A A Electric Co.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 504 (N.L.R.B. 1969)

504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert Scrivener , d/b/a A A Electric Co. and Local
453, International Brotherhood of Electrical
Workers, AFL-CIO. Case 17-CA-3519
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, JENKINS, AND ZAGORIA
On October 30, 1968, Trial Examiner John M.
Dyer issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief,
and the General Counsel and the Charging Party
filed briefs in support of the Decision. The Charging
Party also filed a brief in response to the
Respondent's exceptions to the Trial Examiner's
Decision.
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 this case, and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner insofar as they are consistent
herewith.
We find, in agreement with the Trial Examiner,
that Respondent's operations have an impact on and
affect interstate commerce within the meaning of
Section 2(6) and (7) of the Act, and therefore fall
within the statutory jurisdiction of the Board.' We
also find, in partial agreement with the Trial
Examiner, that although Respondent's operations do
not meet the Board's discretionary jurisdictional
standards,' it will effectuate the policies of the Act
for the Board to assert jurisdiction in the present
circumstances, but only to the extent and for the
reasons set forth below.
As found by the Trial Examiner and established
by the record, the Respondent on April 18, 1968,
'The branch manager of the Graybar Electric Company facility with
which Respondent does business in Springfield , Missouri , George A
Griffin, testified that he had examined the records of Graybar at
Springfield , and that his examination revealed that Respondent had
purchased approximately $4,769.33 worth of goods and materials from
Graybar during the period of March 21 until May 9 , 1968, and that his
estimate was that approximately 90 percent thereof originated outside the
State of Missouri . Griffin' s testimony as to his examination of records and
as to his estimate of interstate purchase is admissible and competent as
evidence of impact on commerce within the meaning of Sec. 2(6) and (7) of
the Act. N L R.B. v. Jones Lumber Co.. 245 F 2d 388 (C.A 9); N.L.R B
v. Operating Engineers , 243 F 2d 134 (C A. 9); Amalgamated Meat
Cutters and Butcher Workmen of North America (The Great Atlantic and
Pacific Tea Company), 81 NLRB 1052, at fn. I
'Stemons Mailing Service, 122 NLRB 81
discharged employees Wilson, Sanders, Smith, and
Don Cockrum in retaliation against them for having
met with and given evidence to a Board field
examiner investigating unfair labor practice charges
which had been filed against Respondent. We agree
that said discharges interfered with the Board's
investigation of those charges. The investigation of
charges filed is an integral and essential stage of
Board proceedings.'
It is clear that Respondent's conduct falls within
the prohibitions of Section 8(a)(1)' and (4)' of the
Act. These sections are designed, at least in part, to
safeguard the procedure established for the
vindication of Section 7 rights by assuring
protection against employer retaliation to those who
participate therein. As the Supreme Court has
stated, Congress intended that ". . . all persons with
information about unfair labor practices are to be
completely free from coercion against reporting
them to the Board."'
In these circumstances, public policy requires the
Board to assert jurisdiction for the purpose of
remedying the Respondent's unlawful interference
with the statutory right of all employees freely to
resort to and participate in the Board's processes.'
We find, however, contrary to the Trial
Examiner, that it will not effectuate the policies of
the Act for the Board to assert jurisdiction herein
over the alleged independent and unrelated
violations of Section 8(a)(1), (3), and (5) of the Act.
Although the statute imposes no restrictions on the
Board's power to exercise jurisdiction over activities
affecting commerce,' the Board early adopted the
position that it could better effectuate the purposes
of the Act if it did not exercise its jurisdiction to the
fullest extent possible under the authority delegated
to it by Congress. Consistent with that view, and as
the result of experience in the administration of the
Act, the Board decided to limit its exercise of
jurisdiction to enterprises whose operations had a
pronounced impact upon the flow of interstate
commerce. The Board's self-imposed jurisdictional
standards establish the guidelines by which the
Board normally assesses such impact. Adhering to
See Sec . 101 4 of the National Labor Relations Board Statements of
Procedure , Series 8 , as amended , which provides that as a part of the
investigation of unfair labor practice charges a member of the field staff
shall interview representatives of the parties and other persons having
knowledge as to the charges. Cf. N.L R B v. Fant Milling Co . 360 U.S
301, 308 , where the Supreme Court stated that "(o)nce its jurisdiction is
invoked the Board must be left free to make full inquiry under its broad
investigatory power in order properly to discharge the duty of protecting
public rights which Congress has imposed upon it."
'Cf Electra Motive Manufacturing Co, 158 NLRB 534; Southland
Paint Co, 156 NLRB 22; Grand-Central Chrysler , Inc., 155 NLRB 185;
A & P Import Co.. 154 NLRB 938.
'Cf. Hoover Design Corporation , 167 NLRB No. 62, reversed in part
402 F .2d 987 (C.A. 6); Manila Manufacturing Company, 171 NLRB No.
151.
'Nash v. Florida Industrial Comm 'n. 389 U .S 235, 238.
7Pedersen v N.L R B, 234 F 2d 417 (C A 2), Philadelphia Moving
Picture Machine Operators' Union, Local No. 307, 159 NLRB 1614
IN L R B v. Denver Bldg and Constr Trades Council . 341 U.S 675
177 NLRB No. 65
A. A. ELECTRIC CO. 505
the standards in all but exceptional situations such
as that discussed above9 insures the uniform
administration of national labor relations policy and
enables the Board to concentrate its resources on
resolving labor disputes having substantial impact
on commerce.10 This case would have been dismissed
entirely on jurisdictional grounds had the
Respondent not interfered with its employees' right
to resort to the Board's processes. The reason is
that, unlike remedying the violations of Section
8(a)(4), the remedying of the alleged violations of
Section 8(a)(1), (3), and (5) has no immediate
impact on the vindication of the right of an
individual to resort to the Board's processes and
thus provides no independent basis for asserting
jurisdiction. In these circumstances, we find that
equal and effective administration of the policies of
the Act require us to limit our exercise of
jurisdiction to remedying the 8(a)(4) violations.
Accordingly, we shall dismiss those portions of
the complaint alleging independent and unrelated
violations of Section 8(a)(1), (3), and (5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Robert Scrivener, d/b/a A A Electric Co.,
Springfield , Missouri , his agents , successors, and
assigns, shall:
1. Cease and desist from interfering with his
employees' right to be interviewed by an agent of
the Board and to cooperate with the Board in its
investigation of charges by laying off or discharging
his employees for exercising such right.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Don Cockrum, Albert Wilson,
Wesley Smith, and Claude Sanders reinstatement in
accordance with the recommendations set forth in
that section of the Trial Examiner's Decision
entitled "The Remedy," insofar as those
recommendations relate to the discharge of the
above employees occurring on April 18, 1968.
(b) Make Don Cockrum, Albert Wilson, Wesley
Smith, and Claude Sanders -whole for any loss of
pay they may have suffered by reason of
Respondent' s discrimination against them in
accordance with the recommendations set forth in
that section of the Trial Examiner ' s Decision
entitled "The Remedy," insofar as those
recommendations relate to the discharge of the
above employees occurring on April 18, 1968.
(c) Notify Don Cockrum, Albert Wilson, Wesley
Smith , and Claude Sanders if presently serving in
'Compare, also, the Board policy of asserting jurisdiction over all
employers whose operations have a "substantial" impact on national
defense. Ready M& Concrete A Materials, inc., 122 NLRB 318.
"See Slemons Mailing Service, supra.
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) 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,
contracts and contract bids, and all other records
necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at his Springfield, Missouri, shop and
office, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 17,
after being duly signed by his representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed as to any unfair labor
practices alleged but not herein found.
MEMBER FANNING, concurring in part and dissenting
in part:
I agree with the majority's decision in asserting
jurisdiction for the purpose of remedying
Respondent's unlawful discharge of those employees
who utilized the Board's processes. However, I
dissent from my colleagues' refusal to extend the
protection of the Act to also remedy the violations
of 8(a)(1),(3), and (5) of the Act as found by the
Trial Examiner. Once the Board asserts jurisdiction,
public policy requires the fullest exercise thereof in
order to protect employees from any conduct which
is unlawful under the Act. See Philadelphia Moving
Picture Machine Operators' Union, 159 NLRB
1614, footnote 3. I would therefore affirm the Trial
Examiner's Decision in full.
"In the event this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 interfere with your right to be'
interviewed by or give statements or affidavits to agents
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the National Labor Relations Board by laying off or
discharging you because you do so.
WE WILL offer Donald Cockrum , Albert Wilson,
Wesley Smith , and Claude Sanders their former jobs
with all of their rights and any backpay due them.
WE WILL notify the above-mentioned 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.
ROBERT SCRIVENER, D/B/A
A A ELECTRIC CO.
(Employer)
Dated By
(Representative) (Title)
This Notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 610 Federal
Building , 601 East Twelfth Street, Kansas City , Missouri
64106 , Telephone 816-374-5181.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Trial Examiner : On March 21 , 1968,'
Local 453, International Brotherhood of Electrical
Workers, AFL-CIO , hereinafter referred to as the Union,
the IBEW , or Local 453 , filed a charge alleging violations
of Sections 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended , by Robert Scrivener , d/b/a A
A Electric Co., herein called Respondent , Scrivener, or
the Company . This charge was amended on May 13 to
additionally allege violations of Section 8(a)(4) of the Act.
The Regional Director of Region 17 of the National
Labor Relations Board , herein called the Board , issued a
complaint and notice of hearing in this case on May 17
alleging that Respondent violated : ( 1) Section 8(a)(4) of
the Act by the discharge of four employees on April 18
and the refusal to reinstate three of them ; (2) Section
8(a)(3) by discharges of three employees on March 19 and
20, layoffs of two employees on March 27 and refusals to
reinstate one of these employees ; (3) Section 8(a)(5) of the
Act by refusing to bargain with the Union on and after
March 18 ; and (4) Section 8 (a)(1) by interrogating
employees, threatening them with loss of employment, and
blackballing them from other employment and
encouraging employees to join a union of Respondent's
choice and polling them to ascertain their union
sympathy.
Respondent' s answer admits that the Union is a labor
organization , that Respondent is a sole proprietorship in
Springfield , Missouri, and that the charges were filed and
received but denies both that Respondent is subject to the
jurisdiction of the Board and the remaining allegations of
the complaint.
The threshold question here is whether without
discretionary jurisdictional standards being met , the Board
should assert jurisdiction on a statutory basis since the
complaint alleges interference with employees because
'Unless otherwise specified all dates herein occurred in 1968.
they met with and gave evidence to a Board agent
conducting the investigation of this case . If this question is
answered affirmatively there are subsidiary questions such
as the reasons for termination of employees and the
motivation of the other acts alleged , the determination of
which is based mainly on the credibility of the witnesses.
All parties were afforded full opportunity to participate
and to examine and cross-examine witnesses in the hearing
held June 25 and 26, at Springfield , Missouri. All parties
have filed extensive briefs which have been carefully
considered.
Upon the complete record in this case and on my
evaluation of the reliability of the witnesses based both on
the evidence received and my observation of their
demeanor and on the fact that certain portions of General
Counsel ' s evidence are undenied and therefore stand
uncontradicted by Respondent , I hereby make the
following:
FINDINGS OF FACT
I. THE BUSINESS INVOLVED AND THE LABOR
ORGANIZATION
Respondent Robert A. Scrivener does business as A A
Electric Co . and is a sole proprietor maintaining his place
of business in Springfield, Missouri , where he is primarily
engaged as an electrical contractor installing wiring and
electrical fixtures, etc., in residental construction . During
1967 Respondent' s gross revenues totaled $68 ,938.81 and
during such time Respondent purchased from Graybar
Eectric Company goods and materials used in electrical
contracting work in the amount of $23,126.62.
Mr. George A. Griffin , branch manager of the Graybar
Electric facility in Springfield , Missouri, for the past 13
years, testified that he had been a branch manager for
some 2 years prior to that and was familiar with the
names and origins of the supplies and equipment
maintained and sold in Graybar ' s Springfield facility. He
testified that Graybar is a nationwide company with 147
locations and that it had done and was currently doing
business with Respondent . Graybar's Springfield facility is
under a regional office in Kansas City which maintains
audited copies of the accounts of the customers of the
local Graybar facilities in its region. The local facilities
such as Springfield maintain unaudited copies of the sales
tickets or purchase orders of each customer and so have a
current minimal figure of each customer ' s account.
Mr. Griffin testified that in response to General
Counsel's request, he had contacted his regional office in
Kansas City and that the business records maintained
there reflected that Respondent' s purchases in 1968 until
shortly prior to the hearing amounted to approximately
$18,000 . Mr. Griffin further testified that he had checked
the records kept locally and for a 7 -week period, March
21 until May 9, determined that Respondent ' s purchases
amounted to $4,769 . 33 as a minimum figure.
Griffin was asked to estimate from his knowledge of
the stock maintained locally by Graybar the percentage of
materials which originated outside of Missouri and
answered that about 95 percent of the goods came from
out of State. He was then asked to use the copies of the
purchase , orders available to him and estimate the
percentages of goods bought by Respondent which
originated from out of State and estimated that
approximately 90 percent of Respondent 's purchases were
A. A. ELECTRIC CO.
of goods which originated outside of Missouri . From these
figures for less than half of 1968, it would a ppear that
projected for the full year Respondent' s purchases from
this one supplier , Graybar, of good which originated from
out of State would be in excess of $30,000.
Griffin 's knowledge of the origin of the goods sold at
this facility is based on company records , his knowledge
of the business , and his management of this facility for a
number of years . His estimates are therefore entitled to
weight by me and I credit them.
I conclude and find that Respondent does not meet the
Board' s discretionary jurisdictional standards , but that the
amounts involved are clearly more than de minimis as the
Board has determined that standard before , and that
Respondent ' s purchases of goods shipped in interstate
commerce has an impact on and affects interstate
commerce , and that statutory standards for Board
jurisdiction have been met here.
General Counsel and the Charging Party urge the
Board to exercise jurisdiction here because a part of this
case involves the question of whether Respondent has
abused Board processes and violated the statutory right of
individuals to resort to Board processes by discharging
individuals in violation of Section 8(a)(4). They contend
that in such a situation public policy demands that the
Board exercise its jurisdiction to the fullest extent
possible.'
Respondent argues that the jurisdictional facts are de
minimis at best (a point I have rejected), and that it would
be unjust and a violation of the constitutional guarantees
of equal protection and due process for the Board to
assert jurisdiction here . Respondent' s latter claim as set
forth in its brief alleges that small businesses such as this
can be made to answer for violations of the Act merely by
the General Counsel using the ploy of alleging that
Section 8 (a)(4) of the Act has been violated while such a
company would be denied an opportunity to use the
election processes of the Board . This argument begs the
issue of the Pederson case , supra, since assertion of
jurisdiction ultimately will be based on the determination
of whether such a company has violated Section 8 (a)(4) of
the Act. If after hearing the evidence the answer is that
the company has not breached Section 8(a)(4) then there
is no reason to assert jurisdiction in vindication of public
policy , and jurisdiction of the matter would be declined.
In furtherance of its position Respondent argues from
the facts of the instant case and from decisions it has
interpreted that a violation of Section 8(a)(4) can not be
shown here and that the complaint should be dismissed.
As will be seen herein , I have determined that Respondent
did violate Section 8 (a)(4) of the Act, thereby interfering
with Board processes and in violation of public policy and
accordingly recommend that the Board assert its statutory
jurisdiction in this matter.
Accordingly , I conclude and find that it will effectuate
the purposes of the Act for the Board to assert its
statutory jurisdiction over this Respondent, since
Respondent' s activities affect interstate commerce and do
have an impact thereon.
Respondent admits and I find that Local 453,
International Brotherhood of Electrical Workers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
'See Philadelphia Moving Picture Machine Operators ' Union Local No
307 l A T.S.E. (Velio tacobucci) , 159 NLRB 1614, and Eugen Pederson
v. N L.R. B, 234 F . 2d 417 (C A. 2).
507
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
Robert Scrivener testified he has been an electrician
since 1936 and has belonged to either the Union herein or
to another IBEW local in Tulsa, Oklahoma, for
approximately 20 years. Approximately 3 years ago
Scrivener started his present business as A A Electric Co.,
which he runs from a shop next to his home in
Springfield , Missouri . His wife assists him by apparently
handling the bookkeeping and clerical functions. Materials
and supplies are kept at the shop and the employees,
report there to load their trucks and receive their
assignments , and return there after work.
Although Respondent's principal work has been in the
area of residential construction , Scrivener has had some
commercial work such as wiring apartment houses. In
mid-March Scrivener had work in a number of
single-family homes , one or more duplexes , and at least
one apartment house . At that time he had six employees;
three journeymen , Wesley Smith , an employee since
August 1966, Albert Wilson from early 1965 until early
1966 and from February 1967 on, and Bill Cockrum since
February 1968; and three apprentices or helpers, Claude
Sanders employed from February or March 1967, Charles
"Don" Cockrum employed on four or five different
occasions over the 3 -year period with the last beginning
January 1968, and Boyd Perryman.
There is disagreement as to the manner of termination
of the employees on various dates although there is no
disagreement as to the dates they ceased working for the
Company nor that Respondent hired two new employees
after learning of the union activities of five of the six
employees it had in mid-March. Further there is
disagreement regarding some of the statements , Scrivener
is alleged to have made but there are certain remarks and
actions of his which are undenied.
The parties agree that the unit appropriate for
collective bargaining at Respondent is "All employees
employed by the Respondent excluding office clerical
employees, guards and supervisors as defined in the Act."
The Union and the General Counsel claim that the
makeup of the unit as of the morning of March 19, the
time when the union representatives met with Respondent
and orally claimed a majority and demanded recognition,
is the proper one on which to determine majority status.
Under this theory the unit consisted of the six employees
named above.
Respondent at the hearing took the position that the
unit for purposes of determining majority should consist
of the six employees named above plus the employees it
had at the time of the hearing. These additional employees
would be journeyman Clyde Hunt, hired by Scrivener on
March 19 after his meeting with Union Officials Jack
Moore and Ray Edwards, apprentice Jim Statton hired by
Scrivener on March 20 or 21, Richard Claybaugh,' and
employee of another firm who works for Scrivener when
he wants to do so if Scrivener has work available, and
Albert Hunt,' Clyde Hunt's son, who works part time
during school vacation in the summer when he wants to
work and Scrivener has work available. Respondent also
claims that Clyde Hunt and Claybaugh had both worked
before March 20 and should be included in the unit if
March 20 were the appropriate date for unit
determination . Finally at the hearing Respondent said the
'Under applicable Board law neither Claybaugh or Albert Hunt qualify
as employees entitled to a voice in determining a bargaining agent since
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board should determine the appropriate date and the
employee complement.
In its brief Respondent changes its position completely
on these matters and asserts that the Union did not make
a true legal demand on it during the March 19 . meeting,
since it claims the Union demanded it then sign a contract
containing nonmandatory bargaining subjects. The first
legal demand, according to its theory, occurred on March
21, when it received the Union ' s letter containing a
demand and alleging that it had violated the Act.
Respondent states that on that date its employee
complement consisted of Claude Sanders , Don Cockrum,
Boyd Perryman, Clyde Hunt, Jim Statton, and Richard
Claybaugh, and that only Cockrum had signed a union
card of this group .' Under its theory employees Bill
Cockrum, Wilson, and Smith had separated themselves
from its employ on March 20 and were not part of the
unit.
As can be seen from Respondent's shifting positions, it
did not have an original theory in regard to these
questions either when it refused to bargain with the
Union, or at the trial of this matter, but rather has
fashioned a theory to suit its version of the facts following
the hearing.
Respondent however maintained one other position
relevant to the refusal -to-bargain allegation and that is
that when he was shown the five union authorization
cards, Scrivener claims he had a good -faith doubt as to
the genuineness of the signatures . His contradictory
testimony in regard to this point and my decision that
Scrivener acted in bad faith will be set forth below.
In their testimony it appeared to me that Wilson,
Smith, Sanders, and Bill Cockrum testified
straightforwardly and tried to state the facts as they
remembered them. Scrivener however testified to different
things depending on who was questioning him and
contradicted himself on a number of items such as
whether he did or did not tell Jack Moore he doubted the
genuineness of the ' signatures on the union authorization
cards . Further Scrivener' s undenied actions contradicted
some of his testimony.
As to employee "Don" Cockrum I have determined to
credit his testimony where it is substantiated either by his
affidavit or other independent testimony. Cockrum has
been placed in a peculiar position by the circumstances
existing at the time of this hearing . Sometime after his
layoff on April 18, Cockrum was arraigned on a criminal
charge and had a preliminary hearing . Through the
intercession of "Don" Cockrum 's "in-laws" Scrivener
rehired him and through or with Scrivener ' s acquiescence,
he met with Respondent's Attorney Jones, who was at
that time Respondent' s counsel in this matter, and
retained him as his counsel in the criminal action.
Cockrum ' s retention of Jones occurred after the issuance
and service of the complaint in this matter and despite the
fact that the complaint contained an allegation that
"Don" Cockrum had been discharged by Respondent in
violation of Section 8(a)(4) of the Act. When these facts
came out during the hearing , Attorney Jones drew from
both from Scnvener's description are casual employees working only when
they felt like it and then only if Respondent has work available.
Additionally, Albert Hunt would seem to be further disqualified as a
summer part-time employee with no expectation of future employment.
Accordingly. I conclude and find that neither of them can be considered as
employees in determining the employee complement on which to determine
majority status.
'Respondent forgets that Sanders had also authorized the Union to
represent him by signing an authorization card.
Cockrum an agreement that Jones had told Cockrum that
the two matters must remain separate and distinct.
I feel that this situation placed Cockrum in a most
unenviable position when he was prepared, according to
his affidavit, to testify against the Employer who had now
rehired him at the behest of Cockrum's "in-laws" with a
criminal charge hanging over him. Here he was to testify
against the interest of this employer who is represented by
an attorney upon whom Cockrum relies to defend him in
a criminal action. The feelings of mortal man and his
emotions can not be separated or compartmentalized to
the degree Attorney Jones suggested to Cockrum and to
expect such is asking the impossible of fallible beings, as
Cockrum's testimony amply demonstrated. I feel that
both Attorney Jones and "Don" Cockrum erred in their
judgment in creating such a situation.
After commencing his testimony "Don" Cockrum,
according to counsel for the General Counsel, answered
questions differently and contrary to the manner in which
he had responded in preparation for the case and contrary
to his affidavit and General Counsel claimed surprise. On
the basis of this claim and Cockrum's general demeanor,
General Counsel was allowed to proceed with some
leading questions . It became evident to me that Cockrum
was seeking to distort and change his testimony to place
Respondent's case in a more favorable light. When
Cockrum identified the affidavits he had given and was
reminded of the oaths he had taken in giving the affidavits
and as a witness in this hearing, his testimony began to
agree with the previous affidavits in all but one major
respect. That point will be discussed infra. Where
Cockrum' s oral testimony is contrary to the interest of
Respondent and in accord with his sworn affidavit, I
credit it, and where his testimony is contrary to his
verified affidavits and the testimony of others, I must
discredit his oral testimony under these circumstances.
Respondent has no basis for complaint of such credibility
resolutions since they result from a situation created by
Respondent or Respondent ' s counsel.
Recitation of the events hereafter is based either on
uncontradicted testimony or contradicted testimony where
I have resolved credibility conflicts in accord with the
observations made above and the weight of the evidence.
B. The Events
1. On March 15, while working at a jobsite on
Pinehurst with his helper Claude Sanders, Wesley Smith
was approached by Scrivener who, after looking over the
jobsite, asked him to come to the truck. There Scrivener
broached to Smith the proposition that the Company's
employees join District 50,5 with the result that they might
get a lot of commercial work and have some residential
work as fill-ins rather than have mainly residential work.
Scrivener asked whether Smith would talk to the men
when he got to the shop that evening about going into
District 50. Smith agreed to do so.
I find and conclude that Respondent by this action
encouraged his employees to join a labor organization of
his choosing and that he thereby violated Section 8(a)(1)
of the Act.
2. Albert Wilson testified that when he returned to the
shop on the evening of March 15, all the men had gotten
there but Smith and Sanders. Scrivener told the men to
hang around a few minutes that Smith wanted to talk to
'District 50 is District 50, of the United Mine Workers of America
which organization has an office in Kansas City.
A. A. ELECTRIC CO. 509
them but that he could not say what it was about because
he was not supposed to know. A few minutes later
Scrivener told the men that it concerned their joining
District 50.
When Smith came in he asked each of the men what
they thought about joining the Union. Most of the men
indicated that they would join District 50 and others
indicated that they would go along with the majority. On
conclusion of this polling of the men as to their union
sentiments , Smith turned to Scrivener and told him "there
it is." Scrivener told them that several electrical
contractors in the vicinity belonged to District 50 and
were doing real good. Wilson mentioned that there was a
picket on one of the companies at that time. Scrivener
said he would either write or go see District 50 in Kansas
City. Some further discussion was had among the men.
I conclude and find that Smith was acting as an agent
of Scrivener in conducting this poll of the employees to
ascertain their union sympathy and that Respondent
thereby violated Section 8(a)(1) of the Act.
3. In the evening of March 15, Bill Cockrum
telephoned Scrivener and asked what he thought of Local
453. Scrivener replied he would not join with Local 453
although he had been a member of that Union at one
time, and that he could not afford to belong to the
National Electrical Contractors Association, herein called
NECA, and pay the 2-percent assessment.
Later that evening Cockrum called Ray Edwards of
Local 453 and discussed the situation, asking if Local 453
was willing to represent them. Edwards said they would
and a meeting was arranged for Monday, March 18. Bill
Cockrum thereafter talked to Wilson and others
concerning the situation and meeting with Local 453.
4. On the evening of March 18, Bill and "Don"
Cockrum, Smith, Sanders, and Wilson met with union
representatives, Moore and Edwards, at the union hall.
The men told Moore and Edwards of the events and said
they did not want to join District 50. Moore said Local
453 would represent them and asked them to sign union
authorization cards saying he knew Scrivener and would
see him and if necessary show Scrivener the authorization
cards to prove he was authorized to represent them. He
added that if Scrivener would not agree to recognize the
Union he could use the cards to petititon for an election.
Moore then answered questions as to their becoming
union members and assured the five men that they could
take the wireman's examination and there would be no
problems regarding their ages . All five men then signed
union authorization cards.
After the meeting Moore called Scrivener and asked to
meet with him the next day. Scrivener agreed to come by
the union hall the following morning.
5. Moore and Scrivener had known one another for 20
years or so and talked about a number of topics on
Tuesday morning, March 19, before getting to the reason
for the meeting . Moore told Scrivener the Union
represented a majority of Scrivener's employees and
wanted a contract with him. Scrivener said that he
doubted that the Union had a majority of his employees.
To resolve Scrivener's doubt Moore showed him the
signed cards. Scrivener said Moore had one card more
than he had employees. Moore said it was just the
opposite that Scrivener had one more employee,
Perryman, who had not signed a union card. Edwards
asked Scrivener which card he was questioning and
Scrivener replied "Don" Cockrum. Edwards said he had
seen Cockrum on the job the previous day. Scrivener
acquiesced saying he guessed Cockrum was working.
Scrivener asked if Moore wanted him to send the men
to the union hall. Moore said no that Scrivener was to
keep the employees, that they would work out a contract.
Scrivener asked if he could get additional men from the
hiring hall if he was to expand his business and Moore
assured him he could. Scrivener said he was going to talk
to his attorney and would get in touch with Moore
thereafter and that he was not sure about an agreement
since there was another organization that the people might
be tied to. Moore said there was no fear of that, the
IBEW was the only organization involved and he had this
information from the people themselves. Scrivener asked
about a contract and Edwards gave him a copy of the
construction agreement.
Scrivener testified that Moore gave him a deadline of 6
p.m. to sign the union contract and that Moore said he
would replace all of Scrivener's men with good men from
the union hall.
I have no doubt that the Union would have liked to
have Scrivener sign a standard contract as soon as
possible, but I do not believe Scrivener was given a
deadline nor that Moore and Edwards said Scrivener's
men would be replaced by men from the union hall. I
credit the testimony of Moore and Edwards against
Scrivener, noting further that such tactics would virtually
make it impossible for the Union to organize any
company if the employees who sought to be represented
would immediately be replaced by other union members
upon the signing of a union contract. Such a self-defeating
tactic would become known quickly in the trade and
would halt any organizational activities the Union
attempted.
It is clear that Scrivener reported such statements to
employees thereafter, seeking thereby to frighten them
away from the Union in an attempt to undermine the
Union's majority. I conclude that Scrivener's testimony is
not to be credited.
In its brief Respondent claims that the testimony taken
as a whole demonstrates that Scrivener's claim that
Moore demanded he sign the particular agreement, join
NECA and pay it a 2-percent fee is borne out by the fact
that the Union agreed that all of its signatories in the area
are either members of NECA or have agreed to be bound
by that contract. The construction agreement calls for a
payment of 1 cent an hour towards an apprenticeship and
training program, a further amount of 1 percent of the
gross monthly payroll to be paid into a benefit fund, a
contribution of 15 cents an hour for payment of a health
and welfare fund, and an amount of 4 percent of the gross
payroll toward a vacation fund. Respondent has not made
clear whether the 2 percent it speaks of is a part of the
above amounts or is a membership fee for NECA or just
what it represents. I can only determine from the evidence
before me that the Union does have signatories who agree
to be bound by the terms of the NECA contract and are
not NECA members and do not assume the obligation of
NECA membership or dues and fees. I find that the
Union did not demand that Respondent join NECA as a
part of any contractual agreement between Respondent
and the Union and that Respondent's claim in this
direction is not true.
6. During March 19, Scrivener visited the jobsites
several times and first appeared at the jobsite where
Wilson, Smith, Sanders, and Perryman were working
shortly after his meeting with Moore and Edwards.
Wilson testified that it was about 10:30 a.m. when
Scrivener came in the apartment house jobsite and said,
"Bud did you guys sign those cards at the hall last night?"
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson replied "Yes," and Scrivener asked what they
wanted to do it for . Wilson said they thought Scrivener
wanted a union . Scrivener said no . Wilson said Scrivener
was talking District 50 awfully strong . Scrivener said he
didn't want it and asked if they knew what they had done.
Wilson said they were trying to better themselves.
Scrivener said that he had just come from the union hall
and that Jack Moore told him that if they organized
Scrivener , that Scrivener could not keep his present
employees , and that the Union would replace them with
good men . Scrivener said the men knew they could not go
to work for another shop and he was telling them this for
their own good . Wilson said he had known Moore for
several years and could not believe Moore said that.
Smith and Perryman came in the room and Scrivener
noted that Perryman was the only one who had not signed
a card and said something about letting everyone go.
Smith and Wilson told Scrivener they were going through
with the Union.
7. After lunch Scrivener came back to the apartment
and asked Wilson if he had seen Doyle Luce, of Aton
Luce Electrical Contractors. Wilson said he had not.
Scrivener said Luce was supposed to come by and give
him a bid on finishing the apartment job. Scrivener told
Wilson and the others to get everything roughed in, that
they were going to have to get somebody else to finish the
job and at quitting time they were to take all the
materials and supplies back to the shop and to wait there
because he wanted his lawyer to talk with them.
8. After the morning discussion Scrivener spoke to
Sanders saying he understood they had signed cards at the
union hall . Sanders said that was right . Scrivener said he
had not thought the boys would do him that way and that
Moore told him if he signed a contract with the Union
they would not use any of the five card signers . Sanders
said that if the Union operated that way he did not want
any part of it.
I conclude and find that Scrivener ' s questioning of the
employees as to their signing union cards and threatening
that they would lose their jobs as a result of their activity
as set forth in 6, 7 , and 8 above violate Section 8(a)(1) of
the Act.
9. "Don" Cockrum rode to the shop with Scrivener
after work on March 19 . Cockrum orally testified that
during the ride Scrivener said he might have to lay some
of the guys off. He continued that if they would have
come and talked to him about it he might have
reconsidered but they went up there (to the Union) and
signed up without talking to him. Scrivener said he would
probably let Don's brother go and that the men had
gotten him into a mess.
"Don" Cockrum ' s testimony concerning Scrivener's
statement about another electrical contractor is contrary
to his affidavit . Cockrum stated orally that Scrivener told
him electrical contractor James Mitchell was working
across the street from the jobsite that day and in
conversing with him, Mitchell told Scrivener that if
Scrivener's men came out there looking for a job Mitchell
was going to offer them $ 1.25 an hour (the minimum
wage and a sum far below what the men apparently were
receiving).
"Don" Cockrum identified his affidavit and admitted
he had sworn that its contents were true . The affidavit
recites that on the trip with Scrivener to the shop,
Scrivener said he would probably have to let everybody go
because they had gotten him into "a hell of a mess," and
he was going to have to let Don ' s brother go for sure
since he was the ringleader , and he would really be in a
mess if he earned a little bit more money (apparently
referring to the Board' s jurisdictional standards).
Cockrum's affidavit said Scrivener told Cockrum he had
called James Mitchell Electric and told Mitchell that if
any of Scrivener' s employees called him for a job that
Mitchell was to pay them $1.25 an hour even if he could
use them , and that he had called some other contractors
and they wouldn ' t be needing any help . Scrivener said the
employees had made their beds and now they could sleep
in them.
"Don" Cockrum stated the affidavit was in error and
that Scrivener had not called Mitchell but that Mitchell
had called Scrivener. When asked to explain why he
would sign and swear to a statement containing such a
distortion and particularly where he had initialed a
correction right in the middle of this particular section,
Cockrum replied that he did not read it over carefully.
Thereafter Cockrum admitted that Scrivener said the
following two sentences reported in his affidavit : "He said
he had called some other contractors and they wouldn't be
needing any help. He said the employees had made their
bed and now they could sleep in it."
Taking the testimony as a whole and noting again the
position in which Cockrum was placed by his actions and
those of Respondent and Respondent ' s attorney, I find
that the version of the conversation concerning Mitchell
contained in the affidavit is the true version of what
occurred and that this was at least partially corroborated
by Cockrum. It would not make sense for Scrivener to
have contacted other employers to find out whether they
would use his men and at the same time not have
contacted Mitchell in regard to this same question.
I conclude and find that Scrivener in his conversation
with Cockrum on the afternoon of March 19, violated
Section 8(a)(1) of the Act, by threatening employees with
loss of their jobs because of their union activity.
Scrivener' s statements to Cockrum about the other
electrical contractors was an implicit threat of
blackballing the men for their union activities and was the
forerunner of and renders credible Smith's version of a
telephone conversation between Scrivener and himself on
March 20 in 12 below.
10. The employees got to the shop about 4:15 p.m.
Scrivener opened the meeting with the men after Attorney
Jones' arrival by stating Moore told him he would not be
able to use the five men he presently had employed and
that he would replace them with good men. Scrivener said
there was no way he could be forced to join Local 453
because he did not come under the Board ' s jurisdictional
amount of $50,000. Jones and Scrivener apparently looked
over some tax forms and agreed on the absence of the
jurisdictional amount . Jones then talked to the men
mentioning that the initiation fee for Local 453 was
something like $300 . Bill Cockrum spoke up saying Jones
was wrong , that it was $50. Jones said he might have been
thinking of the initiation fee for the Sheetmetal Workers.
After some more discussion , the three journeymen,
Smith , Bill Cockrum , and Wilson advised Scrivener that
they wanted Local 453 as their bargaining representative.
Scrivener, who admitted he had made up his mind earlier
in the afternoon to discharge the men and had asked his
wife to make up their checks , got their checks from the
office , brought them out, and started to hand them to the
three journeymen . Bill Cockrum told Scrivener he wanted
to know whether or not he was fired before accepting the
check . Scrivener turned to Attorney Jones and asked what
he should say . Jones said he would let them go and let
Jack Moore handle them from the union hall. Scrivener
A. A. ELECTRIC CO.
nodded his head affirmatively to Cockrum and gave the
three men their checks. They picked up their tools and left
the shop. While walking towards their cars, Scrivener
came out of the shop and said they were welcome to come
back the next morning if they wanted to go to work.
11. On the morning of March 20 all the men reported
for work and were given assignments by Scrivener. Smith
and Bill Cockrum were scheduled to go to the apartments
on South Florence Street and were loading their trucks
with materials when Scrivener came outside the shop and
talked to them and Wilson. Scrivener said there was one
thing his attorney wanted to know and that is whether
they were affiliated in any way with Local 453. The three
men said they were. Scrivener said that he could not use
them. The men loaded their tools and left.
I conclude and find that the discharges of Bill
Cockrum, Wilson, and Smith on March 19 and 20 were
violative of Section 8(a)(3) and (1) of the Act. I do not
credit the tortured explanation of Scrivener that he did
not want the men to get in trouble with the Union and
was allowing them to leave for better jobs.
12. On the evening of March 20, Smith received a
telephone call at home from Scrivener. Scrivener told
Smith he would like him to come back to work and hated
to see Smith's family suffer on account of this thing.
Scrivener said the other contractors such as Balmer, Ivan
Franks, and Jim Mitchell, had gotten together to keep
them from working and that he would not find a job,
while they would furnish Scrivener with men if he needed
them. Smith told Scrivener he was planning on going
through with the Union because he felt he could better
himself. Scrivener said that if he wanted to change his
mind he could come back to work within 2 weeks.
I conclude and find that Scrivener in this conversation
violated Section 8(a)(1) of the Act by threatening the
employees with blackballing because they had chosen the
Union as their collective- bargaining agent.
13. Following the Union's demand letter of March 20,
in which it protested the discharge of the three employees
on March 19 and 20 and said it was filing a charge, the
Union filed a charge of 8(a)(1), (3), and (5) violations on
March 21. Respondent wrote a letter to the three
dischargees dated March 22, which they did not receive
until Monday, March 25.6 This self-serving letter claims
that Respondent has not discharged any of the three and
that they are free to report back to work on Monday
morning , March 25. After contacting the Union for
advice, the three men reported back for work on Tuesday,
March 26, and worked that day and March 27. Cockrum
left work early because of an injury to his son and when
Smith and Wilson reported to the shop that evening
Scrivener told them they were caught up and he would
have to lay two of the three of them off for a few days. A
suggestion was made that straws be drawn between the
three. Smith and Cockrum were laid off following the
drawing and Wilson was kept on along with new
employees Clyde Hunt and Jim Statton.
`The letter follows:
Gentlemen.
This letter is written to clarify the fact that I have not discharged either
one of you and you are all free and welcome to work for me as usual at
any time , whether or not you are members of the I B.E W. Union or
any other union.
I will be glad to have any or all of you work as usual , so long as I have
work available which you can do, and I would be glad to have you
report to work Monday morning as usual
It was never my intention to discriminate against you in any way for any
interest you may have in any union. However , I did feel it was my duty
511
14. On April 1, Wilson was sick and Scrivener called
Smith, according to Wilson at his suggestion, and had
Smith report back to work. Smith and Wilson continued
to work until April 18 with the remainder of the
employees. At that time everyone was back to work
except Bill Cockrum.
15. On April 17, a Board field examiner met with
Scrivener for several hours to discuss the charge against
the Company, as well as the Company's contention made
in its letter to the Regional Director of March 22, that it
did not come within the jurisdiction of the Board.
That evening the field examiner met with Bill and
"Don" Cockrum, Smith, Sanders, and Wilson at the
union hall. The field examiner interviewed the five
employees that night and only took affidavits from three
of the five due to the lateness of the hour.
16. On the following morning, April 18, when Wilson
went to work, Scrivener motioned him into the office and
asked "Did you guys meet with the Labor Board last
night?" Wilson answered yes. Scrivener said "They sure
don't talk much do they?" Wilson replied no and went on
out to gather material to go to the job. Later, while he
and "Don" Cockrum were getting ready to go out,
Scrivener came up to him again and said, "You say you
met with the Labor men last night?" Wilson answered
"Till about 11 or 11:30." Scrivener said "That old boy
sure don't tell you nothing." Wilson answered "No Bob,
he's a journeyman."
While Sanders was at the shop getting ready to go to
work on April 18, Scrivener came up and asked him,
"Did the boys find out anything last night?" Sanders
answered not that he knew of.
Scrivener did not directly deny the testimony of
Sanders and Wilson but rather testified that he had no
knowledge as to whether any of the men talked to the
Board field examiner prior to laying them off on April 18.
He maintained that the first time he learned who had
talked to the Board field examiner was when Wesley
Smith told him about it. Asked when that was, Scrivener
said "I would say on April 20." According to Scrivener,
Smith told him the identity of the men who spoke to the
field examiner while Smith was at the shop getting ready
to go to work. Scrivener was not able to say where Smith
was working that day and was not completely sure of the
date.
Smith was not questioned about this conversation, it
first being mentioned during Respondent's defense.
Scrivener's guess of April 20 as the date of the
conversation is obviously incorrect since Smith was laid
off on April 18 and did not work for Scrivener until called
back on May 4. If the conversation took place, and it
seems possible that it did, then it must have occurred in
the morning of April 18, the same day Scrivener laid
Smith and the other men off.
Commonsense would indicate that when the Board field
examiner was in the area investigating the case and
interviewing Respondent and the case involved a claim of
majority and individual discharges, that the Board
examiner would investigate the charging party's case by
interviewing the dischargees and the individuals who made
up the union majority. So it should have been no secret
to tell you what had been told me by Mr . Jack Moore of the I B.E.W.
Union , when he demanded me to sign a contract with him, to the effect
that if I signed such contract I would be required to hire all men
through his hiring hall and that Mr Moore would not permit you men
to work for me , in all probability, as you would have to stand in line in
the hiring hall procedure and I would have to hire the men who had first
signed in the hiring hall who were without jobs
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Scrivener that the Board field examiner would meet
with the five union card signers.
I find from the testimony of Scrivener, Sanders, and
Wilson that Scrivener on April 18, knew of the employees
meeting with the field examiner and the identity of the
men who were interviewed by the field examiner on the
evening of April 17.
I conclude and find that Scrivener' s questioning of
Wilson and Sanders on April 18 concerning their meeting
with a Board field examiner violated Section 8(a)(1) of the
Act.
17. On the afternoon of Thursday, April 18, after
finishing work, the men reported back to the shop.
Scrivener told Don Cockrum, Wilson, Smith, and Sanders
that he had no work for them and if something came in
over the weekend he would call them . He asked if they
wanted their checks to save them a trip on the following
Friday morning . The four men said yes and Scrivener
gave them their checks. Clyde Hunt, Jim Statton, and
Perryman were not laid off by Respondent and worked
thereafter.
Following this layoff Sanders was never called back to
work. Smith and Wilson were called back on May 4 and
as noted earlier "Don" Cockrum returned to work in the
early part of June.
Thus, on April 18, Scrivener laid off the remaining four
employees who signed union authorization cards, having
previously laid off and not recalled Bill Cockrum. In
contrast he retained on his payroll Perryman, the sole
remaining employee of those employed when the union
organization started and Hunt and Statton , none of whom
had any part in the union organization . In fact Hunt and
Statton were obviously hired to replace some of the
union-affiliated employees.
Scrivener 's explanation of this layoff was that the other
men were retained on jobs they had started and that he
was short of work. Scrivener' s explanation is not
convincing . The fact is that the men were on jobs at the
time and that there was some other work such as the
apartment house still to be done. Further Scrivener
assigned men to the jobs and could have made
assignments so as to retain senior men if the amount of
work available was decreasing . In making these layoffs
Scrivener was retaining Statton , a man with apparently no
previous experience who had been on the job less than a
month while laying off more experienced helpers. Further
the fact that a man had started a particular job would not
seem to make any difference since the men would be
following wiring diagrams in wiring a house or apartment
and in any event a journeyman electrician should be
capable of picking up a job at any point from any other
journeyman . Certainly this was done at times when men
were ill, as for instance on April 1, when Wilson was ill
and advised Scrivener to call in Smith to work which
Scrivener did. Certainly it would have been to Scrivener's
benefit to retain more experienced helpers.
Scrivener is entitled to run his business in any manner
he desires as long as it does not discriminate unlawfully
against his men. His explanation as to why he laid these
four men off was not clear or convincing and seems to be
contrary to commonsense and good business practice. In
view of the parallelism of the union activities of these men
and Scrivener's layoff of them, his reasons for the layoff
are not sufficient to overcome the prima facie case
presented by the General Counsel.
In determining motive and reaching this conclusion I
have noted the circumstances of the prior discharges of his
employees and Scrivener' s being assured by his attorney
that he was not subject to the jurisdiction of the Board.
The men's union activities were not open or dramatic
after that . Here a new event occurs, the Board field
examiner is investigating the charge and even after the
harsh discipline of discharge for daring to want a union of
their choice , the men go to the union hall and discuss
Scrivener' s actions relating to the charge in interviews
with the Board field examiner . Scrivener knowing of his
employees meeting with the Board field examiner and
being aware of the advice that he was not subject to
Board jurisdiction , summarily laid off the remaining four
employees in a rather evident attempt to demonstrate that
he controlled their working conditions and to punish them
for having the temerity to meet with and give evidence to
the Board field examiner.
The circumstantial evidence of the event is sufficient to
find that this is why Scrivener engaged in retaliation
against his employees. It is not necessary that we have a
confession from Scrivener to reach this result , nor that we
have statements from him to indicate this is why he laid
off these employees. The evidence of Scrivener's quick
reaction to the concerted and union actions of his
employees in the past in threatening to discharge and in
discharging them , added to his hiring of new employees
and his retention of them in subsequent layoffs in
preference to the "union minded" employees , along with
his quick reaction in laying off the four employees prior to
the end of the workweek and on the same day he
determined they met with the Board field examiner and
while there was work for them to do, plus his
determination that he was not subject to the Board's
jurisdiction , and his lack of credibility in testifying, is
sufficient for me to find that at least one of his reasons,
and I believe it was the main reason , for laying off these
four men was in retaliation for their meeting with the
Board agent to give testimony regarding the charges
concerning them against Scrivener and further to
discourage any other employees from so doing. The
immediate parallel of the factual situation is too close to
be coincidental.
Respondent states that these layoffs could not be found
as violations of Section 8(a)(4),' since the employees had
not filed charges nor had they appeared in a Board
proceeding and given testimony, and cites as his authority
N.L.R.B. v. Ritchie Manufacturing Company, 354 F.2d
90 (C.A. 8).
With due deference to the Eighth Circuit, it appears
that the Board has not so narrowly construed Section
8(a)(4) but has found that the Section is broad enough to
encompass a situation such as this and I must follow the
Board' s line of decisions.
Section 8(a)(4) first comes into play when a charge is
filed with the Board . Thus an individual filing a charge
becomes protected by the Act and if he is thereafter
discriminated against because he filed the charge , Section
8(a)(4) has been violated. In the instant situation the
Union acting as the bargaining agent for the employees
filed a charge in their behalf alleging that three of them
were discriminatorily discharged and that all of the
employees were discriminated against by Respondent's
refusal to bargain with the employees collective -bargaining
agent . Thereafter the Board in exercising its statutory
function sent a field examiner to secure facts concerning
this charge to determine whether it had merit or not. The
'Sec. 8(a)(4) provides that "it shall be an unfair labor practice for an
employer to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under this Act "
A. A. ELECTRIC CO.
field examiner interviewed and discussed the charge and
the jurisdictional aspects with Respondent Scrivener and
thereafter interviewed the five union card signers and took
affidavits from them so that the Regional Office might
analyze the case to determine whether the charge had
substance . I have found above that Respondent laid off
these employees in retaliation for their meeting with and
being interviewed by the field examiner and giving
affidavits to him , all in furtherance of the Region's
investigation of this charge.
I conclude and find Respondent ' s discharge or layoff of
these four individuals in these circumstances violated
Section 8 (a)(4) of the Act . To accept Respondent' s theory
of Section 8(a)(4) would be to place a premium on form
rather than substance and what seems to be clear intent.
The four 8 (a)(4) dischargees were already the subject of a
charge involving discharge of two of them and refusal to
bargain as to all of them in that the union card signers
constituted five -sixths of the bargaining unit at the time of
the demand . The Union which was their bargaining agent
filed the charge in their behalf. To follow Respondent's
theory it would be necessary for each of these men to have
signed the charge individually in his own name . Clearly,
anything that a principal can do, an agent with authority
can do for him, and here as the bargaining agent for these
men, the Union had that authority.
Secondly , the protection afforded by Section 8(a)(4)
would seem not meant solely for those who signed the
charge but rather to be invoked at the time the charge is
filed , so that employees who are called on for information
by Board agents will not be discriminated against by their
employers because they assisted the Board in the exercise
of its statutory function of determining the merits of a
charge . To suggest otherwise would be to say that the
Board must investigate the factual background of charges
and that a respondent is entitled to hinder that
investigation by discharging each and everyone who
appeared and talked to the Board agent , as long as the
employee had not performed the ministerial act of signing
a charge . Clearly where Congress gave the Board the
authority to investigate and determine whether charges
have merit , it intended that the Board not be hindered
in so doing and established the filing of the charge as the
initial guide post rather than as a sine qua non , for the
protection of those who assisted the Board , sometimes
reluctantly , in the performance of its statutory functions.
Thus my conclusion that Respondent violated Section
8(a)(4) rests on two points ; ( 1) that the signer of the
charge was the agent of these individuals and, (2) that
Section 8 (a)(4) must necessarily apply to employees who
are interviewed by and give affidavits or statements to
Board agents during the Board ' s exercise of its statutory
function to investigate and determine the merits of charges
filed with it.
The Board has in essence made such :indings in several
cases , the most recent of which is its affirmance of the
Trial Examiner ' s decision in Manila Manufacturing Co.,
171 NLRB No. 151.
Respondent ' s brief contends that since the complaint
says nothing about Wilson ' s termination on May 10, the
separation on that date cannot be contended as illegal.
According to Wilson ' s testimony , after being recalled
on May 4 , he worked until the close of business on May
10, when Scrivener told him there was no more work for
him to do, that they were caught up and not to come back
to work . Respondent ' s examination of Wilson would
indicate that Respondent felt that Wilson had quit.
However , Respondent offered no direct testimony which
513
would demand such a conclusion.
The complaint alleges discharges of Wilson , along with
others , on March 19 and 20 and April 18 , as well as
refusals to reinstate Wilson since on or about April 18.
With Respondent's demonstrated union animus and
crediting Wilson , I do not credit Respondent 's claim that
Wilson quit but determine that he was laid off once again
and as is usual with layoffs is entitled to recall by
Respondent , assuming here that the layoff was
nondiscriminatory . In view of Respondent' s past treatment
of Wilson , I consider this short term employment by
Respondent more in the nature of interim employment
and not full and adequate reinstatement to which he and
the others are entitled.
The problem of available work is one with which
Respondent is intimately connected since Respondent was
able by adjusting its bids on available work to either try
to get it or not. Similarly Respondent apparently sought
to subcontract the work it had on the apartment house to
the Aton Luce Company . So in considering availability of
work , there might be a question as to whether Respondent
manipulated its work in order to have an apparent reason
for laying off employees.
In regard to the 8(a)(3) allegations concerning the
layoff of Bill Cockrum and George Smith on March 27
(13 above), and Respondent ' s refusal to reemploy
Cockrum thereafter , I conclude and find that such refusals
violated Section 8(a)(3) of the Act in that such layoffs
were for the purpose of discouraging the employees' union
activities and in retaliation for their selection of the Union
as their bargaining agent . The same questions regarding
available work may be raised here as were raised in
regard to the layoffs on April 18, which I have resolved
against Respondent . Here Respondent again had the
authority to assign the men to jobs and chose to retain
nonunion men in preference to those it knew supported
the Union . Respondent ' s reasons for so acting in the face
of a prima facie case are not convincing.
In regard to the 8 (a)(4) allegations of the complaint, I
conclude and find that Respondent discriminatorily laid
off employees Donald Cockrum , Albert Wilson , George
Smith , and Claude Sanders on April 18 , 1968, in violation
of Section 8(a)(4) and (1) of the Act , and that since April
18, 1968, Respondent has failed and refused to reemploy
Claude Sanders in any manner in violation of Section
8(a)(4) and (1) of the Act, and I am not satisfied that it
has fully and adequately reinstated Wilson or Smith. This
latter is a question for the compliance stage of this case,
but I make no finding that either of them has been
adequately reinstated.
The findings of violations of Section 8(a)(1), (3), and
(5) herein are made on the basis that having taken
jurisdiction of this case because of the violations of
Section 8(a)(4), the Board should exercise its jurisdiction
in remedying any and all violations found.
C. The Refusal To Bargain
The events set forth above demonstrate amply that the
Union made a demand for recognition backed up by a
display of authorization cards on March 19 and requested
Respondent to bargain. It is clear that Respondent refused
to bargain with the Union, even after seeking and getting
confirmation of the Union ' s majority in an unlawful
manner from its employees . I find that the unit
composition as of that date consisted of Smith , Wilson,
Sanders, Perryman , and the two Cockrums . At the time
of the demand Clyde Hunt had not been hired and from
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the threats made to the employees concerning discharge
and the discharges that followed, it is natural to assume
that Hunt was hired to replace one of the journeymen
Scrivener was preparing to discharge. Clearly Statton had
not yet been employed. Claybaugh could not come under
any definition of a regular employee and neither could
Albert Hunt who was probably not employed by
Respondent until after the end of the school year and
certainly after his father had begun work with
Respondent.
Respondent also contends that Scrivener had a
legitimate good-faith doubt concerning the validity of the
authorization cards shown him by the Union in the
morning of March 19. Scrivener testified that on looking
at the cards he felt that the writing on several of them
looked the same and he doubted their genuineness.
Further he stated "I told Mr. Moore that I did not believe
those were those boys' signatures. I did not think they had
signed those cards or I would have heard something about
them signing them." Later in his testimony Scrivener
denied that he had raised a question with Moore as to the
genuineness of the signatures. When asked what he said to
Moore about the cards he answered "I did not say
anything about the cards to the best of my knowledge."
Scrivener testified once more that he did not say a word
to Moore about the genuineness of the cards and said that
he did not attempt to find out from the employees
whether they signed the cards. He continued to maintain
that his doubt that the Union had a majority, was based
on his assessment that the signatures were not genuine.
Bill Cockrum, Albert Wilson, Wesley Smith, and
Claude Sanders identified the unambiguous authorization
cards and testified they were told that the purpose in
signing the cards was to authorize the Union to represent
them, and that the cards would be shown to Scrivener as
proof of the Union's authority to bargain for the
employees and that if he did not recognize the Union the
cards could be used for filing a petition for an election.
The fifth employee, "Don" Cockrum, testified somewhat
differently but finally testified that he was told that the
cards would be shown to Scrivener to show that the Union
represented the employees. I credit the version of the four
men and discredit "Don" Cockrum's contrary testimony.
I conclude and find that March 19 is the appropriate
date for determining majority and on that date the Union
represented the majority of Respondent's employees in an
appropriate unit, made a demand on Respondent for
recognition and requested that Respondent enter into
collective bargaining with it.
Respondent refused to bargain then or thereafter with
the Union and I conclude and find that such a refusal
violated Section 8(a)(5) of the Act.' Respondent's claim of
a good-faith doubt that the employees had signed the
union authorization cards is shown false by the events and
testimony including Scrivener's contradiction of himself as
to whether or not he raised such a doubt to the union
representatives at the time he was shown the cards (I have
found that he did not). Moreover if there were ever any
such doubt, the employees resolved it for him when he
questioned them that morning about their joining the
Union. If Scrivener had any doubt as to the validity of the
signatures, it was not in good faith but was on the basis
that he was surprised that his employees did not tell him
about it before signing the authorization cards with the
Union, since he thought he had them talked into joining
the Union of his choice. Further Scrivener sought to
undermine the Union by telling Sanders and others that
the Union said they would replace the men as soon as a
contract was signed, seeking to get them to disavow their
union allegiance. Scrivener hired Hunt as a replacement
for one of the journeymen that day in anticipation of
discharging some of the union adherents. Again the fact
that the Union represented a majority was clearly
demonstrated to Scrivener by the men themselves both on
the jobsite and that evening when in response to his urging
they appeared at the shop and were lectured by
Respondent's attorney and still maintained their allegiance
to the Union demonstrating clearly that the Union
represented them.
From the facts and from his testimony Scrivener
evidently was disturbed by this turn of events to the point
where he raised some question as to whether the men
could have meant to do this to him, taking it as a
personal affront that they joined the Union.
In these circumstances, I cannot find the Respondent
had a good-faith doubt as to the Union's majority but
must find that his doubt, if any, was in bad faith and that
he acted in bad faith by thereafter attempting to
undermine the Union and get the men to reverse their
stand by embarking on a campaign of 8(a)(1) and (3)
violations.
Ill. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent as set forth in section II,
above, and particularly those actions found violative of
Section 8(a)(4) of the Act, together with the acts herein
found in violation of Section 8(a)(1), (3), and (5) of the
Act, occurring in connection with the Respondent's
business operations as set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, it is recommended that it
cease and desist therefrom and take affirmative action
designed to effectuate the policies of the Act as follows:
Since respondent on and after March 19, 1968, and at
all times since then has refused and still refuses to bargain
with the Union as the representative of its employees in
an appropriate unit, it is recommended that Respondent,
upon request, bargain collectively with the Union and in
the event that an understanding is reached, embody such
understanding in a signed agreement.
Respondent having discharged Donald Cockrum, Albert
Wilson, Wesley Smith, and Claude Sanders on or about
April 18, 1968, in violation of Section 8(a)(4) of the Act
and Respondent having discharged William Cockrum,
Wesley Smith, and Albert Wilson on March 19 and 20
and further having laid off employees William Cockrum
and George Smith on March 27, 1968, and not having
reinstated employees William Cockrum, Claude Sanders,
Albert Wilson, and Wesley Smith all in violation of either
Section 8(a)(3) or (4) of the Act, I recommend that
Respondent offer them immediate and full reinstatement
to their former positions or if those positions are
unavailable due to a change in Respondent's operations
then to a substantially equivalent position without
prejudice to their seniority or other rights and privileges.
See Wilmington Heating Service, Inc, 173 NLRB No 15
A. A. ELECTRIC CO. 515
Respondent shall make them whole for any loss of pay
they may have suffered by reason of Respondent's
discrimination against them by payment to them of a sum
equal to that which each would have received as wages
from the dates of their discharge or layoffs until the date
Respondent reinstates them less any net interim earnings.
Backpay is to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, with interest at the rate of 6
percent per annum to be computed in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716. I
further recommend that Respondent make available to the
Board, upon request, payroll and other records in order to
facilitate checking the amounts of backpay due and the
rights of each of these employees.
Respondent has also interfered with its employees'
rights by encouraging them to join another labor
organization , interrogating them concerning their union
activity and their meeting with an agent of the Board, and
by threatening them with loss of employment because of
their union activity and further threatening to blackball
them from other jobs because of their union activity.
Having found that Respondent has broadly disregarded
its employees' rights by its refusal to bargain, by its
discharges and layoffs, by its violations of Section 8(a)(1),
and by its violations of Section 8(a)(4) has violated the
basic rights provided by the Act, I am of the opinion that
Respondent probably might commit other unfair labor
practices unless it is broadly enjoined from so doing. Since
part of the purpose of the Act is to prevent the
commission of further unfair labor practices, I
recommend that Respondent be placed under a broad
order to cease and desist from in any other manner
infringing upon the rights guaranteed its employees by the
Act.
On the basis of the foregoing findings and the entire
record in this matter I make the following:
CONCLUSIONS OF LAW
1. Robert Scrivener, d/b/a A A Electric Co. is an
employer affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees employed by the Respondent
excluding office clerical employees, guards and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times since March 18, 1968, the Union has
been and now is the exclusive representative of the
employees in the said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. Respondent, by refusing to bargain with the Union
on and after March 19, 1968, as the exclusive
representative of its employees in the appropriate unit set
forth above, has engaged in and is engaging in unfair
labor practices within the meaning of Sections 8(a)(5) and
(1) and 2(6) and (7) of the Act.
6. Respondent, by discriminatorily laying off or
discharging employees Albert Wilson, Donald Cockrum,
Claude Sanders, and Wesley Smith on April 18, 1968, and
thereafter refusing to reinstate Wilson, Sanders, and
Smith because they were interviewed by, and gave
testimony to, an agent of the Board conducting an
investigation of the charges in this case, violated Section
8(a)(4) of the Act, and thereby engaged in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(4) and (1) and 2(6) and (7) of the Act.
7. Respondent, by discriminatorily discharging William
Cockrum, Wesley Smith, and Albert Wilson on March 19
and 20, 1968, and by discriminatorily laying off employees
William Cockrum and Wesley Smith on March 27, 1968,
and by refusing thereafter to reemploy William Cockrum
all because of the union sentiments, membership, and
activities of these employees, Respondent has engaged in
and is engaging in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act.
8. Respondent has engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act by: (a)
encouraging employees to join a labor organization of
Respondent's choice; (b) polling, or causing a poll to be
taken of its employees in order to ascertain their union
sympathy; (c) interrogating employees concerning their
union activity; (d) interrogating employees concerning
their meeting with and being interviewed by an agent of
the Board; (e) threatening employees with loss of
employment on account of their union activity; and (f)
threatening employees with blackballing them from other
employment because of their union activity.
[Recommended Order omitted from publication.]