Alum-A-Form of Idaho

National Labor Relations Board - Board Decisions

Jun 25, 1969

176 N.L.R.B. 1063 (N.L.R.B. 1969)

ALUM-A-FORM OF IDAHO
Alum-A-Form of Idaho and Local Lodge 1491,
International Association of Machinists &
Aerospace Workers, AFL-CIO. Case 19-CA-4046
June 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On March 5, 1969, Trial Examiner David
Karasick issued his Decision 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 Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Alum-A-Form of Idaho,
Boise , Idaho, its officers, agents, successors, and
assigns , shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID KARASICK , Trial Examiner : This proceeding
under Section 10(c) of the National Labor Relations Act,
herein called the Act , was heard at Boise, Idaho, on
September 19, 1968 , pursuant to due notice. The
Complaint , dated July 29 , 1968, was based upon charges
and amended charges filed on June 5 and July 24, 1968,
respectively , by Local Lodge 1491, International
Association of Machinists & Aerospace Workers,
AFL-CIO, and alleged that the Respondent had engaged
in unfair labor practices within the meaning of Section
8(aX3) and ( 1) of the National Labor Relations Act, as
amended.
Upon the entire record in the case , including briefs filed
by the General Counsel and the Respondent, and from my
1063
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF THE RESPONDENT
The Respondent, an Idaho corporation, is engaged at
Boise , Idaho, in metal fabrication where it annually
receives from suppliers located outside the State of Idaho
materials valued in excess of $50,000. As alleged in the
Complaint and admitted in the Answer, the Respondent
is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Hod Carriers and Laborers Local 434, herein called the
Union, and Local Lodge 1491, International Association
of Machinists & Aerospace Workers, AFL-CIO, the
Charging Party herein, are labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Issue
The primary issue in this case is whether the
Respondent discharged employees David Douglas , Herbert
Sparks and James Allen for reasons prohibited by the
Act.
B. The Facts
Early in May 1968,' some of the employees in the
Respondent's Boise plant began to discuss the question of
joining a union. David Douglas, one of the employees,
knew an official of the Union and spoke to him about the
matter. Following this, a meeting was arranged for the
evening of Thursday, May 9, 1968. Among the seven
employees of the Respondent who attended this meeting
were David Douglas, Herbert Sparks, James Allen, and
David Irish. Each of the employees was given several
union designation cards. On the following day, Douglas,
Sparks, and Allen told the employees who had not
attended the meeting what had occurred and spoke to
them about the Union.
On Monday, May 13, at approximately 12:30 in the
afternoon, Douglas was told to report to the office of
Robert Scharf, plant superintendent. According to the
undenied testimony of Douglas, when he arrived in
Scharf's office, the latter handed him a check. The
employees were customarily paid each Friday for the week
ending the preceding Wednesday. Douglas asked what the
check was for and Scharf replied: "You and I both know
what the reason is, but I can think of lots of reasons
according to our little rule book. We feel as though we
don't need you anymore." Scharf did not mention any
rule or rules which Douglas was alleged to have violated.
He did, however, tell Douglas that the latter was being
paid for the whole day and he could either stay or leave.
Shortly after Douglas had been informed that he had
been discharged, Sparks was told to report to Scharf's
office. When he arrived he also was handed a check. He,
too, asked what it was for. Scharf replied: "Seeings [sic]
' Unless otherwise noted , all dates hereafter refer to the year 1968.
176 NLRB No. 134
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you don ' t like the way we pay and the way things are
going around here , the Company feels they don't need you
anymore ." Sparks said that he would like a better reason
than that and Scharf then pulled out the Respondent's
book of rules and circled one rule relating to tardiness and
another for missing work , saying that these would be
sufficient . As was true in the case of Douglas, Scharf told
Sparks that he could continue to work for the balance of
the day or that he could leave at once but that he was
getting paid for the entire day . Before he left the plant,
Sparks told David Irish , another employee , that he had
been terminated.
On the same afternoon , shortly after Douglas and
Sparks had been discharged , Irish was called into Scharf 's
office . Scharf asked Irish where the latter stood on this.
Irish replied that he guessed he was in on it as much as
the rest of the employees were . Scharf said that they had
tried it before and it was just not going to work out. He
also stated that if the Respondent found it necessary, it
could get another crew . Irish asked Scharf why he had
discharged Sparks and Douglas . In reply , Scharf handed
Irish a copy of the Company rules and pointed to two of
them , saying those were a couple of reasons. He
continued, however, by saying , "I think you know the real
reason why" Irish asked Scharf if it was Ed Koelling who
had told him about the Union . Scharf replied that it
defitely was not Koelling but stated that he would not tell
Irish who it was . Irish and Scharf checked the records of
tardiness of Sparks and Douglas together with those of 8
or 10 other employees in the plant .' According to the
testimony of Irish , the record of Sparks "wasn 't quite the
best , but Dave' s [Douglas] wasn 't actually that bad
compared to a few other members in the job." Scharf
then started talking about things being better in the shop.
He explained some of the new things that were going to
be in the plant and stated that if things did not get better
that he would be out there with a picket sign along with
the employees.
When he left Scharf's office, Irish was of the belief that
Ed Koelling had told Scharf about the union activities of
Sparks and Douglas and he told Koelling that he was
angry at him because of that . Later that same afternoon,
Irish was again called to Scharf's office . On this occasion,
Scharf again stated that it was not Ed Koelling ' who had
told him about the union activities of the employees. '
On May 15 or 16, Carl Morris , general production
manager of all plants of the Respondent ,' visited the Boise
plant . Each of the employees met separately with Morris
in Scharf' s office. When Irish was called in to meet with
Morris, the latter asked Irish if he had any problems in
the shop or anything that he wanted changed . Irish said
that Sparks and Douglas had been discharged and Irish
did not think they should have been . Morris then checked
the records of the employees , and after having done so,
said that he could not understand why Sparks and
Douglas had been discharged when Scharf did not fire
some of the other employees . Morris said that he would
talk to Scharf, that maybe he could get Sparks and
Douglas reinstated , and that he would let Irish know.
Irish , however, did not hear further from Morris about
the matter.'
James Allen also was called in to have Morris speak to
him. Allen testified without contradiction that he was told
by Scharf that Morris wanted to talk to him about the
Union; that Allen thereupon went to see Morris ; that no
one else was present ; that Morris introduced himself and
told Allen that he was from California and asked Allen
what he liked and disliked about the shop ; that Allen told
Morris about some of the working conditions and then
told him that if Scharf did not quit firing good employees
that the Respondent would not have anybody to go into
the new shop which the Respondent was planning; that
Morris asked what Allen meant and Allen replied that he
felt that Sparks and Douglas had been discharged because
of the Union ; and that Morris denied having any
knowledge about the Union.
On the morning of June 8 , Allen was told by Scharf
that his services were no longer needed . Allen asked why
and Scharf answered, "for the same reason I fired Herb
[Sparks] and Dave [Douglas]."
C. Summary and Concluding Findings
The record thus shows that Douglas and Sparks were
abruptly discharged on Monday, May 13. This was 2
working days after they had attended a union meeting on
May 9 and 1 working day after each of them had talked
to other employees in the plant about the formation of a
union and about the union meeting . It was also in the
middle of the workweek which ended on Wednesday and
for which the employees were paid each Friday.
'At this time , the plant was operating on the basis of two shifts.
Approximately 18 employees worked on the day shift and 6 on the night
shift. Sparks and Douglas worked on the day shift.
'At this time Koefling , who previously had been a foreman , was demoted
to the position of shipping clerk. At the time of the hearing , Koelling had
been reinstated to his former position as foreman. The General Counsel
argues that knowledge of the union activities of the employees on the part
of Koelling is attributable to the Respondent because Koelling was a close
associate of Scharf during and after working hours; that , even while
Koelling was acting as a shipping clerk, he issued orders to other
employees on behalf of Scharf; that while he acted as a shipping clerk, he
received an hourly rate of S2.50 which was considerably higher than the
wages received by the three discriminatees; and that Koelling sought to
obtain information concerning the union activities of the employees.
Koelling was not a supervisor during the period in question and the
evidence is not sufficient to support a finding that such information as he
may have had with respect to the union activities of the alleged
discriminatees in this case was transmitted by him to the Respondent. I
therefore do not draw the inference urged upon me by the General
Counsel.
'The foregoing findings are based on the testimony of Irish. Scharf
denied that he brought up the matter of the Union during the meeting in
his office on the first occasion with Irish . He further denied that he ever
asked Irish where the latter stood in regard to the Union. He admitted
that Irish asked him if Ed Koelling had told him about "it" but testified
that he was "in the dark about it" because he did not know what Irish was
talking about. Scharf did not deny , however , the remaining statements
attributed to him by Irish . Scharrs denials that he brought up the subject
of the Union or that he knew anything about it on this occasion are
difficult to believe in view of the uncontradicted testimony of Irish that
Scharf also said that they had tried it before and it was just not going to
work out; that the Respondent could get another crew if necessary; and
that, if things did not get better , he would join the employees and carry a
picket sign himself . These statements would be without meaning if they did
not refer in some manner to the Union. Irish was still employed by
Respondent at the time of the hearing . He impressed me as a witness who
was honestly trying to relate the events about which he testified. The
testimony of Scharf, however, was marked by contradictions and evasions,
as noted in part hereafter . Based upon my impressions of the demeanor of
the two witnesses in question and in light of the foregoing evidence, I
believe that the testimony of Irish is the more accurate and I find that the
conversations in Scharrs office occurred in the manner recounted by Irish,
as above related.
'The Respondent operates three plants in addition to the Boise plant
which alone is involved in this case.
'Morris was not called as a witness by the Respondent and the foregoing
testimony of Irish regarding his meeting with Morris is undenied.
ALUM- A-FORM OF IDAHO 1065
Plant Superintendent Scharf intimated to both
employees that the reason for their termination was
something other than the reasons which he had stated to
them. Scharf told Douglas , "You and I both know what
the reason is, but I can think of lots of reasons according
to our little rule book." And, when pressed for an answer
by Sparks, Scharf cited rules relating to tardiness and for
missing work, saying these would be sufficient. The record
further shows that, despite Scharfs denial, he knew of the
union activities of the employees. On May 13, shortly
after Douglas and Sparks had been terminated , Scharf
questioned employee Irish as to where the latter stood
with respect to the Union; told Irish that attempts to
organize a union had been tried previously; that it would
not work; and that if the Respondent found it necessary, it
could get another crew of employees . When Irish asked
why Sparks and Douglas had been discharged , Scharf
handed Irish a copy of the Respondent ' s rules, pointed to
two of them dealing with absenteeism and tardiness and
said that these were a couple of reasons but went on to
say, "I think you know the real reason why." When Irish
asked Scharf if Ed Koelling had told him about the
Union, Scharf answered that it had not been Koelling but
went on to say that he would not tell Irish who it was who
had told him.
On June 8, Allen also was terminated . According to the
undenied evidence , Scharf told him that he was being
discharged , "for the same reason I fired Herb [Sparks
and Dave [Douglas]." On May 15 or 16, Allen had tol
General Production Manager Morris that Sparks and
Douglas were good employees and that Allen believed
they had been discharged by Scharf because of their union
activities.
Sparks had first been employed by the Respondent in
March 1967, Douglas in May of that year and Allen in
December . In the fall of 1967, Sparks and Douglas had
left the Respondent ' s employment for a short period of
time. When Sparks began work , he was paid $1.50 per
hour. Thereafter, he received four wage increases , the last
of which was granted in March , 1968, two months before
he was discharged . At the time of his termination he was
receiving $1.90 per hour. Douglas also began to work for
the Respondent at a wage of $1.50 per hour. He was
granted several wage increases during the period of his
employment. At the time of his termination , he was being
paid $2 per hour. In April 1968, Douglas asked Scharf for
an increase in pay. According to the undenied evidence,
Scharf stated that Douglas had done good work and
Scharf would like to see him get a wage increase but he
felt he could not grant it to him because the leadman in
the department was making only 20 cents more an hour
than Douglas was and had been there for 2 years. Scharf
then hit upon the idea of making Douglas a leadman
which he then did, thus enabling him to pay Douglas $2
per hour. This was one month before Douglas was
discharged . Douglas had also received a wage increase a
couple of months before. As was true of the other two
employees , Allen was hired at $1 .50 per hour. He received
three wage increases and was being paid $1.80 per hour at
the time of his discharge . The last wage increase was a
month or two before his termination when he asked
Scharf for an increase in pay which was immediately
granted to him. All three of the employees were
admittedly good workers.
On the basis of the foregoing evidence, the General
Counsel contends , that Sparks , Douglas and Allen were
discharged because of their union activities.7 The
Respondent , however, asserts that the three employees
were terminated because each was guilty of absenteeism,
tardiness and improper punching in or punching out of his
timecards. Scharf testified that he reviewed the records of
all the employees in the plant and found that Douglas,
Sparks and Allen were the worst offenders; that as a
result of such review , he decided to discharge Douglas and
Sparks; that he gave a warning to Allen which proved to
be of no avail and that he then decided to terminate him
as well . He first testified that he arrived at his decision to
discharge Douglas and Sparks on May 11; then That he
had decided to do so on May 8 or 9 and finally that he
reached that decision on May 10.
Scharf further testified that he spoke to the employees
and told them that they could be discharged if they
continued to be tardy; that they did not improve; and that
he therefore discharged them. He first testified that he
spoke to the employees approximately in the middle of
April; then he changed the time to the first part of April;
then he testified that this had occurred about the end of
April or early May; then the middle of May and finally
the end of May. He further testified that he had gone
around the plant and spoken mainly to the offenders of
whom there were about eight $ and that he had spoken to
them only once. Thereafter, however, he testified that he
had spoken to Allen about this in February and again
about the middle or end of May. When confronted with a
copy of the transcript of his testimony which he had
previously given before the Department of Employment of
the State of Idaho, Scharf admitted that he had testified
in that hearing that he could not recall any specific
instances when he had warned Sparks, Douglas or any
other employees that they would be terminated. At the
hearing in this case , he testified that he regarded the
questions on this point which he had been asked at the
proceedings before the Department of Employment as a
request to name a specific time or date which he had been
unable to do . Douglas, Sparks and Allen each denied
having been warned that they would be discharged for
tardiness . From their demeanor, I gathered the impression
that they were recounting the events about which they
testified , in this and in other respects, in an honest and
straightforward manner and this impression is reinforced
by an inner consistency which marks their testimony.
From my impression of the demeanor of the witnesses
involved and from a consideration of the contradictions in
Scharr s testimony in this case and in the hearing before
the Idaho Department of Employment as to whether he
warned the employees about being tardy, his indefiniteness
about the time he spoke to them , his contradictions as to
the number of occasions on which he did so , as well as his
contradictions as to the time he decided to discharge
them , I am led to the conclusion that the recollections of
Sparks , Douglas and Allen are the more accurate and
reliable . A fair appraisal of all the evidence demonstrates
that Scharf, on occasion , requested the employees not to
be absent or tardy , but that he did not warn them that
they would be discharged for such derelictions.
In support of its asserted reasons for the discharges of
the employees, the Respondent introduced in evidence the
timecards of Douglas , Sparks and Allen , which it asserts
'The complaint does not allege , and the General Counsel did not indicate
an intention to litigate and thus place in issue the interrogation regarding
the Union of Irish by Scharf on May 13 , and I therefore make no finding
herein whether such interrogation in itself constituted an unfair labor
practice.
'Presumably this referred to the day shift which consisted of 18
employees . The Boise plant at that time also operated a night shift which
employed six workers
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in each case show numerous instances of tardiness,
absenteeism and a failure to properly punch in or punch
out. On cross-examination, Plant Superintendent Scharf
admitted that the timecards in question were not available
to him' at the time he testified he made his decision to
discharge the employees and that his decision was based,
not on the timecards themselves, but on records kept by
him which showed only the total hours of work performed
in a given week by each of the employees. Those records
were not produced by the Respondent. Nor did the
Respondent produce the timecards of the other employees
in the plant which would have permitted a comparison of
the records of the three employees in question with those
of the other employees with respect to absenteeism,
tardiness or improper punching of the cards.
An examination of the timecards raises a number of
questions which the record fails to answer. The number of
instances of tardiness which the Respondent asserts the
timecards show varies from the number shown on the
cards themselves; in addition, although the three
employees in question were supposed to have worked the
day shift which began at 8 a.m. and ended at 4:30 p.m.
and presumably worked a 40-hour week, the timecards
show that their reporting times and the hours they worked
each day and each week were varied and irregular. The
cards show that during some weeks these employees
worked less, while during other weeks they worked more,
than 40 hours; that on some occasions they worked in
excess of 8 hours in a single day while at other times they
worked less than 4 hours; and that they sometimes began
work at 4, 7, or 12 o'clock, rather than 8 o'clock when the
day shift was supposed to begin. Absent further evidence,
it is impossible to intelligently assess the proper meaning
to be given the notations on the timecards in light of the
Respondent's claim that they show improper use,
unexcused absences or excessive tardiness. This is
particularly true since the timecards of the other
employees with whom they could have been compared
were not produced and in view of Scharf's admission that
the Respondent permitted an employee to be 8 minutes
late without penalty but did not pay him for a quarter of
an hour's work if he was late between 8 and 15 minutes.
The instances of tardiness cited by the Respondent for
each of the employees as between 1 and 15 minutes was,
in the vast preponderance of cases, actually 8 minutes or
less. This is not to say that the Respondent could not
properly regard these occasions as derelictions on the part
of the employees, but indicates rather that, in view of its
lax attitude toward tardiness in general and the manner in
which it treated such short periods of lateness, the
Respondent itself did not regard them with the degree of
seriousness which it now suggests . With regard to asserted
unreported absences, Scharf admitted that the employees
may actually have given notice which he did not receive.
He also admitted, and the record shows, that other
employees in the plant were guilty of tardiness and
absenteeism. He further admitted that he had tolerated
these conditions. However, according to his testimony, the
Respondent was about to move to a new plant and it was
necessary to tighten up the work force and therefore he
had taken this action with respect to the three employees
in question. The Respondent, however, produced no
evidence of the tardiness, absenteeism or failure to
properly punch in or out on the other workers as
compared with the three employees involved.
'In accordance with regular practice, they had previously been sent to
the Respondent ' s plant in Los Angeles , California.
The Respondent points to the fact that although it
knew of Irish's interest in or activities on behalf of the
Union, it nevertheless did not discharge him. Apparently,
it would argue that this tends to show that the
terminations of Sparks, Douglas and Allen were not
discriminatorily motivated. The fact that some, but not
all, known adherents of a union are discharged does not
constitute proof of lawful intent. In offering an
explanation of his reasons for discharging Sparks and
Douglas, Scharf testified that he took such action because
of his belief that "maybe it would straighten up the rest of
the crew." This testimony, though he obviously would
interpret it differently, expressed the well-recognized fact
that the discharge of only some of the active supporters in
a union organizational campaign is sufficient warning to
the remaining employees that a similar fate may befall
them if they persist in their union efforts.
On this state of the record, it is impossible to
intelligently assess the proper meaning to be given the
notations on the timecards. Because of that, because of
the Respondent's failure to produce the timecards of the
other employees for the purpose of comparing them with
those of Sparks, Douglas, and Allen and because of
Scharf's admission that he did not have the timecards
available but based his decision to discharge the three
employees on other records, I cannot rely upon the
timecards as providing sufficient proof to support the
Respondent's assertion of the reasons for discharging the
three employees in question. Nor can I accept the
generalized conclusion of Scharf who testified that, after
the three employees had been terminated, production and
morale of the plant had improved. Evidence to prove that
conclusion also was within possession of the Respondent
but likewise was not produced.
Merely because Douglas, Sparks and Allen were
discharged for reasons other than those advanced by the
Respondent is not, of course, in itself proof of the fact
that their discharges were for the reason asserted by the
General Counsel. However, consideration of all of the
evidence in this case, and particularly the following facts,
does point to that conclusion. (1) Douglas and Sparks
were discharged abruptly in the middle of a workweek,
without prior warning. (2) The two employees were
terminated 1 working day after they had spoken to their
fellow employees about a union meeting which they had
attended. (3) The Respondent knew of their union
activities as shown by Scharf's statements to employee
Irish on May 13. (4) Allen was discharged shortly after he
had told Production Manager Morris that Douglas and
Sparks were good employees and had been wrongfully
discharged because of their union activities. (5) All three
employees were good workers; each had received a
number of wage increases, the last of which was within a
month or two of the time he was discharged; and Douglas
had been promoted shortly before his termination to the
position to a leadman. (6) Tardiness and absenteeism
admittedly were prevalent in the plant and were tolerated
by the Respondent. (7) No records were produced to show
the incidents of tardiness, absenteeism or alleged misuse
of timecards on the part of the employees retained as
compared with the three employees who were discharged.
On the basis of the foregoing facts and on the record as a
whole, I am convinced and find that Herbert Douglas and
David Sparks were discharged on May 13, 1968, and
James Allen on June 8, 1968, for reasons other than those
advanced by the Respondent; that the three employees
were actually discharged because of their interest in and
activities on behalf of the Union; and that by so
ALUM-A-FORM OF IDAHO 1067
discharging them the Respondent violated Section 8(a)(3)
and (1) of the Act."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above , have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices , it will be recommended that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminatorily
discharged Herbert L. Sparks and David Douglas on May
13, 1968 , and James L. Allen on June 8, 1968.
Accordingly , it will be recommended that the Respondent
offer each of said employees immediate and full
reinstatement to his former or substantially equivalent
position of employment without prejudice to his seniority
or other rights and privileges. See The Chase National
Bank of the City of New York, San Juan Puerto Rico
Branch , 65 NLRB 827. It will further be recommended
that the Respondent make each of said employees whole
for any loss of pay suffered by reason of its discrimination
against him. Said loss of pay, based upon earnings which
each employee would have earned as wages from the date
of the discrimination to the date of offer of reinstatement,
shall be computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company,
90 NLRB 289. Interest thereon at the rate of 6 percent
per annum shall be added, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716.
The unfair labor practices committed in this case strike
at the very heart of the Act. N. L.R.B. v. Entwistle
Manufacturing Co., 120 F.2d 532 (C.A. 4). The inference
is therefore warranted that the Respondent maintains an
attitude of opposition to the fundamental purposes of the
Act designed to protect the rights of the employees . It will
accordingly be recommended that the Respondent cease
and desist from infringing in any manner upon the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding , I make the
following:
CONCLUSIONS OF LAW
1. The Union is, and has been at all times material to
the issues in this proceeding , a labor organization , within
the meaning of Section 2(5) of the Act.
"In arriving at this conclusion , I have given consideration to an Order
on Review of the Industrial Accident Board of the State of Idaho, dated
October 3 , 1968, of which I have taken official notice , finding that Sparks
and Douglas were discharged for "repeated infractions of the employer's
written rules as to attendance on the job." I do not regard this as sufficient
to overcome the evidence which is set forth above and which supports the
allegation in the complaint that Sparks , Douglas and Allen were
unlawfully discharged . Alex Wasleff Building Maintenance Company 130
NLRB 50, 51, in. 3.
2. The Respondent is, and has been at all times
material to the issues in this proceeding , an employer,
within the meaning of Section 2 (2) of the Act.
3. By discriminating with respect to the hire and tenure
of employment of Herbert L. Sparks, David Douglas and
James L. Allen, thereby discouraging membership in a
labor organization , the Respondent has engaged in unfair
labor practices , within the meaning of Section 8(a)(3) of
the Act.
4. By interfering with , restraining , and coercing
employees in the exercise of rights guaranteed them in
Section 7 of the Act, the Respondent has engaged in
unfair labor practices, within the meaning of Section
8(a)(l) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce , within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding , I recommend
that the Respondent , Alum-A-Form of Idaho , Boise,
Idaho , its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Hod Carriers and
Laborers Local 434, or any other labor organization of its
employees , by discharging , or in any other manner
discriminating against them, in regard to hire, tenure of
employment , or any term or condition of employment,
except as authorized in Section 8(a)(3) of the Act.
(b) In any other manner interfering with , restraining or
coercing its employees in the exercise of their right to
self-organization, to form labor organizations , to join or
assist Hod Carriers and Laborers Local 434, or any other
labor organization, to bargain collectively through
representatives of their own choosing , or to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities , except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Herbert L. Sparks, David Douglas and
James L. Allen immediate and full reinstatement to their
former or substantially equivalent positions without
prejudice to their seniority or other rights or privileges.
(b) Make whole Herbert L . Sparks, David Douglas and
James L. Allen for any loss of pay suffered by reason of
the discrimination against them in accordance with the
method set forth above in the section entitled, "The
Remedy."
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports , and all other
records necessary to analyze the amounts of backpay due.
(e) Post in conspicuous places at its usual place of
business located in Boise , Idaho , including all places
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where notices to employees are customarily posted, copies
of the attached notice" marked "Appendix."" Copies of
said notice to be furnished by the Regional Director for
Region 19 of the National Labor Relations Board, shall,
after being duly signed by an authorized representative of
the Respondent, be posted by it immediately upon receipt
thereof and maintained by it for 60 consecutive days
thereafter in such conspicuous places. Reasonable steps
shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of the receipt by the
Respondent of a copy of this Decision, what steps the
Respondent has taken to comply herewith."
"Since notices are customarily framed in the language of the statute and
because of their technical nature are often difficult for employees to
understand , I am recommending that the notice in this case embody the
simplified form which appears in the Appendix.
"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 "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order ."
"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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL offer immediately to the employees named
below, the jobs they held before they were discharged,
or jobs like them, without loss of seniority or any other
rights and privileges, and we will give each of the
employees named below whatever backpay he has lost:
Herbert L. Sparks David Douglas James L. Allen
WE WILL NOT discharge, or otherwise discriminate
against any of our employees, because they have
engaged in union activities.
All our employees have the right to join or assist, or
not to join or assist , Hod Carriers and Laborers Local
434, or any other union.
Dated By
ALUM-A-FORM OF IDAHO
(Employer)
(Representative) (Title)
Note: Notify the above-named employees, if presently
serving in the Armed Forces of the United States, of their
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Republic
Building, 10th Floor, 1511 Third Avenue, Seattle,
Washington 98101, Telephone 583-7473.