Mcwhorter Trucking

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 369 (N.L.R.B. 1984)

MCWHORTER TRUCKING 369
Jake McWhorter, d/b/a McWhorter Trucking and
Teamsters Construction Workers Local Union
No. 13. Case 27-CA-8039
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 3 August 1983 Administrative Law Judge
Roger B. Holmes issued the attached decision. The
Respondent and the General Counsel filed excep-
tions and supporting briefs, and the Respondent
filed a reply brief to the General Counsel's excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Jake McWhorter, d/b/a McWhorter
Trucking, Lakewood, Colorado, his agents, succes-
sors, or assigns, shall take the action set forth in the
Order as modified.
1. Substitute the following as paragraph 2(d).
"(d) Make whole the unit employees who have
incurred losses of wages and benefits because of
the Respondent's failure to abide by the terms and
conditions of the collective-bargaining agreement
between the Respondent and the Union. Such mon-
etary amounts are to be computed in accordance
with the Board's decision in Ogle Protection Service,
183 NLRB 682 (1970), with interest as prescribed
in Isis Plumbing Co., 138 NLRB 716 (1962); Florida
Steel Corp., 231 NLRB 651 (1977); and Olympic
Medical Corp., 250 NLRB 146 (1980). In addition,
the Respondent shall pay the contractually agreed-
upon trust funds in the amounts of the contribu-
tions which the Respondent failed to make on
behalf of the Respondent's unit employees in ac-
, In adopting the judge's conclusion that the Respondent's statements
violated Sec 8(a)(1) of the Act, we rely on Rossmore House, 269 NLRB
1176 (1984)
2 We expand the judge's recommended Order remedying the Respond-
ent's failure to abide by the terms and conditions of the collective-bar-
gaining agreement to include reimbursement of any losses directly attrib-
utable to its withholding of contributions under the parties' trust fund
agreement, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn 2
(1980), enfd 661 F 2d 940 (9th Cir 1981)
cordance with Fox Painting Co., 263 NLRB 437
(1982), and Menyweather Optical Co., 240 NLRB
1213 (1979), and reimburse unit employees for any
expenses ensuing from the Respondent's unlawful
failure to make such contributions, with interest."
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I WILL NOT tell employees to tell representatives
of Teamsters Construction Workers Local Union
No. 13 that the employees do not want to be repre-
sented by the Union any more and for the union
representatives to leave the employees alone and
stay off their jobs, and I WILL NOT tell employees
that any employee who talks to a union representa-
tive will be discharged immediately.
I WILL NOT tell an employee that he would be
discharged immediately if he rejoined the Union.
I WILL NOT terminate an employee from employ-
ment and fail and refuse to reinstate him because of
the employee's union membership and activities.
I WILL NOT fail and refuse to meet and bargain
in good faith with Teamsters Construction Work-
ers Local Union No. 13 concerning the wages,
hours, and other terms and conditions of employ-
ment of the employees in the unit described below:
All employees employed by Jake McWhorter
d/b/a McWhorter Trucking or d/b/a J & B
Trucking, at the Lakewood, Colorado, loca-
tion, engaged in the performance of highway,
heavy engineering, utility and building con-
struction, but excluding office clerical employ-
ees, guards, professional employees and super-
visors as defined in the Act.
I WILL NOT repudiate my contract with the
Union and negotiate directly with my employees in
the unit described above.
I WILL NOT unilaterally grant a wage increase to
my employees in the unit described above. I will
recognize and, on request, bargain collectively
with the Union as the exclusive collective-bargain-
ing representative of the employees in the unit de-
scribed above, and I WILL abide by the terms of
the collective-bargaining agreement with the
Union. .
I WILL NOT in any like or related manner inter-
fere with, restrain, or coerce my employees in the
exercise of the rights guaranteed by the Act.
273 NLRB No. 59
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I WILL make whole Donald Lambuth for his
monetary loss, including appropriate interest on
such money, which has resulted from the termina-
tion of Lambuth from employment on 27 July 1982
and the failure and refusal to reinstate him.
I WILL expunge from my files any reference to
the termination of Donald Lambuth on 27 July
1982, and I WILL notify him, in writing, that I have
done so, and that evidence of his termination from
employment will not be used as a basis for future
personnel actions against him.
I WILL offer immediate and full reinstatement to
Donald Lambuth to his former position of employ-
ment without the loss of his seniority or other ben-
efits but, if his former position of employment no
longer exists, then I WILL offer him a substantially
equivalent position of employment without the loss
of his seniority or other benefits.
I WILL make whole the unit employees who
have incurred losses of wages and benefits because
of the failure to abide by the terms and conditions
of the collective-bargaining agreement with the
Union. Such monetary amounts, and appropriate
interest thereon, will be computed in accordance
with National Labor Relations Board decisions. In
addition, I WILL pay the contractually agreed-upon
trust funds in the amounts of the contributions
which were not made on behalf of my employees
and reimburse employees for any expenses ensuing
from the unlawful failure to make such contribu-
tions, and interest thereon will be computed in ac-
cordance with NLRB decisions.
JAKE MCWHORTER, D/B/A MC-
WHORTER TRUCKING
DECISION
STATEMENT OF THE CASE
ROGER B. HOLMES, Administrative Law Judge. The
unfair labor practice charge in this case was filed and
served on September 3, 1982, by Teamsters Construction
Workers Local Union No. 13.
The General Counsel's complaint was issued on Octo-
ber 19, 1982, against Jake McWhorter, d/b/a McWhort-
er Trucking. The General Counsel alleges that the Re-
spondent has engaged in conduct which violates Section
8(a)(1), (3), and (5) of the Act. In the answer to the com-
plaint allegations, the Respondent denied the commission
of the alleged unfair labor practices and also raised cer-
tain affirmative defenses.
The trial in this proceeding was held on February 24
and 25, 1983, at Denver, Colorado. The time for the
filing of posttrial briefs was set for April 1, 1983. Both
the General Counsel and the attorney for the Respond-
ent filed briefs. At footnote 3 on page 9 of the posttrial
brief filed by for the General Counsel, a motion is made
to correct the transcript of the trial proceedings in three
respects. In the absence of any objection, the General
Counsel's motion is hereby granted.
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
From October 1978 through the end of 1981, Jake
McWhorter was doing business as the sole proprietor of
McWhorter Trucking. He was engaged in the business of
hauling dirt, sand, and gravel. He maintained an office at
Lakewood, Colorado.
According to McWhorter, he changed the name of his
busines to J & B Trucking about the beginning of 1982.
(See Tr. 26-27.) He remained the sole proprietor of his
business and also the highest level supervisor. J & B
Trucking was engaged in the business of hauling dirt,
sand, and gravel. McWhorter employed at J & B Truck-
ing most of the same employees that he had at Mc-
Whorter Trucking. McWhorter explained at transcript
page 28, "I tried to retain all. There was two people that
quit."
J & B Trucking used the same equipment as Mc-
Whorter Trucking had used in its business operations.
The equipment consisted of five tandem dump trucks, a
front end loader, and a trailer.
At the outset of the trial proceedings, the Respond-
ent's answer to paragraphs II(c) and (d) of the General
Counsel's complaint was amended to admit those allega-
tions. (See Tr. 7.) They are:
(c) The Respondent, in the course and conduct of
its business operations annually performs services
valued at in excess of $50,000 directly for other em-
ployers within the State of Colorado, each of which
in turn annually purchases and receives goods and
materials valued in excess of $50,000 directly from
points and places outside the State of Colorado.
(d) The Respondent is now, and at all times ma-
terial herein has been, an employer engaged in com-
merce within the meaning of Section 2(2), (6) and
(7) of the Act.
According to McWhorter's testimony at the trial, his
business operations had ceased prior to the time of the
trial, he had no employees, and he was unemployed (See
Tr. 26.)
In addition to the foregoing, the Respondent's answer
to paragraph III of the General Counsel's complaint was
amended at the trial to admit that allegation. (See Tr. 7
and 8.) Paragraph III of that document alleges:
The Union is now, and has been at all times ma-
terial herein, a labor organization within the mean-
ing of Section 2(5) of the Act.
II. THE WITNESSES AND CREDIBILITY RESOLUTIONS
Five persons were called as witnesses at the trial of
this proceeding. In alphabetical order by their last
names, they are: Delbert Bixler, who is a business agent
of the Charging Party Union; Robert C. Easdon, who is
a vice president of the Charging Party Union, Donald
Lambuth, who is the alleged discriminatee in this case;
MCWHORTER TRUCKING 371
Jake McWhorter, who is the owner of the Resoondent;
and Frank Edward Scoles, who is a former truckdnver
employee of the Respondent. -
At the trial, the ruling was made to sequester the wit-
nesses in accordance with the provisions of Rule 615 of
the Federal Rules of Evidence and to apply the holding
of the Board in its decision in Unga Painting Corp., 237
NLRB 1306 (1978). (See the discussion at Tr. 8-22.)
In setting forth the findings of fact in this decision, I
will base those credited facts on portions of the testimo-
ny given by each one of the five witnesses. In addition,
certain findings of fact will be based on documentary
evidence introduced by the parties at the trial. In making
these findings, I have given consideration to the demean-
or of the witnesses, the consistency or the inconsistency
of portions of their testimony with the accounts given by
other witnesses, the basis for the witnesses' knowledge of
the matters about which he testified, and the probability
of the testimony in light of other -credited or undisputed
facts.
The testimony given by McWhorter was relatively
brief. (See Tr. 23-35.) Some of his testimony has been re-
ferred to in section I of this decision. Most of the testi-
mony by the other four witnesses pertaining to state-
ments made by McWhorter and other actions taken by
McWhorter were not contradicted or disputed by
McWhorter. There is a significant conflict between
McWhorter and Lambuth as to whether Lambuth volun-
tarily quit his employment with McWhorter on July 27,
1982, or whether McWhorter terminated Lambuth.
McWhorter stated that Lambuth quit his -employment at
that time. (See Tr. 33.) Lambuth's version is that
McWhorter terminated him.
At the trial, Lambuth acknowledged that McWhorter
had rehired him as an employee on earlier occasions
after Lambuth had quit work voluntarily on two occa-
sions; that he and McWhorter had always gotten along,
that-McWhorter had thought highly of Lambuth's work,
and that McWhorter had been a witness for Lambuth at
Lambuth's wedding ceremony. Notwithstanding the
foregoing, Lambuth testified that McWhorter had fired
him because Lambuth had rejoined the Union. (See Tr.
211.) Considering the criteria mentioned earlier in this
section, I found that Lambuth's account is the credible
one, and the findings of fact will be based on his version.
There is also a conflict between McWhorter and
Scoles as to the month in which Whorter ceased his busi-
ness operations. McWhorter indicated he had ceased
business about 6 months prior to the time of the trial in
February 1983. That estimate would place the cessation
of the business to have occurred in August 1082. On the
other hand, Scoles said he was not laid off from work by
McWhorter until December 1982. For purposes of decid-
ing the issues of whether unfair labor practices had oc-
curred in the past, it seems unnecessary to resolve that
conflict at this stage of the proceeding based solely on
the recollections of those two witnesses. The time of the
cessation of McWhorter's business and whether Mc-
Whorter's business operation has resumed since then are
matters which could be resolved more appropriately
during the compliance stage of this proceeding by the
examination of the pertinent business records. • -
Unlike the foregoing question which may be resolved
at the compliance stage, there is a necessity at this stage
of the proceeding to make a determination on the issue
of whether the Union ever achieved majority status in an
appropriate unit of the Respondent's employees. Lam-
buth acknowledged that he had not looked at Mc-
Whorter's payroll records, or any other kind of records,
to ascertain the dates of employment of the employees,
about which Lambuth testified at the trial. Lambuth ex-
plained, "No. That's why I wasn't sure. That's why I
tried to give approximations." (See Tr. 220 and 221.)
Lambuth said he was testifying from his best recollec-
tion. I 'have weighed the fact that Lambuth was testify-
ing from memory, and that his testimony in that respect
was not precise with regard to the exact dates of em-
ployment of the persons in question. Nevertheless, as will
be shown in the findings of fact, he did recall the names
of the employees in question, approximately when they
worked for McWhorter, what Jobs they performed; and
other matters. In addition, Lambuth gave credible testi-
mony on other subjects during the trial. The Company's
records may have been able , to provide more precise
dates of employment and more exact information regard-
ing the employees in question, but those records were
not produced. That observation is not made in the sense
of being critical, but in the sense of weighing and consid-
ering the oral evidence that was given by Lainbuth and
other witnesses, as distinguished from documentary evi-
dence which was not presented. In these circumstances, I
found that the oral evidence presented a reliable basis for
making the findings of fact on this issue.
III. ALLEGED UNFAIR LABOR PRACTICES
A. The Events in 1980
Introduced into evidence as General Counsel's Exhibit
2 was a copy of the first collective-bargaining agreement
between McWhorter and the Charging Party Union.
(See Tr 29-30.) The document indicates that it was exe-
cuted on July 15, 1980 (See G.C. Exh. 2, p. 58.) The
contract had effective dates from May 1, 1978, to May 1,
1981. (See G C. Exh. 2, p. 57.)
Neither before nor after McWhorter signed. General
Counsel's Exhibit 2 was a representation election con-
ducted by NLRB among McWhorter's employees to de-
termine whether they desired the Union to represent
them. (See Tr. 34.) Easdon acknowledged at the trial
that no representation election had been held, nor had an
NLRB order to bargain been issued, at any time with re-
spect to the employees of McWhorter. (See Tr. 98.)
• B The Events in May; June, and July 1981
•
Introduced into evidence as General Counsel's Exhibit
3 was a copy of the second collective-bargaining agree-
ment between McWhorter and the Charging Party
Union. (See Tr. 31-32.). The document indicates that it
was executed on July 6, 1981. (See G.C. Exh. 3, p. 31.)
The contract had effective dates from -May -1, 1981, to
May 1, 1984. (See G.C. Exh 3, p. 30) -
During the examination of McWhorter by the General
Counsel under the provisions of Rule 611(c) of the Fed-
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Rules of Evidence, the following took place as re-
flected at transcript pages 28 and 29:
Q. When you were working both as McWhorter
Trucking Company. and subsequently as J & B
Trucking Company, did you usually use the same
drivers from job site to job site?
A. Pretty much so.
Q. In other words, you did not lay off drivers
after each job and hire a whole new crew for each
job, new job, did ,you?
A. I did not.
Q. So you had a stable work force except when
the drivers quit or were fired or were laid off, pos-
sibly? -
A. Pretty much so.
Donald Lambuth had more than just one period of
employment with McWhorter. During at least two of
those periods of employment, Lambuth worked as a
truckdriver for McWhorter. He acknowledged at the
trial that he had voluntanly,quit working for McWhorter
on two occasions, but that McWhorter had , always taken
him back to work. Lambuth was certain at the trial that
McWhorter thought , highly of his work. (See Tr. 211.)
Some of the precise dates of Lambuth's employment
by McWhorter are not clear, but Lambuth said he began
working for McWhorter , about September 1980 as a me-
chanic on a salary basis. Around May or June 1981,
Lambuth became a truckdnver for McWhorter. At that
time, he was paid the wage scale which was provided
for in the union contract. Sometime later in the winter of
1981, Lambuth was dispatched by the Union to work for
another company. He worked for that company for 2 or
3 weeks, and then Lambuth returned to work for
McWhorter about the end of December 1981. (See Tr.
211.) He was married about March 10, 1982, but the
wedding ceremony was not held until July 1982.
McWhorter was a witness for Lambuth at the wedding.
(See Tr. 210-211.)
At the point in time when Lambuth became a truck-
driver for the Respondent in May or June 1981, there
were six other truckdnvers Working for the Respondent.
Lambuth described those truckdnvers as ones who had
worked for McWhorter for more than just a couple of
months, and, instead, those truckdrivers were regularly
employed by McWhorter for 6 months or longer. Thus,
based on Lambuth's observation, there were a total of
seven truckdnvers regularly working for McWhorter at
the time that Lambuth moved up from the mechanic's
job to being a truckdriver in May or June 1981
The other six truckdrivers for McWhorter in May or
June 1981 were identified by Lambuth as being: Kevin
Bowers, Stacy Carpenter, Terry Gettman, Marc Hobbs,
Mike Luman, and Ed Scoles.
Kevin Bowers was working for the Respondent prior
to the time that Lambuth began working for the Re-
spondent as a mechanic in September 1980. Bowers con-
tinued to work as a truckdriver for the Respondent, and
he was working as a truckdnver in May or June 1981
when Lambuth became a truckdnver. Bowers continued
as a truckdriver thereafter.
Stacy Carpenter began working for McWhorter as a
truckdriver shortly after September 1980, and he contin-
ued to work for McWhorter as a truckdnver until about
March 1982.
Terry Gettman worked - for McWhorter from about
September 1980 to November or December 1981 as a
truckdnver.
Marc Hobbs worked as a truckdnver for McWhorter
prior to September 1980, when Lambuth commenced
working for the Respondent. Hobbs was still employed
by McWhorter at the time that Lambuth's employment
with McWhorter ended on July 27, 1982.
Mike Luman began working as a truckdriver for
McWhorter a couple of months prior to May or June
1981, and he continued to work for McWhorter until
about November or December 1981.
Ed Scoles began working on a full-time basis as a
truckdnver for McWhorter in May 1981. Previously,
Scoles had worked on a part-time basis for McWhorter,
whenever he was needed, and when he was not working
for Giles Hauling. After May 1981, Scoles continued to
work for McWhorter until McWhorter ceased his busi-
ness operations.
Lambuth described two other persons who drove
trucks for McWhorter from time to time. They are Jerry
McWhorter, who is the son of Jake McWhorter, and
Jerry Crawford, who had the job of fueling the trucks,
but who drove a truck "once in a while when he was
needed." (See Tr. 220.)
Another employee named Al Denver became a me-
chanic for McWhorter at the time that Lambuth left the
mechanic's job and became a truckdriver.
Another group of employees of McWhorter was iden-
tified by Lambuth as not being employed at the point in
time when Lambuth became a truckdriver in May or
June 1981. They are Mike Barrows, Ed Hawkins, Gary
Hobbs, Max Melendez, Don Overton, and Mike Wie-
dick.
Mike Barrows was working for McWhorter prior to
the time that Lambuth began working for the Respond-
ent in September 1980, but Barrows 'left the Respond-
ent's employ about 2 months later, which would have
been about November 1980.
Ed Hawkins came fo work for the Respondent some-
time after May 1981 and worked for McWhorter for a
brief period of time. According to Lambuth, "He was in
the landscaping business just filling in." (See Tr. 213)
Gary Hobbs became an employee of the Respondent
sometime after the May or June 1981 time period when
Lambuth first became a truckdnver for the Respondent.
Max Melendez became a truckdriver for the Respond-
ent after the May or June 1981 time period when Lam-
buth became a truck river for the Respondent. Accord-
ing to Lambuth, Melendez worked there less than 2
months as a "stand-in driver." (See Tr. 214.)
Don Overton was employed. by McWhorter prior to
time in September 1980 when Lambuth became an em-
ployee of McWhorter. However, Overton quit working
for McWhorter about 2 or 3 months later, which would
have been November or December 1980.
MCWHORTER TRUCKING 373
Mike Wiedick became an employee of McWhorter. as
a truckdnver about May 1982, and he worked for. less
than 2 months for the Respondent According to Lam-
buth, Wiedick was terminated a day or two prior to the
time he was terminated on July 27, 1982. I
Introduced into evidence as General Counsel's Exhib-
its 8(a) through 8(g) were copies of the Charging Party
Union's computer printouts of information pertaining to
certain of its members. Among other things, the informa-
tion includes the name, address, Social Security number,
sex, insurance beneficiary, and the .dates and amounts of
union dues paid by the member. Suspension from union
membership is also indicated, as well as whether an hon-
orable withdrawal card had ' been issued to a member
who was not currently employed.
General Counsel's Exhibit 8(a) pertains to Robert J.
Burdolski. On December 15, 1980, he made a payment of
$18 for the use of the Union's hiring hall On November
30, 1981, he paid his initiation fee in full in the amount of
$225. Burdolski continued as a union member, but on
March 23, 1982, he was issued an honorable withdrawal
card. According to Easdon, Burdolski still remained , a
union member, but he was not required to pay union
dues until he resumed working.
General Counsel's Exhibit 8(b) pertains to Stacy R.
Carpenter. On September 15, 1980, Carpenter paid in full
his - initiation fee in the amount of $225. He cofitinned `as
a union member until August 6, 1982, when Carpenter
was suspended from union membership for his failure to
pay his union dues._
General Counsel's Exhibit 8(c) pertains to Terry L.
Gettman. On October 20, 1977, Gettman was initiated
into the Union He continued to be a' union menber at
least through February 1983.
General Counsel's' Exhibit 8(d) pertains to Mare
Hobbs. On July 20, 1979, Hobbs made his first payment
toward his initiation fee to join the Union. On August 2,
1979, Hobbs paid his initiation fee in full. He continued
as a union member thereafter. On July 16, 1982, Hobbs
was issued an honorable withdrawal card, which Easdo-n
said meant that Hobbs remained a anion member, but he
did not have to pay union dues.
, General Counsel's Exhibit 8(e) pertains to Donald J.
Lambuth. On April 9, 1979, Lambuth made ' his first Pay-
ment toward his initiation fee to join the Union On June
27, 1979, he paid his initiation fee in full. Lambuth re-
mained a union Member until he was suspended from
union membership on September . 11: 19812 On July 28,
1982, Lambuth paid a reinitiation fee to the Union, and
he continued his union membership at least through Jan-
uary 1983.
General' Counsel's Exhibit 8(f) pertains to Michal K
Luman. On Se'Ptember 27, 1974, Lunian was initiated
into union membership. He continued thereafter as a
union member, but on August 6, '1982, he was suspended
from union membership.
General Counsel's 'Exhibit 8(g) pertains to Frank E.
Scoles. On January 30, 1981, Scoles transferred hi S union
membership from Local 537 of the Teamsters union to
membership in the Charging Party Local Union. He con-
tinued his membership thereafter until May 6, 1982,
when he was suspended from union membership.
C. The Events in November or December 1981
, In either , November or December 1981, McWhOrter
held a meeting of his employees in the Respondent's
shop. Both Scoles and Lambuth were present at that
meeting and gave similar accounts of what transpired.
According to Scoles, "all the employees" were present,
and he estimated that number of employees to be ap-
proximately six. The following took place 'during the
direct examination of Scoles as reflected at transcript
page 167:
Q. Could you tell •tis what was said, and by whom
, in that meeting? •
' A. Jake notified us that McWhorter Trucking
was ceasing and that he was changing his name tgrij
& B Trucking. It would be strictly nonunion.
Q. What else, if anything, can you recall from
that meeting?
A. Well, he told us that we are to withdraw from
the union in order to continue working, and that if
we didn't, there was the door, he- would , square up
with us right then and 'there.
Q. Was anything said-do you recall anything
being said about a wage cut?
A. Yes. He said that the pay would be $7.50 an
hour, we• would not . get paid driving time. or over-
time.
Q. Do you recall whether any employees replied
to Mr. McWhorter?
A. Well, there was something said; I don't recall
exactly what was said We all continued to work
there.
During cross-examination, Scoles acknowledged that
he did not withdraw from the union following that meet-
ing, and that neither he nor anyone else was "shown the
door." Lambuth also acknowledged that no one was
fired by McWhorter following that meeting. (See Tr.
195, and see also his account at Tr. 184 and 185)
Bixler said that he' Was told by Scoles that McWhorter
had told the employees to take a withdrawal from the
Union, or they could no longer be employed by him.
(The foregoing testimony by Butler was not received
into evidence to prove the truth of the matter asserted
by the out-of-court declarant. See the discussion at Tr.
152-155 and Fed R. Evid 801.) Bixler said' that one of
his dillies, as A union business agent was "to police" the
Union's contracts or, in other words, to ascertain wheth-
er the contract's terms are being fulfilled. Aecording to
Bixler, at one time all of McWhorter's employees were
paying union dues, but subsequently they quit doing so.
He acknowledged that he did not request McWhorter to
terminate any employee after Bixler learned that the em-
ployee, was no longer paying union dues (See the union-
security clause set forth in art. 4 of G.C. Exh. 3.)
D. The Events in January 1982
• As indicated previously in section A of this decision,
McWhorter changed the name of his business in January
1982 from McWhorter Trucking to .1 & B Trucking.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly .after January 1, 1982, there was a conversation
between McWhorter and Lambuth in the shop one after-
noon after working hours. Lambuth recalled that conver-
sation as reflected in his testimony at transcript pages 185
and 186: -
Q. Could you tell us what was said and by whom
in that conversation?
A. Well; Jake McWhorter insisted that we take a
withdrawal. At the time, that did not apply to me
because I was under suspension. He had told me
that we will have nothing to do with the union and
we will not get above $7 50 an hour until times got
better And I presumed—he told me he was going
to tell the rest of the drivers that. I presume he did,
I don't know.
At the trial, Lambuth acknowledged during cross-ex-
amination that no one was fired by McWhorter at the
time of his January 1982 conversation.
Also in January 1982, McWhorter telephoned Easdon.
At the trial; Easdon recalled their telephone conversa-
tion as reflected at transcript page 39; -
Q. Could you tell us what was said and by whom
in that conversation?
A. Mr. McWhorter expressed to me that he
could no longer live with the contract that he had
signed, that he wanted the union to be informed
that his intentions were that he was not going to
live with that contract. I believe he said that he had
changed the name of his company. -
-
My response was that we felt like the contract was
binding through the expiration date of the contract
and we expected him to live by it and that he had
an obligation to do that.
E The Events in February 1982
Introduced into evidence as General Counsel's Exhibit
11 was .a copy of a grievance which the Union filed
against the Respondent. The document is dated February
22, 1982, and it was signed by union business agent
Baler. The Union alleged that the Respondent had vio-
lated the contract with the Union in several respects, and
the Union sought full backpay and payment of wages
and benefits for all employees.
On February 22,1982, Baler took the grievance form
to McWhorter's business location, and he gave the griev-
ance to McWhorter. According to Bixler, McWhorter
told him that he was not, going to pay the money;
McWhorter wadded up the grievance form . and threw it
on the floor; and then McWhorter told Bixler, "If you
don't get out of my shop, I will kick your [expletive de-
leted]." (See Tr. 132 and 133.) Bixler then left the facili-
ty.
According to Baler, the allegations in the Union's
grievance were based on information obtained on De-
cember 15, 1981, during a visit to a McWhorter jobsite.
Baler and Dean Kitterman, who is the Union's secre-
tary-treasurer and business representative, .went to a job-
site at Broadway and Colfax. Baler spoke with Frank
Scoles, .Marc Hobbs, and Donald Lambuth, who were
working there. According to Bixler, Scoles told him that
he did not know for sure what McWhorter was paying
the employees. Hobbs did not tell anything to Bixler at
that time. Lambuth informed Bixler that McWhorter was
paying $7.50 an hour, which was below the union wage
scale. .
Introduced into evidence as General Counsel's Exhibit
12 was a copy of a letter dated February 25, 1982, from
Bixler to McWhorter. In his letter, Bixler requested a
meeting with McWhorter at 9 a.m. on March 2, 1982, at
the Union's offices to resolve the issues raised by the
Union's grievance.
F.-The Events in March 1982
After the Union's grievance was filed, McWhorter en-
gaged the serviced of Willie Anthony as i labor consult-
ant, and McWhorter directed Anthony to meet with the
Union about the grievance. (See Tr. 32.)
On March 9, 1982, Easdon and Jack Parker, who is
the . president of the Charging Party Union, met in the
Union's ,offices with Antluiny. According to Easdon,
Anthony said, [H]e was there to attempt to settle the
grievance which had been filed." (See Tr. 44.) Accord-
ing to Easdon, Anthony also "stated that the Company
had had problens with us in the past, that they wanted to
clear up -those problems, that they would remain union,
that they wanted to draw up a settlement that settled all
matters of this grievance." (See Tr. 57.)'
Introduced into evidence as General Counsel's Exhibit
4(a) was a copy of a letter dated March 10, 1982, from
Easdoti to Anthony with regard to the agreement which
was reached between the Company and ' the Union. In-
troduced into evidence as General Counsel's Exhibit 4(b)
was a copy of the agreement which is dated March 10,
1982, and which bears the signatures of McWhorter for
the Respondent and Easdon for the Charging Party
Union.
The foregoing matters were not received into evidence
to prove the liability of the Respondent for, or the valid-
ity of, the Union's claim or the amount of that claim.
(See' Fed.k.Evid. 408.) Instead, the General Counsel
urged . , that the foregoing was offered to meet the Re-
spondent's contention in the answer' to the General
Counsel's complaint that 'the Respondent had repudiated
its contract with the Union on January 1, 1982, and its
affirmative defense , that the Union's unfair labor practice
charge, which was filed, on September 3, 1982, was
barred ,by the 6-month statute of limitations provisions,
which are set forth in Section 10(b) Of the Act. (See par.
XI and also the "First Defense" set forth in the Re-
spondent's answer, which was introduced into evidence
as G.C. Exh. 1(e).) The General Counsel urged, "I'm
trying to offer this to show_ that Respondent engaged in
conduct that was inconsistent with its position that it re-
pudiated the contract on January 1, 1982." (See Tr. 45
and see also the discussions at Tr. 44-56; 58-59; 61-62;
and 63-66.)
- G. The Events in April 1982
Introduced into evidence as General Counsel's Exhibit
5 was a copy of a letter dated April 13, 1982, from
MCWHORTER TRUCKING 375
Easclon to McWhorter which, among other things, al-
leged that the unit employees had not received their
money from the Company in accordance with the agree-
ment which was introduced into evidence as General
Counsel's Exhibit 4(b).
Introduced into evidence as General Counsel's Exhibit
6 was a copy of a letter dated April 19, 1982, from the
Respondent and addressed "To Whom It May Concern."
A copy of the letter was received by the Union on May
3, 1982. In part, General Counsel's Exhibit 6 states, "The
following employees when working for McWhorter
Trucking have been paid Union Scale & Benefits from
the signing of the Union Contract until McWhorter
Trucking ceased operations." (The spelling of certain
words appear as corrected.) Thereafter, the typed names
and the signatures of certain employees appeared. They
are. Don Lambuth, Marc Hobbs, Ed Scoles and Bob
Burdolski. The letter was signed by McWhorter.
Lambuth recalled at the trial the circumstances under
which he had signed the, document which was intro-
duced into evidence as General Counsel's Exhibit 6.
Lambuth stated at transcript page 186, "I had just gotten
off work. I- came into the shop. Jake had asked me to
read it and sign it. I had read it. I was not exactly will-
ing to sign it. He had told me if I wanted my paycheck
to sign it, so I did " Lambuth later testified, "I think
shortly after that he left." (See Tr 196.)
Scoles also recalled at the trial the circumstances
under which he signed General Counsel's Exhibit 6. He
said that McWhorter was not present in the shop at the
time when he came in to get his paycheck. However,
McWhorter had left a note on the desk for Marc Hobbs.
Scoles recognized the handwriting on the note as being
McWhorter's handwriting. Scoles said at transcript page
168, "He left a note for us, for Marc Hobbs to inform us
that we are to sign this paper before he is to give us our
checks." Scoles then signed General Counsel's Exhibit 6,
and he received his paycheck.
According to Scoles, McWhorter had not been paying
union scale and benefits either while McWhorter was
doing business as McWhorter Trucking or while he was
doing business as J & B Trucking. (See Tr. 173) Howev-
er, Scoles acknowledged that he had not made any com-
plaints to the union or filed any -grievance saying that he
was not receiving union scale. (See Tr. 174.)
Easdon acknowledged at the trial that for policy rea-
sons the Union decided not to pursue further the Union's
grievance through arbitration or other legal action.
H. The Events in May 1982
Introduced into evidence as General Counsel's Exhibit
7 was a copy of a letter dated May 6, 1982, from Easdon
to McWhorter. Easdon wrote the letter in response to
McWhorter's letter which was dated April 19, 1982, and
which was introduced into evidence as General Coun-
sel's Exhibit 6. Among other things, Easdon asserted his
belief in the letter that the Respondent was still in busi-
ness and was still obligated to the contract with the
Union.
I The Events in July 1982
About 6 a.m. on July 23, 1982, union business agent
Bixler and another Union Business Agent, George Del
Monte, went to the area near the Respondent's shop.
They watched the yard there until about 7 -a m. During
that period of time, McWhorter's trucks rernimed in the
yard As a result of what Del Monte said he had seen
earlier in the week, Baler and Del Monte drove out
Parker Road beyond Arapahoe Road South to a housing
project. Baler observed two trucks and a loader at that
location. He said that McWhorter's name was 'on the
trucks Bixler got out of the car and went over to one of
the trucks where he spoke with McWhorter's son and
another person who was sitting in the truck. Baler asked
them if they were carrying union cards, and they replied,
"no."
Bixler then returned to his car, and he and Del Monte
drove around the jobsite Baler noted that there was
only a truck there from a cement company. As Baler
and Del Monte were driving out, they went by the truck
where McWhorter's son and another person had been
sitting. McWhorter's son got out of the truck and came
over to Baler's car. McWhorter's son told Bixler that he
had purchased the trucks and that they belonged to him.
He referred to Baler by a derogatory term, and he told
Baler that he did not want Bixler to stop his trucks and
bother his drivers any more. (See Tr. 141.) Baler replied
that he would stop and check the trucks as long as there
was a contract. Baler and Del Monte then left the job-
site.
The foregoing conversations were not received into
evidence to prove the truth of the matters asserted by
the out-of-court declarants. See the discussion at- tran-
script pages 139-141 and 142146, and also Rule 801 of
the Federal Rules of Evidence.
About a week prior to July 27, 1982, there was a
meeting of employees with McWhorter in the middle of
the afternoon during working hours at a jobsite across
the street at Colfax and Havana. Lambuth recalled at the
tnal that McWhorter told the employees that they were
going to get a raise to $9 an hour Lambuth also testified
at transcript page 187 that McWhorter further told the
employees, "[H]e would never have anything to do with
the union. Anyone talking to a business rep [expletive de-
leted] can go down the road and they're fired." Lambuth
further testified regarding that meeting at transcript page
188, "He had said that he would like us to go down and
tell the union, tell the business reps that we did not want
to be represented by them anymore and to leave us alone
and to stay off our jobs."
During cross-examination, Lambuth acknowledged
that Bixler had come out to the jobs, that McWhorter
was aware of that fact, and that McWhorter was con-
cerned that people were talking to. union representatives
during working hours. (See Tr 197.) However, he spe-
cifically denied that McWhorter asked the employees
simply not to talk to the union representative during
working hours. (See Tr 198.) Lambuth acknowledged
that he did not know of anyone being fired by
McWhorter just for talking to union representatives.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During cross-examination, Scoles acknowledged that,
at the time of the meeting described above, Scoles had
already been suspended from the Union for his failure to
pay his union dues. (See Tr. 174.) Scoles said that after
he had ceased to pay his union dues, he did not care
whether or not the union represented him. (See Tr. 175.)
Scoles also acknowledged that McWhorter was aware of
the fact that union representatives had attempted to talk
with Scoles during his working hours by trying to stop
his truck while Scoles was making a delivery. (See Tr.
176.) However, Scoles stated that McWhorter did not
limit his statement to the employees at the meeting just
to not talk with union representatives during working
hours. Scoles , testified at transcript page 176, "He told us
he did not want us associating with them, talking to
them, or anything, at all, period. He didn't say whether
it was at home or at the job or at anywhere else. He
never speeified He said period." In Scoles' opinion, the
union representatives had the right to visit employees on
the job. (See Tr 176 and 177, and see also art. 12, enti-
tled "Job Admission," on 14 of G.0 Exh. 3.)
Around lunchtime on Tuesday, July 27, 1982,
McWhorter and Lambuth had a conversation in
McWhorter's white Chevrolet pickup truck at a jobsite
either on South Parker Road or at Colfax and Tower
Road. Lambuth testified regarding their conversation as
reflected at transcript page 188:
Q. Could you tell us what was said and by whom
in that conversation?
A. Jake and I were alone in the pickup. We had
discussed—I had told him that I was thinking about
getting straight with the union. And he said he
cannot use anyone that's in the union, that he will
never go back into the union and if I did, he would
no longer need my services.
During cross-examination, Lambuth recalled that
McWhorter also told him during that 'conversation that
McWhorter was nonunion, and that McWhorter could
not afford to pay union scale. (See Tr. 200.) Lambuth ac-
knowledged at the trial that McWhorter's statements to
him in "that conversation did not surprise Lambuth.
About 4-30 or 5 p m. on July 27, 1982, Lambuth went
to the offices of the Charging Party Union. Lambuth ap-
peared before a union committee, and he sought rein-
statement in the Union. During cross-examination, Lam-
buth acknowledged that he was told by the Union that if
he was going to be a union member, he could not work
for McWhorter anymore unless McWhorter paid the
union wage scale. (See Tr. 202.) Lambuth told the union
representatives that McWhorter "probably would" fire
him if he joined the Union, and that McWhorter had said
that "he needed no one that was union and anyone that
was would be dismissed." (See Tr. 220.) The meeting
with the union committee lasted for about an hour. Lam-
buth was to pay a fine of $100 and also all of his back
union dues for a total of $337. Lambuth did not have
that amount of money with him at that time, but he paid
the full amount the following day.
At the trial, Lambuth explained his reasons for seeking
reinstatement in the union at that time. First of all, he
considered the years he had acquired in the union
toward retirement. -Secondly, he was of the opinion that
he did more than- the other truck drivers who worked
for McWhorter, and that he deserved more than $9 an
hour, which was the amount of money McWhorter was
going to pay them. Lambuth said he had hopes that
McWhorter would pay him the -union wage scale. Lam-
buth also felt that he could go to work for another com-
pany and be paid the union wage scale. In fact, Lambuth
did obtain such a job about a week and a half after July
27, 1982.
About 7 p.m. on July 27, 1982, Lambuth telephoned
McWhorter Lambuth explained at transcript page 190,,
"We do that regularly to find out what we do the next
day." With regard to his telephone conversation on that
particular occasion, Lambuth gave the following account
at 'transcript page 190.
Q. Could you tell us what was said and by whom
in that conversation?
• A. Yes. I had called him, I had told him, "I have
gotten straight with the union." He had told .me,
"Well, you remember what we talked about this
afternoon?" I told him, "Yes." And he said, "Well,
that's it, you're fired."
Q. What, if anything, did you say in reply?
A. I said, "If that's the way you feel, good-bye,"
and that was the end of the conversation.
During cross-examination, Lambuth further testified
that McWhorter also told him that he was not paying
union scale, and, "I don't need anybody that will join the
union and I will fire him immediately, and you're no ex-
ception." (See Tr 204.) Lambuth added that McWhorter
also told him, "Pick up your check tomorrow at the
shop." (See Tr. 205.)
Introduced into evidence as Respondent's Exhibit 1(b)
was a copy of a grievance dated July 28, 1982, which
was filed against the Respondent. Bixler was the one
who wrote the language of the grievance. It was signed
by Lambuth The grievance alleges- "I was unjustly dis-
charged for reinstating in the Union and demanding
proper pay scale and further demanding back wages due
as agreed to by Jake McWhorter in letter dated March
10, 1982." At the trial, Lambuth explained that Bixler
had shown him a paper pertaining to McWhorter's
paying back wages, but, previously, Lambuth had not
made a demand on McWhorter for any kind of back
wages. He explained at transcript page 209, "We
couldn't get scale, much less back wages. We were
trying to take one step at a time."
Bixler attempted to deliver the grievance, which was
introduced into evidence as Respondent's Exhibit 1(b),
on July 30, 1982. When Bixler went to the Respondent's
shop, he discovered that the shop was locked, the trucks
were gone, and no one was there
J. The Events in August 1982
Introduced into evidence as Respondent's Exhibit 1(a)
was a copy Of a letter dated August 2, 1982, from Baler
to McWhorter. The letter requested that a meeting be
held between the Company and the Union with regard
,MCWHORTER TRUCKING 377
to the grievance pertaining to Lambuth. (See sec. I.
herein and R. Exh. 1(b).) Subsequently, the letter was re-
turned to the Union unclaimed. (See R. Exh. 1(c).) Bixler
also telephoned McWhorter's office on August 2, 1982,
and he was told that McWhorter was on vacation.
On August 2, 1982, Scoles received a wage increase
from $7.50 an hour to $9 an hour.
On August 21, 1982, Scoles went "dirt biking" with
other employees and McWhorter. Scoles recalled at the
trial that some of those employees were Robert Bur-
dolski, Mark Hobbs, Steve Crawford, and Gary Hobbs.
The group had lunch at the Twin Cedars Cafe in Deck-
ers, Colorado. During their conversation at lunch that
day, Lambuth's name was mentioned. Scoles testified at
transcript page 171, "Well, I don't remember who had
brought up the subject The subject came up about why
Don hadn't been working. Jake said it was because of
him being with the union is why he's not working. That
was it. That was all that was said about anything."
During cross-examination, Scoles - acknowledged that
McWhorter had not told them that McWhorter had fired
Lambuth because he had joined the Union. (See Tr. 176.)
K The Events in November 1982
Introduced into evidence as General Counsel's Exhibit
9 was a copy of a letter from McWhorter to Easdon,
which was received in the Union's office on November
1, 1982.
In his letter, McWhorter expressed his surprise at the
Union's filing of an unfair labor practice charge.
McWhorter asserted that he had informed Easdon
January 1982 that "I had nothing further to do with the
Union and that I was terminating the contract."
McWhorter expressed his view that the Union had done
nothing about the fact that McWhorter was not abiding
by 'the terms of the contract, and, therefore, the Union
had agreed to the repudiation and termination of the
contract. McWhorter also asserted in his letter that since
July 1981 the Union had not represented a majority of
his employees.
In response to General Counsel's Exhibit 9, Easdon
wrote a letter dated November 1, 1982, to McWhorter.
A copy of Easdon's letter was introduced into evidence
as General Counsel's Exhibit 10.
In his letter, Easdon asserted that the Union had at-
tempted to enforce the provisions of . the contract, and he
listed in his letter the dates and the actions taken by the
Union in that respect. Easdon also expressed a desire to
settle the grievance pertaining to Lambuth, and 'he re-
quested a meeting with the Company to accompli'sh that.
IV. CONCLUSIONS
a. The Allegations of Conduct Independently Violative
of Section 8(a)(1) of the Act
In paragraph V of his complaint, the General Counsel
sets forth three allegations with regard to conduct which
he urges independently violates Section 8(a)(1) of the
Act. Those three specific allegations are:
(a) On or about July 20, 1982, Respondent, acting
by and through Jake McWhorter, told Respondent's
employees to tell the Union that the employees did
not want the Union representatives bothering them.
(b) On or about July 27, 1982, Respondent, acting
by and through Jake McWhorter, told an employee
that if he rejoined the Union he would be immedi-
ately discharged.
(c) On or about July 27, 1982, Jake McWhorter
told an employee that any employees caught talking
to any Union representatives would be immediately
discharged.
Without repeating here all of the findings of fact con-
tained in section I of this decision, I conclude that a pre-
ponderance of the evidence supports the General Coun-
sel's allegations. In this connection, I note the uncontra-
dicted testimony given by Lambuth and the uncontra-
dieted testimony given by Scoles with regard to the
statements they attribute to McWhorter. With regard to
the allegations in paragraph V(a) of the General Coun-
sel's complaint, it will be remembered that the testimony
reveals that no limitation, such as working time, was
placed by McWhorter on his statement to the employees.
Also, McWhorter's statement to the employees must be
considered in the context of his telling employees at the
meeting that anyone who -talked with a union representa-
tive would be fired. That is the substance of the allega-
tion of paragraph V(c) of the General Counsel's com-
plaint, although paragraph V(c) alleges the date as "on
or about July 27, 1982," whereas the evidence reveals it
was said "on or about July 20, 1982." I conclude that the
minor variance in the approximate date of the allegation
does not preclude the finding of an unfair labor practice
where the date is relatively close in point of time. In ad-
dition, paragraph V(c) alleges the singular term "employ-
ee," rather than the plural, but this variation also seems
to be minor, particularly where there are only three alle-
gations of 8(a)(1) conduct, and all three allegations are
attributed to the same person who did not dispute the
testimony. With regard to the allegations in paragraph
V(b) of the General Counsel's complaint, I note the un-
contradicted testimony of Lambuth, as set forth in sec-
tion I herein, with regard to his conversations with
McWhorter on July 27, 1982, in a pickup truck and later
on the telephone.
In reaching the foregoing conclusions, I have been
guided by the Board's holding with regard to allegations
of 8(a)(1) conduct that "the test is whether the supervi-
sor's conduct reasonably tended to interfere with the free
exercise of the employee's rights under the Act. Florida
Steel Corp., 224 NLRB 45 (1976), citing Hanes Hosiery,
219 NLRB 338 (1975). See also Saint Luke's Hospital,
258 NLRB 321 (1981). Thus, an objective standard,
rather than the subjective reactions of the employees, has
been utilized in determining whether such statements
violate Section 8(a)(1) of the Act.
b. The Allegations of Conduct in Violation of Section
8(a)(1) and (3) of the Act
In paragraphs VI and VII of his complaint, the Gener-
al Counsel sets forth allegations with regard to the termi-
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation of Lambuth, which are urged to be in violation of
Section 8(a)(1) and (3) of the Act. Those allegations are.
VI
On or about July 27, 1982, Respondent dis-
charged Donald Lambuth, an employee at its Lake-
wood, Colorado location, and at all times since has
failed and refused, and continues to fail and refuse
to reinstate this employee.
VII
The Respondent engaged in the acts and conduct
described above in paragraph VI because of said
employee's membership in and activities on behalf
of the Union.
As set forth in section I herein, I conclude from those
findings of fact that a preponderance of the evidence es-
tablishes the General Counsel's allegations with regard to
the termination of Lambuth and the failure and refusal to
reinstate him. Wright Line, 251 NLRB 1083 (1980). See
also NLRB v. Transportation Management Corp.,. 462 U.S.
394 (1983).
The evidence, as described in section I herein, shows
union activity on the part of Lambuth in rejoining the
Charging Party Union; the Employer's knowledge of
Lambuth's having done so, and the immediate termina-
tion of Lambuth by McWhorter because Lambuth re-
joined the Union. In addition, there is other evidence set
forth in the findings of fact which shows hostility toward
the Union by McWhorter, and there is also concurrent
conduct described above of violations of Section 8(a)(1)
of the Act. Furthermore, as described in section I herein,
based on the testimony of Scoles, McWhorter told the
employees regarding Lambuth, "[lit was because of him
being with the union is why he's not working." While
McWhorter did not admit to the employees that he had
terminated Lambuth for that reason, McWhOrter's state-
ment has to be considered in light of the other findings
of fact herein that McWhorter did discharge Lambuth
from employment immediately on learning that Lambuth
had rejoined the union, and that Lambuth did not volun-
tarily quit
c. The Allegations of Conduct in Violation of Section
8(a)(1) and (5) of the Act
In paragraph XI of his complaint, the General Counsel
sets forth three allegations with regard to the failure and
refusal to bargain with the Union by McWhorter, which
the General Counsel urges to be in violation of Section
8(a)(1) and (5) of the Act. Those three specific allega-
tions are:
(a) Since on or about February 3, 1982, Respond-
ent has failed and refused to meet and bargain with
the Union concerning wages, hours, and other
terms and conditions of employment.
(b) On or about July 20, 1982, Respondent repu-
diated its contract with the. Union and negotiated
directly with its employees.
(c) On or about July 20, 1982, Respondent unilat-
erally granted a wage increase to its employees.
The allegations in paragraph XI(a) of the General
Counsel's complaint are the only ones which allege that
unfair labor practices occurred beyond the 10(b) period.
I calculate that the ' 10(b) date is March 3, 1982. That cal-
culation is based on the filing of the unfair labor practice
charge on September 3, 1982, by the Charging Party
Union, and the service of the charge by mail on Septem-
ber 3, 1982. (See G.C. Exhs. 1(a) and 1(b), Sec. 102.113
*of the Board's Rules and Regulations, and the stipulation
at Tr. 7.)
I have considered certain findings of fact which oc-
curred before March 3, 1982, insofar as those findings
shed light on the conduct which occurred on and after
March 3, 1982. For example, see the findings in sections
C, D, and E, all of which occurred prior to the 10(b)
date,. but which shed light on the events which took
place after the 10(b) date. In this connection, I have been
guided by the Board's holding in Tr-City Electric Co.,
264 NLRB 1407, 1408 (1982):
We note at the outset that conduct which has oc-
curred outside the 10(b) period cannot form the
basis for unfair labor practice findings. However,
pre-Section 10(b) evidence may be relied on for the
purpose of throwing light on and evaluating con-
duct which occurred within the 10(b) period. The
Motor Convoy, Inc., 252 NLRB 1253 (1980); Pandair
Freight, Inc., 253 NLRB 973 (1980).
Notwithstanding McWhorter's statement to Easdon in
January 1982, as set forth in section D herein, and
McWhoner's statement to Biiler on February 22, 1982,
as reflected in section E herein, the Respondent's agent
thereafter did meet with the Union' and reached an
agreement with the Union which both parties signed on
March 10, 1982. (See sec. F also.) The General Counsel
and the attorney for the Respondent view the foregoing
events from different perspectives.. The General Counsel
urges that the Respondent acted in bad faith and "This
misconduct is tantamount to fraudulent concealment."
(See pp. 20 and 21 of the posttnal brief filed on behalf of
the General Counsel for a fuller argument on this point.)
The Respondent urges, - "In conclusion, Respondent's
conduct from January 1, 1982, and thereafter, both ex-
pressed and implied, clearly evidences repudiation of the
pre-hire agreement. Therefore, the record clearly sup-
ports that Jake McWhorter had repudiated the pre-hire
agreement as early as January, 1982, or at the latest
March, 1982. After that time, Respondent had no obliga-
tion to collectively bargain with the Union." (See pp. 7-
9 of the posttnal brief filed on behalf of the Respondent
for a fuller argument on this point.)
I conclude that the Respondent's failure to abide by all
of the terms of the collective-bargaining agreement and
the Respondent's statements to Easdon and Bixler prior
to the 10(b) date show that there was no fraudulent con-
cealment of the Respondent's action in this regard. On
the other hand, such conduct does not preclude the find-
ing of unfair labor practices based on conduct which oc-
curred on and after the 10(b) date. See Ellis Tacke Co.,
229 NLRB 1296, 1296 (1977), where the Board held:
: MCWHORTER TRUCKING 379
Respondent disavowed the contract in October
1975. However, even prior to that date it refused to
comply with some of the terms of the agreement. In
a similar case, the Board in Nelson-Hershfield Elec-
tronics,'188 NLRB 26 (1971), required the respond-
ent to honor its collective-bargaining agreement ret-
roactively to the commencement of the 10(b)
period. We find that a similar refusal-to-bargain vio-
lation exists in the circumstances of this case and we
hold that the Administrative Law Judge . erred in
ordering that Respondent honor the collective-bar-
gaining agreement only prospectively. Accordingly,
we will require Respondent to honor the collective-
bargaining agreement retroactive to the start of the
10(b) period.
In view of the foregoing, we 'also find that the
Administrative Law Judge .erred in not providing
for any retroactive payments to the respective trust
funds pursuant to the collective-bargaining agree-
ment. Such retroactive payments will prevent Re-
spondent from reaping financial gain from its un-
lawful conduct.
After considering the foregoing, I conclude that the
10(b) date is the appropriate date for the finding of the
commencement of the Respondent's failure and refusal to
meet and to bargain in good faith with the Union. As in-
dicated previously, I calculate that date as being March
3, 1982. The Union's actions in filing grievances, filing an
unfair labor practice charge, and writing letters to the
Respondent are indicative that the Union did not waive
its right to bargain with the Respondent and did not ac-
quiesce in die Respondent's actions.
With regard to the allegations in paragraphs XI(b) and
XI(c) of the General Counsel's complaint, I conclude
that the findings of fact as set forth in section herein
establish those allegations. it will be recalled that at a
meeting of the employees about' . July 20, 1982,
McWhorter announced a wage increase to $9 an hour
for his employees, and McWhorter told them "he would
never have anything to do with the union." (See sec. I
herein.)
With regard to the 8(f) issues, I conclude that the find-
ings of fact in section B herein establish that the Charg-
ing Party Union achieved majority status in an appropri-
ate, permanent, and stable unit of McWhorter's employ-
ees during the period of May through June 1981 when
Lambuth was promoted from the mechanic's job to the
position of truckdriver. In Giordano Construction Cot, 256
NLRB 47, 47 (1981), the Board held:
It is well established that a union, originally rec-
ognized under Section 8(f), can achieve Section 9(a)
status in one of two ways. The first means is for the
union to demonstrate that it has achieved majority
status "among employees who make up a permanent
and stable work force of the employer." Precision
Stripping, Inc., 245 NLRB 169 .(1979). Where a,per-
manent and stable work force is not employed by
the employer, however, the union can attain Section
9(a) status only by demonstrating majority status of
the employees employed at a particular jobsite.
Davis Industries, Inc.; Stag Construction, Inc.; and
Add Miles„Inc., 232 NLRB 946 (1977); see, general-
ly, Hageman Underground Construction, et al., 253
NLRB 60 (1980).
, In this connection, note the testimony of Lambuth re-
garding the length of time worked for McWhorter by
the truckdrivers who were employed during the May
thru June 1981 time period. Note also McWhorter's testi-
mony regarding the stability of his work force in the
sense that he did not hire truckdrivers just for one
project and then lay, them off from work when that
project was completed. He "pretty much" used the same
truckdrivers from jobsite to jobsite. See the Board's deci-
sion in Construction Erectors, 265 NLRB 786 (1982).
Six out of the seven employees who were regularly
employed by McWhorter as truckdnvers in the May
thru June 1981 time period were members of the Charg-
ing Party Union at that point in time. They were: Stacy
Carpenter, Terry Gettman, Marc Hobbs, Donald Lam-
buth, Mike •Luman, and Ed Scoles By including in the
unit Al Denver, who became a mechanic at that time;
and also Jerry Crawford, who primarily fueled trucks,
but who occasionally drove trucks, the Union still had a
majority in the unit of six out of nine employees at that
point in time.
• With regard to the status of Jerry McWhorter, he
comes within the definition of an individual who is em-
ployed by his parent, as set forth in Section 2(3) -of the
Act. That is so because the Respondent is a sole propri-
etorship of Jerry McWhorter's father. In Scandia, 167
NLRB 623 (1967), the Board stated:
Section 2(3) of the Act provides that "the term
'employee' . . . shall not include . . . any individual
employed by his parent . . ." Where an employer
does buiiness as a sole proprietorship, it is clear that
his children are statutorily excluded as nidividuals
employed by a parent.
In accordance with the Board's decision quoted above,
I conclude that Jerry McWhorter may not be included in
the unit in question here
After considering the foregoing matters, I further
conclude that the bargaining relationship between
McWhorter and the Charging Party Union ripened from
a prehire relationship, which is permissible under Section
8(f) of the Act, into a 9(a) bargaining relationship when
the Union achieved majority status in an appropriate,
permanent, and stable unit of McWhorter's employees.
Once the Union's majority status was achieved, the Re-
spondent was no longer free to withdraw recognition
from the Union and to repudiate the collective-bargain-
ing agreement in these circumstances. As the Board held
in Hageman Underground Construction, 253 NLRB 60, 63
(1980):
Under the Board law discussed above, from that
time forward Respondent was under a statutory
•duty to recognize the Union as the exclusive bar-
gaining representative of the unit employees work-
ing at existing and future jobsites. And, in view of
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the collective-bargaining agreement in existence, the
Union was entitled to an irrebuttable presumption
of majority status for the duration of the contract.
Accordingly, Respondent was not free to withdraw
recognition from the Union or to repudiate the col-
lective-bargaining agreement in midterm. By doing
so, we conclude that Respondent violated Section
8(a)(5) and (1) - of the Act.
Under the circumstances presented in this case, I con-
clude that McWhorter's decision to change the name of
his business from McWhorter Trucking to J & B Truck-
ing does not preclude the findihg of unfair -labor prac-
tices as alleged in the General Counsel's complaint,
which was issued against "Jake McWhorter; d/b/a
McWhorter Trucking." As indicated in the 'findings - of
fact, McWhorter's action merely involved a changein
the name of his ongoing business enterprise at that time.
He was still the sole proprietor; and he was still engaged
in the same type of business activity. He had the same
office as before, and he utilized the 'same equipment as J
& B Trucking as he had used as McWhorter Trucking.
He retained the same employees under the business' new
name, except for two employees who quit. As described
by Scoles in section C herein, McWhorter told the em-
ployees "he was changing his name to J & B Trucking.
It would be strictly nonunion." Thus, I conclude that
this situation truly was a mere change in the name of the
business enterprise.
Finally, I have considered the fact that 'McWhorter
testified that he had ceased business prior to the time of
the trial, that he had no employees, and that he was un-
employed at that time. (See section I herein.) As indicat-
ed previously in section II herein, Scoles said he was not
lid off from work by McWhorter until December 1982.
Under either version, it appears that McWhorter was not
actively, engaged in business at the time he testified at the
trial. I conclude that the foregoing does not render moot
the issues raised by the pleadings in this case. Those
issues pertained to whether the past actions and past con-
duct alleged in the General Counsel's complaint consti-
tuted unfair labor practices. Thus, up to this stage of the
proceeding, the evidence has focused on past events
when McWhorter was actively engaged in business.
However, issues regarding the time and circumstances of
his cessation of business, and whether McWhorter's busi-
ness operation has resumed since then, are matters per-
taining to compliance with the Board's remedial Order,
and such matters may be raised more appropriately and
more fully in the compliance stage of this case. ,
CONCLUSIONS OF LAW
1. The Respondent has been an employer engaged in
commerce, at the times material herein, within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Charging Party Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. At the tithes material herein, and more particularly
since -May through June 1981, the Union has been the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate bargaining unit:
All emplo'Yees employed by the Respondent at
'the- LakewoOd, Colorado, location, engaged in the
peformance of highway, heavy engineering, utility
" and building construction,-but excluding office den-
' cal employees; guards, professional employees and
supervisors as defined in the Act.
4. The Respondent has -engaged in unfair labor prac-
tices. within the meaning of Section' 8(a)(1) of the Act in
the following manner:
• (a) About July 20, 1982, by telling employees to tell
the union representatives that the -employees did not
want to 'be represented by the Union anymore and for
the union' representatives to leave -the employees alone
and stay off their jobs, and by telling employees that any
employee who talked to, a union representative would be
discharged immediately.
- (b) About July 27,- 1982, by- telling an employee that
he would be -discharged immediately if he rejoined the
Union.
5. -The e Respondent has engaged in' unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act by about July 27, 1982, terminating Donald Lam-
buth' from employment, and failing and refusing to rein-
state him, because of Lambuth's union membership and
activities
6. The Respondent has engaged in unfair labor prac-
tices within the meaning Of Section 8(a)(1) and (5) of the
Act in the following manner.
'(a) - since about March 3, 1982, by failing and refusing
to meet and bargain in good faith with the :Union con-
cerning the wages, hours, and other terms and conditions
of employment of the employees in the unit described
herein ,
(b).` About July 20, 1982, by repudiating his contract
with the Union andnegotiating directly With his employ-
;.
ees in the unit' described herein.
(c) About July 20, 1982, by unilaterally granting a
wage increase , to his employees 'in the unit described
herein. ,
7. The unfair labor practices described above affect
commerce within the meaning of Section 2(6) and , (7) of
the Act. ,
THE REMEDY
Since I have found that the Respondent has engaged
in certain unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the Act, I shall recom-
mend to the Board that the Respondent be ordered to
cease and desist from engaging in such unfair labor prac-
tices. I shall also recommend to the Board that the Re-
spondent be ordered to take certain - affirmative -action in
order to effectuate the policies of the Act. Such recom-
mendations will be set forth in the recommended Order
herein.
In addition, I shall also recommend to the Board that
an expunction remedy- be included in the remedial Order.
Sterling Sugars; -261 NLRB 472 (1982).
Pursuant to , the Board's decision in Hickmott Foods,
242 NLRB 1357 (1979), I 'shall recommend to the Board
that a narrowly worded cease-and-desist Order, as distin-
MCWHORTER TRUCKING 381
guished from a broadly worded one, be imposed in this
case.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent,. Jake McWhorter, d/b/a McWhorter
Trucking and d/b/a J & B Trucking, Lakewood, Colora-
do, his agents, successors, or assigns, shall
1. Cease and desist from
(a) Telling employees to tell the union representatives
that, the employees do not want to be represented by the
union anymore and for the union representatives to leave
the employees alone and stay off their jobs, and telling
employees that any employee who talks to a union repre-
sentative would be discharged immediately.
(b) Telling an employee that he would be discharged
immediately if he rejoined the Union.
(c) Terminating an employee from employment, and
failing and refusing to reinstate him, because of the em-
ployee's union membership and activities.
(d) Failing and refusing to meet and bargain in good
faith with the Union concerning the wages, hours, and
other terms and conditions of employment of the em-
ployees in the unit described herein.
(e) Repudiating his contract with the Union and nego-
tiating directly with his employees in the unit described
herein.
(f) Unilaterally granting a wage increase to his em-
ployees in the unit described herein
(g) In any like or related manner interfering with, re-
straining, or coercing his employees in the exercise Of
the rights guaranteed to them by the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Make whole Donald Lambuth for his monetary
loss, including appropriate interest on such money,
which has resulted from the Respondent's termination of
him from employment, and the Respondent's failure and
refusal to reinstate him Such monetary amount is to be
computed in accordance with the Board's decision in F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest to
be computed in accordance with the Board's decisions in
Isis Plumbing Co., 138 NLRB 716 (1962); Florida Steel
Corp.; 231 NLRB 651 (1977), and Olympic Medical Corp.,
250 NLRB 146 (1980).
(b) Offer imnediate and full reinstatement to Donald
Lambuth to his former position of employment with the
Respondent, without the loss of his seniority or other
benefits but, if his former position of employment no
longer exists, then offer him a substantially equivalent
position of employment with the Respondent, without
the loss of his seniority or other benefits.
(c) Recognize and, on request, bargain collectively
with the union as the exclusive collective bargaining rep,
If no exceptions are filed as 'provided by' Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions,, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
resentative of the employees in the unit described herein,
and abide by the terms of the collective bargaining
agreement between the Respondent and' the Union.
(d) Make whole the unit employees who have incurred
losses of wages and benefits because of the Respondent's
failure to abide by the terms and conditions of the collec-
tive-bargaining agreement between the Respondent and
the Union. Such monetary amounts are to be computed
in accordance with the Board's decision in Ogle Protec-
tion Service, 183 NLRB 682 (1970), with interest thereon
as prescribed in Isis Plumbing Co., 138 NLRB 716 (1962);
Florida Steel Corp., 231 NLRB 651 (1977), and Olympic
Medical Corp., 250 NLRB 146 (1980). In addition, the
Respondent shall pay the contractually agreed-on trust
funds in the amounts of the contributions- which the Re-
spondent failed to make on behalf of the Respondent's
unit employees in accordance with the Board's decision
in Fox Painting Co., 263 NLRB 437 (1982), with any in-
terest applicable to such payments to be computed in ac-
cordance with the Board's decision in Merryweather Opti-
cal Co., 240 NLRB 1213 (1979).
(e) Preserve and, on reqUest, make available to the
Board or its agents for examination and copying, all,pay-:
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Expunge from the Respondent's files any reference
to the termination of Donald Lambuth on July 27, 1982,
and notify him, in writing, that this has been done, and
that evidence of his termination- from employment will
not be used as a basis for future personnel actions against
him.
(g) Post at its Lakewood, Colorado facility copies of
the attached notice marked "Appendix." 2 Copies of the
notice, on forms provided by the Regional Director . for
Region 27, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 can-
secutive days in conspicuous places including all places.
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(h) In the event that the. Respondent has. not resumed
his business operation by the time of the commencement
of compliance with the terms of the Board's Order, then,'
in , lieu of posting the notice to employees as described in
paragraph (g) above, the Respondent shall mail a copy of
the notice to the last known . address of each unit em-
ployee who was employed by the Respondent at the
time of the cessation of the Respondent's business -oper-
ation.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to, comply.
2 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcmg an Order of the Nation-
al Labor Relations Board"