Barney Wilkerson Construction Co.

National Labor Relations Board - Board Decisions

Dec 27, 1963

145 N.L.R.B. 704 (N.L.R.B. 1963)

704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT give effect to our agreement of January 18, 1963, with said
Local 78, pertaining to the offset production employees, and we will not require
that said employees be or become members of Local 78 as a condition of
employment pursuant to the provisions of the aforesaid agreement with Local 78.
WE WILL reimburse all offset production employees who were not already
members of Local 78 by January 18, 1963, or were not members thereof when
thereafter hired, for all moneys paid by them to Local 78 as initiation fees,
dues, assessments, or other exactions required to be paid by them in order to
become and remain members of Local 78 pursuant to our aforesaid agreement
with Local 78.
All our offset production employees are free to join or to refrain from joining
Local 78 or Amalgamated Lithographers of America, Local 22, or any other labor
organization of their choice, except to the extent that such right may be affected by
an agreement, made as authorized in Section 8(a)(3) of the Act, which requires
membership in a labor organization as a condition of employment.
WOLFER PRINTING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 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, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204, if they have any
questions concerning this notice or compliance with its provisions.
Barney Wilkerson Construction Company and Local Union No.
460, United Association of Journeymen & Apprentices of the
Plumbing & Pipe Fitting Industry of the United States &
Canada, AFL-CIO; Painters Local Union No. 1793, Brother-
hood of Painters , Decorators & Paperhangers of America,
AFL-CIO; District Council of Painters No. 36, Brotherhood of
Painters , Decorators & Paperhangers of America, AFL-CIO;
and Local 2224, United Brotherhood of Carpenters & Joiners
of America and District 50, United Mine Workers of America,
Party to the Contract. Case No. £1-CA-4835. December 07,1963
DECISION AND ORDER
On April 30, 1963, Trial Examiner E. Don Wilson issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 Intermedi-
ate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and briefs in support
thereof.
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 Fanning and
Brown].
145 NLRB No. 65.
BARNEY WILKERSON CONSTRUCTION COMPANY 705
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 In-
termediate Report and the entire record in the case, including the
exceptions and briefs, and hereby adopts the Trial Examiner's find-
ings, conclusions, and recommendations 1 except as modified herein.
1. We agree with the Trial Examiner that the Respondent, by en-
tering into the union-security contract with District 50, unlawfully
assisted that labor organization and interfered with, restrained, and
coerced its employees in violation of Section 8(a) (1) and (2) and also
engaged in unlawful discrimination within the meaning of Section
8(a) (3) of the Act.
As did the Trial Examiner, we find that Section 8(f)' of the Act
cannot serve Respondent as a defense to its conduct. By its very
terms, Section 8(f) does not permit contracts with labor organiza-
tions which are "established, maintained, or assisted by any action de-
fined in section 8 (a) of this Act." The record here shows that at the
time Respondent entered into the contract with District 50-which,
so far as appears, did not then represent any employees of the Re-
spondent-the Respondent was aware that other labor organizations
represented or claimed to represent its employees in appropriate units.
The law is clear that where, as here, an employer extends recogni-
tion to a union requesting representative status at a time when a.
rival labor organization is also claiming exclusive recognition, under
circumstances putting the employer on notice of a substantial question
concerning representation, the employer not only interferes with the
employees' statutory self-organizational rights, but also unlawfully
assists the union he recognizes, in violation of Section 8(a) (1) and
(2) of the Act.' Thus, apart from considerations tied to District 50's
lack of majority, the Respondent's action in according exclusive bar-
gaining status to District 50 in the face of the rival representation
claims rendered District 50 an "assisted" union as defined in Section
'We note in the section of the Intermediate Report entitled "The Remedy" that the
Trial Examiner refers to making discriminatees Hinojos , Teague, Vergano, and the estate
of Frizzell whole for the loss of earnings they and "the Estate of Frizzell may have suf-
fered by reason of the discrimination against them . . . ... Of course the Trial Examiner
had reference to the discrimination against Frizzell and not discrimination against his
estate.
2 In pertinent part that section provides, "It shall not be an unfair labor practice under
subsections ( a) and (b) of this section for an employer engaged primarily in the building
and construction industry to make an agreement covering employees engaged (or who,
upon their employment, will be engaged ) in the building and construction industry with a
labor organization of which building and construction employees are members (not estab-
lished, maintained, or assisted by any action defined in section 8(a) of this Act as an
unfair labor practice) because ( 1) the majority status of such labor organization has not
been established under the provisions of section 9 of this Act prior to the making of such
agreement . . .
J Midwest Piping cC Supply Co., Inc ., 63 NLRB 1060; Novak Logging Company, 119-
NLRB 1573.
734-070-64-vol. 145-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(f), and, as such, one expressly excluded from the special unfair
labor practice immunity, applicable to the construction industry,
which that section provides.4
2. Contrary to the Trial Examiner, we find that on May 11, 1962,
Respondent violated Section 8(a) (5) with respect to the Carpenters
by becoming a party to Interstate's agreement with District 50 on that
date, and thereby in effect unlawfully withdrawing recognition from
the Carpenters, which was then the majority representative of the Re-
spondent's employees in an appropriate unit. Moreover, for the rea-
sons set forth in the Intermediate Report, we find that on May 23,
1962, Respondent further violated Section 8(a) (5) by refusing to
bargain with the Carpenters 5
3. The Trial Examiner found, and we agree, that the Laborers
Union did not represent a majority of Respondent's laborers on
May 23. The Trial Examiner also found that the Laborers Union
was a majority representative prior to May 23, i.e., on May 1 and 11.
We do not accept the latter finding. In making that finding, the
Trial Examiner relied in crucial part on the "non-revoked member-
ship" status of employee Henry. However, as set forth by the Trial
Examiner, Henry on the dates stated had been in default in his dues
for more than 'a year and consequently had been suspended from
membership in the Laborers Union. Because of Henry's suspension
and his continued failure to pay dues, we are unwilling to infer
that in May 1962 Henry was a supporter of the Laborers. As
Henry's status is decisive, we cannot deem the Laborers a majority
representative.
4. In agreement with the Trial Examiner ,and for the reasons stated
by him, we find that Respondent violated Section 8(a) (3) when it
unlawfully refused to hire the plumbers Cruse had terminated on
May 23. We likewise agree that to remedy that violation Respond-
ent should * be directed to employ those plumbers and make them
whole.
Although we find that the Respondent did not violate Section
8 (a) (5) of the Act with respect to the Plumbers Union, we shall order
the Respondent, upon request, to bargain with that Union as the repre-
sentative of its plumbers and their helpers, after offering reinstate-
ment to the discriminatees. But for the Respondent's unfair labor
practices, the Plumbers Union would have continued to enjoy the same
representative status vis-a-vis the Respondent's unit of plumbers that
4 See Oilfield Maintenance Co., Inc., and Oilfield Maintenance R Engineering Co., Inc.,
142 NLRB 1384 ; Bear Creek Constriction Co., 135 NLRB 1285
In finding that the Respondent violated Section 8 ( a) (5) here , we are adopting the Trial
Examiner 's finding that the carpenters , as well as each of the other employee groups
involved, constituted an appropriate unit. We find it unnecessary to our decision, how-
ever, and do not adopt the further finding of the Trial Examiner that an overall unit of
Respondent ' s employees is necessarly inappropriate.
BARNEY WILKERSON CONSTRUCTION COMPANY 707
it had enjoyed vis-a-vis the Cruse unit. Therefore, we agree with the
Trial Examiner that, in order to remedy the Respondent's 8(a) (3)
and (1) violations with respect to the plumbers, and effectuate the
policies of the Act, it is necessary that the Respondent should be
required to bargain with the Plumbers Union.
ORDER
The Board adopts the Recommended Order of the Trial Examiner s
with the changes indicated below?
G The Recommended Order is hereby amended by substituting for the first paragraph
therein, the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , Barney Wilkerson Construction Company, its officers , agents, suc-
cessors , and assigns , shall:
7 Paragraph 2(b) is changed to read:
We WILL, upon request, bargain collectively in good faith with the Carpenters
Union as the exclusive representative of all the employees in the carpenters ' unit, as
herein found appropriate , and embody any understanding reached in a signed
agreement
Paragraph 2(c) is changed to read:
We WILL, upon request, bargain collectively in good faith with the Painters Union
as the exclusive representative of all the employees in the painters ' unit, as herein
found appropriate , and embody any understanding reached in a signed agreement.
The notice which is attached hereto is substituted for the notice attached to the Inter-
mediate Report.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to ,a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL withdraw and withhold recognition from District 50,
United Mine Workers of America, or any successor thereto, until
it is certified by the National Labor Relations Board as the ex-
clusive bargaining representative of our employees, or any of
them, in an appropriate unit.
WE WILL NOT perform, enforce, or give effect to, or implement
our May 11, 1962 contract with, the aforesaid District 50, or to
any extension, renewal, modification, or supplement thereof, or
to any superseding agreement with said labor organization, unless
and until said District 50 shall have been certified by the National
Labor Relations Board as the exclusive bargaining representative
of our employees, or any of them, in an appropriate unit.
WE WILL, upon request, bargain collectively in good faith with
Local 2224, United Brotherhood of Carpenters & Joiners of
America as the exclusive representative of all the employees in
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the appropriate unit and embody any understanding reached in
a signed agreement.
The Carpenters unit which is appropriate includes all car-
penters and their helpers and excludes all other employees
and supervisors within the meaning of the Act.
WE WILL, upon request, bargain collectively in good faith with
Painters Local Union No. 1793, Brotherhood of Painters, Dec-
orators & Paperhangers of America, AFL-CIO, as the exclusive
representative of all the employees in the appropriate unit and
embody any understanding reached in a signed agreement.
The Painters unit which is appropriate includes all painters
and their helpers and excludes all other employees and super-
visors within the meaning of the Act.
WE WILL offer Porfirio Hinojos, Buford Teague, and Joe Ver-
gano immediate employment at the same or substantially equiv-
alent positions at which they would have been employed had they
not been discriminated against, without prejudice to their senior-
ity or other rights and privileges, and make them and the estate
of Lonnie Frizzell whole for any loss of pay suffered as a result
of the discrimination, together with interest at the rate of 6
percent.
WE WILL, after offering reinstatement in the manner set forth
immediately above to Hinojos, Teague, and Vergano, upon re-
quest, bargain collectively with Local Union No. 460, United
Association of Journeymen & Apprentices of the Plumbing & Pipe
Fitting Industry of the United States & Canada, AFL-CIO, as
the exclusive representative of all employees in the appropriate
unit and embody any understanding reached in 'a signed
agreement.
The Plumbers unit which is appropriate includes all plumbers
and their helpers and excludes all other employees and super-
visors within the meaning of the Act.
WE WILL NOT interfere with the representation of any of our
employees through labor organizations of their own choosing.
WE WILL NOT violate any of the rights you may have under the
National Labor Relations Act to join a union of your choice or
not to engage in any union activities.
WE WILL NOT discourage membership in or activities on behalf
of Local Union No. 460, United Association of Journeymen &
Apprentices of the Plumbing & Pipe Fitting Industry of the
United States & Canada, AFL-CIO, or any other labor organiza-
tion, or encourage membership in District 50, United Mine Work-
BARNEY WILKERSON CONSTRUCTION COMPANY 709
ers of America, or in any other labor organization, by refusing to
hire, or in any other manner discriminating against our em-
ployees in regard to their hire or tenure of employment, or any
term or condition of employment.
WE WILL NOT unlawfully interfere with, restrain, or coerce our
employees with respect to crossing or not crossing a picket line,
by threats of discharge or promises of benefits, or in any other
manner interfere with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other material
aid or protection, or to refrain from any or all such activities.
All our employees are free to become or remain members of any
labor organization and they are also free to refrain from joining any
union unless we enter into a valid union-shop contract with a union
that represents them.
BARNEY WILKERSON CONSTRUCTION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
NOTE.-We will notify any of 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 Serv-
ice 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.
Employees may communicate directly with the Board's Regional
`Office, 849 South Broadway, Los Angeles, California, Telephone No.
Richmond 9-4711, Extension 1031, if they have any questions con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with Barney Wilkerson Construction Company, herein called
Respondent, General Counsel of the National Labor Relations Board, herein called
General Counsel, and Party to the Contract, District 50, United Mine Workers of
America, herein called District 50, represented,' was heard in Los Angeles, Cali-
fornia, on November 14, 15, and 23, 1962, before Trial Examiner E. Don Wilson.
The issues presented by the pleadings include: (1) Whether Respondent violated
Section 8(a)(1), (2), and (3) of the National Labor Relations Act, herein called
the Act, by recognizing and contracting with District 50 as the exclusive bargaining
representative of Respondent's construction employees, the contract containing a
I The Charging Parties entered no appearance.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union-security clause, since May 11, 1962; 2 (2) whether Respondent has violated
Section 8(a)(1) and (5) of the Act by refusing to bargain with Painters Local
Union No. 1793, Brotherhood of Painters, Decorators & Paperhangers of America,
AFL-CIO, herein called Painters or Painters Union; Local 2224, United Brotherhood
of Carpenters & Joiners of America, herein called Carpenters or Carpenters Union;
and Local 220, International Hod Carriers, Building and Common Laborers' Union
of America, herein called Laborers or Laborers Union, on and since various dates
in May 1962; and whether, as an 8(a)(3) remedy, Respondent should be required,
on request to bargain with Local Union No. 460. United Association of Journey-
men & Apprentices of the Plumbing & Pipe Fitting Industry of the United States &
Canada, AFL-CIO, herein called Plumbers or Plumbers Union; (3) whether Re-
spondent violated Section 8(a) (1) and (3) of the Act by failing, for discriminatory
reasons, to hire four named individuals as plumbers on or about May 24, 1962;
and (4) whether Respondent violated Section 8(a)(1) of the Act, on or about
June 7, 1962, by various statements made by its project superintendent, Wetzel, to
some employees?
The parties who appeared participated fully in the hearing .4 Submitted briefs
have been considered.5
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 THE RESPONDENT
Respondent is a California corporation with its principal office and place of
business in Riverside , California , and is, and has been at all times material , engaged
in the building and construction industry . During the calendar year 1961, in the
course and conduct of its business operations , Respondent performed construction
contracts valued in excess of $500 ,000, of which contracts valued in excess of $ 50,000'
were performed outside the State of California . During the 12-month period im-
mediately preceding the issuance of the complaint , Respondent performed con-
2 In the circumstances of this case , does Section 8 (f) of the Act absolve Respondent
from what otherwise might be violative of the Act'+ The affirmative is Respondent's posi-
tion, as well as a denial of the commission of any unfair labor practices General Counsel
contends that Section 8(f) does not preclude a finding that Respondent violated the Act
as alleged
8 The original charge was filed on June 6 , 1962, and the amended charge was filed on
July 3, 1962 The complaint issued September 14, 1962, and was amended October 31,
1962 . Respondent contends that since the Laborers neither filed a charge nor was named
In a charge , the Board is without jurisdiction to determine whether Respondent violated
Section 8 ( a) (5) and ( 1) with respect to the Laborers . I consider the naming by General
Counsel of an alleged 18(a) (5) labor organization in addition to those so named In a
charge to be a greater variance than the naming of additional 8(a)(3)'s to a charge list-
ing several or more 8(a) (3)'s However, the Board's processes are not confined to the
"vindication of private rights." N.L.R.B. v. Fant Milling Company, 360 U S. 301 I find
that the complaint allegations with respect to the Laborers, in this case, were part and
parcel of the factual situation which gave rise to the charge, as amended, and were closely
related thereto The 8(a) (1) and (5) allegations of the complaint with respect to the
Laborers do not fail because of any alleged insufficiency of a supporting charge. The
charge, as amended, filed by labor organizations ( supra ), was sufficient to set in motion, by
complaint, the Board's "machinery of an inquiry" as to a violation of Section 8(a) (1)
and (5) of the Act with respect to the Laborers by Respondent See also North Country
Motors, Ltd., 133 NLRB 1479.
4 Since one of counsel appearing for Respondent was a corporation, appearing through
its President Jones, I was more liberal in some of my procedural rulings in behalf of
Respondent, over objections of General Counsel, than I would have been if Respondent
had been represented only by one or more attorneys (On October 17, 1962, Trial Ex-
aminer Herman Marx concluded in connection with General Counsel's motion for summary
judgment, that Section 102 21 of the Board's Rules and Regulations did "not preclude"
Jones from serving as `attorney of record' in executing Respondent's answer." This rul-
ing was not appealed by General Counsel If a layman can file an answer as Respondent's-
representative, as Trial Examiner, I must make due allowance for any procedural problems
occasioned by his participation in the hearing as representative of Respondent even though,
he be co-counsel with a member of the bar )
8 General Counsel's motion to correct transcript is not opposed It is marked "Trial,
Examiner ' s Exhibit No 1" and is granted
BARNEY WILKERSON CONSTRUCTION COMPANY 711
struction contracts valued collectively in excess of $1;000,000 for national defense
agencies at March Air Force Base, California, Port Hueneme Naval Station, Cali-
fornia, and China Lake Naval Ordnance Test Station at China Lake, California.
Such construction had a substantial impact on the national defense. Respondent is
now, and has been at all times material, an employer engaged in commerce and in
business affecting commerce within the meaning of Section 2(6) and (7) of the
Act.
Ii. THE LABOR ORGANIZATIONS INVOLVED
The Plumbers Union, the Painters Union, the Carpenters Union, the Laborers
Union, and District 50 are labor organizations within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The pleadings established that early in 1960 Respondent joined Building Con-
tractors Associations, herein called BCA, an employer association existing for, among
other purposes, multiemployer bargaining with labor organizations. By virtue of
such membership, Respondent became party to BCA master labor agreements with
the Carpenters and Laborers Unions. In early February 1962 Respondent timely
terminated its BCA membership and in timely fashion terminated its contractual
relations with the Carpenters and Laborers by May 1, 1962. Until the latter date
it was bound by the terms of the Carpenters Master Agreement and of the Laborers
Master Agreement which covered all the employees of the "contractor[s] over whom
the Union[s] [have] jurisdiction," with various exclusions. It is not disputed that
Respondent continued to employ members of the Carpenters and Laborers Unions
after Respondent resigned from BCA, nor is it disputed that Respondent complied
with the Master Agreements as long as they were in force. I so find.
B. Respondent's China Lake project
In November 1961, Respondent began a construction project at the Naval Ord-
nance Test Station at China Lake, California, which involved the rehabilitation or
renovation of existing homes. Respondent employed its own carpenters and laborers,
pursuant to the above-described BCA contract, but, until May 23, 1962, it sub-
contracted its painting work to Earl DeVore, herein called DeVore, and its plumbing
work to G. P. Cruse, herein called Cruse. As subcontractor, DeVore was party
to a collective-bargaining agreement with the Painters, and Cruse was similarly
party to a collective-bargaining agreement with the Plumbers. These latter con-
ditions continued through May 23, 1962, when the subcontracts were terminated
by Respondent Among other classifications, DeVore's Painters' contract covered
brush and spray painters, and Cruse's Plumbers' contract covered work within the
jurisdiction of the Plumbers as recognized by the Building and Construction Trades
Department of the American Federation of Labor (with an exception not here
pertinent).
At the China Lake project the carpenters performed general carpenters' work,
framing new structures, putting down baseboards, etc., and used tools of the trade;
the laborers demolished existing structures, dug holes, etc.; the painters performed
routine painting of various sorts, using materials which are of general use in the
painting industry; the plumbers engaged in "general plumbing work." 6
C. Respondent, Interstate, and District 50
On May 11, 1962, Respondent through its secretary, R. G. Webb, appointed
Interstate Employers, Inc., herein called Interstate, as its exclusive bargaining repre-
sentative "in all labor relations matters" and registered under the "Building and
Construction Division" of Interstate for "multi-unit collective bargaining purposes."
Since March 1961, and at all times material, Interstate and District 50 have been
6 The Carpenters Union claims work jurisdiction over the kind of work performed by
Respondent's carpenters ; the Laborers Union claims work jurisdiction over the kind of
work performed by Respondent's laborers ; the Painters Union claims work jurisdiction
over the kind of work performed by the painters at the project, and the Plumbers Union
claims work jurisdiction over the kind of work performed by the plumbers at the proj-
ect. (See Report on Proceedings of Its Fiftieth Anniversary Convention held in 1957,
published by the Building and Construction Trades Department of the AFL-CIO, pp.
24, 45, 47-48, 50, 51-52 )
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parties to a multiemployer collective-bargaining agreement whereby District 50 is
recognized as the exclusive bargaining representative of all building and construction
employees of "regular contractor members" of Interstate.? The agreement contains
a union-security provision. The record makes clear that since May 11, 1962, Re-
spondent, through Interstate, on a multiemployer basis, has recognized District 50
as the exclusive bargaining representative of Respondent's "building and construction
employees" pursuant to the March 1961 agreement between Interstate and Dis-
trict 50.8
D. Respondent, DeVore, and Cruse
On May 23, 1962, Respondent terminated its subcontracts with DeVore and
Cruse and hired DeVore as "painting superintendent" and Cruse as "plumbing
superintendent." 9
1. DeVore's employees
On May 24, 1962, all of DeVore's ex-employees 10 were placed on Respondent's
payroll and continued as employees of Respondent.
2. Cruse's employees and Respondent's failure to hire them
As subcontractor, Cruse employed Becker 11 as his foreman and Lonnie Frizzell,12
Porfirio Hinojos, Buford Teague, and Joe Vergano as plumbers. During all of
May 1962, the latter four were members of the Plumbers Union. Euel E. Hancock,
business manager of the Plumbers, testified credibly that on May 10, 1962, at the
jobsite, Cruse told him "everything seemed to be going along fine" and "he was
satisfied with the plumbers he had on the job." On May 23, 1962, Hancock and
Bob Carter, assistant business agent of the Plumbers, met with Cruse and Lee Wetzel,
Respondent's construction superintendent, at the jobsite. Wetzel said he was going
to lay off all the plumbers and hire "District 50 people." Wetzel further said they
,,were taking over all the plumbing out there and they were going District 50."
When Hancock asked Cruse "what the trouble was," Cruse replied that "he was laying
the people off and he was going over with District 50 and Barney Wilkerson's job."
He said his contract 13 was being canceled and that if Respondent wanted him to
"go" District 50 and "lay all the plumbers off," he would 14
Later, in the afternoon of May 23, 1962, Cruse told the four plumbers that he was
terminating them, adding that he was "out of money" and he had no more work
for them. In fact, much more plumbing work remained to be done on the project
and soon after terminating Frizzell, Hinojos, Teague, and Vergano, Respondent
hired a number of other plumbers.15 Vergano credibly testified, without contra-
diction, that the plumbers told Cruse on May 23, 1962, the job was only half
finished and "someone obviously had to finish it, it wasn't going to be left that
way . . that we would like to remain on the job site." Cruse told them to check
with their "business agent."
Cruse 16 testified that the four plumbers were not "rehired," "because they never
approached me for a job" and he "presumed they could not work for me anymore."
I find the first alleged reason to be false in light of Vergano's credited testimony
that the plumbers told Cruse they wished to remain on the jobsite. As to his
presumption, he subsequently added that he did not think the Plumbers Union would
7 The contract describes the unit as "all Employees engaged in bulding and construction
employed by the Employer, excluding office employees, salesmen, watchmen, gardeners,
maintenance employees and supervisors as defined by the National Labor Relations Act "
8 See testimony of Calhoun, Interstate's president.
8 General Counsel does not contend that these actions were other than economically
motivated.
"About 10 in number.
11 Spelled variously otherwise in the record.
zz Deceased at the time of the hearing.
13 With Respondent.
14 The findings as to this May 23 meeting are based on the credited uncontradicted testi-
mony of Carter and Hancock.
1s Cruse being Respondent's superintendent. On May 23, he ceased being an employer
but knew he would be Respondent's superintendent as of May 24
18 Cruse's demeanor did not impress me favorably. He was evasive and son' s of his
testimony was self-contradictory.
BARNEY WILKERSON CONSTRUCTION COMPANY 713
"sign up with Barney Wilkerson ." He admitted he never asked the Union if it
would "sign up" with Wilkerson . The record contains no adequate justification
for Cruse's presumption . Subsequently, in his testimony, Cruse was generally
critical of the production of the four plumbers. Wetzel, whose demeanor impressed
me unfavorably , and whose testimony was marked by evasiveness , advanced the
generally claimed poor production of the four plumbers as Cruse's "only reason"
for not hiring the four plumbers to work for him as Respondent 's superintendent.
He based this testimony on discussions he had had with Cruse . I do not credit the
testimony of Cruse and Wetzel that the production of the four men was not satis-
factory. Cruse admitted he never told the four that they were not producing
satisfactorily and never complained to their local 17 about their job performance.
It does not appear reasonable to me that a man who faced the loss of his sub-
contract would not criticize the work of his employees , if such were merited or
would not ask the contracting local to supply him with men whose production would
prove satisfactory if those he had did not produce to his satisfaction. Wetzel, who
advanced lack of productivity as the "only reason" why Respondent did not hire
the four, also testified "should we have tried to hire non -AFL-CIO men I figured
somebody would be jumping down my neck because we had somebody on there
that wasn't union." In a pretrial affidavit of Wetzel, he explained why Respond-
ent didn 't hire the employees whom Cruse terminated on May 23. He said , "I felt
that if we kept any of Cruse's men , and there were some we might have liked to
have kept, it would have led to trouble with the Plumbers ' Union, because , I felt,
this Union , being as strict as it is, would cause trouble if we hired men on our
own to work along side any of Cruse's men we might have kept ." In his testimony,
Wetzel said the pretrial statement was not correct . He admitted that he signed
and swore to it. Wetzel 's duties included the supervision of the "entire" China
Lake job and determining that work was performed according to specifications of
the U .S. Navy. He was thus a responsible managing agent of Respondent. I do
not credit Wetzel 's attempted repudiation of his pretrial affidavit . General Counsel
offered it as affirmative evidence and Respondent 's only objection to its receipt was
that it contained "nothing other than a bald conclusion on this witness ' part about
a subject of which he has no direct knowledge ." The statement by a responsible
managing agent of Respondent contains an averment of ultimate fact and not a mere
"conclusion" and I am satisfied that the ultimate fact was within the knowledge
of Wetzel when he swore to its truth . Respondent 's sole objection to the receipt of
the pretrial affidavit was thus without merit I find it to be consistent with other
credited testimony and to be the truth.18 I find , further, that the four plumbers
were not hired by Respondent because of their activities in behalf of the Plumbers
Union and that , if they had been hired, they would have constituted a majority of
the plumbers employed by Respondent.
E. Representation of Respondent 's employees by labor organizations
during May 1962
(1) District 50: The record is devoid of evidence that District 50 represented
any of Respondent 's employees at any material time.
(2) Carpenters Union The evidence establishes that at all relevant dates in
May 1962 , the Carpenters Union represented a majority of Respondent's carpenters.
(3) Painters Union- The evidence establishes that the Painters Union represented
a majority of Respondent 's painters throughout May 1962 and particularly from
May 24, 1962 , 19 until the end of May, and from the evidence it is reasonable to
conclude , as I do, that on May 23 , 1962, Respondent had already determined to
employ these painters as of May 24 , 1962. Indeed, one of Wetzel's pretrial
affidavits (Respondent 's Exhibit No 1) makes this evident.
(4) Plumbers Union: I have already found that if, on May 24, Respondent had
placed Cruse 's plumbers on its payroll , they would have constituted a majority of
Respondent 's plumbers and the Plumbers Union was their representative. By
May 23, 1962 , Respondent had determined not to hire these plumbers, as found
supra.
17I have previously noted that he told a union representative that he was satisfied with
his plumbers
18 Even hearsay must be given its natural probative weight.
19 When they became Respondent's employees
7114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) Laborers Union: Respondent employed the following laborers as of the dates
noted:
Dates haborers
May 1, 1962______________________ Richard G Henry
Hurshell C. Holmes
Robert C. Points
May 11, 1962_____________________ Richard G Henry
Hurshell C. Holmes
Robert C. Points
May 23, 1962_____________________ R. Avriett
Richard G. Henry
Hurshell C. Holmes
Joe Castlow
At all times in May 1962, Holmes was a "paid up" member, in good standing, of
the Laborers Union. At the same time, Henry was a "suspended" member of the
Laborers Union, not having paid dues for more than a year. He had never with-
drawn his membership nor had he been expelled. There is no evidence that Avriett
or Castlow were ever members of the Laborers Union or in any manner chose or
designated this union as their representative 20
In absence of evidence to the contrary, I find Holmes, by his membership, clearly
designated the Laborers Union as his bargaining representative and Henry, even
though his membership had been suspended, by his nonrevoked membership desig-
nated the Laborers Union as his bargaining representative.21 Thus, on May 1 and
11, 1962, the Laborers Union represented a majority of Respondent's laborers.
I find insufficient evidence to conclude that the Laborers Union represented a major-
ity of Respondent's laborers on May 23, 1962. I think it out of order to indulge
in any presumptions of majority status which might conceivably have arisen out of
the terminated BCA contract 22 or out of the existence of a majority on May 11,
1962, in this case where General Counsel has undertaken to establish, as he says
in his brief, that "the union(s) in fact had majority status.23 The officers of the
Laborers Union who was called by General Counsel to establish the "fact," as to
the majority status of the Laborers Union, did not do so as to May 23, 1962, and
I do not find such majority to be proven as a fact as of such date.
F. The Building Trades Council and requests and refusals to bargain
The Kern, Inyo and Mono Counties Building Trades Council, herein called
Council, has as its major function the administration of the affairs of the various
local craft unions in its area which included Respondent's China Lake project It is
"an amalgamation of unions banded together to do for themselves jointly what they
can't do separately." The Carpenters Union, Plumbers Union, Laborers Union,
and Painters Union at all material times were affiliated with and represented by the
Council. 11
Bill Waggoner is a business representative of the Council. On May 23, 1962,
he spoke to Wetzel, in person, at the jobsite. Waggoner asked Wetzel if Respondent
was going to rejoin BCA or wished to sign a "short form labor agreement." 24
Wetzel said he had no authority to sign an agreement and referred Waggoner to
Respondent's Secretary Webb. Leaving the jobsite, Waggoner, thereupon, placed
a phone call to Webb and asked him whether Respondent intended to rejoin BCA
or sign a "short form agreement." Webb replied that Respondent was a member
of Interstate and they were "in the process of negotiating with the Building Con-
tractors Association and also the District 50." 25 Webb stated Respondent was to
find out "which deal was the better for them," referring to "District 50 or AFL-
20 The secretary-treasurer of the Laborers Union testified as to the representative status
of the Laborers Union at material times
21 N.L.R B v. Louisville Refining Co., 102 F 2d 678, 680 (C A. 6), cert. denied 308 U.S.
568; United States Gypsum Company, 90 NLRB 964, 969.
22 Terminated May 1, supra
23 There is no occasion to indulge in presumptions of fact where more certain evidence
is available and utilized but not probative
24 Standard form of bargaining agreement in the 11 southern counties of California for
an employer who is not signatory to a so-called "Master Labor Agreement" or a member
of one of the "four" associations of employers, such as BCA.
25 Of course, at this time, Respondent was already party to a contract with District 50,
since May 11, 1962. Webb's statement to Waggoner was not frank.
BARNEY WILKERSON CONSTRUCTION COMPANY 715
CIO." Later in May, or perhaps in June 1962, Waggoner again called Webb 26
who was not available. Frank A Calhoun, president of Interstate, returned the
call.27 Calhoun asked Waggoner if the Council claimed to represent any of Re-
spondent's employees. Calhoun said he was handling Respondent's labor problems.
Crediting Waggoner, as I do, I find that Calhoun said Interstate's business was
done with District 50. I find that Waggoner properly concluded that since Inter-
state dealt with District 50, Calhoun made it clear that it would not, on behalf of
Respondent, deal with the unions represented by Waggoner. Waggoner was under
no obligation to put his request in writing, as suggested by Calhoun, especially since
Calhoun's principal, Webb, had already rejected Waggoner's request to bargain.
On the basis of the above findings, I conclude that on May 23, 1962, and later
that month or in June 1962, Waggoner, in behalf of the Carpenters, Plumbers,
Laborers, and Painters Unions, requested Respondent to recognize, bargain, and
sign a contract with the Unions, herein involved, as majority representatives of
Respondent's employees in the units represented by the respective Unions. It is
recognized that Respondent did not have any painters in its employ until May 24,
1962, but in the circumstances of this case I find the May 23, 1962, request of
Waggoner was also prospective and continuing in nature and related to the Painters
and Plumbers Unions, as well as any other Union, affiliated with the Council, which
might represent employees of Respondent. The record demonstrates that Respondent
so understood Waggoner's request to sign a "short form agreement." 28 I further
find that Waggoner's requests were refused by Respondent as of the dates the requests
were made 29
General Counsel contends that Respondent, by recognizing and contracting with
District 50 on May 11, 1962, simultaneously withdrew recognition from the Carpen-
ters and Laborers Unions which represented a majority of Respondent's carpenters
and laborers, respectively, at that time. He urges that "the refusal to bargain as to
the carpenters and the laborers units matured as of May 11, notwithstanding Wag-
goner's failure to communicate with Respondent with regard to single-employer
bargaining as to separate crafts until May 23." General Counsel argues that the
circumstances of this case are substantially similar to "special circumstances " cases 30
and the Unions here involved were excused from making a demand for recognition
as of May 11, because such would be a "useless" or "futile" gesture. I do not agree.
There is no evidence that the Unions knew, on May 11, that Respondent had signed
a contract with District 50 or would not, as of that date, bargain with them, nor is
there evidence that a clear demand for bargaining made by the Carpenters and/or
Laborers Unions on May 11 would have been refused by Respondent. Thus, it
cannot be successfully argued by General Counsel that Respondent's conduct of
May 11 lulled the Unions, or otherwise successfully produced their May 11 inactivity,
nor may it be successfully argued on the basis of this record that on May 11 Re-
spondent would not have repudiated its contractual relationship with District 50,31
and bargained with the Unions upon express demand. To arrive at the conclusions
of fact in this regard urged by General Counsel would be to indulge in pure specula-
tion based upon hindsight which would form no proper basis for a factual finding.
General Counsel has not established, by a preponderance of the evidence, that there
was any unlawful refusal to bargain by Respondent, prior to May 23, 1962.
G. Particular interference, restraint , and coercion
The pleadings establish that on or about June 7, 1962, the Council established
a picket line at Respondent's China Lake project with picket signs stating that
'Respondent was unfair and maintained substandard conditions.
28I am satisfied, from the substance of the record, that the purpose of the call was
again to ask for a contract
27 Calhoun fixed the date as May 23, 1962 I believe Calhoun was mistaken as to the
date and credit Waggoner's testimony as to a later date
Is There is no evidence that Respondent ever indicated ignorance of the nature of a
"short form agreement." In any event such artlessness would not be consistent with
Respondent 's bargaining history.
29 Although it was not specific , I find Waggoner demanded and was refused recognition
of the Unions in his conversation with Calhoun.
2° Cf. Old Town Shoe Company , 91 NLRB 240 , 241; Tooleraft Corporation, 92 NLRB
'655, 656-657; Continental Desk Company, 104 NLRB 912, 915.
811 shall find this relationship violative of Section 8(a)(1), (2), and (3), infra.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The uncontradicted, credited testimony of carpenter George L. Bird establishes
that on or about June 7 he was a member of the Carpenters Union and an employee
of Respondent and that Wetzel told him and other carpenters at that time that if
they didn't go back to work, they didn't have a job and that if they were fined
by the Carpenters Union for crossing the picket line, Respondent would pay the
fine. Wetzel told them that if they didn't go back to work, "not to come back at all.
[They] didn't have a job." I find that by the above statements Wetzel threatened
employees with discharge if they refused to cross the picket line and promised them
benefits (payment of union fines) if they did cross the picket line.
I find that Respondent's employee Martin L. Mosley was told by Wetzel, in the
presence of other carpenters, about June 7, 1962, that if they did not cross the
picket line, Wetzel would have to get someone to replace them and that if they did
cross the picket line, Respondent "would stand all the fines." I find, in the light
of Section 8(c) of the Act, that Wetzel's statement to Mosley about replacements
was not illegally coercive and that his promise to "stand all the fines" was an illegal
promise of benefit if they would refrain from engaging in protected union activities-
H. Concluding findings of facts
1. Units
Prior to May 1, 1962, Respondent, through its BCA contracts, had employees who
were properly included within appropriate multiemployer bargaining units of car-
penters and laborers. The carpenters belonged in the one and the laborers in an-
other multiemployer unit, established by collective bargaining. As of May 23, 1962,
when the subcontracts were canceled, DeVore's painters constituted a single-employer
appropriate craft unit pursuant to his contract with the Painters, as did Cruse's
plumbers, pursuant to his contract with the Plumbers.32
When Respondent withdrew from BCA in timely fashion, and its bargaining con-
tracts terminated on May 1, 1962, single-employer units of Respondent's employees
(carpenters and laborers) presumptively became appropriate 33 especially since Re-
spondent, by its conduct, indicated an intent at least for the time being, to follow
an individualistic course of bargaining.34
When, on May 24, Respondent employed painters and plumbers, their preexisting
units remained appropriate.
As of May 23 and 24, Respondent's employees, by virtue of their duties and
collective-bargaining history, fell into four separate appropriate units-carpenters,
laborers, painters, and plumbers. Although the parties to pertinent contracts have,
generally, described these units in terms of jurisdiction claimed by AFL-CIO unions,35-
the Board does not use such terms in defining units.38
I find that the following described units are and were appropriate or inappropriate
as of May 23 and later in May or in June 1962:
Appropriate:
(a) All Respondent's carpenters and their helpers, excluding all other employees
and supervisors within the meaning of the Act.
(b) All Respondent's laborers and their helpers, excluding all other employees
and supervisors within the meaning of the Act.
(c) All painters and their helpers, excluding all other employees and supervisors
within the meaning of the Act.37
se The Board is reluctant to disturb existing contract units established through collective
bargaining, unless they are repugnant to Board policy or do not assure to employees the
fullest freedom in exercising the rights guaranteed by the Act. The Murray Company of
Texas, Inc, 107 NLRB 1571, 1573
33 As of May 1, 1962
84 Cooks, Waiters and Waitresses Union, Local 327; et al. (Greater Peoria Restaurant
Association), 131 NLRB 198, 200; Amalgamated Heat Cutters and Butcher Workmen of
North America (A.F.L ), Local No. 421 (The Great Atlantic and Pacific Tea Company),
81 NLRB 1052, 1060.
35 Of course, such is not true of the Interstate-District 50 contract
as See Amalgamated Meat Cutters, etc, supra
81DeVore's painters continued as a separate cohesive group under Respondent's super-
intendent , DeVore, who had been their employer,
BARNEY WILKERSON CONSTRUCTION COMPANY 717
(d) All plumbers and their helpers, excluding all other employees and supervisors
within the meaning of the Act 38
Inappropriate:
I specifically find that the multiemployer unit as established between Interstate
and District 50, by contract and history, was inappropriate at all material times so
far as Respondent's employees were concerned. There is no satisfactory evidence
that any of Respondent's employees were informed of Respondent's action in signing
a contract with District 50, through Interstate,39 or that they expressly or otherwise
consented to be represented by District 50 in a multiemployer or other bargaining
unit or were ever solicited or required to become members of District 50, other than
by the union-security clause in Interstate's contract with District 50.40 There is no
evidence that any of Respondent's employees ever effectively forsook demonstrated
union membership 41 in Carpenters Union, et al., and/or chose membership in
District 50 in place or instead of, or in addition to, established membership in an
AFL-CIO union. The so-called Interstate-District 50 multiemployer group could
have become appropriate only upon sufficient evidence that the employees "in each
of the constituent employer groups, which themselves would comprise natural and
inherently appropriate units, have consented, expressly or otherwise, to be repre-
sented by a single bargaining agent in common with the employees of other em-
ployers." The record is without evidence that Respondent's carpenters, or laborers,
or painters, or plumbers were ever given an opportunity to or did accept or reject
District 50 "as their representative." Respondent "could not unilaterally and with-
out the express or implied consent of its employees bind them to representation in
a multiemployer unit." 42
2. Majority status of labor organizations, on various dates, as to
appropriate units
At all material times, the Carpenters Union represented a majority of Respond-
ent's carpenters.
The Laborers Union represented a majority of Respondent's laborers on May I
and 11, 1962, but not on May 23, 1962, when a request to bargain was made. There
;is insufficient evidence to determine that it represented a majority on or after
May 23, 1962.
The Painters Union represented a majority of Respondent's painters on May 24,
1962, and thereafter.43
If Respondent had not discriminatorily refused to hire Cruse's plumbers, the
.Plumbers Union would have represented a majority of Respondent's plumbers on
.and after May 24, 1962.
There is no evidence that District 50, at any material time, represented any of
Respondent's employees.
3. Request and refusal to bargain
No request to bargain, on behalf of the Carpenters, Laborers, Painters, or
'Plumbers was made prior to May 23, 1962. The evidence does not establish that
a request prior to that time would have been a useless or futile gesture. Respond-
ent, through Webb, refused to bargain with the Carpenters and Laborers on May 23,
1962, and finding the May 23, 1962, request of Waggoner as prospective and con-
tinuing,44 to the knowledge of Webb, the latter on May 23 refused to bargain with
the Painters and Plumbers, not only as of May 23 but also in futuro.45
8 The evidence indicates that employees who did plumbing work for Respondent after
May 24 , did the same work as had been performed by Cruse's plumbers through May 23
and that Cruse, though not their employer beginning May 24, was their supervisor within
the meaning of the Act.
a Testimony as to advice to DeVore 's painters is too general and vague to permit a
finding.
40 The record does not disclose implementation of the contract.
41 Where established.
" See Mohawk Business Machines Corporation , 116 NLRB 248 , 249; Pepsi-Cola Bottlsng
Company of Kansas City, 55 NLRB 1183, 1186, 1187.
u Respondent, as an employer, had no employee-painters prior to May 24.
44 Burton -Dixie Corporation , 103 NLRB 880.
46 The record is clear that on May 23, 1962, Respondent knew that as of the next day it
would employ painters and plumbers.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I specifically do not find a refusal, by Respondent, to bargain as of May 11,
1962,46 when it became party to a contract with District 50, or at any time prior
to Waggoner's request of May 23, 1962.
A retusal to bargain, similar to that of Respondent's Secretary Webb, was com-
mitted by Respondent through Calhoun in the latter part of May, or in June-
1962 .47
4. Section 8(a)(1), (2), and (3) (the May 11 contract)
By entering into the May 11, 1962, contract, containing a union-security clause„
with District 50, Respondent unlawfully assisted District 50 and interfered with,
restrained, and coerced and discriminated against Respondent's employees in viola-
tion of Section 8(a)(1), (2), and (3) of the Act.48 Section 8(f) of the Act49
prohibits a finding that an employer, such as Respondent, be found guilty of an 8(a)
violation because it enters into a contract with a labor organization where the labor
organization is not, among other things, "assisted by any action defined in Section
8(a) of this Act as an unfair labor practice." I do not believe Congress intended
to permit this or any like Respondent, in the circumstances of this case, where the
evidence establishes Respondent had proper reason to believe its employees chose
representation by various AFL-CIO unions, to foist upon its employees, as bargain-
ing representative, District 50, there being not a scintilla of evidence that any of
its employees, at any time or in any manner, had sought or indicated he would
accept representation by District 50, and particularly, of course, here, in the instant
case, where the evidence clearly establishes that on May 11, 1962, when Respondent
contracted 50 with District 50, Respondent had every reason correctly to believe that
the Carpenters Union represented its carpenters and the Laborers Union its laborers
and the Painters Union its subcontractor's painters, and the Plumbers Union its
subcontractor's plumbers51 I find, rather, that Congress specifically intended by the
language of Section 8(f) to remove Section 8(f) as a defense to an employer in the
construction industry who makes a bargaining agreement with a labor organization
which it has illegally assisted in terms of Section 8(a)(1), (2), or (3) of the Act.52
5. Section 8(a)(1) and (5) (refusals to bargain)
General Counsel specifically has not alleged a violation of Section 8(a)(5) with
respect to Respondent's refusal to recognize the Plumbers Union as the representa-
tive of its plumbers. Despite the May 23, 1962, and subsequent request to bargain
by the Plumbers, I find no violation of Section 8(a)(5) in Respondent's refusal to
bargain with the Plumbers.53
I find that in violation of Section 8(a)(5) and (1) of the Act, Respondent un-
lawfully refused to bargain with the Carpenters and Painters Unions pursuant to
their requests of May 23, 1962, and later in May or in June 1962.
I find that since the preponderance of the evidence fails to establish the majority
status of the Laborers on or after May 23, 1962, Respondent did not violate Sec-
tion 8 (a)(5) or (1) of the Act by refusing to bargain with the Laborers Union
pursuant to its requests of May 23, 1962, and thereafter
I find that since there was no request by the Carpenters, Laborers, Painters, or
Plumbers prior to May 23, 1962, and since the preponderance of the evidence does
not establish that such request or requests would have been useless or futile gestures,
there was no unlawful refusal to bargain, in violation of Section 8(a)(5) and (1),
by Respondent prior to May 23, 1962, and particularly as of May 11, 1962.
4° As alleged by General Counsel.
471 am convinced by the record that Calhoun knew Waggoner wanted a contract or con-
tracts for the labor organizations he represented and that Calhoun made it plain Respond-
ent was contracting with no labor organization other than District 50.
48 Mohawk Business Machines Corporation, supra; Paul Biazevich, at al., d/b/a MV
"Liberator." 136 NLRB 13.
45 Claimed by Respondent to be a defense.
60 Union-security clause in contract.
Si It is reasonable to infer from the record, as I do, that on May 11 Respondent contem-
plated the termination of these subcontracts and performing the work involved through
its own employees.
521 do not believe that the "(1)" portion of Section 8(f) so may be construed that it
means an employer in the construction industry may ignore Section 8(a) (2) of the Act
and enter into a contract, in an inappropriate unit, with a labor organization that repre-
sents none of his employees when the employer has good and proper reason correctly to
believe that other labor organizations represent his employees in appropriate units.
51 See the section entitled "The Remedy," infra
BARNEY WILKERSON CONSTRUCTION COMPANY 719
6. Section 8(a)(3) and (1) with respect to the plumbers
I find Respondent unlawfully, in violation of Section 8(a)(3) and (1) of the
Act, refused to employ Frizzell, Hinojos, Teague, and Vergano because of their
membership in the Plumbers Union,54 as hereinabove explicated.
7. Independent violations of Section 8(a)(1)
By its threats on or about June 7, 1962, to discharge employees if they refused
to cross a picket line and by promising to pay union fines if they did cross a picket
line, Respondent interfered with, restrained, and coerced its employees in violation
of Section 8 (a)( 1 ) of the Act 55
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of Respondent described in section I, above, occurring in connection
with the unfair labor practices described in section III, 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
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1), (2), (3), and (5) of the Act, I shall recommend that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
I shall recommend that Respondent be ordered to withdraw and withhold recogni-
tion from District 50 until that union is certified, in order to enable its employees
to exercise their statutory rights free from the unfair labor practices engaged in by
Respondent. I shall also recommend that Respondent cease giving effect to or in
anywise implementing the Interstate-District 50 contract, or any renewal or modifica-
tion thereof.
Since Carpenters and Painters Unions have already requested Respondent to bar-
gain, I shall recommend that Respondent notify these unions that Respondent is
willing to meet and bargain with them.
Having found that Respondent, on May 23, 1962, and thereafter, refused to
employ Frizzell, Hinojos, Teague, and Vergano, in violation of Section 8(a)(1) and
(3) of the Act, I shall recommend that Respondent offer the latter three employees
immediate and full employment at the same or substantially equivalent positions
at which they would have been employed had they not been discriminated against,
without prejudice to their seniority or other rights or privileges, and make them and
the estate of Frizzell whole for any loss of earnings they and Frizzell may have
suffered by reason of the discrimination against them, by paying each a sum of
money equal to the amount that each would normally have earned as wages from
the date of the discrimination against them to the date of offers of reinstatement,56
less his net earnings.57 The backpay obligations of Respondent to the above-named
employees shall include payment of interest at the rate of 6 percent to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Although I have found Respondent did not violate Section 8(a) (5) of the Act
with respect to the Plumbers Union, I shall recommend that Respondent be ordered,
upon request, to bargain with the Plumbers Union as the representative of its
plumbers and their helpers, after offering reinstatement to the discriminatees pur-
suant to the order herein recommended. Had not Respondent illegally discriminated
against the plumbers on May 23, 1962, and thereafter, because of their membership
in the Plumbers Union, Respondent would have become the employer of employees
in a unit I have found appropriate and, as such, would have been obliged to bargain
with the Plumbers Union upon its requests, as herein found. Respondent has sought
to avoid bargaining with the Plumbers Union by engaging in unlawful discrimination.
Effectively to remedy Respondent's 8(a)(3) violations with respect to the plumbers
and to effectuate the policies of the Act, it is necessary that in addition to "making
whole" and "reinstatement," Respondent be ordered to bargain with the Plumbers
Union, upon request, as soon as it employs the discriminatees.58
54 That Respondent did not discriminate against members of the Painters Union does nqt
militate against this finding
55 See Cone Brothers Contracting Company, 135 NLRB 108.
561n the case of Frizzell-until the date of his death
67 F. W. Woolworth Company, 90 NLRB 289.
63 Piasecki Aircraft Corporation, 123 NLRB 348, 350.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's unfair labor practices, as found, strike at the heart of rights guaran-
teed employees by the Act. Unless appropriately restrained, there is reasonable
ground to anticipate that Respondent, in the future, will infringe upon other rights
guaranteed to employees. I shall, therefore, recommend an order requiring Re-
spondent to cease and desist from infringing in any manner upon the rights guaran-
teed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. The Board has jurisdiction of the subject matter
of this proceeding.
2. The Carpenters Union, the Laborers Union, the Painters Union, the Plumbers
Union, and District 50 are each labor organizations within the meaning of Section
2(5) of the Act.
3. By recognizing and contracting with and granting union security to District 50
on May 11, 1962, as found above, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of
the Act.
4. By failing and refusing on May 23, 1962, and thereafter, to recognize and
bargain with the Carpenters Union and/or the Painters Union as the exclusive bar-
gaining representative of Respondent's employees in the respective units 59 herein
found appropriate, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (1) and (5) of the Act.
5. By discriminatorily refusing to employ Frizzell, Hinolos, Teague, and Vergano
on May 23, 1962, to discourage membership in the Plumbers Union and encourage
membership in District 50, Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act on or about June 7, 1962, by threats
and promises, Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Respondent, Barney Wilkerson Construction Company, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Recognizing District 50, United Mine Workers of America, as the exclusive
representative of its employees for the purposes of collective bargaining, unless and
until said labor organization shall have been certified by the National Labor Relations
Board as the exclusive bargaining representative of said employees in an appropriate
unit.
(b) Performing, enforcing, or giving effect to its May 11, 1962, contract with
District 50, United Mine Workers of America, or to any renewal, modification, or
supplement thereof, or to any superceding agreement, unless and until the aforesaid
labor organization shall have been certified by the National Labor Relations Board
as the exclusive bargaining representative of the Respondent's employees in an
appropriate unit, and then only if the agreement to be given effect conforms to the
provisions of the National Labor Relations Act, provided, however, that nothing
herein shall be construed to require Respondent to vary any substantive provisions
of such agreement, or to prejudice the assertion by the employees of any rights they
may have thereunder.
(c) Interfering with the representation of its employees through labor organiza-
tions of their own choosing.
(d) Refusing to bargain collectively with the Carpenters Union as the exclusive
bargaining representative of all the employees in the carpenters unit as herein
found appropriate.
(e) Refusing to bargain collectively with the Painters Union as the exclusive
representative of all employees in the painters unit as herein found appropriate.
69 Carpenters and Painters.
BARNEY WILKERSON CONSTRUCTION COMPANY 721
(f) Discouraging membership in or activities on behalf of the Plumbers Union,
or any other labor organization, or encouraging membership in District 50, or in
any other labor organization, by refusing to hire, or in any other manner, discriminat-
ing against its employees in regard to their hire or tenure of employment or any
term or condition of employment.
(g) Interfering with, restraining, or coercing its employees with respect to cross-
ing or not crossing a picket line, or in any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other material aid or protection, or to refrain from any
or all such activities.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Withdraw and withhold all recognition from District 50, United Mine Work-
ers of America, or any successor thereto, as the exclusive representative of Re-
spondent's employees, or any of them, for the purposes of collective bargaining
unless and until the said labor organization shall have been certified by the National
Labor Relations Board as such exclusive representative in an appropriate unit.
(b) Notify the Carpenters Union immediately that it will meet and bargain col-
lectively with the Carpenters Union, as the exclusive representative of all employees
in the carpenters unit, as herein found appropriate, at mutually agreeable times
and places, and, if understandings are reached, embody such understandings in one
or more signed agreements.
(c) Notify the Painters Union immediately that it will meet and bargain collec-
tively with the Painters Union as the exclusive representative of all employees in
the painters unit, as herein found appropriate, at mutually agreeable times and
places, and, if understandings are reached, embody such understandings in one or
more signed agreements.
(d) Offer Hinojos, Teague, and Vergano immediate employment at the same or
substantially equivalent positions at which they would have been employed had
they not been discriminated against, without prejudice to their seniority or other
rights and privileges, and make them and the estate of Lonnie Frizzell whole for
any loss of pay suffered, in the manner set forth in the section hereof entitled "The
Remedy."
(e) After offering reinstatement in the manner set forth in section 2(d), im-
mediately above, to the individuals therein named, upon request, bargain collectively
with the Plumbers Union as the exclusive representative of all employees in the
plumbers unit as herein found appropriate, at mutually agreeable times and places,
and, if understandings are reached, embody such understandings in one or more
signed agreements.
(f) Post at its China Lake project, 80 copies of the attached notice marked
"Appendix." 61 Copies of said notice, to be furnished by the Regional Director for
the Twenty-first Region of the Board, shall, after being duly signed by Respondent,
be posted by it immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to its employees are customarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any other material.
(g) Notify the said Regional Director, in writing, within 20 days from the receipt
by Respondent of a copy of this Intermediate Report and Recommended Order,
what steps the said Respondent has taken to comply therewith.62
It is further recommended that, unless on or before 20 days from the date of the
receipt of this Intermediate Report and Recommended Order, Respondent notify
the said Regional Director that he will comply with the foregoing, the National
Labor Relations Board issue an order requiring said Respondent to take the action
aforesaid.
60 The China Lake project herein involved may now have been completed.
el 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 additional event that the Board's Order is 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."
62In the event that this Recommended Order is adopted by the Board, paragraph 2(g)
hereof 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 therewith "
734-070-64-vol . 145-47