Alabama Roofing & Metal Co., Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1963

142 N.L.R.B. 882 (N.L.R.B. 1963)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alabama Roofing & Metal Co., Inc. and Affiliate Local 82, United
Slate, Tile and Composition Roofers, Damp and Water Proof
Workers Association . Case No. 15-CA1-2170. June 3, 1963
DECISION AND ORDER
On March 18, 1963, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached In-
termediate Report. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
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 Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings,' conclusions,' and recommendations 8
of the Trial Examiner.
ORDER4
The Board hereby adopts the Recommended Order of the Trial
Examiner, with the following modification :
Paragraph 2 (d) of the Recommended Order shall be renumbered
2(e) and the following paragraph 2(d) shall be added:
3 We find, an agreement with the Trial Examiner, that the Respondent , by discharging
employees Perkins, Richardson , and Jones because they had engaged in protected concerted
and union activity, violated Section 8(a) (3) and (1) of the Act. However, even assuming
that the Respondent did not discharge these employees because of union activity , but only
because they had engaged in concerted activities protected in Section 7 of the Act, such
conduct would nevertheless violate Section 8(a) (1) of the Act. Whether Respondent's
conduct be deemed in violation of Section 8(a)(3) and ( 1), or only 8 ( a)(1), the remedy
would in any event be the same. N.L .R B. v. Washington Aluminum Co., 370 U.S. 9
2 We hereby correct the following typographical error in the Intermediate Report:
Paragraph 1 of the "Conclusions of Law" should read as follows:
1. The Respondent is an employer engaged in commerce within the meaning of See-
tion 2 ( 2), (6), and ( 7) of the Act.
' The Trial Examiner recommended , among other things, that the Respondent make whole
the above-named employees for any loss of pay they may have suffered as a result of the
discrimination against them . In view of the fact that the Brookley Air Force Base job,
involved in this proceeding, was completed in December 1962, the Trial Examiner did not,
however, recommend reinstatement for these employees . We adopt these recommenda-
tions. However, we shall order that the Respondent send copies of the notice appended
to the Intermediate Report to each of the discriminatees and that it inform said in-
dividuals that it will consider them for employment at any of the Respondent 's projects
on a nondiscriminatory basis. See Bechtel Corporation , 141 NLRB 844.
4 Member Leedom would not award interest on the backpay obligation for the reasons
stated in the dissent in Isis Plumbing & Heating Co, 138 NLRB 716.
142 NLRB No. 100.
ALABAMA ROOFING & METAL CO., INC. 883
Send copies of the attached notice marked "Appendix"' to
Aubrey Perkins, Shirley Richardson, and Silas Jones, and inform
said individuals of their future eligibility for employment, by
the Respondent in the manner set forth in this Decision and
Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed by the above-named Union on October 1, 1962, a complaint,
dated November 21, 1962, issued by the General Counsel of the Board, acting through
the Regional Director of the Fifteenth Region of the Board, against Respondent,
Alabama Roofing & Metal Co., Inc. The complaint alleged that Respondent on
September 6, 1962, discharged employees Richardson and Jones, and on August
17, 1962, discharged employee Perkins, because of their union membership and ac-
tivities, all in violation of Section 8(a) (1) and (3) of the Act.
A hearing was held before Trial Examiner Ramey Donovan on January 29 and
30, 1963, in Mobile, Alabama. The General Counsel and Respondent were repre-
sented by counsel and participated fully in the hearing. Both of these parties filed
briefs which I have considered.'
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is an Alabama corporation with its principal place of business in Mont-
gomery, Alabama. It is engaged in construction and related work, principally roof-
ing, in the State of Alabama and in several States of the United States. In a repre-
sentative 12-month period ending in October 1962, Respondent, in the course of its
business, purchased and received goods and materials valued in excess of $50,000,
which goods and materials were shipped directly to it in the State of Alabama from
points outside the State. During the 12-month period ending December 31, 1962,
Respondent, in the course of its business, performed services valued in excess of
$50,000 at the United States Air Force installation at Brookley Air Force Base,
Mobile, Alabama, pursuant to a contract with an agency of the United States
Government.
Respondent is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Affiliate Local 82, United Slate, Tile and Composition Roofers, Damp and Water
Proof Workers Association is a labor organization within the meaning of the Act.
M. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent had secured a Government contract to reroof two buildings at the
Brookley Air Force Base in Mobile. Building 291, where the events occurred that
are the subject of this case, had a roof area of 1,400 feet by 400 feet or about 13
acres. The roof was flat and the existing roof consisted of five layers of roofing
material nailed and adhering together. Respondent's contract entailed the removal
of the old roof as well as laying the new roof in its place.
For some years Respondent has had a contract with Local 48 in Montgomery,
Alabama. Local 48 has the same affiliation as Local 82 of Mobile, Alabama, the
Charging Union. When Respondent came to Mobile, preparatory to commencing
work on the Brookley contract, its superintendent, Preskitt, contacted Werneth, busi-
ness agent of Local 82. Preskitt informed Werneth of its Brookley job and arranged
1 On March 6, 1963, Respondent filed a reply brief. Although the Board's rules do not
provide for the filing of a reply brief, Respondent's reply was received and considered and
General Counsel was given leave to file an additional brief. The General Counsel on
March 12 objected to the receipt of Respondent's reply brief and also pointed out that
Respondent had not served the Charging Party, the Union, with a copy of the reply brief.
The General Counsel did not file an additional brief.
712-548-64-vol. 142-57
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
to secure employees for the job through Wemeth after discussion of the Local 82
wage scale. Werneth recommended Burnette, a member of Local 82, to Preskitt as,
a foreman and Burnette was hired in that capacity. The business agent also gave
Preskitt a copy of the local contract and Preskitt said he would read it over .2 The
other foreman on the job was Stroud, a resident of Missouri, who had worked as.
a foreman on other jobs under Preskitt. Stroud had been a member of the Union
for many years although not of Local 82 or Local 48. He was brought to the
Brookley job from Montgomery, by Preskitt. Most of the employees on the Brook-
ley job were secured through Werneth upon request by Preskitt and referral by the
Union. Respondent deducted dues and initiation fees and remitted them to Local
82. Respondent paid the Local 82 wage scale?
Respondent points to the foregoing factors as illustrative of its position that Re-
spondent was not antiunion and that it did not discharge Perkins, Richardson, or
Jones because of their union or concerted activities. In further development of
this defense Respondent called as a witness, William Nester, the former business
manager of Local 48 in Montgomery. Nester had been business manager for about
5 years, until October 1962, when he voluntarily resigned to enter private employ-
ment in the industry. Nester said that Respondent and Preskitt, in his experience,
were not antiunion. The witness said that Local 48 had never used shop stewards
on any of its jobs with Respondent or with others and, therefore, he had no basis
for saying that Preskitt was opposed to having shop stewards on his projects. Fore-
man Stroud testified that he had worked as a foreman under Preskitt on a job in
Missouri for over a year in 1958-59, but there had been no shop steward on the
job although the union members wanted a steward.
It is a fair conclusion in the light of the foregoing, particularly the fact that Local
48, in Respondent's home city of Montgomery and with whom Respondent had a
contract, did not use shop stewards, that Respondent and its superintendent, Preskitt,
were not accustomed to either the fact or the principle of stewardship .4 Generally
speaking, a union shop steward is the first-line representative of the employees in
dealing with the employer. As an employee, either elected or designated as steward,
he is on the job and is familiar with the problems or grievances of his fellow workers.
It is to the steward that the employees turn in the first instance with their problems
as employees and as union members. The steward performs for the union and its
members the functions that the line supervisors or foremen perform for manage-
ment. The duties and functions of stewards vary, according to industries, unions, and
other factors, and range from numerous and highly specialized functions to relatively
simple tasks, but the basic features are as above described.5
B. The discharge of Perkins
The Brookley job got underway about August 5, 1962. One of the employees
who went to work on Monday, August 13, was Aubrey Perkins who had been work-
ing out of Local 82 for 13 years. Perkins came to the job, as did most of the
employees, with a referral from the Union. He was designated as "top helper" at a
rate of $2.91 an hours On Friday, August 17, during the lunch period, a group of
laborers spoke to Perkins about their working conditions, principally the pace at
which Foreman Burnette was making them work in the current hot weather. The
men asked Perkins to be their spokesman with Burnette.7 After the lunch period,
2 Preskitt was a member of Local 48 for 16 years . Respondent did not sign a union
contract on the Brookley job.
8 Local 82 had a scale of $1.75 for laborers ; $2 91 for kettlemen or top helpers ; $3 42
for journeymen roofers. At Brookley the Government prescribed a rate of $1.98 for
laborers. Respondent on the Brookley job paid $2 for laborers and the Local 82 rate for
the other categories.
The significance of this factor is discussed at a later point.
AFL-CIO Manual for Shop Stewards, AFL-CIO Publication No. 75, reads as follows:
In a democratic labor movement, the shop steward . . . is key man in the Union.
Democracy in the shop begins with a good steward to represent members with man-
agement . . . In AFL-CIO Unions, stewards are the first-line leadership . . . [The
shop steward is] to see that the members get fair treatment on the job.
e On its payroll Respondent used only the designation of roofer, $3.42 an hour, kettle-
man, $2 91, or laborer, at $2, but a few laborers, such as Perkins and Jones, who were top
helpers, received $2.91.
7 Substantially all the laborers appear to have been Negroes, including Perkins. The
latter was one of the highest paid Negroes on the job. Perkins had been in the roofing
trade many years and was in the same local as Foreman Burnette . There were about
ALABAMA ROOFING & METAL CO., INC. 885
Perkins, accompanied by employees Hattenstein , Bush , and Mosely, spoke to
Burnette. Perkins asked Burnette to slow the pace of the work because of the heat.8
Burnette replied that if the men did not want to work they should leave. Bush
testified without contravention and credibly that Perkins said that the men did not
have to take that and that they could go to the union hall and get a shop steward.
After Burnette walked away, the men, including Perkins, went back to work. During
the afternoon Burnette shouted at the men about working fastens At the end of the
day Burnette handed their paychecks to Bush and Perkins. He told the former that
he did not work fast enough and said to Perkins, "You too, you got too much mouth."
Werneth testified that Perkins informed him of his discharge and that night
Werneth met with Foremen Stroud and Burnette in his home. He referred to
Perkins. Both foremen said that Perkins' mouth was too big. Werneth said that
the colored employees customarily had Perkins to "act for them on the job." The
foremen said they had never been told that Perkins was a shop steward and in any
event "The company is not going to go for any shop steward." Werneth said that
the Company would have "to go for a shop steward." Werneth then suggested
Richardson as shop steward and both foremen said they would go along with that
choice. When Werneth said that the Negro employees would have to have a repre-
sentative and suggested Silas Jones, Stroud told Werneth that he, Werneth, was not
going to send a colored man out there to give Stroud orders. Werneth said Jones
would be an assistant to Richardson and would relay any matters from the colored
employees to Richardson, who, in turn, would take the matters up with management io
Stroud testified that he believed that Burnette had told him that Perkins had too
big a mouth and that Preskitt also had told him that Perkins was let go because he
had too big a mouth. At the hearing Burnette was asked, "Why did you fire Aubrey
Perkins?" He replied, "because he had too much mouth" and referred to the incident
of Perkins speaking about how the men were being treated." Burnette also stated
that Perkins was agitating the men whenever someone was fired or let go and "he
always had something to say about it." 12 Preskitt testified that one of his foremen
discharged Perkins and that both foremen told him that Perkins would not work.
Later, Preskitt recalled that it was Burnette who discharged Perkins because he
would not work.
It is pertinent to note at this point that on the Brookley job, Respondent, through
Preskitt, hired and fired a substantial number of employees. Preskitt estimated the
number as about 30. This was aside from employees who left or quit for various
reasons. Local 82 had many men out of work and the area, at least as far as the
roofing trade was concerned, appears to have been depressed.13 The Union was
apparently willing to furnish Respondent with employees whenever requested and
without interposing any problems. It appears that in practically all roofing jobs
when the employer comes into an area and hires workers who have not previously
worked for him, there is considerable turnover and weeding out in the beginning.
Preskitt testified that the number of unsatisfactory workers was worse at Brookley
than at other jobs. Stroud, who had been a journeyman roofer for about 25 years,
stated that the men sent to the job were as good as any employees that could be
secured from a union hall or any other employment source. He said some were
better and some worse but the average was good.
Respondent, of course, was at liberty to set its own standards of employee pro-
ficiency and this it did. Until the instant charges were filed the hiring and firing
by Respondent appears to have been completely untrammeled insofar as the Union
was concerned. This was also true of the pace at which the men worked. Here
23 laborers working in the week of August 12 There was no shop steward designated
at the beginning of the job or at the time this incident arose.
8 Werneth went to the jobsite once, about the first week in August He asked Preskitt
to slow the pace of the work a bit because of the heat which was causing men to drop out
Werneth said the men would make it up as soon as the hot spell was over. It does not
appear what Preskitt replied.
8 Perkins testified that he did no talking after he went to work and he stated that he
went out to work and he did his work
10 This conversation in Werneth's home was after Perkins' discharge on August 17. It
occurred either on the evening of August 17 or a day or two later The contents of the
conversation is based on the testimony of Werneth and Stroud.
11 Burnette states that the discharge was the idea of Preskitt and himself.
I credit Burnette 's testimony regarding Perkins' discharge . Burnette ' s credibility as
well as that of Stroud is discussed at a later point
11 Werneth testified that it was one of the disaster areas insofar as unemployment was
concerned.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
again Respondent was at liberty to set its own standards and the employees could
either go along with such standards, quit, or engage in any lawful union or concerted
activity to protect their own interests. If the employees resorted to union or con-
certed activity, Respondent was under no legal duty to agree with their position
regarding the pace of the work or other conditions of employment. But, under the
law, Respondent was not at liberty to discharge employees because they resorted
to activity protected by the Act. The evidence in this case persuades me that Perkins
was engaged in concerted or union activity protected by Section 7 of the Act on
August 17 when he spoke to Burnette on behalf of his fellow employees regarding
working conditions. I find that Burnette's reference to Perkins having "a big mouth"
referred to his protected activity in speaking to the foreman on behalf of his co-
workers. Burnette resented such activity and I find that Perkins was discharged for
this reason and not because he was a poor or slow worker. Such discharge is
violative of Section 8(a) (1) and (3) of the Act. This conclusion is reached although
Burnette was also a member of the Union when the discharge occurred and was
working for the Union at the time of the hearing. The evidence in the case satisfies
me that Burnette's unionism, at least in the area before me, was of a limited or
departmentalized variety. It is my conclusion that both at the time of Perkins' dis-
charge and at the time of the hearing it was consistent with Burnette's philosophy
for a foreman to discharge a laborer who had "too much mouth," in the sense that
speaking up on behalf of fellow employees regarding working conditions was what
constituted the "too much mouth." 14
C. The discharge of Richardson and Jones
Shirley Richardson testified that he had worked in the roofing trade for 18 or
19 years. He was a mature individual and he testified that over the years he had
also done carpentry work, sheet metal work, and machinist work. As is common
in trades relating to the construction industry, many employees in the roofing trade
secured work through the union hiring hall as employers required men. Such
employees are not regularly or, on an annual basis, on the payroll of any particular
employer.15 Richardson and most of the other men on the Brookley job were
in this category, including Burnette, the foreman who was secured by Respondent
for the particular job. Some employers in the roofing business did have a few
regular employees but, by and large, men were recruited for particular jobs as
the need arose. The testimony of Nester that there is generally a demand for good
roofers and that they have steady employment is probably true but it is subject to
some qualification. Obviously, if an area is a disaster area insofar as employment
is concerned the opportunity for employment is correspondingly limited regardless
of competency. It is also apparent that the amount of work available to a roofer
may increase or decrease in accordance with his willingness to travel and work
14 Respondent's Brookley operation was a "union job" in a limited sense. Respondent
had refrained from signing the union contract although the Union represented the majority
of the employees on the job and evidently all employees were union members. The job was
distinguished from a nonunion job in that Respondent used the Union as a convenient em-
ployment agency that was situated in the Mobile area and Respondent paid the union
scale of wages. On a Government contract Respondent was apparently obliged to pay
what the Government had determined to be the prevailing wages in the area. As to
laborers, this wage as $1 .98 and Respondent paid an even $2 (the union scale was $1.75
for laborers ). Respondent paid $3 .42 for journeymen which was the union rate and
apparently the prevailing wage for this category was the same. As to day-to-day working
conditions , the Union had appointed no shop steward on the job until after Perkins' dis-
charge, following Perkins' effort to speak to the foreman about working conditions. The
subsequent discharge of the steward and assistant steward is the subject of the balance of
this proceeding.
In its brief Respondent asserts that Bush was discharged at the same time as Perkins
and for the same reason , poor work performance , and "no one has contended that Bush
was fired on account of union activity ." It is true that Bush's discharge is not an issue
in this case but the fact that he was not included in the charge or complaint means no
more than that. His case is not before us. Bush was one of the men who was with
Perkins when the latter protested to Burnette . He, like Perkins , was terminated at the
end of the day. Bush had been working since the commencement of the Brookley job
what decision would have been warranted if Bush 's discharge were an issue need not be
decided but the absence of an issue regarding Bush is not dispositive of Perkins' case.
u Respondent contends that none of the three dischargees, Richardson , Perkins, or
Jones, was a competent roofer because he did not have a paid -up union book and did not
have a steady job, both of which are contended to be hallmarks of good journeymen.
ALABAMA ROOFING & METAL CO., INC. 887
away from home Thus, some of the roofers at Brookley came from distant points
and we have seen that Stroud came from Missouri. Presumably, they would not
have come to Mobile if comparable employment was available in the vicinity of
their homes. The fact that most of the men referred by the Union to the Brookley
job did not have paid-up union books is not dispositive. By means of the referrals
the men secured work at union rates and when so employed they had dues and
initiation fees deducted. Both the men themselves and Local 82 regarded the
employees as union men or union members.16 When not employed they simply let
their cards lapse and thereby were under no obligation to pay dues while not
working. They admittedly worked at intervals and not steadily as previously
discussed. These factors, however, do not, in my opinion "support Respondent's
contention that they were not competent."
Richardson was hired as a journeyman roofer at $3.42 per hour, early in August
1962, shortly after the job got under way. He was called at his home one evening
at a later date by Werneth and was told that he was appointed as shop steward.
Richardson agreed to accept the assignment. On the same occasion he was told
that Silas Jones was the assistant steward who would represent the Negro employees
and would relay matters from that constituency to Richardson who would then take
the matter up with the foreman.17
In the course of his employment from August 13 to September 6, when he was
terminated, Richardson was assigned to running a tractor. This was his principal
task although he from time to time performed other roofing work as assigned. The
tractor was a two wheel garden tractor with a small, about 6-horsepower, gasoline
engine. The operator held the two handles of the tractor and walked behind it
as he guided its course. A sort of a plow or cutting bar had been installed on the
tractor, behind the chassis. Because of the necessity of tearing up and removing
about 13 acres of existing 5 layers of roofing material, Respondent had evidently
evolved this tractor as a mechanized aid to cutting and plowing through the old
roof and thus facilitating its removal.18 Preskitt had not previously encountered
a job of the proportions of that at Brookley and had never used this tractor device
on prior jobs. The evidence indicates that neither Richardson nor anyone else had
ever operated this tractor roof plow before.is
Preskitt testified that he had daily complaints from the two foremen, Stroud and
Burnette, about Richardson's work. He stated that the foremen wanted to discharge
Richardson the first week of his employment. The reason for the foremen's dis-
satisfaction, according to Preskitt, was the way Richardson abused the tractor, the
quality of his work, and his unwillingness to do a day's work. Preskitt stated that he
prolonged Richardson's employment because Werneth asked him to; because
Werneth could not supply him with another journeyman; and because Preskitt had
no one else to replace Richardson. Preskitt also testified that he had about six
conversations with Richardson concerning his abuse of the tractor and his work
as a roofer. He testified, however, when asked, that Richardson had never been
warned that he would be discharged. At another point in his testimony, Preskitt
was asked if he had ever warned Richardson that he would be discharged unless
his work improved. The answer was, "No. I didn't. I expected my foreman to
carry that duty if he needed to be talked to." The term, "abuse of the tractor,"
as Preskitt used it in his testimony referred to frequent breakdowns of that machine
that, Preskitt said or indicated, was attributable to the carelessness or lack of skill of
Richardson in operating the machine. The witness stated that on the evening of
September 6 he laid off Richardson; he testified that he told Richardson that the
reason was because there were too many journeymen on the job and that he would
call Richardson again if he was needed. Preskitt admittedly said nothing to
Richardson about the latter's work performance. At the hearing Preskitt said,
We had got the man to replace Richardson . . . they came to us at that particular
19
Preskitt testified that as far as he was aware there were no nonunion men hired.
11 Richardson was not accurate as to dates and appears to have been about a week "off"
in this respect He places his conversation with Werneth as Monday, August 13, but the
evidence previously described satisfies me that the conversation took place on Friday
evening, August 17, after Perkins was discharged and Werneth met with Stroud and
Burnette in his home about appointing Richardson and Jones as stewards, or possibly
within a few days thereafter, perhaps, Monday, August 20.
18 Richardson operated the tractor assisted by a helper who apparently helped to place
the cutting blade and hold it down and otherwise aided the work of plowing
19 Business Agent Werneth stated that he had never heard of a tractor being used on a
job like Brookley He testified that Durden, an officer of Respondent corporation, had
told him that the tractor was an experiment
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time . we had been trying previously foi weeks before to get these men and
they had come that day and he got laid off." Without naming the men, Preskitt
said specifically that two roofers from Local 48 in Montgomery reported for work
September 1 and two roofers from Mississippi reported on September 7.
The testimony of Richardson and Werneth is in substantial agreement with that
,of Preskitt as to the position expressed by the latter at the time of Richardson's
termination. Richardson states that on September 6 Preskitt told him that there
were too many journeymen on the job and that Richardson would be recalled if
needed. Werneth testified that he spoke to Durden and Preskitt together, about
the termination of Richardson and Jones on September 6 20 Both men told him
that the action was due to the fact that there were too many journeymen on the
job Durden said that the work of Richardson and Jones was satisfactory and
that he was agreeable to putting the men back to work 2i He said work on the new
building would be starting on the following Monday and "to wait till Monday
and start the men back to work."
Since Preskitt's and Respondent's position at the hearing and in Respondent's
brief is that Richardson was discharged on September 6 because he "did not do
satisfactory work, was rough on the mechanical plow which he operated, and was
fired only after repeated warnings," 22 it is apparent that what had been said to
Richardson and Werneth about a temporary layoff, and what Durden said about
the men's work being satisfactory and that they would be recalled in a few days was
inconsistent. Prescinding from this variance in what was said to Richardson and
then to Werneth as to the nature of and reason for the cessation of Richardson's
(and Jones') employment on September 6, we will consider further the evidence
presented at the hearing as to the reason for the discharge.
Richardson testified that he had a good deal of trouble using the tractor to plow
the roof. He stated that it broke down five or six times and twice in 1 day. The
witness said that about 2 days before his termination the plow broke down. Preskitt
told him he was probably too rough with it. This was the only occasion when
the witness says Preskitt spoke to him about his operation of the plow. Richardson
states that he told Preskitt that the tractor plow was too light for the work it was
intended to perform and that Burnette and Stroud, who were present, agreed that
the machine was too light and mentioned that they had discussed that fact several
times previously. While the plow was being repaired Richardson was assigned to
other work which he performed until discharged Just before the discharge occasion,
when the plow was restored to operating condition, a laborer, who had been
Richardson's assistant, was assigned to and ran the plow 23
Stroud, who, on the whole, impressed me as a credible witness, testified that the
plow had never been tried on a roofing job and it was too light for the job He said
that considerable repair work was required on the plow to keep it operational.24 The
witness stated that the tires that came on the tractor were too small and that "we"
went to a tire shop and secured heavy tires. The new tires were then filled with water
to add additional weight. These changes proved inadequate to hold the tractor down
as it plowed and weights were ordered. The weights were shipped in and attached
20 The record indicates that Durden was one of the owners and apparently an officer of
Respondent. He was Preskitt's superior. He was present throughout the hearing but did
not testify When Respondent moved for the sequestration of witnesses at the inception
of the hearing, the motion was granted as was counsel's request that the rule not apply to
Durden who sat with counsel at the attorney's table No attempt was made to except
Preskitt from the rule.
21 Dyess (spelled Diaz in the transcript of hearing) was terminated on September 6 also
He was a journeyman. Durden made it clear on the occasion in question that while the
work of Richardson and Jones was satisfactory and that they would be rehired, this did
not apply to Dyess
22 Respondent's brief, page 8
2a As noted heretofore the laborer's rate was $2 as compared to Richardson's journey-
man s rate of $3.42.
24 At the hearing, referring to Trial Examiner's Exhibit No 1, consisting of three
photographs of the tractor plow taken from various angles, Richardson had pointed to the
rods holding and attaching the plow to the tractor as the vulnerable parts that frequently
broke The picture reveals that three rods were bolted to a plate welded to the handle
bars running from the tractor to the operator and one rod was welded to the tractor draw-
bar. When in operation, the plow, as it encountered the material to be plowed, was quite
apparently subject to a backward thrust as it cut forward The support against this
backward thrust appears to have been given by three steel rods welded to the plow, with
the rods in turn being bolted to a plate as aforedescribed.
ALABAMA ROOFING & METAL CO., INC. 889
to the wheels but the machine continued to need repairs. A new device was then
prepared, consisting of an old railroad section car in which was mounted a hoisting
engine and winch, with cable, to pull a plow. This device was apparently satisfactory
although the tractor when it was repaired was also used.25 From experience, it was
learned that in the morning when the roof was cold the tractor was not adequate but
it performed satisfactorily after the roof was warm, apparently because the tarred
felt roofing was then softer and more malleable.
Respondent called as a witness Arthur McGrew, a civilian construction inspector
employed by the Government at the Brookley Base He testified that he came to
the Respondent's jobsite every day with the exception of a few days and spent about
30 minutes at the site. The witness said that he kept a daily construction log, made
a weekly report, and observed to see that work on the contract proceeded as specified .26
McGrew stated that during the first week he heard Burnette remark that he had a
sorry bunch of men. The witness then said that the turnover was about the same as
on other jobs and that there was always more turnover at the beginning of a job.
He said the plow was broken down "quite a bit" and replied, in answer to a question,
that he observed that the man running the plow operated it "in a reckless manner,
tearing it up "
McGrew did not impress me as a particularly cogent witness. His duties were
routine in nature and did not go much beyond making routine daily log entries and a
weekly summary. He made no report to Preskitt or anyone else about the quality
or individual performance of Richardson or any other employee. There is some
question as to how much time he actually spent on the jobsite. What he meant by
"reckless" operation of the plow is unexplained other than the fact that the plow was
torn up or it broke down, in the course of operation. If Richardson was running the
plow into the walls or other obstructions this could qualify as reckless procedure but
there is no evidence or intimation in the record that anything like this occurred. How
much McGrew knew about the construction of the plow or the problems of its opera-
tion on a roof is doubtful. The roof plow was admittedly a unique and unprecedented
application. At best, I regard McGrew's opinion as probably no more than a per-
sonal deduction from the fact that as the plow was operating it broke down from
time to time and he may have believed that it was the fault of the operator. As to
whether this was or was not the fact, I regard the testimony of Preskitt, Richardson,
and Stroud as more material and valuable in aiding me in reaching a sound
conclusion
Returning now to Stroud's testimony regarding Richardson, in addition to the
plow operation aspect , he was asked as to other phases of Richardson's work.
Q. What quality of work did he do?
A. Well, sir, he done good work.
Q. Was he a qaulified journeyman?
A. I would say he was.
At the hearing, Respondent introduced an unsworn typewritten statement, signed
by Stroud and witnessed by Preskitt' s signature . Stroud testified that Preskitt told him
he was in trouble over Richardson and Jones and asked Stroud to help him out by
signing the statement. Stroud signed . Stroud testified that the statement was not
;true.
The aforesaid typewritten statement asserts:
On or about September 5, 1962 I discharged Shirley Richardson, Charlie
Roberts and Silas Jones. In acting as foreman I discharged these employees
of my own accord. I discharged them because they were not performing their
duties in a satisfactory manner. I had cautioned these men several times
that they would have to improve their manner of work . After discharging
these men we called the local union for replacement of men and they co-
21 In his testimony, Preskitt had said, without elaboration, "I had gotten into another
method of cutting in addition to the tractor . . [and] we might not have used it [the
tractor] as much as we did the other time .
-o McGrew's Government salary grade was GS-7 ($5,540 to $7 205), that is, the first
step in the salary grade was $5,540, with periodic increases, which, in approximately
19 years, would bring the employee to $7,205.
The daily construction log, which McGrew filled out in longhand, was a printed form
in which he inserted the number of employees, the temperature, "inches of rain," and so
forth Typical additional entries were, for instance, on September 10, "Operations. Re-
moved 100 sq. yds. old roofing and installed base sheet and 3 ply felt in Section D ;
Remarks: Material received today; 1 tank of pitch."
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operated by sending more men. I did not discharge these men because of
their union activities....
Aside from the favorable impression that Stroud and his demeanor as a witness
under oath made upon me, there are several things to be said about the above
statement in addition to Stroud's denial of its truth 27 Roberts was not discharged
at any time near September 5 or at the same time as Richardson and Jones. In
addition to working several weeks prior to September 5, the payroll shows that he
worked on September 4, 5, 6, and 7 and he is shown as working during the
payroll period September 9-13 and 13 to 19. In itself this clear inaccuracy might
not be too significant but it tends to confirm that the statement presented to Stroud
for signing was prepared beforehand and gave an inaccurate picture of events.
More significant is the assertion that Stroud discharged the employees, Richardson
and Jones. The testimony at the hearing, including Preskitt's, is that Preskitt made
the discharges, handed the men their checks, and told them the reason for their
termination.28 It is also noted that the statement asserts that after discharging
he three men Respondent called the local union [Local 82] for replacements of
the dischargees and the local cooperated by sending replacements Preskitt's testi-
mony is that several weeks previously Local 48 in Montgomery was requested to
supply journeymen and that the dischargees were replaced by two men on Septem-
ber 1 from Local 48, before the discharges, and by two men from Mississippi who
came to work on September 7.
We now turn to the matter of the union activity of Richardson and Jones. As
we have seen, they were appointed steward and assistant steward, respectively,
around August 17 or shortly thereafter and following Perkins' discharge. I credit
Werneth's, Richardson's and Stroud's testimony, previously described, regarding the
circumstances of the appointments.29 Since Werneth had called the two foremen to
advise them of the appointments, it is completely reasonable to conclude that they
would have so advised Preskitt of this fact since the presence and identity of stewards
on a job would have significance or potential significance to any superintendent on
a job employing union men. I credit Stroud's testimony that he and Burnette dis-
cussed the matter with Preskitt and that Preskitt said "he wouldn't have no shop
stewards, that he would run his own business and hire and fire whom he pleased."
I see no reason why they would not have done so and why they would not have named
Richardson and Jones and the capacities in which they were designated to act for
the Union. Preskitt admits that he knew that Richardson was the steward but denies
knowledge that Jones was assistant steward. I am not impressed by this last-
mentioned assertion of lack of knowledge . Jones was appointed as the assistant
steward to function for the Negro employees in the first instance. The laborers,
the largest group of employees, appear to have been predominantly Negro. There
were also Negroes in higher job categories. The complaints about working condi-
tions that first appeared, culminating in Perkins' discharge, arose in the Negro group.
Quite apparently the existence and identity of Jones, as spokesman for his group,
would be a matter of interest not only to the foremen but to Preskitt, regardless of
how he might feel about the matter. I do not believe that Stroud and Burnette did
not inform Preskitt of both Richardson's and Jones' positions.
Jones had been in the roofing trade since 1948. He was sent to the Brookley
job by the Union as top helper at $2.91 per hour on August 13.30 Preskitt testified
27 Stroud testified that he had never recommended the termination of Richardson or Jones
28 This was Preskitt ' s testimony, Richardson 's, Stroud 's, and Jones ' Even in stating
that in the first week of Richardson ' s employment the two foremen wanted to discharge
the employee , Stroud was not described by Preskitt as the sole source of the recommenda-
tion . However , at another point, Preskitt testified that Stroud , apparently on Septem-
ber 6, told him that he was going to lay off Richardson and Jones.
29 I credit Jones' testimony that Werneth told him he was being appointed as assistant
steward to Richardson because lie knew all the Negro employees and they knew him and
because he was the highest paid Negro on the job from the local
Si Jones had the same rating and pay as Perkins His ability was probably comparable.
In speaking of Perkins , Werneth had testified that although Perkins' classification was
semiskilled and although he did not have the classification of journeyman , he actually
"can do anything" In the trade Werneth, after stating that Perkins was not a journey-
man, was asked: "Q. Well , did I misunderstand you when you said he was one of your
most competent men'-A . I will go into it again-a lot of colored fellows won't take a
job as mechanic [ journeyman ]. They won't take the responsibility ." Assuming that
there may be people who would rather earn $2 91 as top helpers than $3 42 as lournevmen,
this, as we shall see, was not true of Jones and he was quite willing to accept the
"responsibility."
ALABAMA ROOFING & METAL CO., INC. 891
that he did not have an opening for an employee in the $2.91 category so he put
Jones to work as a laborer but paid him his $2.91. Shortly thereafter Preskitt felt
that he could not continue to pay Jones $2.91 for laborer's work which called for
$2 an hour. Preskitt testified that he decided to give Jones the work of a journey-
man and the pay of $3.42. He talked to Jones about this and Jones readily agreed.
Jones was performing journeyman's work at least during the payroll period of August
19 to 25 or during the latter part of that period and thereafter. However, the pay-
roll records for the period August 12 to 18 and 19 to 25 show that Jones was paid
$2.91 per hour. It is during the payroll period of August 26 to September 1 that
Jones' rate first appears as $3.42.
Preskitt testified that on August 25, Richardson, accompanied by a journeyman
who was not employed at the time, said to Preskitt that Jones was performing jour-
neyman's work although he was not a journeyman. Preskitt asserts that he replied
that Jones was working as a journeyman at journeyman's pay and Preskitt says he
asked Richardson why he was butting in. According to Preskitt, Richardson and
the other man expressed disapproval of the fact that Jones was working as a journey-
man because they said there were no Negro Journeymen in the Mobile local.
The testimony of Richardson and Jones regarding the foregoing incident im-
pressed me as more credible than Preskitt's version. While the evidence shows that
Jones was performing journeyman's work on August 25, he did not receive the
journeyman's pay until the following week, after the August 25 conversation be-
tween Richardson and Preskitt. Jones and Richardson state that nothing was said
about Negro journeymen in the local and Jones testified that there were Negro
journeymen in the local.31 According to these two witnesses, Richardson, on August
25, came up to Preskitt and spoke about Jones. Richardson was acting because he
had received complaints from unemployed journeymen that Jones, a top helper, was
doing journeyman's work. Richardson told Preskitt that either Jones would have
to be replaced by a journeyman or, if Jones was retained at that work, he, Jones,
would have to receive journeyman's pay. Preskitt asked Richardson what he was
doing in the argument and the latter said he was shop steward as Preskitt knew.
Preskitt said, "There is no shop steward on this job" and said that he would not
recognize a steward and would not have one 32 He also said, "for your information,
myself and Burnette had previously decided to raise Jones to journeyman " As pre-
viously noted, it was after this incident that the payroll shows Jones as receiving the
journeyman's rate until his discharge with Richardson on September 6.
On Wednesday, August 29, of the following week, Richardson, Jones and Preskitt
were involved in another incident. An employee named Hattenstein, a laborer,
who had worked for Respondent since the first week of the Brookley job, was dis-
charged by Burnette on August 29.33 Preskitt testified that Richardson came to him
on August 29 after Hattenstein's discharge and said that the men had stopped work-
ing and were not going back to work until Hattenstein was reemployed. Preskitt
states that he asked Richardson what his position was and Richardson said he was
the shop steward and that if the men went out he would go with them.34 Preskitt
then proceeded to bypass the shop steward and went up on the roof and addressed
the men directly. The employees, including Richardson, went back to work
According to Richardson and Jones, whom I credit, some of the employees had
come to Jones and had complained about Hattenstein's discharge. Jones then
went to Richardson about the matter and the latter spoke to Preskitt. Preskitt
said that when his foreman fired someone he stood behind him and the man stayed
fired. Richardson told Preskitt that the men had informed Jones and Richardson
that they would come off the roof if the man stayed fired. Preskitt asked Richardson
si The majority of the men in the local were necroes
12 This Is Richardson' s version Jones' testimony, which is substantially the same, is
that Preskitt said he did not have a shop steward and never had one and never would
have one
3' Richardson and other witnesses of the General Counsel place the Hattenstein dis-
charge a week later, on September 5 However, the payroll shows August 29 as the last
day worked by Hattenstein. The fact that a paycheck of Hattenstein, dated August 29,
was paid by the bank on September 5, does not establish, as the General Counsel appears
to argue, that September 5 was the date of the termination
si According to Preskitt, this was the first time he learned that Richardson was the
steward Aside from other evidence as to Preskitt's prior knowledge of Richardson's
stewardship, it is to be noted that Preskitt testified that on the occasion of the Jones
incident, on August 25, lie asked Richardson why he was butting in Since Richardson
would have had no status to intervene except by virtue of the fact that he was steward,
it is unconvincing to believe that he did not tell Preskitt that he was the steward Both
Richardson and Jones testified that Richardson did so.
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he was with the men and the latter said , yes, and if the men left he would go too.
Preskitt then talked to the men pointing out there was plenty of work and a lot
of money to be made and that they could leave or go back to work. Everyone
returned to work.
Moss was a journeyman who was brought to the Brookley job from Montgomery.
He came down to the job with Preskitt and was on the initial payroll. The witness
worked throughout the job and was the only journeyman who was on both the first
payroll in August and the final payroll in December .35 After Brookley, he worked
for Respondent on other jobs and had voluntarily quit about a week and a half
or 2 weeks before the hearing . The witness testified credibly that he recalled
the day of the Hattenstein incident . There was an argument between Burnette and
Hattenstein . Preskitt came up on the roof when the men were standing there, not
working. Preskitt asked Moss what the trouble was. Moss said he did not know.
Preskitt then went over to the men and told them that there was a lot of work on
hand and plenty of money to be made and if the men wanted to work , "let's go."
Preskitt said that the shop steward had started the trouble . Moss testified that
Preskitt was referring to "the white fellow," Richardson.36
Since Jones as well as Richardson was discharged on September 6, a few days
after the Labor Day weekend and following the Hattenstein incident of August 29,
the Respondent 's reasons for Jones ' discharge must be examined.
Preskitt testified that it was not his idea to terminate Jones and that Burnette
and Stroud wanted to get rid of him because he could not do journeyman work.
The witness thereupon testified that the foremen had previously complained about
Jones' work as a laborer but Preskitt thought that Jones would be better satisfied
as a journeyman and promoted him. He said he told Jones at the time of the
promotion that if he could not perform journeyman work he would be let go.
Preskitt then said that he terminated Jones because he could not do the work and
that the quality of Jones' work was not acceptable and had to be redone. The
witness also stated that "It was my two foremen's idea to lay him off " and "Stroud
laid him off ." The evidence is, however , that Preskitt talked to Richardson and
Jones on September 6, gave them their checks, told them that they were laid off
because there were too many journeymen working and that he would call them if
he needed them . The witness at this point said he "supposed " that Stroud had
previously told the men of their layoff.
Stroud , whom I credit, testified that he had never complained to Preskitt about
the work of Jones or of Richardson nor had he recommended that either man be
discharged . He stated that he had not heard Burnette complain about the two
men either . The witness also said that when Jones was doing journeyman work
he told Jones that he would talk to Preskitt on his behalf , and he did, and he and
Preskitt agreed that Jones was a good journeyman . Stroud stated that it was not
his idea to lay off Jones and that he did not lay him off.37 According to Stroud,
Jones was a good journeyman and his work was of good quality although he was
not a fast worker38 The witness stated that Preskitt told him that he was going
to fire Jones and Richardson and that they were sorry workers; he asked Stroud
to give them their checks . Stroud testified that he did not want to discharge the
men and he went to see to the unloading of a car and did not discharge the two
men nor did he give them their checks.
38 On the September 9 to 12 payroll , when Stroud was absent , the designation "foreman"
appears next to the names of Burnette and Moss although Moss continued to receive the
journeyman rate of $ 3 42 and Burnette received $3 57 In any event , Moss was apparently
acting as foreman for this period.
ae Early in his cross-examination of Moss, Respondent asked him if he knew Perkins
The witness said he did . He was asked how long Perkins had worked on the job and the
witness said about a week. These answers were substantially accurate and are credited.
The witness said he worked with Perkins on the job . Moss, like Perkins , was a Negro.
Later, the witness, under questioning by Respondent counsel as to what he had said about
Perkins in counsel's office, said he did not know Perkins until the morning of the hearing
The Trial Examiner observed the witness throughout his testimony and the circumstances
and I do not regard Moss as a discredited witness. In my opinion , lie as nervous and'
confused when the latter answer was given and his final answer on the point was, "I know
but what I say-I don 't know."
87 Jones worked under Stroud as foreman "all the time " Richardson worked under
Stroud as foreman most of the time or any time that Stroud needed him
38 It will be noted that Preskitt testified that Jones ' work was of poor quality and had
to be redone. He said nothing about speed.
ALABAMA ROOFING & METAL CO., INC. 893
D. Conclusions regarding Richardson and Jones
Based upon Richardson 's testimony as to the years he had worked in the trade
and particularly Stroud 's appraisal of Richardson as a worker and journeyman, and
my appraisal of the evidence as a whole, it is my opinion that Richardson was a
journeyman of average competence and was in that sense a satisfactory journeyman.
The principal task, to which Respondent had assigned him, was running a device, a
plow, that was novel and experimental with respect to roofing work. Much of
the difficulty with the plow was attributable to its structure and the task assigned
to it . As to Richardson 's other roofing work, it was varied and a relatively small
portion of his work, as compared to the plow operation. Since the intervals, at
which Richardson became available for nonplow work when the plow broke down,
were unpredictable and relatively brief, he was assigned to any task available. This
diversity of tasks on which Richardson worked was principally due to these cir-
cumstances rather than to the fact that Richardson was incompetent as a journeyman.
Preskitt, in my opinion , sought to paint an exaggerated and overdrawn picture of
Richardson's deficiencies . I can see no reason why Richardson was retained if, as
Preskitt states, both foremen wished to discharge him during the first week of his
employment . Richardson was not the steward at that time and Respondent was
admittedly terminating personnel in rapid and summary fashion. The Union was
quiescent prior to Perkins ' discharge. Werneth is not shown to have intervened
on behalf of any of the dischargees until after the discharges of September 6.
In addition to the inherent weakness in the plow, that had been pointed out to
Preskitt by the two foremen and by Richardson, and the fact that a different device
was added to supplement and facilitate the plowing operation after Richardson's
termination , there are other reasons for believing that Preskitt's picture of Richard-
son's deficiencies was overdrawn . If the breakdowns were not the fault of the
plow's structural unsuitability , then Richardson was causmg the breakdowns through
ignorance or lack of skill or because he was reckless and did not care about exercis-
ing average good judgment . Richardson was not some peasant who had never
seen or used tools or machinery. He was a roofer for many years and had also
worked as a carpenter , sheet metal worker, and machinist He may well have
not been a master craftsman in each trade but he certainly cannot be classified
as a man without basic mechanical and manual aptitude and experience. Respond-
ent's plow operation required no esoteric mechanical skill and I am persuaded that
Richardson possessed the knowledge and skill for this operation . The breakdowns
therefore were not due to lack of the requisite mechanical aptitude and skill. This
leaves what is, in effect, Respondent 's position , that Richardson was willfully reck-
less in operating the plow. Other than the fact that there were breakdowns of
the plow, the Respondent offered no specificity of this asserted recklessness.
Presumably, if Richardson rammed the plow into obstructions or ran it at a wild
pace up and down the roof these instances could have been described The ques-
tion arises, why would Richardson operate the machine recklessly. We have seen
that it would not be because of ignorance of mechanical devices. Presumably
then , the recklessness would be deliberate. There is no basis to suspect sabotage
and no assertion is made to that effect. The evidence certainly indicates that
Richardson wanted employment . He had not been working regularly prior to
Brookley. The employment picture in the area was bad. He had never com-
plained to Respondent about his job. He was never, as far as the record shows,
disrespectful or insubordinate . His job paid $3.42 an hour and the Brookley
job was about as stable and as long in duration (and probably more so ) as most
persons in the trade could hope for. The job of running the plow, with an as-
sistant , does not appear to have been particularly arduous. There appears to be
no sound or convincing explanation why Richardson would be reckless and rough
on the plow. The indications are that he would be just the opposite and because he
possessed the capability, it would appear that from the standpoint of Richardson's
motives and ability it is highly unlikely that Preskitt' s testimony was not exaggerated
and inaccurate.
It is pertinent to observe that admittedly Preskitt never warned Richardson,
despite his alleged pronounced deficiencies from the inception of his employment,
that he would be discharged or that he would have to improve or he would be
discharged . Stroud had never recommended that Richardson be warned, disciplined,
or discharged , and Stroud had done none of these things himself although Richard-
son worked principally under his supervision . Preskitt , who gave varied and uncon-
vincing testimony as to who discharged Richardson and Jones, discharged these men
but told them it was a layoff and indicated that they would be reemployed . Nothing
was said about their work. Durden and Preskitt said the same thing to Werneth,
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and with the former, in Preskitt's presence asserting that both Richardson and Jones
were satisfactory employees and that they would be recalled in a few days.
With respect to Jones' ability and performance, the evidence persuades me that
he was not deficient as an employee. He had been in the trade a good many years.
He impressed me as physically and mentally alert and capable. Preskitt's testimony
on Jones varied from saying that it was not his idea to discharge Jones, to testifying
that he discharged Jones because he could not perform the quality of work required
of a journeyman. Stroud, who was Jones' foreman, did not discharge the man nor
recommend such action and he stated that the quality of Jones' work was good.
Preskitt stated that Jones' work as a laborer was poor and that the foreman wanted to
discharge him even when he was performing laborer's work. I fail to understand
why he was not discharged in that first week, when he was performing laborer's
work at $2.91 an hour. There was no difficulty in securing laborers at $2 per hour.
Respondent was hiring and firing personnel freely, as it readily admits and asserts
as part of its general defense. Instead of discharging Jones as a laborer, Preskitt
assigned him to journeyman's work, with no prompting from the Union or any
outside source. If Jones was dificient as a laborer, his deficiency as a journeyman
would be likely to appear almost immediately, particularly since he was being paid
the same rate $2.91 for journeyman's work as he had received for laborer's work.
Instead, Jones worked in that posture for about a week or half a week and then was
promoted and continued as a journeyman on the payrolls of August 26 to Septem-
ber 1 and September 2 to 6 at the rate of $3 42
Respondent, in it brief, points out that it had voluntarily contacted Local 82 for
its work force; that it deducted union dues and initiation fees from the pay of the
employees and remitted them to the Union; that it paid the laborers more than the
"government scale"; and that Preskitt and the foremen were union members. It is
argued that it "does not make sense" that Respondent "would suddenly `change its
spots,' become hostile to the union" and discharge men because of their union ac-
tivities. Certainly the foregoing factors merit serious consideration and I have
accorded them such consideration. It may well be that Respondent was not and
is not hostile to the Union in the respects set forth above. The issue, however, is
whether Respondent was intolerant, to the extent of discharge, of certain union
activity of its employees, specifically, Perkins' activity of serving as a spokesman for
his fellow workers in speaking to and remonstrating with Foreman Burnette about
working conditions; and the activity of Richardson as steward in speaking to
Preskitt about either removing Jones from journeyman's work and replacing him
with a journeyman or paying Jones the union journeyman rate; or the activity of
Richardson and Jones as stewards and as spokesmen for employees who had
stopped work in protest of an employee's discharge.
The record in this case persuades me that Respondent's unionism tolerance did
not include the type of union activity engaged in by the discharged employees. If,
as Respondent asserts, Respondent did not change its spots of paying the union scale
of wages and deducting dues for the Union, it did not change its spots of operating
without a shop steward on its jobs to represent the employees regarding day-to-day
working conditions and job problems. In its home area and elsewhere Respondent
had operated with unions to the extent described but without shop stewards. The
evidence establishes that Respondent did not intend to and did not tolerate any on-
the-job representation activity by Perkins, Richardson, or Jones. Preskitt stated that
he would not have any steward on the job interfering and that he would run the
job and hire and fire without any toleration of the right of employees to engage
in the union activity of representation and protest about conditions of employment
through their spokesmen 39
If we were to credit Preskitt's testimony regarding the deficiencies of Richardson
and Jones as employees from the inception of their employment, including daily
complaints about Richardson's work from the foremen and recommendations from
the foremen that Richardson and Jones be discharged in the first week of their
employment, and when they were not stewards, he was unbelievably tolerant.
Whatever the faults of these employees, Preskitt continued to keep them in his em-
ploy thereafter When Richardson and Jones manifested to Preskitt that they were
other than quiescent stewards the tolerance ceased. Thus, in quick succession came
39Tt is eieai that the extent to ehich Respondent dealt with unions end the fact that
Preskitt and the foremen were union members establishes no irrehuttable presumption
that there was no illegal discnmination in this ease A vivid example of the dichotomy in
human nature is afforded by specific cases of established unions and union officers who
have opposed union activity among, and have refused to bargain with, and have dis-
charged, employees of the union who have joined or sought to join unions in older to
deal with their own employer , the union.
ALABAMA ROOFING & METAL CO., INC. 895
the incidents of August 25 (Richardson) and 29 (Richardson and Jones), with
the last incident being the culmination. These were the first and only instances
where steward activity came directly to Preskitt.40 On August 29, Richardson in-
formed Preskitt that the men had told Richardson and Jones that they would not
work unless the discharged employee was rehired. As on August 25, Preskitt again,
on August 29, challenged the fact itself that any employee representative should
seek to be heard regarding employment conditions. He asked Richardson, in effect,
why he was butting in and where he stood with respect to the matter. Richardson
reiterated a fact known to Preskitt, that he was the shop steward; he also said that
if the men walked out he would go with them. Preskitt said that he recognized
no steward "on the job" and said, as he had earlier told his foremen, that he would
have no steward on the job.41 He then proceeded to ignore the steward as spokes-
man for the men and went to the roof and spoke to the employees, pointing out the
amount of work available and the good pay to be earned. On the roof, Preskitt had
first queried Moss, a trusted journeyman and longest in point of service, whom
he had brought from Montgomery to the Brookley job, and asked him the source
of the trouble. Moss said he did not know but Preskitt apparently had decided in
his own mind that the steward had started the trouble and he made that statement
to Moss.
While Richardson was the chief actor in the foregoing incident, Preskitt was
aware that Jones was the steward who represented the Negro employees, the group
that had engaged in the protest stoppage of work on August 29 and it was Jones'
function to relay his constituents' complaints or grievances to Richardson. Richard-
son, in effect, conveyed the picture to Preskitt when he told him that the men had
told Jones and himself that they would not work unless the discharged man was
restored.
The day after August 29, the payroll shows, Respondent hired and put to work
a new journeyman by the name of Bruce Dew. Two or three working days after
the August 29 incident, I find, Preskitt spoke to Richardson for the first time about
being rough in operating the plow although, according to Preskitt, Richardson had
been abusing and breaking the plow for several weeks and since he first began to
operate it 42 In addition to speaking to Richardson for the first time about his
operation of the plow, Preskitt removed Richardson from the job he had been
doing for many weeks and gave him a variety of other tasks to perform and dis-
charged him and Jones a few days later. Not a word was said to either man
about his work. That it was a temporary layoff and was emphasized by Durden,
in Preskitt's presence , when he said that Richardson and Jones were satisfactory
workers and would be rehired in a few days. Perhaps Durden was sincere and
truthful in what he said but Preskitt never recalled the men and his testimony about
the dischargees ' deficiencies is directly contrary to the statements made by Respond-
ent at the time of the terminations.43 This is particularly evident since, on the
same occasion , Durden stated that Dyess, who was discharged at the same time,
was not included in the characterization of "satisfactory employee."
There are discrepancies revealed by the evidence with respect to Preskitt 's testi-
mony that Richardson and Jones were terminated because he had finally secured
replacements for them . According to Preskitt, replacements had been sought in
vain during the 2 weeks prior to September 6 .44 These replacements , the witness
stated, were sought from Local 48 in Montgomery and from Mississippi . Preskitt
testified that the replacements were two journeymen from Local 48 who reported
for work on September 1 and two from Mississippi who reported for work on
40 Werneth did not appoint a steward to replace Richardson and Jones after their
discharge.
411t is perhaps more accurate to say that Preskitt would not tolerate a steward who
acted as a steward.
42Preskitt said he spoke to Richardson twice about the plow but never warned him that
he would have to improve or be discharged . Credited testimony dealing with the plow in
detail and its operation has been discussed previously , as has Richardson 's performance
on the job with respect to his other work.
43 Respondent had refrained from signing the union contract for the Brookley job and
was under no obligation or compulsion to refrain from telling Richardson , Jones, and
Werneth that the stewards were incompetent workers and that they were discharged for
that reason, or to accord stewards preferential treatment, or to tell them that they were
satisfactory employees if such was not the case.
44 Werneth of Local 82 testified that he sent men to the job every time requested to do
so by Preskitt. In view of the depressed employment conditions in the trade in the area
there is no reason to doubt this statement.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
September 7. Respondent 's witness , Nester, business manager of Local 48 until
October 1, testified that before the Brookley job commenced, about the first part
of July 1962, Durden spoke to him about getting men for the Brookley job in
Mobile. Nester had another conversation with Durden, before the Brookley
job, along the same lines and this occurred at the end of July or the first of August
`and I believe he was getting ready to start the job. These conversations
occurred well before Respondent or Preskitt knew anything about the work of
Richardson or Jones and before they were on the payroll. Preskitt, therefore,
had not sought replacements for Richardson and Jones from Local 48, 2 weeks
before their discharge and after he had observed their alleged deficiencies as em-
ployees. Further, Nester named the two men whom he had sent to Brookley.
They were George Henderson and Willard Johnson, who did not, as Preskitt states
about the two men from Local 48, report for work on September 1. Henderson
.and Johnson appear for the first time on Respondent's payroll of September 20 to 26,
1962. Nester named no other roofers sent to Brookley from Local 48 in response
to any request by Respondent. Nor does the record show that two journeymen
from Mississippi reported for work and went to work on September 7.
What the payroll record does show is that the day after the August 29 incident
Respondent for the first time placed on its payroll and worked a journeyman named
Bruce Dew. This man was not from Mississippi and was quite evidently not sent
from Local 48 The payroll also shows that, on September 4, 3 working days
after August 29, Respondent for the first time placed on its payroll and worked two
journeymen from Mississippi, Ward and Ainsworth. There is no evidence that
Ward and Ainsworth had worked for Respondent or Preskitt or the foremen on
any prior job or what basis, if any, Respondent had for believing, if it did, that
they were superior to Richardson and Jones. It may be noted that Ward and
Ainsworth do not appear on the payroll after the payroll of September 27 to Octo-
ber 3. Other than Preskitt's less than reliable testimony there is no evidence that
Ward and Ainsworth had been contacted prior to August 29 as replacements.
Respondent in its brief points to the substantial turnover of employees on the
Brookley job and calls attention to the great decrease in personnel from the high
figures of the August 26 to September 1 and September 2 to 8 payrolls to the lower
figures of the subsequent payrolls. There can be no question that Respondent had
this turnover and that it discharged many people for incompetency 45 However, it
would appear that it did not take Preskitt and his foremen more than a day or two
and certainly not more than a week to discover whether an employee was com-
petent.46 The number of journeymen on the job was fairly constant but if Re-
spondent's assertion is followed , that changes in personnel reflected a weeding-out
process, Richardson and Jones had survived , until September 6, the weeding out
that had been taking place since the commencement of the job in early August 47
Thus, a journeyman named Black, who was on the August 12 to 18 payroll with
Richardson, Jones, and others, does not appear on subsequent payrolls. Journey-
man Mims, who was on the August 5 to 11, 12 to 18, and 19 to 25 payrolls does
not appear thereafter. Journeyman Derc Bruce, on the August 5 to 11 and August
12 to 18 payrolls , is not on subsequent payrolls. Journeyman Wedgeworth makes
his last appearance on the August 19 to 25 payroll after appearing on that and the
payroll of the preceding week. The number of journeymen, eight, on the September
2 to 8 payroll, was high because, after August 29, Respondent, as we have seen.
had hired three additional journeymen, one on August 30 and two on September 4.46
Charts have been introduced by Respondent to show increased progress and
productivity on the job after the middle of September. Respondent does not con-
tend "that the improvement in the progress of work was attributable solely to the
firing of Perkins, Jones, and Richardson" but it asserts that the increased produc-
tivity thereafter shows that they and others were weeded out as a part of the move-
ment to eliminate "nonproductive employees." As I view the evidence, the work-
completion graph shows a more or less steadily rising line from the commencement
of the job to its completion. There appears to be increased productivity after the
first month or after the middle of September. As Respondent apparently concedes,
45 The greatest turnover was among the laborers, the largest category of employees
48 For instance, the total number of laborers who appeared on the September 2 to 8
payroll was 42, a number never afterward exceeded or equaled. Of these 42, 4 worked
one-half day, and 9 worked only 1 day. On September 5 there were 27 laborers working.
47 Taking the figures used in Respondent's brief, for the week ending August 10 to the
week ending October 12 , the average number of journeymen was six. The number de-
creased thereafter until the end of the job on December 3
48 There were also eight journeymen on the August 12 to 18 payroll..
ALABAMA ROOFING & METAL CO., INC. 897
it is unlikely that this statistical picture would have been substantially different if
the three men were not discharged. Management and employees after several weeks
would predictably have gained experience in the organization of, and performance
on, this particular job; suppliers would have gained experience in performing their
functions for the job; changes and improvements in methods and equipment would
have taken place. Nor, as previously mentioned, is there any dispute that Respond-
ent was hiring and discharging to improve its work force and probably did improve
it. The issue before us, however, is why were Richardson and Jones (Perkins'
discharge has been dealt with earlier) discharged. Respondent's contentions and
those of the General Counsel have been considered. The witnesses and the evidence
have been considered and it is my conclusion that on all the evidence and a prepon-
derance of substantial evidence that Richardson and Jones were discharged because
their activity, in representing their fellow workers in the capacity of stewards, was
completely unacceptable to Respondent; and Respondent was determined that it
would not have steward activity on the job. If the work performance of these
men was a factor in their discharge it was a minor and not a determinative factor
,and but for their activity on August 25 and particularly the events of August 29
they would not have been discharged 49 I find that the discharges violated Section
8(a)(1) and (3) of the Act.
E. Further findings and conclusions
With respect to the discharges of Richardson and Jones, I have heretofore confined
myself to a consideration of all the evidence with the exception of Burnette's testi-
mony, although I did consider and credit Burnette's testimony regarding Perkins.
At the hearing, when it became clear that neither counsel for the General
Counsel nor counsel for Respondent had called or intended to call Burnette as a
witness, the Trial Examiner indicated that he would be interested in hearing Burnette's
testimony since he was quite clearly a material witness as to the events of the case.
Burnette was then called and examined by the General Counsel and cross-examined
by Respondent.
Respondent has attacked Burnette's credibility and has introduced into evidence
two written statements of Burnette. The first document, Respondent's Exhibit No. 7,
is a typewritten statement prepared by Respondent, signed by Burnette, and also
signed by Preskitt as witness. As originally submitted to Burnette by Respondent,
the statement recited that Burnette had discharged Perkins, Jones, and Richardson.
Burnette informed Respondent that he had not discharged Jones and Richardson.
The statement was changed to reflect the foregoing and Burnette signed it. In
content, this statement is confined to the discharge of Perkins; it asserts that
Burnette discharged Perkins because the latter did not perform his work and stood
around talking and because the quality of his work was unsatisfactory and had to
be torn up and redone; it is stated that Perkins was not discharged for his union
activity.
My appraisal of the evidence in this record and of Burnette as a witness convinced
me that, on the Brookley job at least, Burnette's attitude toward Perkins' activity as
spokesman in presenting a grievance regarding working conditions, was the same as
that of Preskitt. Burnette was personally, directly, and principally, involved in
Perkins' discharge. At the hearing he never stated or admitted that he discharged
Perkins for union activity and was consistent with his prior statement in that respect.
He did testify truthfully, I believe, that he discharged Perkins "because he had too
much mouth" and referred to the incident about Perkins coming to him on behalf
of the men about working conditions. This was consistent with the testimony of
other witnesses. He also stated that Perkins was agitating the men whenever some-
one was terminated and always had something to say about such matters On cross-
examination by Respondent he admitted that he wanted to discharge Perkins. I am
not at all sure that at the hearing Burnette believed that his motivation for the dis-
49 The same conclusion is and was reached with respect to Perkins. Even in an equally
mixed motivation situation, it would rest "upon the tortfeasor to disentangle the con-
sequences for which it was chargeable from these from which it was immune " N L.R B v
Remington Rand, Inc, 94 F. 2d 862, 872 (CA. 2), cer't denied, 304 U.S. 576
Although the evidence in the instant case does not show that the dischargees engaged
in misconduct or performel their work in a manner warranting discharge, the following
quotation is the more pertinent: ". . . employee Reeves, the union president, was dis-
charged for presenting the grievance . . . The conduct of Reeves after becoming presi-
dent of the union may have been such as to warrant his discharge but this was not the
reason given at the time of the discharge" [citations omitted]. N.L R.B. v. Bowman
Transportation, Inc., 314 F. 2d 497 (C.A. 5).
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge was antiunion, as he regarded union activity. But I believe he testified
truthfully regarding Perkins and that my conclusion regarding the Perkins case was
correct.
Subsequent to the time of Burnette's signing the aforementioned statement for
Respondent, counsel for the General Counsel came out to interview Preskitt and
Burnette at a trailer on or near the jobsite. The date was October 30, 1962, a
time when the job was not completed and when Burnette was one of Respondent's
foremen. Burnette testified, without contradiction, that Preskitt and Durden had
previously told him not to give the General Counsel any information or to sign a
statement. It appears that on October 30 the General Counsel persuaded Burnette
to talk to him in his car, out of the immediate presence of Preskitt. On that
occasion, the General Counsel did secure an affidavit from Burnette and it is this
statement, Respondent's Exhibit No. 6, that Respondent introduced at the hearing
to impeach Burnette's testimony. At the hearing Burnette testified that he did not
tell the truth in the aforementioned affidavit.
In the affidavit, Burnette states that Richardson was not discharged but was laid
off by Preskitt. The affiant said that he had nothing to do with this action; that
Richardson was an experienced roofer, a fair worker, and that his principal work
at Brookley was operating the plow; that Burnette, Preskitt, or anyone else "never
complained about his [Richardson's] work"; that "the fact that Richardson was
laid off the day after the [work] stoppage on the roof happened had nothing to
do with it. We just were behind on deliveries of slag."
It will be recalled that the foregoing, with the exception of the last sentence, was
substantially the position professed by Preskitt and Durden at the time of Richard-
son's termination. Preskitt admittedly told Richardson that he was laid off because
at the time there were too many journeymen and Preskitt said nothing about
Richardson's work performance. Durden, with Preskitt present, affirmed to Werneth
that Richardson was a satisfactory worker and that he was being laid off temporarily
and would be recalled in a few days.
Burnette in his affidavit was echoing Respondent's position. Respondent's posi-
tion at the hearing, however, was that Richardson, who did not have a paid-up
union book, was an unqualified journeyman who was totally deficient as a worker,
who was criticized daily by both Burnette and Stroud who wanted to discharge him
the first week of his employment, and that he was discharged because of his deficient
work. Back in October, when Burnette gave the affidavit, either Respondent was
still adhering to the "layoff" explanation or Burnette had not been informed of the
other explanation. The evidence indicates that even in giving what he believed
was Respondent's explanation about Richardson's layoff, Burnette fumbled the ball
and confirmed that his affidavit was not the truth. Thus, in saying that Richardson
was not discharged but laid off, Burnette stated that the layoff was due to the fact
that "we were just behind in deliveries of slag." This explanation is unique in the
record. Neither Preskitt nor anyone else referred to the fact that the layoff was
because Respondent had run out of slag or that deliveries of this product were
behind schedule 50
The affidavit then goes on to state that Burnette did not know that Jones was
assistant steward; that Burnette had nothing to do with "firing Jones"; that Preskitt
laid off Jones but Burnette had recommended the layoff because Jones was a slow
worker; 51 that the affiant never heard Preskitt speak in opposition to having a
steward; that the affiant fired Perkins and told Perkins that it was because he would
not work and had "too much mouth." The affidavit closes with the statement that
to the affiant's knowledge "none of these men were fired for anything except not
doing their work." If this last assertion was meant to include Richardson, it was
of course contrary to what the affiant had said previously in the same affidavit.
Burnette's testimony at the hearing was under oath in a formal proceeding. He
was obviously not a disinterested witness nor a person who at all times told the
truth. His testimony merited maximum scrutiny and I have endeavored to accord
it such scrutiny . I observed him as a witness and as a person. Among other
so The daily log of the building inspector , McGrew, shows that a carload of slag was
delivered to the job on September 5, the day before the termination The next carload
was September 18 and it seems unlikely that Respondent would have had to, or was,
waiting nearly 2 weeks for slag if It was needed on the job.
51 This area posed some difficulty since, as in the case of Richardson, Respondent had
taken the position originally that Jones and Richardson were laid off because of too many
workers and that they would be recalled shortly.
ALABAMA ROOFING & METAL CO., INC. 899
things I have considered "the consistency and inherent probability of [his] testi-
mony." 52 I credit Burnette's testimony that he and Stroud had not recommended
the discharge of Richardson and Jones; that they had not complained about the
work of these men; that they had told Preskitt that the plow was too light for the
job; that he and Stroud, after meeting with Werneth, had told Preskitt that
Richardson and Jones had been appointed stewards and that Preskitt said he was
not going to have any stewards and would hire and fire as he pleased; that after
the incident of August 25, when Richardson told Pieskitt that Jones would have to
receive journeyman's pay or be taken off journeyman's work, Preskitt told Burnette
that he was going to get rid of Richardson because he did not want anybody around
aggravating the men; that, after the August 29 incident on the roof, Preskitt told
Burnette that he was going to get rid of Richardson, and Burnette said that Jones
was an agitator also, to which Preskitt said, "Well, let's get rid of him too." 53 I
find Burnette's testimony to be substantially consistent with other evidence in the
case, as previously described, and I find his testimony to be confirmatory of my
conclusion that Perkins, Jones, and Richardson were illegally discharged in viola-
tion of Section 8 (a) (1) and (3) of the Act 54
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in connection with the
operations of the Company described 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.
V. THE REMEDY
It having been found that Respondent engaged in unfair labor practices in viola-
tion of Section 8(a)(1) and (3) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the act.
Although Respondent was quite willing to deal with the Union and pay union
wages, the evidence reveals that it was firmly opposed to the exercise by employees
of one of the basic rights guaranteed by Section 7 of the Act. It is the protected
exercise of their statutory rights by employees that is the primary concern of the
Act and the peaceful exercise of the right to representation on conditions of employ-
ment is basic.
Since the job was completed in December 1962, reinstatement was not recom-
mended.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2 (21 and 16) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By discharging Aubrey Perkins, Shirley Richardson, and Silas Jones for having
engaged in protected concerted and union activity as representatives of their fellow
employees, Respondent has engaged in unfair labor practices within the meaning
of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
62 Universal Camera Corporation v. N.L.R B., 340 U.S. 474, 496
63 While employed by Respondent as a foreman, Burnette had or has adopted the same
attitude toward union activity among the rank-and-file employees as did Preskitt. He
demonstrated this when he discharged Perkins on August 17 because of his "big mouth"
and, again, concerning Jones. Apparently Burnette was more of a confidante of Preskitt
on this aspect of the job than was Stroud
5 The Trial Examiner rejected the General Counsel's offer of an affidavit of Burnette,
dated January 16, 1963, which was consistent with Burnette's testimony at the hearing
I regard such an affidavit, given 2 weeks before the hearing as indistinguishable, from the
evidentiary standpoint, from the same statement, oral or written, if given to the General
Counsel an hour, a day, or a week before the witness testified at the hearing to the same
effect as in the statement it might well be another natter, in the circumstances of this
case, if such a statement had been given while Burnette was in Respondent's employ or
had been given before or shortly after his other prehearing statements. As it was, I be-
lieve, the statement could add nothing to the issue of whether or not Burnette was testify-
ing credibly at the hearing
712-548-64-vol. 142-58
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case , I recommend that Respondent, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or discriminating against Aubrey Perkins, Shirley Richardson,
Silas Jones, or any other employee because they engage in or engaged in lawful
union or concerted representation activity or other lawful protected union or con-
certed activity on behalf of employees.
(b) In any other manner interfering with, restraining , or coercing employees in
the exercise of the right to bargain collectively through representatives of their own
choosing , and to engage in any other concerted or union activities for the purpose
of collective bargaining or other mutual aid or protection or to refrain from any and
all such activities.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Make whole for any loss of pay they may have suffered as a result of their
discharge , Aubrey Perkins, Shirley Richardson , and Silas Jones, by payment to them
of a sum of money equal to that which they normally would have earned from
August 17, and September 6, 1962, respectively, the dates of their discharges, to the
date when their services on the job would normally have been discontinued , absent
the discrimination against them , less net earnings during the same period. The
backpay provided for herein shall be computed in accordance with the formula
stated in F. W. Woolworth Company, 90 NLRB 289, and with interest on the back-
pay due at 6 percent per annum in accordance with the principle of Isis Plumbing
& Heating Company, 138 NLRB 716.
(b) Upon request , make available to the Board or its agents for examination and
copying or reproduction , all payroll records , timecards or other data , to analyze
and compute backpay.
(c) Post at its office and place of business in Montgomery , Alabama, copies of
the attached notice marked "Appendix ." 55 Copies of said notice , to be furnished
by the Regional Director for the Fifteenth Region, shall, after being signed by a
representative of Respondent, be posted by it immediately upon receipt thereof and
maintained for a period of 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 other material . Copies of said notice, after being signed as
aforedescribed , shall be furnished by Respondent to Local 82 in Mobile, Alabama,
for posting in said Local 's office and union hall or shall be sent to the aforenamed
Regional Director for forwarding to Local 82 for posting as aforedescribed.
(d) Notify the Regional Director for the Fifteenth Region, in writing, within 20
days from the date of receipt of this report , what steps it has taken to comply
herewith.56
ec In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals , the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
ce In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discharge or discriminate against Aubrey Perkins, Shirley
Richardson, Silas Jones, or any other employee because they engage in or
engaged in lawful union or concerted representation activity, such as present-
ing grievances or statements regarding working conditions or other conditions
of employment or other lawful union or concerted activity.
WE WILL make whole for any loss of pay they may have suffered as a result
of their discharge, Aubrey Perkins, Shirley Richardson , and Silas Jones.
ECONOMY FOOD CENTER, INC. 901
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their right to bargain collectively through representa-
tives of their own choosing, including job stewards , and to engage in any other
lawful concerted or union activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any and all such activities.
ALABAMA ROOFING & METAL CO., INC.,
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.
Employees may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans 12, Louisiana , 70113,
Telephone No. 529-2411, if they have any question concerning this notice or com-
pliance with its provisions.
Economy Food Center, Inc. and Amalgamated Meat Cutters and
Butcher Workmen of North America, AFL-CIO, District
Union No. 99. Case No. 25-CA-1651. June 4, 1963
DECISION AND ORDER
On March 11, 1963, Trial Examiner Samuel M. Singer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
,it the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings,' conclusions,2 and recom-
mendations 3 of the Trial Examiner.
1 Member Leedom does not agree that Supervisor Schroer's statements , insofar as they
indicate that the advent of a union would lead to strikes and lost wages , violated the
Act. See Texas Industries , Inc., 139 NLRB 365, at footnote 5.
2 We agree with the Trial Examiner that the cards of Peak and Watson were properly
counted in determining the Union' s majority status. See Gorbea, Perez, & Morrell,
S. en C., 142 NLRB 475, Member Leedom dissenting on other grounds. We note, in any
event, that the Union would have a majority in the appropriate unit, even if these two
cards were excluded.
3 We hereby correct the apparently inadvertent error in the section of the Intermediate
Report entitled "The Remedy," which refers to violations of Section 8(a) (1), (2 ), and (3),
whereas the Trial Examiner found violations of Section 8(a) (1), (3 ), and (5 ). For the
reasons set forth in the dissenting opinion in Isis Plumbing & Heating Co ., 138 NLRB 716,
Member Leedom would not award interest on backpay.
142 NLRB No. 103.