B & M Excavating, Inc.

National Labor Relations Board - Board Decisions

Nov 23, 1965

155 N.L.R.B. 1152 (N.L.R.B. 1965)

1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Electrical Workers, AFL-CIO, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from threatening, coercing, or restraining Nevilles, Inc., or
any other employer or person engaged in commerce, where an object thereof is to
force or require any employer or person to cease doing business with Robert R.
Cutler, d/b/a Bob Cutler Signs.
2. Take the following affirmative action which will effectuate the policies of the
Act:
(a) Post at its offices and meeting halls copies of the attached notice marked
"Appendix" 5 Copies of said notice, to be furnished by the Regional Director for
Region 8, shall, after being duly signed by official representatives of the Respond-
ent, be posted by it immediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Reasonable steps shall be taken
to insure that the notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 8, in writing, within 10 days from
the date of this Order, what steps have been taken by Respondent to comply
herewith.6
'In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order 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."
6In the event that this Recommended Order Is adopted by the Board, this provision
shall be modified to read: "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 38, IBEW, AFL-CIO
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, as amended, we hereby notify you that:
WE WILL NOT threaten, coerce, or restrain Nevilles, Inc., or any other
employer or person engaged in commerce, where an object thereof is to force
or require any employer or person to cease doing business with Robert R.
Cutler, d/b/a Bob Cutler Signs.
LOCAL 38, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465.
B & M Excavating, Inc. and Donavan A. Van Over and Robert L.
Van Over. Cases Nos. 21-CA-6423-1 and 21-CA-6423-2. No-
vember °3,1965
DECISION AND ORDER
On August 3, 1965, Trial Examiner Howard Myers .issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
155 NLRB No. 105.
y 3B & M C^V^TING, INC. 1 15
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 Deci-
sion. Thereafter, the Respondent filed exceptions to the- Trial Exam-
iner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as a nnended, the National Labor. Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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
Examine-r's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner to the extent consistent herewith.
1. Jurisdiction
The Trial Examiner found that during. the 12-month period imme-
diately preceding the issuance of the consolidated complaint the
-Respondent did a gross volume of business having a value in excess
of $500,000. He also -found that Respondent during the same period
purchased replacement equipment at a cost of over $30,000 from a
supplier which, in turn, obtained the equipment by direct shipment
across State lines. Based upon this combination of factors he ulti-
. mately concluded that Respondent is, and at all times material has
been, engaged in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act and that the. Board has jurisdiction
herein. . Respondent excepts to this conclusion, primarily on the
ground that the subsidiary finding in respect to the purchase of the
equipment from out, of State is not supported by the record. We
agree with the Trial Examiner's ultimate. conclusion that the Board
has jurisdiction but for a different reason.
It is true, as Respondent asserts, that the finding as to the purchase
of replacement equipment- has no support in the evidence. Howev er,
.the record also shows that Respondent is, and at all material times
has been, a member of the Engineering and Grading Contractors
A sociation, Inc., which is a multi employer group having as one
of its purposes the negotiation of collective-bargaining agreements
for and in behalf of its employer-members. During the previous year
at least one`inember of the Association, Fontana Paving, Inc., per-
formed out-of-State services having a- value of over $50,000. The
Association is,-therefore, itself er_g g -d iii-commerce within the mean-
ing of the Act and we would assert jurisdiction over it, were, it a party
1 11 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to this proceeding.) In these circumstances, even though the Associa-
tion is not a party, we. assert jurisdiction over Respondent as a member
of the Association. For where there. is an established pattern of
multiemployer bargaining on the basis of which we would assert
jurisdiction if the multiernployer group were involved, it is also our
policy to assert jurisdiction over any single employer within that
bargaining group regardless of the individual commerce figures appli-
cable. to that employer? Moreover, the Association's master labor
agreement to which Respondent is a party through its Association
membership contained certain overtime provisions the implementa-
tion of which underlies this very- proceeding.
2. The violations
The Trial Examiner found, and we agree, that Respondent dis-
charged the Charging Parties because they filed claims with the' State
Labor Commission for certain overtime wages which they contended
were due them under the terms of Respondent's aforementioned
"collective-bargaining agreement. R. is clear that this action by the
Charging Parties is a direct outgrowth. of, and itself- constituted part,
of, concerted activities in which Respondent's employees were engaged.
Thus, the record demonstrates, and we find, that :-A group of Respond-
ent's employees, -among them the. Charging Parties, believed they had
the right which the Charging Parties were asserting to receive over
time pay under the governing contract; a number of them consulted
with one another concerning the filing of claims for these wages;
they discussed the procedure to be followed; and as a result several
of them, including the Charging Parties, eventually filed- individual
claims with the knowledge of the others. loreoverf "-even if the
Charging Parties had independently filed the instant claims, without
such prior consultation, such individual filing must itself be con
sideed - a protected activity s since the individual action so taken in
implementation of the collective-bargaining agreement is but an
extension of the concerted activity that gave rise: to the agreement 3
As the employees had a right guaranteed by Section 7 of the Act to
engage in concerted activities for mutual -aid and protection, it is clear,
and we. find, that the Respondent's discharge of the Charging Parties
i Siemons Mailing Service, 122 NLRB 81 ; Operating Engineers Local Union No. 3, AFL-
CIO (Cabifornia Association of Employers ), 123 NLRB 922.
'Harlan B. Bro-inning and Roy J. Rasco, d/b/a Cottage Bakers , 120 NLRB 841, enfd.
268 F. 2d 938 (C.A. 10) ; members & Pipe Fitters Local Union 2L4 (D. L. Bradley Plu=mb-
ing and Heating Co.), 131 NLRB 942, 950. -
3lnternational Ladies' Garment Workers ' Union. AFL-CIO ( Walls Manufacturing COM-
pany, Inc. ), 137 NLRB 1317, enfd. 321 F. 2d 753 (C.A.D.C.), cert. denied 375 U.S. 923;
Merlyn Banney and Clarence Bunny, d/b/a Bunney Bros. Construction Company, 139
NLRB 1516.
F'
B & M. EXCA``ATI1 G, INC. 1155
for doing so not only interfered with their exercise ofthat: right but
also had the inherent effect of coercing a 1cl restraining its exercise by
their fellow employees.
I ''e therefore agree with the Trial Examiner's conclusion that
Respondent violated Section 8(a) (1) of the Act by effecting these
discharges. As the. remedial order -appropriate for discharges in
violation of Section 8 (a) (1) provides, for all practical purposes, the
same relief as one bottomed on a- violation of_ Section 8(a)(3), if
found, we find it unnecessary- to reach or pass upon the o uest ion
whether Respondent by the same conduct also violated Section 8 (a) (3),
as the Trial Exam inch as ditienai?t- co^lcluoed
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, as modified
herein, and orders that the Respondent, B &' f Excavating Inca Long
Beach, California. its officers, agents, successors and assigns, shall
take the, action set forth in the Trial Examiner's Recommended Order,
as so modified
_(a) Delete-paragraph 1:(a) of the Trial Examiner's Recommended
Order.
(b) Substitute therefor the following:
"(a) Discharging or otherwise discriminating against any employee
au 'regard to hire or tenure of employ-meat or any term or condition
of employment for engaging in- any activity protected by Section 7
of the National Labor Relations Act."
.Merlyn Bonney and Clarence Buaaney, d /b/e Bunney `BBros. Construction Company,
supra ; Circle Contracting Co-, Inc., 143 NLRB 1330, 1336-1337.
TRIAL. EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with the General Counsel and Respondent represented, was heard
before Trial Examiner Howard lvtyers in Los Angeles, California, on May 25, 1965,1
upon a consolidated ;complaint,2 dated March 11, of the- General Counsel of the
National Labor Relations Board, herein respectively called the General Counsel 3
and the Board, and Respondent's answer duly filed on April 1. The consolidated
complaint based=upon two separate charges duly filed on January 25, one by Donavan
Van Over, and the other by Robert L. Van Over, alleged, in. substance, that Respond-
ent violated Section 8(a)(1) and (3) of the National Labor, Relations Act, as
amended from time to time, herein called the Act.
1 Unless otherwise noted, all dates herein mentioned - refer to 1965.
2 On March 11 the Regional Director for Region 21 issued an order consolidating, .for
the purpose of hearing, the above-numbered eases.
S This term .specifically , includes counsel for the General Counselappearing at the
hearing.
212=809-66-vol. 155=74
1A.56 DECISIONS OF NATIONAL LABOR :RELATIONS BOA FD
Upon the entire record in the case Y and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT - - - - -
1. RESPONDENT'S BUSINESS OPERATIONS
Respondent, a California corporation, has its. principal offices and place of busi-
ness in Long Beach, California, where it is engaged in, and during all times material
was engaged in, business as an excavating and grading contractor.
Engineering and.Grading Contractors Association, Inc., herein called the Associa-
tion, with its principal offices and place of business in Los Angeles, California, is an
association of excavating and grading contractors engaged in the building and con-
s'-'ruction industry. The Association exists for the purpose, among other things, of
negotiating labor contracts for and on behalf of its employer-members with the
collective-bargaining representatives of said members' employees.
During the 12-month period immediately preceding the issuance of the consoli-
dated complaint herein, in the course and conduct of their business operations,
employer-members of the Association have performed services outside of the State
of California valued in excess of $50,000.
Respondent is, and at all times material has been, a member of the Association.
Construction Teamsters Local No. 606, International Brotherhood of Teamsters,
Chauffeurs and Warehousemen, herein called Teamsters, is, and at all times material
has been, a labor organization within the meaning of the Act.
Construction Teamsters Local No. 606, International Brotherhood of Teamsters,
Chauffeurs and Warehousemen, herein called Teamsters, is, and at all times material
has been, a labor organization within the meaning of the Act.
Respondent, by virtue of its membership in the Association, and the Teamsters
are parties to a collective-bargaining agreement covering Respondent's truckdrivers
-and truck mechanics.
During the 12-month period immediately preceding the issuance of the consoli-
dated complaint herein, Respondent, in the course-and conduct of its business opera-
tions, did a gross volume of business in excess of $500,000. During the same period,
Respondent purchased replacement equipment valued in excess of $30,000 from a
California supplier, who, in turn, obtained said equipment by direct shipment from
outside the State of California.
Upon the foregoing facts, I find, in line with established Board authority, that
Respondent and the Association are engaged in, and during all times material have
been engaged in, businesses affecting commerce within the meaning of Section 2(6)
and (7) of the Act and that their respective business operations meet the standards
fixed by the Board for the assertion of jurisdiction.
IL. THE UNFAIR LABOR . PRACTICES
A. Interference; restraint, and coercion, etc.; discriminatory discharges
1. The pertinent : facts .
Claimant Donavan A . Van Over testified that : He was hired by Respondent on
July 10, 1961 ; he worked continuously for Respondent as a mechanic from the date
of his hiring until he was discharged on January 21, 1965; throughout his employ-
ment by Respondent he had been a member of the Teamsters; on December 7 or 10,
1964, he was served with- a subpena to appear before the State Labor Commissioner
of the Department of Industrial Relations , herein called the Commissioner, on
December 17, 1964, to give evidence concerning a claim Joe Ferro , a former
.Respondent employee, had filed against Respondent for overtime purportedly due
under the then existing contract covering certain Respondent employees; a upon
receipt of said subpena , heshowed it to Richard H. Brazil , Respondent's president;
Brazil remarked, "We can settle this pretty easily . I can get any amount of men
On June 10 the General Counsel and Respondent' s counsel filed briefs which have been
ccaretully `considered.
5 Article XIV, section 1 (b) of the aforementioned contract provides that all time worked
In excess of S consecutive hours; exclusive of lunch period, or all time worked in excess
of 40 hours per week and all time worked before 8 a.m. and after 4 p.m. and all-work
performed on Saturdays, Sundays, and holidays shall be paid at overtime-rate,:
Article XVII, section 1 of said contract defines overtime payment as time and one-half,
and that all work performed on Sundays and holidays shall be paid at double-time rate.
B & ?+i EXCAVATING, INC: 15
-working for rye :to go -up with me. [who]. will testify that [they] got time and a half'
when: Brazil asked him if the Commissioner awarded him overtime, would he keep
the-money, he replied in the affirmmative;Brazil then said, to again quoteDonavan
Van-Over, "Well, anybody that filed a . - . claim or kept [the] money would look for
another job.... if they -took their money or.claim, he would see to it they would
-ct wvork any other place in Southern California again"; and Brazil repeated the
above-quoted remark "on and off" from the time he had shown Brazil the subpena
-unt i Brazil discharged him.
Donavan Van Over further testified that on the day before the December 17
hearing before the Commissioner, he had the following conversation with Brazil:
Q. What did he say? What was the conversation?
A. Well, he [Brazil] asked if i would go up there and testify that I got time
and a half.
I told him, well, I could not do that.
And I said, "If I did, I could be fined or even put to jail and also possibly
lose mv union card."
Andy at that time he said, well, he said, "If you go up there," he said, "you
will be taken care of even if you go to jail or pay a fine. I willpay the fine."
And I said, "Yes, but I can lose my union card."
And he said, "Well, I will put you in the office as a dispatcher or anything.
I will see that you have a job as long as 1 am in business."
And I still told him I could not do it.
Donavan Van Over also testified that: Respondent was represented before the
Commissioner by counsel; his supervisor, Jay Chambers, was also present ; he testified
that he did not receive any premium pay for overtime worked; subsequent to the
aforesaid hearing before the Commissioner,- Brazil asked him what took place
thereat; he told Brazil he had testified that he did not receive premium pay for over-
time worked; when Brazil asked him if he. would; retain any moneys awarded to him
by the Commissioner, be replied in the afiir'mative, whereupon Brazil remarked,
"Well, why don't you go find yourself another job, if you are not happy here"; when
be replied that he was happy working, for Respondent, but felt that he was entitled
to whatever money was due him, Brazil said , to again quote Donavan Van Over,
"he would find a way to get rid of us and see to- it that we would not get a job in
°Southern California again."
On January 19 Donavan Van Over filed a claim with the Commissioner for $7,000
purportedly due him under the aforesaid Teamsters contract for overtime worked
by him from July 10, 196.1, to December 15, 1964. On the same day, Donavan Van
Over filed a grievance with the .Teamsters concerning -Respondent's-failure to pay
overtime and double timepursuant to the terms of the aforesaid contract.
Donavan Van Over further testified that: On January: 20 Brazil asked him why
he had filed a- claim .with the Commissioner ; when he replied. that he thought the
money was due him, Brazil said that if he was not happy with his employment with
Respondent why did he not look elsewhere for work; when he reported for work the
following day, January 21, Brazil said to him, "I am going to lay you off. I am
-going to cut down in force"; and Brazil then turned to his brother, Robert Van Over,
with whom he had driven to work that day, "Bob, I told you last night there would
lie no work. today. Iam going to leave you go for the same-reason that I am cutting
down forces ... I am going to settle the dispute once and for -all ... We are going
`*o settle it` right now."
In December 1964 Daryl Hilt was hired by Respondent as a mechanic.
During the first week of January 1965 Chambers, the lead mechanic and the super-
visor of-h:echanics, quit, thus leaving only Donavan Van Over and Hilt the only two
`Teamsters mechanics in Respondent's employ.
About mid-April, Brazil and :Donavan Van Over met near the Respondent's prem-
-1ses. According to Donavan Van -Over's testimony, Brazil remarked, during the
course of said conversation, "If it was not for this-labor dispute you would be work-
ing-yet"
Donavan Van Over testified that on May i he went to work for Ace Dump Truck;
`because Brazil had given him a good reference, thereby enabling him to get said job,
'hewent to Respondent's premises that evening-to thank Brazil, and during the course
,'of the. conversation, Brazil stated that if it had notbeen"for this labor dispute," he
would still be working for Respondent.
Claimant Robert L. Van Over 'testified that: He was.hired by Respondent on
June 3, 1963, as a truckdriver; from. said date until his discharge on January 21,--he
:drove a dump truck and, on occasion , he `oledequipment"; on December_17, 1964,
1158 DECISIONS OF NATIONAL LABOR RELATION' S BOARD
the day of the hearing before the Commissioner, Brazil asked him if he gave him
a check for the overtime due under the Teamsters contract and paid all taxes and
whatever fines the Teamsters may levy against him, whether he would return the-
check; he replied, "If the rest of them gave theirs back, I would too, but if nobody
gave theirs back, I would not"; on January 14, he filed a grievance with the Teamsters
concerning Respondent's failure to pay overtime, double time, and travel pay pur-
suant to the aforesaid Teamsters contract; on January 15, he filed a claim for approxi-
mately $5,000 with the Commissioner concerning Respondent's refusal to pay over-
time, double time, and travel pay; when Brazil asked him about quitting time on
January 20 whether he had filed a claim with the Commissioner, he replied that
he had; Brazil then remarked, "Well, there won't be any work for you tomorrow,
and, furthermore, in the future, there won't be any work for you unless I absolutely
have to have you, so there is no sense in coming in tomorrow."
The following morning, January 21, Robert Van Over drove his brother, Donavan,
to work- - Brazil, after telling Donavan Van Over, in the presence of employee Stan-
ley Harris and Robert Van Over, "I am going to have to let you go. I have to cut
down on forces," Brazil turned to Robert Van Over and said, to quote Robert Van
Over, "That goes for you too, Bob. I have to let you go." Robert Van Over testified
that Brazil also remarked on that occasion, "We might -as well bring this thing to
a head and get it over with."
On January 22 the two Van Over brothers, Harris, and two Teamsters officials
went to Respondent's premises. There they observed eight or nine trucks leaving the
yard, driven by Respondent's employees who were members of the Operating Engi-
neers Union instead of being driven by Teamsters members.6 Robert Van Over also
observed the truck, which he drove 95 percent of the time, leave the yard driven by
an Operating Engineers Union member.
Stanley Harris testified that: He was employed by Respondent as an equipment
operator from about mid-June 1957- until January _21, 1965; during said employment
-he was a member of the Operating Engineers Union; on January 8, 1965, when
Brazil said to him, in the presence of Daryl Hilt, that he could work for Respondent
as long as it remained in business provided he did not retain whatever money the
Commissioner awarded him for unpaid backpay, he replied, "If I properly had it
coming, it would be mine"; Brazil then said, to quote from Harris' testimony, "We
would wait a long time before we get our money and he would be smoking his two-
bit cigars while we were waiting, and then, like the fellow that did not give the
money back, he was going to get rid -of them, they were troublemakers, and those
that would give the money back, that he was going to keep them. The other guys
were the troublemakers and he was going to get rid of them ... [and] I would not
get a job in Southern California if I filed a claim against him."
On January 15 Harris filed a claim with the Commissioner. -
Hairis testified that: On the night of January 20, Brazil telephoned him at his
home and asked him to report for work early the following morning so that he could
go out on an "early-morning" Los Angeles job; he informed Brazil that he would be
at Respondent's yard about 15 or 20 minutes before-6 the next morning ; his normal
workday started at 8 a.m.; and while preparing to fill his truck with gasoline about
6 a.m. on January 21, Brazil approached him and asked whether he had filed a claim
with the Commissioner; when he replied that he had , Brazil said, to again quote
Harris, "Get the hell -out of [here] ... He did not want me any more, and that was
it. He was going to cut forces down."
Former employee Glenn Trott, a member of the Operating Engineers Union, was
employed by Respondent as a driver of a tractor from August 1959 until he quit
on January 22, 1965.- -
Trott testified that about a week before he quit his employment with Respondent,
he had a conversation with Brazil regarding the employees filing overtime payment
claims with the Commissioner; that during said conversation, Brazil remarked that,
although he would not ask anyone to perjure himself, nevertheless, "there were always
ways of getting around things," -and to further quote Trott, "this place was making
him sick, and he was going to straighten it out and he was going to get rid of the
troublemakers."
- Brazil testified that: He never asked any employee to testify falsely "at a wage
claim hearing before the State of California"; at no time did he ever threaten
any employee -"with loss of employment if [he] filed a wage claim with the State of
California"; he never threatened any employee "with loss of employment if [he]
accepted any wages ... as ordered by the State of California"; and he never promised
e The Operating Engineers members employed by Respondent normally operated equip-
-_-.Ingnt and_nottrucks.
;"B c&_ 1-T .EXCAVATING _ INC. 1159`_
-any employee any benefit if he returned any- money awarded to him by the California
Department of Industrial Relations.
Brazil further testified "that on Deeenber 16 the following: took place between him
and Donavan Van Over:
This was the day before the hearing came up, that he was subpoenaed as a
witness with this labor -problem. We were in the office talking about it, discuss-
ing it, =just normal conversation, and he asked me if he could talk to me outside.
I said-, «yes '
So-we talked about the-out,
And -he says, "Dick," he says, "you know I can influence- these other fellows
here," he says.
"IYou know, they will go along with what Ihave-with what I do."
He says, "I am a leader."
And I says, ""I know you are,.Don.
And he says, "I can influence Jay. I can influence Jay Chambers. I can
influence allthe rest of these fellows here. They will go along with-the way
I want-the way _l do,with- the testimony that[ give at this Labor Board."
But he says, "Of course, now," he says, "I would like to be foreman of the
shop.
And he says, also, he says, "I would like to-if I did get up and testify in
your behalf,.-I would want to be guaranteed that if anybody was paid this back
pay, that they claim- they had coming, you would guarantee- me that I would
get it."-
And- I said, "No, Don, I will not make any details. I do not owe it to you-nd-
will not pay it." And that is all that was said.
Regarding the conversation he had with Donavan Van Over in May or June 1965,
Brazil testified as follows:
Q..Will you tell us what was said by you and what was said by him in that
regard?
A. If you are referringto the time that he-stopped me as I was driving away
from myoffice across the: street, he stopped me and wanted to know if he could
come over and have a drink with me.
And I said, "No, I don't want to get involved."
I says, "I don't think we should." I says, "I don't know. We just would get
in the conversation about the labor problem that- we have had."
And "I said; "There is no point in it."
And he said, "Well, I still think you are still the best boss I ever had and
I just want to come over and have a little friendly talk with you."
And I says, ".Well, that is fine, Don, I appreciate that."
I says, "I was not only the best boss you ever had, but I was one of your best
friends you ever had, too," because I was a friend- of his. ' I was not just an
employer. I-was a friend to all the boys that worked for me and I was a friend
when I gave them a job and they was down and out.
Q. Mr. Brazil, in that conversation,, was ` there anything said why Mr. Van
Over was not still working for you?
A. Due to the fact I just did not have any work.
In the light of my observation of the two Van Over brothers, Harris, and Trott,
while each was on the witness stand, and after a. very careful' scrutiny of the entire
record in the case; all of which has-been carefully read and parts of which have been
reread and rechecked several times, I find-Donavan Van Over's,Robert Van Overs',
Harris' and Trott's versions of the respective talks with "Brazil, as set forth above,
to- be substantially in accord with the facts. This finding. is based mainly, but not
entirely, on the fact that Brazil gave me the distinct impression that he was studiously
attempting to conform his testimony to- what he thought to be to the best interest of
Respondent. On the other hand, the two Van Over brothers, Harris, and Trott each
particularly impressed me as being one who is careful with the truth- and meticulous
in not enlarging his. testimony beyond his memory of what was said on the foregoing
occasions.?
?This is notto sag that at times the; two Van 'Over brothers-= Harris; and Trott were
not confused on certain matters or that -there-.were no. variations in their objectivity and
convincingness.:-,But It-should be noted that the candor-with which each-of them admitted
that he could not be certain as to dates , times, or exact words used only serves to add
credence to what . a careful study of their testimony shows they honestly believed to be
the facts.
1160 DECISIONS OF1iATION?ATL_ TABOR -RELATION S BOARD
B. Concludinglindings
This case presents the comparatively rare situation where the recitation of the-
facts leading up to the discharges reveals their discriminatory character. The very
sequence of the events surrounding the discharges renders immediate suspect Respond-
ent's explanation in justification of its conduct. Thus, in the face of the overwhelm-
ing credible evidence that the discharges were plainly attributable to Respondent's
resentment of the Van Overs exec ising their protected rights to file overtime wage
claims with the Commissioner and their refusal to agree to return any n Coneys which
said Commissioner might award then n, Respondent urges that the true reasons for-
the discharge of Donavan and Robert Van Over were (?) the need to reduce its
working force because of decreased b usiness ; and ( 2) that Donavan Van Over was
selected for discharge instead of a newly ailed mechanic -because the latter was a
member of the Operating Engineers Union, whereas Donavan Van Over and the
other mechanic, who had more seniority than Donavan Van Over and could also
do welding work. were Teamsters members, simply "to void trouble with the unions,"
who demanded that Respondent have at least-one Teamsters member and one Oper-
at^ing Engineers Union member iii-the machine shop at all times. I am convinced,-
and Bind, that Resp onder_t's advanced reasons for the discharges were merely
pretextuous.s
Upon the e ire record in the case, I find that the activities of Donavan and
Robert Van Over with respect to fling wage claims with the Commissioner, as
described above, were concerted activities protected by the Act .9 Accordingly, 1 mid
that by discharging Donavan and Robert Van Over on January 21, 1965, because
they had engaged in the aforementioned protected concerted activities, Respondent
violated Section 8(a) (3) of the cctlc F further find that by such discharges and by
Brazil's threats and promises c: benefits,: concerning the employees' claims for over-
time pay, as detailed above, Respondent interfered with restrained,aria coerced It
employees in the-exercise of the rights guaranteed in Section 7 of the Act, thereby,
violating Section 8(a)( I) thereof.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UpOlT-COIAMERCE
The activities of Respondent set forth --.'Ti sec=tion I=; above, occurringin-connection
with the business operations of Responder as described in sectionI, ahfiVe, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and, such of them as have been found to constitute unfair labor- prac-
tices. Lein to lead to labor disputes burdening and obstructing -commerce and the
free flow of commerce.
W. THE REMEDY
Having found that Respondent has engaged in and is engaging in unfair labor
practices violative of Section 8(a) (1) and (3) of the Act, it is recommended that
it Cease and desist therefrom and take certain affirmative action designed to e ectuale
the policies of tke Act.
Having found that Respondent has discriminated in regard to -the hire and tenure
V f employment and the terms and conditions of employment of Donavan and Robert
an Over, it s recommended that Respondent offer them immediate - and full rein-
statement to their former or substantially equivalent positions , without prejudice to,
their seniority or other rights and privileges. It . is also recommended that Respond-
ent make Donavan and Robert Van Over whole for any loss of pay they may have
suffered by reason of Respondent 's discrimination against them , by payment to each
of a sum of money equal to the amount each normally would have earned as wages
6Of course, disbelief of the reasons advanced by Respondent does not in itself make
out a violation of the Act. The burden is on the General Counsel to establish diserim-
inatory motive, not upon Respondent to disprove it. But, here, the General `Counsel More
than amply met that burden.QCf.
N.L.R.B. v. Tanner Motor L-ivery. Ltd.. 349 F. 2d 1 (C.A. 9).
It goes without saying; as the Fifth Circuit pointed out in ? .L.R.B. v. T. A: McG¢hep.
et al., d/b/a Columbus Marble Works, 233 F. 2d 406, "Management can discharge for good
cause or bad cause , or no cause at all" provided the discharge was not motivated by any
purpose proscribed by the Act. But the court however; pointed' out that where the-evi-
dence reveals , as here ; that the real and dominant purpose for the discharge was- disc in-
inatory, then a finding of a violation of Section 8(a) (3) of the let is clearly-warran`e3:
11 B &- 31 : EX CViV' ATING, INC.=
from the date of his discharge to the date of Respondent's offer-of reinstatement,
together=with interest thereon at the rate of 6 percent per annum, less his net earnings
during that period. Loss of pay shall be computed and paid in the manner set forth
in F. W. Woolworth Company, 90 ITT RB 289, and in'sis Plumbing & Heating Co.,
138 NLRB 716.
-The unfair labor.. practices found to have been engaged in by Respondent are of
such., a characterand scope that in order to insure Respondents employees of their
full rights guaranteed them by the Act, it 11-411 be recommended that -Respondent
cease and desist from in any manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the record as a whole,
I make the folowiiig:
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times ma_erial, an employer within the
meaning of Section. 2(2) of the Act, and during all times material has been engaged
in a business affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
2. By discharging Donavan and Robert Van Over on January 21, 1965, and there-
after refusing to rein state them, Respondent is engag d in, and during all times
material has been : engaged in, unfair labor practices within the meaning of Section
8(a) 93) of the Act.
3. By discriminating in regard to the hire and tenure o employment and the
terms and conditions of employment of Doria.van and Robert Van Over, thereby dis-
couraging protected concerted activity among is employees, Respondent has engaged
in and is. engaging.in unfair labor practices wit in the meaning of Section 8(a) (1 :',
of the Act.;
4. By inter fering with, restraining, and coercing is e ,.pioyees in the exercise of
the rig is guaranteed in Section 7 of the-Act;, Respondent has engaged in and is
engaging unfair labor uracticeS within tae rnearing of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair ?abcr practices affecting coin-
m_° e within the meaning of Se :ion 2(6) and (7) of the Act.
RECOMMENDED ORDER
t per the, basis of the forego ng findings of fact and conclusions of ^•.v, upon the
record in the case, and pursuant to Sectior_.10(c) of the National Labor Rela-
--.
riots pct, as amended, is recommended that Re sp- fly^_.de`_^t; B & INI _Excavating, !I-tc.,
its-oficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging any employee, or in any. other manner discriminating against
any individual in regard to his hire or tenure cf employment or any term or cord:
tion 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 the rights guaranteed in Section 7 of the Act, except to the extent
that those rights may be affected by an agreement recu;iing members rip in a labor
organization as a condition of employment as author zed in Section 8(a)(3) of the
Act.
2. Take the following affirmative action which it is found will effectuate the
policies of the- Act:
(a) Offer to Donavan and Robert-Van. Over immediate and full reinstatement to
their former or substantially equivalent positions without prejudice to their seniority
or other rights andprivileges.
(b) Make Donavan and Robert plan O'er whole for any loss of earnings they
may. have earned by.payment to them of a sum-of money equal to the amount each
would have normally earned as wages from January Z I, 1965, to the date Respond-
ert offers them full and complete reinstatement, together with interest on said
amounts at the rate of 6 percent per ann_uni. I-iackpay and interest are to be com-
puted and paid in the manner set. forth in F. W T^I-oolworth Company, 90 NLRB 289,
and in isis Plumbing & Heating Co.,. 138 NLRB 716,_less their net earnings during
the aforesaid period.
(c) Preserve; and upon regaest, make- available to the Board or its agents, for
examination and copying, fall payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to an analysis-
of the amount of backpay due.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify Donavan and Robert Van Over 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.
(e) Post in conspicuous places at its Long Beach, California, premises, including
all places where notices to employees are customarily posted, copies of the attached
notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional
Director for Region 21, shall, after being signed by Respondent, be posted by it im-
mediately upon receipt thereof, and be maintained by it for 60 consecutive days there-
after in such conspicuous places. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 21, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply therewith.12
It is further recommended that, unless on or before 20 days from the date of its
receipt of this Decision Respondent notifies the said Regional Director that it will
comply with the foregoing recommendations, the National Labor Relations Board
issue an order requiring Respondent to take the action aforesaid.
1In 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 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, as amended , we hereby notify our employees that:
WE WILL NOT discharge or otherwise discriminate against any employee in
regard to hire or tenure of employment or any term or condition of employment
for engaging in any activity protected by Section 7 of the National Labor Rela-
tions Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the rights guaranteed in Section 7 of the National
Labor Relations Act, except to the extent that those rights 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 aforesaid Act.
WE WILL offer to Donavan Van Over and Robert Van Over immediate and
full reinstatement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges, and make them whole
for any loss of earnings they may have suffered as a result of the discrimination
against them.
B & M EXCAVATING, INC.,
Employer.
Dated------------------- By------------------------------------------
(Representative ) (Title)
NoTE.-We will notify the above-named employees 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 pro-
visions, they may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No.- 688-5229_