So he asked Williamson about Sanford's
whereabouts. Williamson replied that Sanford "just
wouldn't leave the union alone and he had to fire him but
hated to because he was a good worker." Similarly, dozer
operator Arlind Crisp asked Williamson what had
happened to the water truck driver, referring to Sanford,
as Ciisp had not seen Sanford around for a day or two.
Williamson replied that "he's fired." When Crisp stated
that he had heard that Sanford "was garnished,"
Williamson said, "he was but that wasn't it. I caught him
getting Jay [J. E. Paul], trying to get Jay to sign a union
card." Williamson also told motor grader operator
Goodson on August 13 that he had "fired" Sanford
because Sanford "had been running around here to get
people to sign cards for the Operating Engineers." The
findings in this paragraph are based on the credited and
undisputed testimony of Watson and Crisp. Williamson
did not deny having had these conversations with or
having made these statements to Watson, Crisp, and
Goodson.
Finally, contrary to Williamson's denial on direct
examination that Sanford was fired for his union activities
or that Sanford was fired at all, he admitted on cross-
examination that the following statements in his pretrial
affidavit were true at the time when Williamson signed
and swore to it on September 30,1965:
I fired a water truck driver because he would not work
right and laid out. I heard he was running around
trying to get the men to sign up for the other union. I
gave him time off to get straightened out with a
garnishment one day. The next day he took off early
without saying anything to me about it and the next
day he did not show up to work. I fired him because
he was talking to the men about the other union and
because he was stirring the men up but most of all
because he took off without telling me one day early
and did not do the job right and because he did not
report to work the next morning.
Williamson admitted that he had told Sanford during his
last week of employment, "Sanford, you're a good fellow to
work, a good hand." He also admitted that "there's no rule
that I know of" that says that one employee cannot stop to
talk to another employee during working hours and that
there is no company policy on it. Also, as previously found,
Project Superintendent Holland had voiced no objection
when Sanford told him during lunchtime on August 12 that
he was going to leave at 3 that afternoon to vote.
Upon consideration of all the foregoing, and the
stratagems employed by the Company to discharge Alred
and Silvers for their activities on behalf of the Operating
" The findings in this paragraph are based on the credited witness Williamson testified that he would not deny having made
testimony of Watson , who testified under subpena while still the statements attributed to him in the text, and admitted that "I
employed by the Company and impressed me as a trustworthy might have made it" but that "I lust don't remember saying it "
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineers, as previously found, I am convinced and find
that Sanford did not voluntarily quit his employment, but
that the garnishment against Sanford was seized upon by
the Company as a convenient pretext to discharge Sanford
primarily because of his union activities on behalf of the
Operating Engineers. By such conduct, Respondent
Company discriminated with respect to the hire and
tenure of employment of Arnold Sanford, thereby
discouraging membership in the Operating Engineers and
encouraging membership in District 50, in violation of
Section 8(a)(3) of the Act.
E. Violations of Section 8(a)(1)
By engaging in conduct violative of Section 8(a)(2) and
(3) of the Act, as previously found, I further find, on the
basis of long established precedents, that Respondent
Company has also derivatively violated Section 8(a)(1) of
the Act. In addition, I also find, as alleged in the omplaint,
that Respondent Company independently violated Section
8(a)(1) of the Act by the conduct of Project Superintendent
Holland, Night Superintendent Hughes, Labor Foreman
Lyles, and Mechanic Foreman Williamson in threatening
employees with discharge and other economic reprisals for
supporting or engaging in activities on behalf of the
Operating Engineers, all as previously found in detail.
Finally, I find, as also alleged in the complaint, that
Hughes' previously found conduct in asking employees
Alred and Moncrief if they had been "fooling around" with
the Operating Engineers, in asking employee Jones if he
belonged to a union, and in asking employee Rochester if
Moncrief had been talking to him about the Operating
Engineers, considered in their context and setting as well
as in the light of the other unfair labor practices found,
independently constituted interference, restraint, and
coercion further violative of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondents set forth in section III,
above, occurring in connection with the Respondent
Company's operations described in section I, above, have
a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent Company has engaged in
unfair labor practices violative of Section 8(a)(1), (2), and
(3) of the Act and that Respondent District 50 has engaged
in unfair labor practices violative of Section 8(b)(1)(A) of
the Act, I will recommend that each Respondent cease
and desist therefrom and that each take certain
affirmative action designed to effectuate the policies of the
Act.
Having found that Respondent Company discrimina-
torily discharged Ira Alred, Sherman Silvers, and Arnold
Sanford on August 1, 2, and 13, 1965, respectively, I will
recommend that the Company offer them immediate and
"The record shows that Sanford was reemployed by the
Company on January 15, 1966, as a laborer at approximately 25
cents per hour less than he earned on the water truck He was no
longer employed by the Company at the time of the instant
full reinstatement to their former or substantially
equivalent positions ,' 8 without prejudice to their seniority
or other rights and privileges , and make each whole for
any loss of earnings he may have suffered as a result of the
discrimination against him , by payment to each of a sum of
money equal to that which each normally would have
earned as wages from the date of discharge to the date of
the Company ' s offer of reinstatement , less the net
earnings of each during such period , with backpay and
interest thereon to be computed in the manner prescribed
by the Board in F . W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co ., 138 NLRB 716.
I have found that Respondent Company did not violate
the Act by recognizing and executing a collective-
bargaining agreement with District 50 on May 24, 1965,
and that this contract has not been shown to be unlawful.
Although I have found that Respondent Company did
render unlawful assistance and support to District 50 in
violation of Section 8(a)(1) and (2) of the Act, all of such
unlawful conduct , with the exception of one isolated
incident which was not of a flagrant nature, occurred after
the execution of the May 24 contract . Respondent's
conduct in unlawfully assisting District 50 to obtain
additional members and dues after the execution of the
contract does not on this record warrant an inference that
the ability of District 50 to represent the employees in the
daily administration of its contract was thereby adversely
affected . Under these circumstances , I do not deem it
necessary to effectuate the policies of the Act to
recommend an order to cease giving effect to the contract
or to cease recognizing District 50 unless and until
certified. The Board had reached the same conclusion
under similar circumstances in Lykes Bros. Inc. ofGeorgia,
128 NLRB 606 . And the following statement of the Board
in that case (p. 611 ) is equally applicable here:
Under all the circumstances, therefore , we do not
believe that an order requiring the parties to suspend
their bargaining relationship pending an election is
necessary to effectuate the policies of the Act.
Accordingly , as there is no basis for a finding that the
contract between the parties involved herein was a
consequence of the unfair labor practices found, or
that this contract thwarts any policy of the Act, we
reject the Trial Examiner 's recommendation for the
issuance of a cease recognition order.
The General Counsel seeks a reimbursement order for
dues and other assessments checked off by the Company
from employees' wages and remitted to District 50
pursuant to signed checkoff authorizations and the
provisions of the contract . As previously noted, the
District 50 membership application card also contains a
checkoff authorization so that by signing such a card, the
employee is authorizing the checkoff. However , under the
circumstances disclosed by this record, "such
reimbursement is appropriate only to those employees
whose payments are shown to have been made under
coercion ."" This would include those employees who
were coerced into signing the District 50 membership
application cards. I have previously found that such
coercion was practiced by Respondent Company against
seven named employees , all but one of whom was after the
hearing I find that this did not constitute reinstatement to his
former or substantially equivalent position.
"' Meyers Bros. of Mtssourt, Inc., 151 NLRB 889, 890, Majestic
WeavingCo., Inc, of New York, 149 NLRB 1523,1524.
CLEMENT BROTHERS CO., INC.
execution of the contract20 and by Respondent District 50
against nine named employees both before and after the
execution of the contract 21 I will therefore recommend
that each Respondent reimburse the herein named
employees whom it has respectively coerced into signing
the District 50 membership card for all initiation fees paid
to District 50 and for all dues, assessments, or other
moneys in payment of their membership obligation, which
was checked off pursuant to the checkoff authorizations
contained therein, with interest thereon to be computed in
the manner set forth in Seafarers International Union of
North America, 138 NLRB 1142.22 I will further
recommend that each Respondent cease giving effect to
the checkoff authorizations signed by the herein named
employees whom it has coerced.
In view of the nature and extent of Respondents' unfair
labor practices, I find it necessary in order to effectuate
the policies of the Act to recommend that Respondents
cease and desist from infringing "in any other manner"
upon the rights guaranteed to employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating with respect to the hire and tenure
of employment of Ira Aired, Sherman Silvers, and Arnold
Sanford, thereby discouraging membership in the
Operating Engineers and encouraging membership in
District 50, labor organizations within the meaning of
Section 2(5) of the Act, Respondent Clement Brothers
Company, Inc., has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(3) of the
Act.
2. By rendering unlawful assistance and support to
District 50, said Respondent Company has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(2) of the Act.
3. By the foregoing conduct, by the conduct of Project
Superintendent Holland, Night Supervisor Hughes, Labor
Foreman Lyles, and Mechanic Foreman Williamson in
threatening employees with discharge and other economic
reprisals for supporting or engaging in activities on behalf
of the Operating Engineers, and by the conduct of Night
Superintendent Hughes in interrogating employees about
their union interests and activities and those of other
employees, said Respondent Company has interfered
with, restrained, and coerced its employees in the exercise
of their Section 7 rights and thereby has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. Shop Steward Charles Farthing, at all times material
herein, was acting as an agent of Respondent District 50
within the meaning of Section 2(13) of the Act.
5. By the conduct of Shop Steward Farthing in
threatening employees with loss of employment unless
they signed District 50 membership application cards, in
warning that continuance of their employment would be
conditioned upon signing such cards, in making veiled
threats to employees' job security and tenure if they did
21 James Rochester, John Wiggins, James Dawkins, Frank
Cullum. John Moncrief. William Jones. and Jack Crump
2' Emmett Lewis, Newman Hudson, T L [Bingham, Arnold
Sanford, Arlind Cnsp, E C Watson, Paul Goodson, and Joe and
Gary Butler
11 The Board has issued a reimbursement order against a union
713
not sign such cards, and in promising that signing such
cards would help employees obtain and retain the jobs
they desire, Respondent District 50 restrained and
coerced the employees in the exercise of their Section 7
rights and thereby has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. Respondents did not engage in any unfair labor
practices alleged in the complaint which are not
specifically found herein.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following:
RECOMMENDED ORDER
A. Respondent, Clement Brothers Company, Inc.,
Carters, Georgia, its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf
of International Union of Operating Engineers, Local 926,
or any other labor organization , and encouraging
membership in and activities on behalf of International
Union of District 50, United Mine Workers of America, or
any other labor organization , by discriminatorily dis-
charging or laying off employees, or by discriminating
against them in any other manner with respect to their hire
or tenure of employment or any term or condition of
employment.
(b) Giving assistance and support to International
Union of District 50, United Mine Workers of America, or
to any other labor organization, in obtaining union
membership application or authorization or checkoff
cards, or in any other manner proscribed by Section 8(a)(2)
of the Act.
(c) Giving effect to the checkoff authorizations obtained
through coercion from James Rochester, John Wiggins,
James Dawkins, Frank Cullum, John Moncrief, William
Jones, and Jack Crump.
(d) Threatening employees with discharge or any other
economic reprisals for supporting or engaging in activities
on behalf of International Union of Operating Engineers,
Local 926, or any other labor organization , or for not
signing membership cards for International Union of
District 50, United Mine Workers of America, or any other
labor organization.
(e) Interrogating employees concerning their union
interests and activities and those of other employees in a
manner constituting interference, restraint, and coercion
within the meaning of Section 8(a)(1) of the Act.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Ira Aired, Sherman Silvers, and Arnold
where , as in this case , it found only a violation of Section
8(b)(1)(A) General Drivers , Chauffeurs and Helpers , Local 886,
Teamsters (Unit Parts Co), 119 NLRB 222, 223, cf. International
Union of Operating Engineers , Local 513 (Long Construction Co),
145 NLRB 554
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sanford immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered as a result of the discrimination practiced against
them, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
(d) Reimburse the employees named in paragraph 1,
(c), of this Recommended Order for initiation fees, dues,
assessments , or other moneys received by International
Union of District 50, United Mine Workers of America, in
payment of their membership obligation, in the manner
and to the extent set forth in the section of this Decision
entitled "The Remedy."
(e) Post at its place of business in Carters, Georgia,
copies of the attached notice marked "Appendix B." 23
Copies of said notice, on forms provided by the Regional
Director for Region 10, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
its employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith.24
B. Respondent, International Union of District 50,
United Mine Workers of America, its officers, agents, and
representatives, shall:
1. Cease and desist from:
(a) Threatening employees with loss of employment or
other economic reprisals for not signing, or promising
more desirable employment or other economic benefits for
signing, union application or authorization or checkoff
cards for International Union of District 50, United Mine
Workers of America, or any other labor organization.
(b) In any other manner restraining and coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Notify Respondent Clement Brothers Company,
Inc., not to give effect to the checkoff authorizations
obtained through coercion from Emmett Lewis, Newman
Hudson , T. L. Bingham, Arnold Sanford, Arlind Crisp,
E. C. Watson, Paul Goodson, Joe Butler, and Gary Butler.
(b) Reimburse the employees named in the preceding
paragraph for initiation fees, dues, assessments, or other
money received in payment of their membership
obligation, in the manner and to the extent set forth in the
section of this Decision entitled "The Remedy."
(c) Post at its offices and meeting places in the vicinity
of Carters, Georgia, and Atlanta, Georgia, copies of the
attached notice marked "Appendix C."25 Copies of said
notice, to be furnished by the Regional Director for
Region 10, after being duly signed by the official
representative of said Respondent, shall be posted by
Respondent District 50 immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by said Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(d) Mail signed copies of the attached notice marked
"Appendix C" to the Regional Director for Region 10 for
posting by Respondent Clement Brothers Company, Inc.,
in conspicuous places at its place of business in Carters,
Georgia, including all places where notices to employees
are customarily posted. Copies of said notice, to be
furnished by the Regional Director for Region 10, shall be
returned forthwith to said Regional Director, after they
have been signed by an official representative of
Respondent District 50, for such postings.
(e) Notify the Regional Director for Region 10, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.26
14 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
24 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order , what steps Respondent has taken to comply herewith "
25 See In 23, supra
2F See In 24, supra
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT discourage membership in or
activities on behalf of International Union of
Operating Engineers, Local 926, or any other labor
organization , and WE WILL NOT encourage
membership in International Union of District 50,
United Mine Workers of America, or any other labor
organization, by discriminatorily discharging or laying
off employees , or by discriminating against them in
any other manner with respect to their hire and tenure
of employment or any term or condition of
employment.
WE WILL NOT give assistance and support to
District 50, or any other labor organization, in
obtaining union membership application or
authorization or checkoff cards, or in any other
manner proscribed by Section 8(a)(2) of the Act.
WE WILL NOT threaten employees with discharge or
any other economic reprisals for supporting or
CLEMENT BROTHERS CO., INC.
engaging in activities on behalf of the Operating
Engineers, Local 926, or any other labor organization,
or for not signing membership or authorization cards
for District 50, or any other labor organization.
WE WILL NOT interrogate employees concerning
their union interests and activities and those of other
employees, in a manner constituting interference,
restraint, and coercion within the meaning of Section
8(a)(1) of the Act.
WE WILL NOT, in any other manner , interfere with,
restrain, or coerce our employees in the exercise of
rights guaranteed by Section 7 of the Act.
WE WILL NOT give effect to the checkoff
authorizations coercively obtained from James
Rochester, John Wiggins, James Dawkins, Frank
Cullum, John Moncrief, William Jones, and Jack
Crump.
WE WILL reimburse the above-named employees
for initiation fees, dues, assessments, or other moneys
received by District 50 in payment of their
membership obligation.
WE WILL offer to Ira Alred, Sherman Silvers, and
Arnold Sanford immediate and full reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and will make them whole for any loss of
earnings suffered as a result of the discrimination
against them.
All our employees are free to become, remain, or refrain
from becoming or remaining members of the above-named
or any other labor organizations.
CLEMENT BROTHERS
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employees if
presently serving in the Armed Forces of the United States
of their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
715
or compliance with its provisions , they may communicate
directly with the Board' s Regional Office, 528 Peachtree-
Seventh Building , 50 Seventh Street N.E., Atlanta,
Georgia 30323, Telephone 526-5741.
APPENDIX C
NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF
DISTRICT 50, UNITED MINE WORKERS OF AMERICA
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT threaten employees of Clement
Brothers Company, Inc., with loss of employment or
other economic reprisals for not signing union
application or authorization or checkoff cards, and WE
WILL NOT promise employees more desirable jobs or
other economic benefits for signing such cards.
WE WILL NOT in any other manner restrain or
coerce said employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL notify Clement Brother Company, Inc.,
not to give effect to the checkoff authorizations
coercively obtained from Emmett Lewis, Newman
Hudson, T. L. Bingham, Arnold Sanford, Arlind
Crisp, E. C. Watson, Joe Butler, and Gary Butler.
WE WILL reimburse the above-named employees
for initiation fees, dues, assessments, or other moneys
received in payment of their membership obligation.
INTERNATIONAL UNION OF
DISTRICT 50, UNITED MINE
WORKERS OF AMERICA
(Labor Organization)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If members have any question concerning this notice or
compliance with its provisions, they may communicate
directly with the Board's Regional Office, 528 Peachtree-
Seventh Building, 50 Seventh Street N.E., Atlanta,
Georgia 30323, Telephone 526-5741.