Breitling Brothers Construction Co.

National Labor Relations Board - Board Decisions

Jun 28, 1965

153 N.L.R.B. 685 (N.L.R.B. 1965)

BREITLING BROTHERS CONSTRUCTION CO . 685
The appropriate bargaining unit in each plant is:
All production , maintenance , packing, and shipping employees , exclud-
ing office clerical employees , guards, and supervisors as defined in the Act.
WE WILL NOT discourage membership of our employees in the above-named
or any other 1, bor organization by discontinuing operations or by discriminating
in any other n anner in regard to their hire and tenure of employment, or any
term or condit on of employment.
WE WILL o fer all employees who were deprived of employment as a result
of the removal of our New York City plant immediate and full reinstatement
to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges previously enjoyed. Such reinstatement
will be offered at any plant we may open in the New York City area. If no such
plant is opened , we will offer such reinstatement at our Miami, Florida, plant,
together with the necessary traveling and moving expenses.
WE WILL make all said employees whole for any loss of pay suffered as a
result of the discrimination against them.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named or any other labor organiza-
tion , to bargain collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid and protection , or to refrain from any or all of such
activities.
GARwiN CORPORATION ; S'AGARO, INC., A NEW YORK CORPORATION;
S'AGARO, INC., A FLORIDA CORPORATION ; JOSEPH WINKELMAN;
MILTON MIRSKY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-If any of our former New York City employees are currently serving in
the Armed Forces of the United States, we will notify them of their right to reinstate-
ment or transfer upon application as provided herein after discharge from the Armed
Forces, in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended.
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 the employees have any questions concerning this notice or whether the Employer
is complying with its provisions, they may communicate with the Board 's Regional
Office at Squibb Building, Fifth Floor, 745 Fifth Avenue, New York, New York,
Telephone No. 751-5500.
Harold W. Breitling and Robert L. Breitling, Partners, d/b/a
Breitling Brothers Construction Co.; and/or Breitling Broth-
ers Construction , Inc. and Teamsters , Chauffeurs, Warehouse-
men and Helpers Local No. 222, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Case No. 27-CA-1653. June 28,1965
DECISION AND ORDER
On May 10, 1965, Trial Examiner Howard Myers issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
153 NLRB No. 55.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Decision and
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this case, including the
exceptions and brief, and hereby adopts the findings,1 conclusions,
and recommendations of the Trial Examiner with the following
modifications.
In his findings of fact the Trial Examiner found that by discharg-
ing Childs and Sorenson in violation of Section 8(a) (3), the Respond-
ent also violated Section 8 (a) (1), but he inadvertently failed to include
the latter findings in his conclusions of law. Accordingly, the Trial
Examiner's conclusions of law are corrected by adding thereto the
following paragraph numbered 4, and renumbering the succeeding
paragraphs as 5 and 6:
"4. By interfering with, restraining, and coercing employees in the
exercise of the rights guaranteed in Section 7 of the Act, Respondent
has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (1) of the Act."
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, Harold W. Breitling and Rob-
ert L. Breitling, Partners, d/b/a Breitling Brothers Construction
Co., and/or Breitling Brothers Construction, Inc., Salt Lake City,
Utah, its officers, agents , successors , and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, as so modified.
1. Paragraph 1(b) of the Trial Examiner' s Recommended Order is
redesignated as paragraph 1(a) ; and paragraph 1(a) is redesignated
as paragraph 1(b), with the addition of the word "other" between the
words "any" and "manner."
1 We agree with the Trial Examiner that the Board has statutory jurisdiction of Re-
spondent 's operations . N.L R B. v Reliance Fuel Oil Corporation , 371 U S. 224 . We also
find that it will effectuate the policies of the Act to assert jurisdiction herein. Siemons
Mailing Service, 122 NLRB 81
Under the established policy not to overrule a Trial Examiner ' s credibility findings
unless a clear preponderance of all the relevant evidence convinces us that they were in-
correct , we find no basis for disturbing the credibility findings made by the Trial Examiner
in this case Standard Dry Wall Products , Inc, 91 NLRB 844, enfd. 1,88 F. 2d 362
(C.A. 3).
BREITLING BROTHERS CONSTRUCTION CO. 687
2. There is added to the Appendix as the first substantive paragraph
a counterpart paragraph to paragraph 1(a) of the Recommended
Order; and similarly there is added to the new second substantive
paragraph the word "other" between the words "any" and "manner."
3. Add the following as paragraph 2 (b), the present paragraph 2 (b)
and those subsequent thereto being consecutively relettered :
"(b) Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement
upon application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge duly filed on August 27, 1964,' and upon an amended charge duly
filed on October 19, by Teamsters, Chauffeurs, Warehousemen and Helpers Local No.
222, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called the Union, the General Counsel of the National Labor
Relations Board, herein respectively called the General Counsel2 and the Board,
through the Regional Director for Region 27 (Denver, Colorado), issued a complaint
dated October 26 against Harold W. Breitling and Robert L. Breitling, Partners, d/b/a
Breitling Brothers Construction Co., herein called the partnership, and/or against
Breitling Brothers Construction, Inc., herein called the corporation (conjointly, the
partnership and the corporation are referred to herein as Respondent), alleging that
Respondent has engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the National Labor Relations Act, as amended from time to time, 61 Stat. 136,
herein called the Act.
Copies of the charges, complaint, and notice of hearing were duly served upon
each Respondent, and copies of the complaint and notice of hearing were duly served
upon the Union.
On November 5, Respondent duly filed an answer denying the commission of the
unfair labor practices alleged.3
Pursuant to due notice, a hearing was held at Salt Lake City, Utah, from Decem-
ber 8 through and including December 11, before Trial Examiner Howard Myers.
All parties were represented by counsel and participated in the hearing. Full and
complete opportunity was afforded all parties to be heard, to call, examine, and cross-
examine witnesses, to introduce evidence pertinent to the issues, to argue orally on
the record at the conclusion of the taking of this evidence, and to file briefs on or
before January 11, 1965. Briefs have been received from the General Counsel and
from counsel for the Respondent and have been carefully considered 4
At the conclusion of the taking of the evidence, Respondent's counsel made several
motions to dismiss the complaint for various and sundry reasons. Decisions thereon
were reserved. The motions are now disposed of in accordance with the findings,
conclusions, and recommendations hereinafter set forth.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following-
FINDINGS OF FACT
1. THE BUSINESS OPERATIONS OF RESPONDENT
Breitling Brothers Construction Co. now is, and has been for the past 3 years, a
partnership consisting of Harold W. Breitling and his brother, Robert. The partner-
1 All dates herein mentioned, unless otherwise noted, refer to 1964.
a This term specifically includes counsel for the General Counsel appearing at the hearing.
$ On November 27, the General Counsel, through the aforesaid Regional Director, issued
an amendment to the complaint. On December 2, Respondent duly filed an answer to
the amendment to the complaint.
4 On January 20, 1965, Respondent filed a reply brief which also has been carefully
considered
Egg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship is licensed to engage in business in the State of Utah as a construction contractor
and has been so engaged for the past 3 years.
Breitling Brothers Construction, Inc., now is, and has been since November 1,
1963, a corporation duly organized under the laws of the State of Utah, and is licensed
to do business in that State as a contractor.
Harold W. Breitling is the president of the corporation and a member of its board
of directors; Robert L. Breitling is vice president and treasurer and a member of the
board of directors; Marilyn B. Brown, a sister of the Breithng brothers, is secretary
and treasurer and a member of the board of directors; and Donna R. Breitling, the
wife of Robert L. Breitling, is a stockholder. The four named persons own substan-
tially all of the assets and capital stock of the corporation.
The partnership has been and is licensed as a contractor separately from the cor-
poration. The partnership and the corporation each share offices at 3645 South 500
West Street in Salt Lake City. The partnership keeps a set of books apart from those
of the corporation.
After the corporation was organized in November 1963, it took over practically
all of the assets of the partnership in exchange for stock of the corporation. At the
inception of the corporation some of the unfinished partnership construction con-
tracts were transferred to the corporation for completion.
Part of the work done by the partnership and part of the work done by the corpo-
ration has consisted of excavating, backfilling, leveling, grading, roadcutting, and other
types of earthmoving operations; underground installations; drainage; and other
phases of contracting and construction work.
Neither the partnership nor the corporation has engaged in any construction activi-
ties or has rendered services outside of the State of Utah.
Alfred Brown Company, herein called Brown, is in the heavy construction busi-
ness with offices located in Salt Lake City. During the period from August 1, 1963,
through July 31, 1964, it performed construction work outside the State of Utah
amounting to in excess $165,000. During the same period, Brown performed con-
struction work within the State of Utah for which it received in excess of $1 million.
During the same period, Breitling Brothers Construction, Inc., performed construction
work for Brown within the State of Utah valued at $3,480.
Carpenter Paper Company, herein called Carpenter, a division of Nationwide
Papers, Incorporated, maintains offices and a place of business within the State of
Utah.5 During 1964, Carpenter shipped into the State of Utah directly from points
located outside the State of Utah for distribution and sale within the State of Utah,
paper and paper products valued in excess of $50,000. During the same year, the
corporation hauled "local fill materials" to a site within the State of Utah for Car-
penter valued at $29,083.60.
Statewide Contractors, Inc., herein called Statewide, an Idaho corporation, quali-
fied to do business in the State of Utah as a contractor, maintains offices at Murray,
Utah.
Statewide also maintains offices at Las Vegas, Nevada, and at Phoenix, Arizona.
During 1964, Statewide performed construction contracts within the State of Utah
valued in excess of $50,000; performed construction contracts within the State of
Arizona valued in excess of $50,000, and performed construction contracts within
the state of Nevada valued in excess of $50,000. In the performance of these con-
tracts in each of the said States, materials were supplied to Statewide by suppliers
located within the State in which the construction project was performed, and no
labor nor materials involved in any construction project was transported across a
State line by Statewide, nor by anyone else as far as is known to Statewide Con-
tractors, Inc.
From August to November 1964, Breitling corporation performed construction
work as a subcontractor for Statewide "consisting of compaction fill for the munici-
pality of South Salt Lake City, in Salt Lake County, Utah, valued in excess of
$24,000." In October and November 1964, Breitling corporation furnished to State-
wide "manned equipment for hauling surplus fill dirt from a sewer construction
project in Salt Lake County, Utah, to another point in Salt Lake County, Utah, valued
in excess of $4,000."
The Breitling partnership was formed about 3 years ago and has been conducting
its business in the State of Utah as a licensed contractor.
It is the Respondent's position that the corporation came into being as a completely
separate business enterprise whose operations were entirely divorced from those of
5 See Federal Envelope Company, Omaha, Nebraska, A Division of Nationwide Papers
Incorporated, 147 NLRB 1030.
BREITLING BROTHERS CONSTRUCTION CO. 689
the partnership. The two entities have substantially identical control and owner-
ship; both share the same offices at 3645 South 500 West in Salt Lake County; after the
formation of the corporation, it took over some of the assets of the partnership and
assumed some of the contracts of the partnership (thus also leaving some assets and
contracts with the partnership); both have operated gravel pits in Salt Lake County;
and both have performed work consisting of excavating, backfilling, leveling, grading,
roadcutting, earthmoving, underground installation, drainage, and other phases of
contracting and construction
At the time of the formation of the corporation, all the employees of the partner-
ship were transferred to the corporation's payroll and since then none have been
employed on any partnership job. The only persons doing any construction work on
any partnership jobs, since the inception of the corporation, are Robert and Harold
Breitling.
Since its inception, the corporation has been using the partnership's letterheads
and its billing invoices. The corporation pays its employees with checks bearing the
partnership's name, although the bank account on which these checks are drawn is
in the name of the corporation.
The corporation and the partnership share the same premises.
Most of the employee-witnesses in this proceeding testified they were not certain
whether they were employees of the partnership or of the corporation. Some testi-
fied they did not know for which of the two concerns they work. Some testified that
they worked for "Breitling Construction, Inc." and others testified that they worked
for "Breitling Brothers."
Under the circumstances, I find that the partnership and the corporation constitute
a single integrated enterprise and, as such, for the purpose of this proceeding, is a
single employer within the meaning of the Act.C
At the hearing and in its briefs, Respondent contended that the Board lacked juris-
diction in this matter.
The Board's statutory or legal jurisdiction clearly exists. The Act specifically states
that the statutory jurisdiction of the Board extends to any persons ". . . engaging in any
unfair laboi practice . . . affecting commerce." In determining whether a person's
activities "affect commerce," the courts have consistently held that "the operation of
the Act does not legally depend on any particular volume of commerce being affected
more than to which courts would apply the maxim de nunlmis'. N.L R.B. v. Fain-
blatt, 306 U.S.C 601, 607; N.L.R.B. v. Denvei Building & Construction Trades
Council, 341 U.S. 675, 684-685.117 While it is clear that no mathematical formula
is available for determining exactly what is and what is not de mimmis, it is in fact
well settled that "de minimis" in the law has always been taken to mean trifles-mat-
ters of a few dollars or less." N.L.R.B. v. Suburban Lumber Company, 121 F. 2d
829, 832 (C.A. 3), cert. denied 314 U.S. 693.8
Moreover, under the Act, the Board is given the responsibility of ascertaining
whether, in a particular situation, certain proscribed activities would adversely affect
the free flow of interstate commerce. In this respect, the Supreme Court "has con-
sistently declared that in passing the National Labor Relations Act, Congress intended
to and did vest in the Board the fullest jurisdictional breadth constitutionally permis-
sible under the Commerce Clause." N.L.R.B. v. Reliance Fuel Oil Corporation,
371 U.S. 224, 226.9 When a work stoppage on the local level causes cessation of
an employer's business activities, the importation of goods from outside the State is
ultimately impeded. Thus, even though most of its activities are local in nature, when
6 Cf. N.L.R.B. v. Malcom Bonner Chevrolet, Inc.; et at., 338 F. 2d 972 (C.A. 3), and
cases therein cited ; Radio and Television Broadcast Technicians Local Union 1264 V.
Broadcast Service of Mobile, Inc., 85 S. Ct. 876; Wenatchee Thrifty Drugs, Inc., 151
NLRB 752.
7In accord, N.L.R.B. v. New Madrid Manufacturing Company and Harold Jones, d/b/a
Jones Manufacturing Company, 215 F. 2d 908 (C.A. 8) ; N.L.R.B. v. Harvey Stoller,
d/b/a Richland Laundry & Dry Cleaners, 207 F. 2d 305 (C.A 9) cert. denied 347 U.S.
919; Radio and Television Broadcast Technicians Local Union 1264 Y. Broadcast Service
of Mobile, Inc., supra.
8 See also N.L.R.B. v. Aurora City Lines, Inc., 299 F. 2d 229 (C.A. 7) ; N.L.R.B. v.
Harvey Stoller, d/b/a Richland Laundry & Dry Cleaners, supra.
9 See also-Polish National Alliance of the United States of North America V. N.L.R.B.,
322 U.S. 643; N.L.R.B. v. M. L. Townsend, 185 F. 2d 378 (C.A. 9), cert. denied 341
U.S. 909.
796-027-66-vol. 153-45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the quantity of these imported goods exceeds de inmimis in total dollar value, the
business has a direct effect on the flow of interstate commerce . '0 I find that the
Board, in the instant case , plainly has statutory jurisdiction over the business opera-
tions of Respondent.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion, the discharge of Childs and Sorenson
1. The pertinent facts 11
The record discloses no union activities among Respondent 's employees prior to
the spring of 1964, at which time the employees engaged in conversations among
themselves concerning the inadequacy of their pay and the advisability of seeking the
services of a labor organization to obtain a payraise . In the first week of May,
Respondent granted a wage increase of 25 cents pei hour to all its employees and
unionizational talks immediately ceased.
In the forepart of August, due to the fact that some of the employees, for reasons
not clear to them, were having their pay "docked," talk about seeking the aid of a
labor organization was revived.
During the day of Monday, August 17, Richard Childs, Harold Simpson, and Roy
Ovato , three Respondent truckdrivers , discussed the possibility of bringing a union
into Respondent 's establishment
That evening, August 17, Childs and Simpson talked to about 14 or 15 other
employees at Respondent 's shop after working hours and inquired as to their thoughts
about unionization . Shortly after their conversations with their coworkers , referred
to immediately above, Childs and Simpson telephoned Scott Haslam, the Union's
business agent, and informed him of the men's desire to be represented by a labor
organization.
The next day, August 18, Childs, as a result of the aforementioned telephone con-
versation with Haslam , circulated among the men "a plain piece of paper" with a
request that those who were "interested in the union and going to a union meeting"
to place their names on said paper. Since "nearly a majority " 12 of the men signed
the paper , Childs, that same evening , telephoned Haslam and informed him of the
situation and then requested that Haslam "set up" a meeting.
On the night of August 20, Haslam and officials of two or three other craft unions
met with about 11 Respondent employees at the Union's headquarters. There, after
a general discussion was had regarding what benefits the employees could derive
from joining the Union , arrangements were made for another meeting to be held
at a nearby motel the following week
On Saturday, August 22, Childs telephoned Respondent's office and asked Presi-
dent Harold Breitling if he should report for work that day.13 Harold Breitling
replied that there was plenty of work to be had and that Childs should come to the
plant.
When Childs reported for work on Monday, August 24, he informed Harold Breit-
ling that Statewide Construction Company, a contractor for whom Respondent was
10 See N L R .B. v. Central Oklahoma Milk Producers Assn , 285 F. 2d 495 ( C A. 10)
N L.R.B v. Denver Building & Construction Trades Council, supra
11 In the light of my observation of the conduct and deportment at the hearing of all
the persons who testified herein , and after a very careful scrutiny of the entire record,
all of which has been carefully read and parts of which have been reread and rechecked
several times , and being mindful of the contentions of the parties with respect to the
credibility problems here involved , of the fact that in many instances testimony was
given regarding events which took place months prior to the opening of the hearing, of
the fact that very strong feelings have been generated by the circumstances of this case,
coupled with the fact that it would unnecessarily protract this Decision to summarize all
the testimony or to spell out fully the confusion and inconsistencies therein , the follow-
ing is a composite picture of all the factual issues involved and the conclusions based
thereon. The parties may be assured that in reaching all resolutions , findings, and con-
clusions herein, the record as a whole has been carefully considered ; relevant facts have
been studied ; and each contention advanced has been weighed even though not specifically
discussed.
13 There were approximately 30 persons then in Respondent 's employ
13 Respondent paid overtime pay for Saturday work.
BREITLING BROTHERS CONSTRUCTION CO. 691
then doing some work , would need only two trucks that day.14 Childs then testified
that the following then transpired:
And Harold [ Breitling ] said, "Okay," which, if I recall , he made a note of
it, that there would be only two trucks go up there Then I went out in the
shop. The mechanic was out there , and I was talking to him for a little bit, and
then Harold-there's a window which they can open between the shop and the
office. He opened the window and told me to come into the office , which I went
back into the office. He said , "Come in the back office. I want to talk to you."
I went in the back office , and he told me back there that he was going to have to
lay me off. He said I was agitating the men. He said I had them all worked
up. He said I was doing more talking than I was work , that I wasn't keeping
up my end of the work.
Childs further testified that at Harold Breitling's request he gathered together his
personal tools and radio , that upon completion of that task he reported to the office;
and that he was then handed a check for wages due him 15 and a termination slip 1C
Donald Sorenson testified that on or about August 10 , Childs contacted him about
the Union ; that he attended the Union 's aforesaid August 20 meeting; that when he
reported for work on August 24 he noticed there was no job assignment attached to
his "chipboard"; that after Harold Breitling finished the conversation he was having
with another employee , 17 Harold Breitling asked him to come into the "back room";
and that there the following took place:
I went back in the back room there, and Harold went over in front of me
and picked up which I could see was a blue slip and come over to the desk
there-to the place there and handed me this, and he says, "I 'm going to have to
let you go on account of you was an agitator , trouble-maker , and the things that's
been leading up for the last two or three weeks ." And I accepted it, and-which
he said I had too many coffee stops , which I told him I didn't. And I accepted
it and walked out.
Sorenson was then handed a termination slip which assigned the reason for his dis-
charge, "Not suited for assignment "
Harold Breitling testified as follows as to what he told Childs when he fired Childs
on August 24
I first spoke with-I believe it was Dick Childs that I spoke to first, and told him
that I was going to have to release him because of the lack of production that he
had particularly recently to-recent to that date as well as the difficulty that he
experienced with his truck and the difficulty in the upkeep and maintenance, or
the availability of the truck , as we call it , of being in the shop too much, being
unavailable for work. Also, that I felt that he had caused the interruption of
other trucks and other drivers through his talking at the pit or cafes in talking
to them.
Regarding what ensued at the time he fired Sorenson , Harold Breitling testified
as follows:
Don [Sorensen] came in next, and I told Don that I'd like to talk to him, too,
and took him into the back room and told him the same thing, possibly in dif-
ferent words , I don't know, but I know I told him that I was going to have to
release him for the lack of production on his part and for the care of his truck,
and that his truck hadn 't been available for work as much as I'd thought it should
be, and that-
Q. Did he make any response to your statement?
A Yes.
Q. What did he say?
A. He said, "I haven ' t had any more trouble with my truck than some of
the others."
In the light of my observation at the hearing of Harold Breitling , Childs, and Sor-
ensen, and after a very careful scrutiny of the entire record, I find that Childs' and
Sorenson 's versions , with respect to their respective termination talks with Harold
Breitling , to be substantially in accord with the facts . This finding is based mainly,
but not entirely , on the fact that Harold Breitling gave me the distinct impression
14 Childs received this information from Statewide 's foreman the previous Friday.
15 Normally , the employees are paid on Thursday.
19 The reason given on the slip for Childs ' termination was "Not suited for assignment
27 Childs.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was studiously attempting to conform his testimony to what he thought was
to be to the best interest of the Respondent. On the other hand, Childs and Soren-
sen each 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.ts
After being told by Harold Breitling that he was discharged, Childs went directly
to Simpson's home, told him that he had received his "blue slip," and then telephoned
Haslam and advised him of his discharge. Haslam told Childs to be at the Union's
.offices at 9 o'clock that morning
At the Union's offices, Childs conferred with Haslam and with representatives of
some other craft unions. After it was decided to hold a meeting the next night,
August 25, with Respondent's employees, Childs left the union offices and spent the
balance of the day informing said employees of the scheduled meeting.
During the day of August 25, Respondent arranged for its employees to attend a
dinner-meeting to be held directly after the aforementioned union meeting at a res-
taurant near Respondent's premises for the sole purpose, as Harold Breitling expressed
it when he invited Simpson to attend, of obtaining "a better understanding between
the workmen and Respondent." 10
Between 17 and 20 Respondent employees met with Haslam and with represent-
atives of the Operating Engineers, the Laborers Union, and Salt Lake Building
Trades Council at the union hall on August 25. There, after a discussion was had
respecting Childs' and Sorensen's discharges, a secret ballot vote was then taken among
the attending Respondent's employees to ascertain their desires with respect to union-
ization at Respondent's establishment The majority voted in favor of having the
Union represent them and for the Building Trades Council to attempt to enter into
a collective-bargaining contract with Respondent. The meeting then adjourned so
that the employees could attend Respondent's scheduled dinner-meeting.
At said dinner-meeting, which was attended by Harold and Robert Breitling, their
sister, Marilyn Brown, who is Respondent's secretary, by practically all Respond-
ent's employees, and by Austin, business representative of Local 3 of the Operating
Engineers, Austin made a few remarks at the beginning of the meeting and then
left.20
Harold Breitling then addressed the employees He stated, among other things,
that he knew of the employees' union activities; that at "the present time" Respondent
was not going to join any labor organization under any circumstances or sign a collec-
tive-bargaining contract; that at some previous occasion Respondent had been con-
tacted by a union which submitted an unacceptable contract; that he understood that
the Union was going to force Respondent "to go union" and force the employees to
join it; that since the State of Utah had a so-called right-to-work law, Respondent
could not force the employees to join a union ; that it was not to the employees ' advan-
tage to be represented by the Union because Respondent could not work efficiently
under the Union's restrictive regulations; that under the Union's rules an "operator"
could not service his own equipment nor could an "operator" transport his equip-
ment to the jobsite; that because of said limitations placed upon the "operators" by
the Union, the cost of performing any job would become too costly and hence
Respondent would not be able to make any profit.
After Harold Breitling had completed his remarks, a question and answer period
then commenced with the employees asking why certain employees were favored with
more overtime than others; why the pay of some men was "docked" without being
given any reason therefor. All these questions and others were answered by either
Harold or Robert Breitling.
Is This is not to say that at times Childs and Sorensen were not confused on certain
matters or that there were no variations in their objectivity and convincingness. But it
also should be noted that the candor with which each of them admitted, during long and
searching examinations , that they could not be certain as to dates, times, or the exact
words used , only serves to add credence to what a careful study of their testimony shows
what they honestly believed to be the facts.
3 Respondent also posted on its bulletin a notice announcing , in effect, that a dinner,
to be paid for by it, was to be held that evening and all those who intended to attend
were requested to signify by placing their names on said notice.
20 Before leaving , Austin and Harold Breitling agreed to meet at Respondent 's establish-
ment the following morning.
BREITLING BROTHERS CONSTRUCTION CO. 693
Robert Breitling remarked that some labor organizations in the past had asked
Respondent to sign collective -bargaining contracts but that it had refused to do so
because said union representatives had refused to submit a written contract embrac-
ing all the terms and conditions which the union had specified Respondent had to
abide by.
When an employee asked why Childs had been discharged , Harold Breitling stated
that Childs "wasted so much company time, made a lot of poor excuses , and had not
taken proper care of his truck . [Childs'] truck had been in the shop too often."
When another employee asked why Sorensen was discharged , Robert Breitling
stated that Respondent lost the Cates contract due to Sorenson 's poor work . There-
upon , employee Ralph McLachan , Sorensen 's brother-in-law, remarked that Soren-
sen "had worked under some difficult conditions " while working on the Cates job.
Pursuant to arrangements made the previous evening, Austin, accompanied by
Hugh Bodam, district representative of Local 3 of the Operating Engineers, John
Petersen , business representative of Laborers Union Local 79, Jesse Payne , secretary
and business representative of the Building Trades Council , and by Haslam, met
with Harold and Robert Breitling about 7 a.m. on August 26, at Respondent 's place
of business.
Regarding what transpired at this meeting , Austin testified as follows:
Primarily when we started the conversation , I asked Harold if we couldn't
meet outside because the office was too crowded , and he agreed . And I told him
that we'd come down to talk to him about signing a Building Trades agreement
[this agreement is known in the trade as a subcontractor 's contract] and told
him that the majority of men wanted union wages and conditions , that we were
interested in him being a fair competitor with the other construction people
here. Harold and I talked of a couple of other little items at this time , and then
I asked him again if he would sign the Building Trades agreement , and he said
that he would not sign a-a union agreement with any union at any time. And
one of the other agents-I believe it was Scott Haslam. It was Scott Haslam
asked him if he'd reinstate the two drivers that he'd discharged , and he said, "No,
those were the two that had stirred up the union trouble in the first place." And
I told him, "Well , Harold , you know that a lot of your members would like to
have union wages and fringes, but they're afraid to ask you , afraid that they'd
get run off." Harold told me, "I like it that way. I like to keep 'em boss-I like
to keep them scared because I'm the boss . I'll hire and fire who I please when
I please."
Haslam testified that after the discussion had been had respecting the possibility
of signing the subcontractor's contract which Austin had proffered , he asked Harold
Breitling if he would reinstate Childs and Sorensen ; and that Harold Breitling replied
in the negative , adding, "They were agitators and trouble -makers," and that he'd fire
who he pleased , ". . . [besides Childs and Sorensen ] were hard on equipment, . .
[and] they were one of the ones that caused the union activity in [Respondent's]
yard, that started up the union trouble."
Payne testified that at the August 26 meeting between the two Breitling brothers
and the various named union officials, Harold Breitling replied to Haslam's question
whether Respondent would reinstate Childs and Sorensen , to quote from Payne's
testimony , "He'd got rid of the people that had agitated and spearheaded the union
movement at the Breitling Brothers ' operation "
Bodam testified that Harold BreitLig stated , when asked by Haslam whether
Respondent would reinstate Childs and Sorensen , to quote from Bodam's testimony,
"No, he would not, that they was [sic ] the cause of all the union trouble."
Petersen testified that he did not hear everything which was said at the aforemen-
tioned August 26 meeting because he had arrived late, but he did hear Harold Breit-
ling say , "I would [sic] not sign no contract ... because [1] got rid of [the ] agitators."
Harold and Robert Breitling each denied that he had mentioned the words "agi-
tators" or "union activities" during any part of his conversation with the aforenamed
union representatives on August 26 and each denied that he had made the statements
attributed to him by the aforesaid union representatives.
Upon the entire record in the case and from his observation of Harold and Robert
Breitling , Austin, Payne. Haslam, Bodam, and Petersen , while each was on the wit-
ness stand , I find that Austin's , Payne's. Haslam 's, Bodam 's, and Petersen 's versions
of what was said during the meeting , referred to immediately above, to be substan-
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tially in accord with what was said . This finding is supported by the fact that Austin,
Payne , Haslam, Bodam , and Petersen particularly impressed me as being truthful,
honest, and forthright witnesses . On the other hand, Harold and Robert Breithng
each gave me the distinct impression that he was studiously attempting to conform his
testimony to what he considered to be the best interest of Respondent.21
Upon the conclusion of the meeting referred to immediately above, a picket line
was established at Respondent 's place of business . The picketing ceased before noon
that day, August 26.
As far as the record reveals there were no further union activities among Respond-
ent's employees after August 25.
2. Concluding findings
This case presents the comparatively rare situation where the recitation of the fact,
leading up to the discharges vividly reveals their discriminatory character . 22 The
very sequence of the events surrounding the discharges renders immediate suspect
the Respondent 's proffered explanation in justification of its conduct . Thus, in the
face of the overwhelming credited evidence that the discharges were plainly attribut-
able to Respondent 's animosity to the employees ' union activities , Respondent urges
that the true reasons for the discharges were that Childs and Sorensen talked too much
on the job, that they wasted time by delaying operations of other employees , and that
they also negligently handled and abused Respondent 's trucks. I am convinced, and
find, that Childs ' and Sorensen 's shortcomings only became insurmountable in their
employer's eyes when Childs and Sorensen joined the other employees in Respond-
ent's place of business in supporting the Union 's organizational campaign ,23 and that
Respondent 's advanced reasons for the discharges were merely a pretext 24
Upon the entire record as a whole, which clearly reveals Respondent 's Union
animosity , I find that Childs and Sorenson were discharged because of their union
activities and not for the reasons advanced by Respondent 25 In N.L.R.B. v. May
Department Stores Company , 154 F. 2d 533 (CA. 8), the court said, at 538,
regarding a situation similar to the one presented here, that there is a "broad scope of
inference open . . . on questions of motive and discrimination , where the evidence
indicates a desire to thwart or nullify unionizational efforts, either generally or as to a
particular employee-organization ." And where , as here, the employer has shown
strong opposition to its employees' organizational efforts, "a very convincing case of
discharge for cause would have to be made to make unreasonable a conclusion that
[the] discharge was because of union affiliation." 26
u This is not to say that there are not variations in Austin's, Payne's, Haslam's,
Bodam's , and Petersen 's recitals of the remarks made by the various persons who spoke
at this August 26 meeting . But a careful study of their respective testimony clearly
shows that the five named union representatives testified only to what they honestly be-
lieved to be the facts . Moreover , their testimony on direct examination was not mate-
rially shaken during the searching cross - examination to which each was subjected
22 Compare the oft-quoted observation of Chief Judge Parker in Hartsell Mills Company
v. N L.R B., 111 F 2d 291, 293 ( CA 4) . ". . . direct evidence of a purpose to violate
the statute is rarely obtainable " Accord: N.L R B. v. Bird Machine Company, 161 F 2d
589, 592 (C.A 1).
23 Cf Wells , Incorporated v. N.L R B ., 162 F . 2d 457 ( C A 9) ; David Onan, et at ., d/b/a
D. W. Onan & Sons v. N.L R B , 139 F. 2d 728 ( CA. 8) , Edward G Budd Manufacturing
Co. v. N.L R B., 138 F. 2d 86 (C A. 3) ; Agwilines, Inc v. NLRB , ,87 F. 2d 146 (C A 5).
24 Of course, disbelief of the reasons advanced by Respondent does not in itself make
out a violation The burden is on the General Counsel to establish discriminatory motive,
not on Respondent to disprove it. But, here , the General Counsel more than amply met
that burden.
a It goes without saying, as the Fifth Circuit pointed out in N.L .R.B v. T. A McGahey,
Sr., et at, 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 evidence reveals that the real reason and dominant purposes for the discharge was
discriminatory , as here , then a finding of a violation of Section 8(a) (3) of the At is
clearly warranted
Danner, Grain and Milling Company v . N L R B , 130 F. 2d 321 , 328 (C.A 8).
BREITLING BROTHERS CONSTRUCTION CO. 695
3. Sorensen's right to reinstatement
Several hours before the opening of the second day's hearing in the instant pro-
ceeding and prior to Sorensen's testifying, Respondent and Sorensen executed a docu-
ment to the effect that Sorensen would waive his right to reinstatement provided
Respondent paid him the sum of $300 in lieu of backpay.21
The Board's power to remedy unfair labor practices is not limited by private agree-
ments between the parties.28 Accordingly, the proper remedial action to cure
Respondent's unlawful discrimination against Sorenson was not subject to final nego-
tiations with Sorensen, but with the Board. Respondent's and Sorenson's attempts to
bypass the processes of the Board and by way of "settlement" secure Sorensen's
waiver of his full statutory rights are therefore unavailing.29 As succinctly stated by
the Fourth Circuit in N.L.R.B. v. Threads, Inc., 308 F. 2d 1, 8:
[The] right of a discriminatorily discharged employee to reinstatement and back-
pay is not a private right subject, like an ordinary debt, to private adjustment, but
a remedy that is provided in the public interest in order to enforce a public
right 30
The discharge of an employee for exercising his rights under the Act is a viola-
tion which "goes to the very heart of the Act"; N.L.R.B. v. Entwistle Mfg. Co., 120
F. 2d 532, 536 (C.A. 4). Under the circumstances, I reject Respondent's contention
that no affirmative relief regarding Sorensen is warranted. Accordingly, I recom-
mend that Respondent be ordered and directed to offer Sorensen full and immediate
reinstatement to his former or substantially equivalent job and make him whole for
any wages he may have lost because of the discrimination against him from August 24,
1964, to the date of Respondent's offer of reinstatement, less his net earnings during
said period plus any monies Respondent may have paid Sorensen under the afore-
mentioned December 9 and 10 agreements.
4. Childs' right to reinstatement
The major contentions of Respondent why Childs should not be reinstated are that
Childs: (1) abused the truck he operated for Respondent and thus caused expense
and loss of equipment; (2) wasted too much time on the job; (3) attempted to charge
Respondent for hours not worked; (4) held up loading operations at the pit, thereby
holding up the operations of other employees: (5) engaged in salvage operations at
jobsites while his truck was being loaded; and (6) stole some of Respondent's
property.
As found above, Childs did not (1) abuse his truck, (2) did not waste time on the
job, (3) did not charge or attempt to charge Respondent for time not worked, and
(4) did not hold up production
Regarding (5) above, the credible evidence clearly establishes that whatever "sal-
vage operations" Childs engaged in while waiting for his truck to be loaded at jobsites
consisted of picking up and throwing into the cab of his truck small pieces of metal
pipe and miscellaneous scrap which were of no material value to the contractor con-
cerned. In fact, the record discloses that if Childs had not picked up said pipe and
scrap, they would have been loaded by Duane Peterson, Respondent's "cat" operator,
onto Childs' truck and hauled to some dumping spot.31
27 The following day Respondent and Sorensen executed another document which, among
other things, set forth in more detail Sorensen's purported reasons why he would not
accept reinstatement even if it was proffered.
28 Section 10(a) of the Act: N.L.R B. v. General Motors Corporation, 116 F. 2d 306,
311-312 (C.A. 7).
21 Respondent and its counsel negotiated with Sorensen with the full knowledge that
Board processes were available. For a respondent in a Board proceeding is apprised at
the time the charge is filed and at each step of the proceedings of the availability of
Board procedure for settlement of any or all issues See Stanley Anthony v. N.L.R.B.
and Bond Brothers , Inc., 204 F. 2d 832 (CA. 6) ; Poole Foundry and Machine Company
v. N.L.R.B , 192 F. 2d 740 (C.A. 4), cert. denied 342 U S. 954
30 Accord: J. J. Case Company v. N.L.R B , 321 U S 332 ; N L.R B. v. E.A. Laboratories,
Inc., 188 F. 2d 885 (CA. 2), cert denied 342 U S. 871 ; Local 743, International Associa-
tion of Machinists v. United Aircraft Corporation, 337 F. 2d 5 (C.A. 2) ; NLR.B. v.
General Motors Corporation, supra; Wix Corporation, 140 NLRB 924; Old Town Shoe
Company, 91 NLRB 240, 243, footnote 11.
31 The fact that Childs was permitted to engage in this so-called "salvage operation"
Is revealed by Harold Breitling's testimony that he had told Childs that he could engage
in such activity provided it did not interfere with his duties
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding (6) above, Respondent accuses Childs of stealing (a) valuable salvage-
able property from Respondent's yard (the credible evidence reveals that what Childs
actually picked up and hauled away was some small pieces of tin and some metal
scrap, that Harold Breitling actually gave Childs permission to pick up said tin and
scrap and to cart them away, and that in return for the tin and scrap, Childs gave
Respondent much more valuable pieces of sheet metal); 32 (b) acetylene: the credited
evidence reveals that Respondent permitted all its employees to use its acetylene for
their own use and that no employee was disciplined for taking advantage of this
privilege; (c) topsoil: the credible evidence in this regard reveals that Robert Breitling
gave Childs permission to take some topsoil from Respondent's pit; that Childs did,
pursuant to said permission, haul away some of Respondent's topsoil and use it for
his own yard; that some 4 months prior to Childs' discharge by Respondent, Harley
Boone inquired of Childs if Childs knew where he could secure some topsoil; that
Childs secured Robert Breitling's permission to fill Boone's order for 10 yards of
topsoil; that Robert Breitling made out a bill of sale to Boone for said 10 yards of top-
soil; that Childs then delivered the topsoil to Boone; and that Boone paid Childs for
the topsoil and Childs, in turn, delivered the money to Respondent; (d) a set of truck
brake shoes: Childs admitted that he took said brake shoes from Respondent's ware-
house and put them on his own truck. The Respondent's complaint in this regard is
as ill-intentioned as all its other defenses to the issues here involved for the credited
evidence reveals that the brake shoes could only be used on Chevrolet trucks of the
1941-46 vintage; that they were worth only $4; and that the brake shoes could not be
used by Respondent because it possessed, at the time of the misappropriation, only
Reo, White, and Diamond T trucks; and (e) visited the warehouse contrary to
Respondent's rules: the credited evidence clearly establishes that it was common prac-
tice for the employees to go into the warehouse at any time they desired and that
no employee was ever disciplined for so doing.
Thus it appears that Respondent's contention that Childs should not be reinstated
because of his petty thievery, direliction of duty, abuse of his truck, and the like, does
not stand up under scrutiny. Accordingly, I recommend that Respondent be ordered
and directed to offer Childs full and immediate reinstatement to his former or substan-
tially equivalent position, together with backpay from August 24, 1964, to the date
of Respondent's offer of reinstatement 33
Upon the entire record in the case, I find that Respondent 34 discharged and there-
after refused to reinstate Childs and Sorensen because each had engaged in protected
union activities. By so doing, Respondent violated Section 8(a) (3) of the Act and
since such conduct necessarily interfered with, restrained. and coerced Childs and
Sorensen and their coworkers in the exercise of the rights guaranteed in Section 7 of
the Act, Respondent also violated Section 8(a) (1) thereof.
I recommend that the complaint be dismissed insofar as it alleges unfair labor prac-
tices not specifically found herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III. above, occurring in connec-
tion with the operations of Respondent as described in section I, above, 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 practices 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) and (3) of the Act, it is recommended that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and tenure
of employment, and the terms and conditions of employment of Childs and Sorenson,
39 Harold Breitling's testimony is substantially in accord with this finding
33 Naturally I do not condone Childs' taking of the brake shoes but under the circum-
stances of this case such conduct should not warrant a refusal of reinstatement
34 Since it has been found that the corporation and the partnership are, for the pur-
poses of this proceeding, a single employer, it is found that the corporation and the
partnership are severally and jointly liable for whatever backpay may be found to be
due Childs and Sorensen, and are likewise severally and jointly responsible for the remedy-
ing of each and every unfair labor practice found in this proceeding.
BREITLING BROTHERS CONSTRUCTION CO. 697
it is recommended that Respondent offer them immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges. It is also recommended that Respondent make Childs
and Sorenson whole for any loss of pay each of them 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 from the date of his
discharge to the date of Respondent's offer of reinstatement, less his net earnings dur-
ing that period.35 Backpay and interest thereon at the rate of 6 percent per annum
to be computed and paid in accordance with and in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing and Heating Co., 138 NLRB
716.
The unfair labor practices found to have been engaged in by Respondent are of
such a character and scope that in order to insure Respondent's employees of their
full rights guaranteed them by the Act, it will be recommended that Respondent cease
and desist in any manner from interfering with, restraining, and coercing its employ-
ees in their exercise of the rights of self-organization.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
I make the following.
CONCLUSIONS OF LAW
1. Respondent is, and during all times material was, an employer engaged in com-
merce and in a business affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is, and during all times material was, a labor organization within
the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment and the terms
and conditions of employment of Childs and Sorensen, thereby discouraging mem-
bership in the Union, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in other violations of the Act alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the record as a whole, it is recommended that Harold W. Breitling and Robert L.
Breitling, Partners, d/b/a Breitling Brothers Construction Co. and Breitling Brothers
Construction, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) In any manner interfering with, restraining, or coercing their employees in
the exercise of the right to self-organization, to form, join, or assist the Union or any
other labor organization of their employees, to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted protected activities for
the purposes of collective bargaining or other mutual aid or protection, and to
refrain from any and all such activities.
(b) Discouraging membership in the Union, or any other labor organization of
their employees, by discriminatorily discharging or refusing to reinstate their employ-
ees, or by discriminating in any other manner in regard to their hire and tenure of
employment or any term or condition of employment.
2. Take the following affirmative action which it is found will effectuate the poli-
cies of the Act
(a) Reinstate Richard Childs and Donald Sorensen to their former or equivalent
positions without prejudice to their seniority and other rights and privileges.
(b) Make whole Richard Childs and Donald Sorensen for any loss of wages they
may have suffered because of Respondent's discrimination against them, in the man-
ner and to the degree set forth in the section above entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of amounts of pay due under this Recommended Order.
ae Respondent should be credited with whatever sums , if any, it gave Sorensen pursuant
to the aforementioned December 9 and 10 settlement agreements.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its establishment in Salt Lake City , Utah , copies of the attached notice
marked "Appendix ." 36 Copies of said notice , to be furnished by the Regional Direc-
tor for Region 27, shall , after being duly signed by Respondent 's representative, be
posted immediately upon receipt thereof , and be maintained for 60 consecutive days
thereafter, in conspicuous places , including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced , or covered by any other material.
(e) Notify the Regional Director for Region 27 in writing , within 20 days from
the receipt of this Decision , what steps Respondent has taken to comply herewith.37
It is further recommended that unless on or before 20 days from the receipt of this
Decision , Respondent notify the said Regional Director that it will comply with the
foregoing Recommended Order, the National Labor Relations Board issue an order
requiring said Respondent to take the action aforesaid.
It is also recommended that the complaint be dismissed insofar as it alleges unfair
labor practices not specifically found herein.
39 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner" in the notice . In the further event that the Board 's order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order."
371n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read' "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith"
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT in any manner interfere with , restrain , or coerce our employ-
ees in the exercise of their right to self-organization , to form labor organizations,
to join or assist Teamsters , Chauffeurs , Warehousemen and Helpers Local No.
222, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, or any other labor organization of our employees , to bar-
gain collectively through representatives of their own choosing , and to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any and all of such activities.
WE WILL offer to Richard Childs and Donald Sorensen immediate and full
reinstatement to their former or substantially equivalent positions , without preju-
dice to any seniority or other rights and privileges previously enjoyed.
WE WILL make Richard Childs and Donald Sorensen whole for any loss of
pay they may have suffered by reason of our discrimination against them.
All our employees are free to become or remain members of the above-named
Union or any other labor organization . We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
HAROLD W. BREITLING AND ROBERT L. BREITLING , PARTNERS,
D/B/A BREITLING BROTHERS CONSTRUCTION CO., AND/OR
BREITLING BROTHERS CONSTRUCTION, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above employees if presently serving in the Armed
Forces of the United States of their right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board 's Regional Office, 609 Railway
Exchange Building, 17th and Champa Streets, Denver, Colorado , Telephone No.
297-3551.