Brewer & Brewer Materials, Inc.

National Labor Relations Board - Board Decisions

May 26, 1970

182 N.L.R.B. 788 (N.L.R.B. 1970)

788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brewer & Brewer Materials, Inc and Calvin Leo Moss
and Teamsters Union Local No 413 , affiliated with
the International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America Cases
9-CA-4981 and 9-RC-7819
May 26, 1970
DECISION, ORDER, AND DIRECTION
On June 30, 1969, Trial Examiner Benjamin B Lipton
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as amend-
ed, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision The Trial Examiner
also found that Paul Hatfield and Calvin Moss, employees
who had cast challenged ballots in the election held
herein, had a reasonable expectancy of future employ-
ment and a substantial continuing interest in employment
conditions and, accordingly, were entitled to vote in
the said election Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a supporting
brief The General Counsel filed limited exceptions
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has delegated
its powers in connection with these cases to a three-
member panel
The Board has reviewed the rulings of the Trial Exam-
iner 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,
the exceptions and briefs, and the entire record in this
proceeding, and hereby adopts the findings, conclusions,'
and recommendations2 of the Trial Examiner, as modified
herein
' We conclude inter aha in agreement with the Trial Examiner
that the Respondent violated Sec 8(a)(3) and (I) of the Act by discharging
Calvin Moss However in reaching this conclusion we find it unneces
sary to rely upon nor do we adopt the Trial Examiners finding
that the Respondent was instrumental in causing local authorities to
rearrest Moss while he was working on one of the Respondent s projects
The Trial Examiner also found that the Respondents conduct in
divulging Calvin Moss police record to the drivers here involved was
plainly a systematic effort to discredit not only their union leader
Moss but the Union itself as a reliable agent for purposes of represents
tion he concluded that this conduct had a coercive effect upon other
employees and that it violated Sec 8(a)(l) of the Act Accordingly
he recommended that the Respondent be ordered to cease and desist
from disparaging the reputation of employees as law abiding citizens
because of their union leadership or adherence
We disagree In our view Moss police record is relevant to the
question of representation and the issues raised by the Respondents
disclosure constitute a legitimate area of employee concern Further
we find that the Respondents aforementioned conduct falls within
the protection of Sec 8(c) and accordingly do not adopt the Trial
Examiner s conclusions and recommendations with respect to this matter
Similarly we do not adopt the conclusion of the Trial Examiner that
the Respondent engaged in unlawful interrogation when after revealing
Moss police record to an employee the plant superintendent exclaimed
Now what do you think of your union leader
2 As previously stated the Trial Examiner found that employees
Hatfield and Moss were entitled to vote in the election here in question
Nevertheless the Trial Examiner inadvertently failed to recommend
that their challenged ballots be opened and counted and that the
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order, the Recommended
Order of the Trial Examiner, and orders that the
Respondent, Brewer & Brewer Materials, Inc , Chilli-
cothe, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order, as herein modified 3
I Delete paragraph 1(a) and substitute the following
"(a) Threatening employees with discharge, or other
reprisals , for engaging in union activities "
2 Delete paragraph 1(b) and substitute the following
"(b) Discouraging membership in Teamsters Union
Local No 413, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or in any other union, by discrimina-
torily discharging or in any other manner discriminating
against any employee in regard to his hire, tenure,
or any term or condition of employment "
3 Delete the first and third indented paragraphs of
the notice attached to the Trial Examiner's Decision,
marked "Appendix "
DIRECTION
It is hereby directed that as part of the investigation
to ascertain the representative for the purposes of collec-
tive bargaining among the employees of Brewer & Brew-
er Materials, Inc , at its Chillicothe, Ohio, plants in
the stipulated appropriate unit, the Regional Director
for Region 9 shall, pursuant to the National Labor
Relations Board Rules and Regulations , Series 8, as
amended, within 10 days from the date of this Decision,
open and count the ballots cast by Paul Hatfield and
Calvin Moss and, thereafter, prepare and cause to be
served upon the parties a revised tally of ballots, includ-
ing therein the count of said challenged ballots
IT IS FURTHER DIRECTED that should the revised
tally of ballots show that the Petitioner received a majori-
ty of the valid votes cast, the Regional Director shall
issue a Certification of Representative to the Petitioner
IT IS FURTHER DIRECTED that should the revised
tally of ballots show that the Petitioner did not receive
a majority of the valid ballots cast, the Regional Director
shall certify the results of the election
Regional Director thereafter issue an appropriate certification According
ly we shall direct that such action be taken
3 In the event this Order is enforced by a Judgment of the United
States Court of Appeals the words in the notice reading Posted
by Order of the National Labor Relations Board shall read Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board
182 NLRB No 119
BREWER & BREWER MATERIALS, INC. 789
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner: Case
9-CA-4981 involves a complaint by the General Counsel'
against the Respondent alleging the discharge of Calvin
Moss and other coercive conduct in violation of Section
8(a)(3) and (1) of the Act. In Case 9-RC-7819, pursuant
to a Stipulation for Certification Upon Consent Election,
a Board election was conducted on September 11. Of
eight ballots cast, three were for the Union, three were
against the Union, and two were challenged. On Novem-
ber 26, 1968, and January 28, 1969, the Regional Director
issued formal reports on the election, together with
recommendations to the Board on the challenged ballots,
which were sufficient in number to affect the election
results. On February 14, 1969, absent exceptions, the
Board adopted the final recommendation of the Regional
Director and ordered that a consolidated hearing be
held on the issues raised by the challenged ballots of
Paul Hatfield and Calvin Moss, and the alleged discrimi-
natory discharge of -Moss on September 3. Resolution
of the latter question in the complaint case would be
determinative of Moss' employee status as of the time
of the election.
On March 27, 1969, a hearing in the consolidated
proceeding was held before me in Chillicothe, Ohio.
All parties participated and were afforded full opportuni-
ty to present relevant evidence and to argue orally
on the record. Briefs filed by General Counsel and
Respondent have been duly considered.
Upon the entire record in the cases, and from my
observation of the demeanor of the witnesses on the
stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Brewer & Brewer Materials, Inc., herein called the
Respondent or the Employer, is engaged at its two
plants in Chillicothe, Ohio, in processing sand, gravel,
and asphalt for use in the building of roads. Respondent
is a subsidiary or operating division of Brewer & Brewer
Sons, of Chillicothe, Ohio, engaged in the business
of highway construction. During the year preceding
issuance of the complaint, Respondent had an indirect
inflow of goods and materials in interstate commerce
valued in excess of $50,000 purchased from enterprises
in Ohio, which enterprises, in turn, had received such
goods and materials directly in interstate commerce.
Respondent admits, and I find, that it is engaged in
commerce within the meaning of the Act.
' Complaint was issued on January 28, 1969, based upon a charge
filed on November 29 and served on December 2, 1968 All dates
are in 1968 unless otherwise specified.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Union Local No. 413, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called
the Union, is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Contentions of Parties
All the issues involve and surround the termination,
before the scheduled election, of Calvin Moss, the lead-
ing union organizer among the employees. General Coun-
sel contends that Respondent, after threatening to do
so, caused the arrest of Moss on a dormant warrant
for disorderly conduct dated in 1963, and then used
such arrest as an excuse to discharge Moss. For its
part, Respondent presents alternative or varying posi-
tions: (1) Moss was discharged for being absent from
work, without explanation, for 3 days while he was
in jail, and (2) Moss was discharged or quit after his
release from jail when he refused to obey an order
to see Vice President Franklin Conaway (on nonworking
time at a location away from his work premises).
B. Circumstances of the Termination
In late May 1968, Calvin Moss returned to Chillicothe,
Ohio, after being away in Arizona for more than 4
years. His brother, Luther Moss, endeavored to find
work for him, inter alia, by speaking to James Dyer,
Respondent's plant superintendent. Luther was a friend
and neighbor of Dyer, and they had frequent conversa-
tions at; their respective homes, or at breakfast in a
nearby restaurant (Klein's). Informed by Luther of Cal-
vin's past police record, Dyer asked if he was still
a "smart aleck," and was told that Calvin had been
gone for 4 or 5 years without having had any trouble.
Calvin was hired by Dyer as a truckdriver and began
work on June 11. In mid-July, a union organizational
campaign commenced among Respondent's employees.
Calvin Moss made the initial contact with the Union,
held all three union meetings at his home, and distributed
union authorization cards to employees. He was asked
by other employees and the union agent to appear at
a representation hearing held by the Regional Director
on August 16.1 He was the only employee who attended
this meeting, at which Dyer and Conaway were among
Respondent ' s officials present. .
Luther Moss and Dyer continued their friendly conver-
sations for a period of time. Dyer commented on the
favorable progress made by Calvin Moss. About July
10, Dyer mentioned that somebody was trying to get
a union in. He said this was the Teamsters, who were
"gangsters," and a "mean bunch" that "come in here
with billy clubs and blackjacks." He asked if Calvin
"was trying to do that," and Luther replied that he
R On this date , the consent election stipulation was executed
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not think Calvin would. A week later, Dyer said
that if Respondent found out who the man was "behind
this Union organization," he would be fired, and suggest-
ed that "they thought it was Calvin." About July 20,
Dyer remarked that they were certain that Calvin-was
the troublemaker,. and that he was sent in,from Arizona
by the Union to organize Respondent's plant. Luther
pointed out'that this was "ridiculous," as he was the
only one who got Calvin the job. At another time,
Dyer said someone at the plant' had informed Respondent
that Calvin was having beer parties and union meetings
at his home.3 And on subsequent occasions, Dyer indicat-
ed that he definitely knew that Calvin was the instigator
and was going to discharge him.
About August 17, Dyer advised Luther to tell Calvin
to leave town, as Respondent was going to get enough
on him' to put him away for at least 3 years. In this
conversation' or a later one, Dyer indicated that Respond-
ent already had such evidence. On August 26, Dyer
said he did not want to see Calvin 'get into trouble,
that he had better leave town, as he was' going to
be arrested.4 On August 27, Calvin was apprehended,
and on August 20 he was released, under the circum-
stances shown below. '
In November 1963, Calvin Moss was arrested on
a warrant for disorderly conduct signed by one Charles
Morris, a bartender. Moss was never brought to trial.
The $1,000 bond posted was forfeited when he went
to Arizona. About June 25, after his return, Moss advised
the chief of police that he was in town working for
Respondent, and asked if there were any charges against
him. The police chief called back 2 days later and
told him there was just an old charge, and to forget
it.
A few days after the August 16 hearing, Lloyd Men-
denhall, a truckdriver, asked Dyer if he heard anything
about the Union. Dyer replied that he had not heard
anything, except that Respondent was trying to get
Moss' police record. A couple of days later, Mendenhall'
inquired about Moss' record, and Dyer handed him
a "piece of paper." Mendenhall glanced at the paper
and "threw it back down" on Dyer's desk without
reading through it. A week before Moss was arrested,
Glen Fultz, a driver, had a conversation with Dyer
at the latter's request. Dyer said that he had a' record
of charges against Moss he wanted the employees to
see, and that this would demonstrate "what kind of
a guy" the employees picked to be their "leader."
Fultz responded that he did not know the employees
had picked Moss for their leader. Dyer then stated
that the paper would be in his office if the employees
wanted to see it . Also about August 20, Dyer told
Raymond Potter, with other employees present, that
' Employees who attended testified that no refreshments were served
at the union meetings I .
'
Based on credited testimony of Luther Moss Dyer generally denied
that the Union was discussed in any of the conversation. with Luther,
and then excepted a comment by Luther after the representation hearing
on August 16 His later testimony, in 'apparent conflict, referred to
"voluntary" statements made to him by Luther , e g , that union meetings
had been held at Calvin's house
he wanted to show him something in the back office.
In the office , Dyer took from his desk drawer a paper
which he described as Moss' police record . He handed
it to Potter , saying , "Now what do you think of your
union leader?" As he testified , Dyer read one item
about an " insufficient muffler " on a car , and another
for "misbehavior ,"5' and he turned and walked out.
On August 23, according to Charles Sharp , Dyer told
him, "we got that damn Moss . . . now, we got his
record and . . . three warrants on him and they think
they've got another one.. .o e ....-
On August 27, at 4 p.m., while at work on a highway
job for Respondent , ' a police cruiser pulled up and
Moss was placed under arrest . He was served with
the same warrant for disorderly conduct which bore
the date of November 1963. He remained incarcerated
for 3 days until he raised a bond of $1 ,000. Charles
Morris, the complainant on the warrant , testified that
the police came around " last summer" and said he
would have to go to court about Calvin Moss. He
told them , "Oh Lord, that ' s been over five years ago
and I had forgotten all about it ." The charge against
Moss was dropped by Morris and, on September 16,
was formally dismissed by the court.
On Friday , August 30 , after he left the jailhouse,
Calvin Moss proceeded directly to the plant , accompa-
nied by Paul Hatfield , a driver . Moss asked Dyer if
he still had his job. Dyer told him he would have
to talk to Vice President Conaway and gave him
directions to get to Conaway ' s home .7 He had had
very little contact with Conaway in the past and had
never been in his house . Shortly after they left the
plant , Moss discussed the matter with Hatfield, -and
then called - Dyer . He. said that he would not go because
there might be an argument and he was afraid to be
at Conaway's house , , that he would be there at his
job next Tuesday (after Labor Day) if Conaway would
like to talk to him ._ On Tuesday , September 3, upon
reporting for work, Moss spoke to Dyer , with several
employees standing around . He said he was ready for
work, and did he have a job . Dyer replied that he
would have to talk to Conaway first. Moss repeated
that he was ready to go to work and asked if he
had his job or was he officially fired . Dyer then stated,
"As far as I am concerned , you are officially fired.
You worked a week more, than you [were ] supposed
to, now . Conaway told me a week ago to get rid of
you."8
Dyer testified that he first became aware of what
happened in the evening of August 27 "after it was
actually all over ." He described the conversation with
Moss on August 30, viz:,
In evidence is a copy of the paper in question, further described
infra
', I credit the testimony of these employees , taken with virtually
no cross-examination on the subject, and not specifically denied by
Dyer He testified that only after Moss' arrest did he get a copy
of the police record , which he kept in his desk and never displayed
to employees He also averred that he "never talked to any drivers
at any time, about Unions "
Corroborated by Hatfield
Corroborated by Potter
BREWER & BREWER MATERIALS, INC 791
Q What happened then on August 30th
when you saw Mr Moss?
A He came back in and asked if he wanted
him to come to work on the following Saturday
because we were shut down because of the holiday
and didn't work and I said no He asked about
the following week and I told him, just what Mr
Conaway had told me to tell him, that he would
rather see him out at the office before I would
put him back to work That is what I told him
Q To see him at the office9
A Yes, sir
Q Do you mean the office in town or the/plant
office?
A The office in town
Q Did you indicate he should see him at his
home?
A I told him just what Mr Conaway told me,
that he wanted to see him before I put him back
to work i
TRIAL EXAMINER Did he say where-where he
was to see Mr Conaway9
THE WITNESS I told Mr Moss where the office
was and where his home was
As to the conversation on September 3, Dyer related
that, after Moss answered that he had not contacted
Conaway, he told Moss he could not put him back
to work because those were his instructions Moss then
asked if he was fired, and Dyer said, "if you haven't
seen Mr Conaway, as far as I'm concerned, you are
fired "
On cross-examination, Dyer admitted that, on Septem-
ber 3, he also told Moss, as a reason fbr being fired,
that he failed to explain his absence satisfactorily Dyer
and Conaway were well aware that Moss was in jail
during the 3 days of his absence from work and of
the surrounding circumstances However, Dyer then
stated that this was not the basis of the discharge,
but the refusal of Moss to see Conaway Those were
his orders, he "couldn't hire the man back until he
talked to Mr Conaway "4
Franklin Conaway is a student in the last year of
law school As soon as he ceases his attendance at
school in June, he begins work at the company full
time, including weekends As vice president of Respond-
ent, his responsibilities primarily involve personnel rela-
tions Among other things, he checks on new employees
after they are hired-"to talk to the man, to see where
they worked last, how good a worker they were, if
they ever had been in trouble " However, with respect
to being in trouble, "that does not really matter "
Respondent makes it a policy to hire men who have
had trouble with the law because it "believes in rehabili-
tation " It has a number of employees with past police
records, "some of them fairly serious " In June or
July, several new drivers, including Moss, were hired
N Calvin Moss is credited Minton Flesher Respondent s office manag
er who was present at both conversations gave very brief testimony
which is of an innocuous character and of no corroborative value
Until August, he had not gotten around to checking
on these drivers, nor had he talked to Moss On August
21, he went to the police station with six or seven
names Moss was the only employee with a record
"worth noting," and he obtained two copies which
the police volunteered to type up for him "' He put
one copy in his files and gave one to Dyer at the
plant On August 27, about 4 p in , he received a call
"from the office" that the police wanted to know where
they could fii}d Moss, and he furnished the information ii
About August 29, he told Dyer that he would like
to talk with Moss, and that Moss should not go back
to work until he talked with him It was not because
of his being arrested He wanted to ask Moss where
he had been the last few years, where he had worked,
what he had done, where he was now living, and what
his ideas were about being a truckdriver He made
no decision to discharge Moss, but he put his request
to Dyer in the form of a "direct order "
On cross-examination, Conaway's positions appear
to be inconsistent in several respects He did not believe
Moss was fired, but then stated that Moss "was dis-
charged because he did not come to see me," and
"for no other reason " Confronted with his affidavit,
which attested that "Moss was in fact discharged on
September 3, 1968, for failure to obey a direct order
and for his failure to show up for work on August
28, 29, and 30, "he explained that the former was
the "primary reason "
C Analysis and Conclusions
I Restraint and coercion
As independently violative of Section 8(a)(1), the com-
plaint alleges only the conduct of Dyer in deliberately
displaying to Respondent's employees the purported
police record of Moss, while "referring disparagingly
to Moss as their union leader and interrogating them
about it in an attempt to restrict free access to
the Union, elicit their feelings about the Union and
destroy the employees' union activities " The various
threats of discharge and of arrest which Dyer conveyed
to Luther Moss, a nonemployee, who related them to
his brother, Calvin Moss, are not alleged in the com-
plaint In view of the conclusions reached herein and
the recommended order, it is unnecessary to decide
whether they constitute additional violations This evi
dence, however, does serve to establish a strong union
animus on the part of Respondent, and directly relates
to the question of motivation for the discharge
Dyer's conduct prior to the scheduled election of
parading Moss' police record among the drivers was
plainly a systematic effort to discredit not only their
"' Conaway was shown a pretrial affidavit in which he stated that
after Moss arrest on August 27 inquiry was made as to the reasons
for the arrest and the police provided him with a complete record
together with a copy of the warrant He then testified that his affidavit
is not correct that after Moss was arrested he just saw the warrant
" It is not clear as to why Conaway at his office away from the
plant was approached for such information
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union leader , Moss, but the Union itself as a reliable
agent for purposes of representation . Implicit in Dyer's
statement and questions (e.g., "Now what do you think
of your union leader?") was an interrogation of the
union sentiments of the particular driver. In the nature
of such interrogation , I find that it tended to coerce
the employees . The "police record " which Dyer exhibit-
ed to these drivers is entirely of a hearsay character,
in fragmentary and abbrievated form , describing purport-
ed arrests and police entries for various offenses, includ-
ing juvenile proceedings and traffic violations, all bearing
dates from 1953 until 1963.12 The question here pertains
to Respondent 's use of this document in the pertinent
context of union organizational activity and the immi-
nence of a Board election . In the manner which Respond-
ent exploited this ostensible police record of Moss,
for the purpose of impairing his reputation as a currently
law-abiding citizen , I am of the opinion that it was
a significantly detrimental act against Moss undertaken
only because of his union leadership. Further, I find
it was also coercive upon other employees , in the clear
implication that Respondent would likely take similar
measures against them if they advocated or adhered
to the Union . Accordingly, I conclude that Respondent
violated Section 8(a)(1) in the foregoing respects.13
2. Discharge of Moss
The varying contentions advanced by Respondent are
equivocal , self-contradictory , and implausible . Rejected
as contrary to the plainest evidence is the position
that Moss voluntarily resigned. Dyer and Conaway first
insistently testified that Moss was discharged solely for
the reason that he refused Dyer's instruction to see
Conaway . Both significantly altered their testimony on
cross-examination , particularly . Conaway when shown
his affidavit , by adding the reason that Moss failed
to report for work during the 3-day period he was
in jail. Additionally , in its opening statement, Respondent
offered as a ground that Moss had "refused " to explain
his absence . Respondent never requested such explana-
tion, and it had full knowledge of all the circumstances.
The circumstantial evidence of substance adduced
by General Counsel , in my opinion , sufficiently establish-
es prima facie that Respondent was instrumental in
reactivating the warrant for Moss ' arrest . Thus, inter
alia, as already specifically described , there is the evi-
dence of the stale warrant ih 1963 for disorderly conduct;
the disinterest of the complainant , a bartender ; the police
chief's response to Calvin Moss that he forget this
old charge ; Dyer 's repeated statements to Luther that
Respondent was probing for such evidence against Cal-
vin, and his threats of arrest ; Dyer ' s use of the purported
police record to coerce the employees regarding the
" There is no actual showing of any , criminal convictions, or that
Respondent had obtained certified records of any crimes committed
IS The testimony that supervisors were instructed in advance of the
election not to talk to the drivers about the Union does not operate
per se to overcome or neutralize any conduct committed by them
contrary to such instructions in violation of the Act See, e g , Azalea
Meats, Inc , 159 NLRB 585, 595
Union ; and Respondent 's demonstrated animus toward
Moss as union leader . And Conaway ' s two visits to
the police about Moss scarcely reconciles with his
description of a routine personnel inquiry . 14 In the total
context , the general disavowals by Conaway and Dyer
of any complicity in the arrest are inadequate and unac-
ceptable . The issue is raised and is relevant to the
question of Respondent ' s motivation for the discharge.
Moss was of course still an employee of Respondent
when he returned to the plant after his release from
jail. Dyer and Conaway refer, as some sort of a meaning-
ful conclusion , to a "direct order " issued that Moss
had to see Conaway before he could be put to work.
This was not the form of the instruction given to Moss
on August 30; i.e ., that his refusal would subject him
to discharge . Moss proceeded to comply with the instruc-
tion, but then called Dyer to say that he would be
at his place of work on Tuesday , September 3, if Cona-
way wanted to talk to him . "" So far as appears, in
the telephone conversation Dyer was silent and did
not stress any urgency in the instruction.
On the heels of his departure from 3 days in prison,
justifiably suspecting Respondent ' s involvement in his
arrest , Moss was apprehensive of visiting Conaway at
his home . He willingly indicated his accessibility to
Respondent at his regular place of work on working
time . When he thus reported on September 3, stating
his, readiness to go to work , Dyer refused to assure
him of his job and said he had to see Conaway first
(i.e., at some location away from the plant ). Considering
as well that Conaway's stated purpose was merely a
routine background personnel investigation already
delayed for months after Moss ' hire, and avowedly
unrelated to his arrest , the discharge was inordinately
unreasonable and drastic on the very grounds asserted
by Respondent . Why the necessity of the "direct order"
and why Moss could not be allowed normally to resume
work and be interviewed by Conaway on company time,
strains comprehension. However , indicative of Respond-
ent's actual intention to seize upon the arrest as a
pretextuous cause for discharge is Dyer ' s revelation
to Moss that Conaway had ordered his riddance a week
ago.
Ample evidence is present as to the real motive for
discharge , e.g., Moss ' leadership in organizing the Union
at the plant ; Respondent 's knowledge thereof ; its union
animus ; its specific threats of discharge and warnings
of arrest ; the timing of the discharge in relation to
the scheduled election ; and the conflicting and artificial
reasons Respondent advanced in this proceeding. The
alleged violation of Section 8(a)(3) of the Act is therefore
fully sustained.
14 The police authorities were not called to testify
'' Dyer had indicated that the plant would be closed on Saturday,
it could hardly be expected that on this day Moss would seek out
Conaway at his town office , away from the plant
BREWER & BREWER MATERIALS, INC. 793
IV. THE CHALLENGED BALLOTS IN THE ELECTION CASE
A. The Merits
As stipulated on August 16, the appropriate unit con-
sists of all truckdrivers at the Employer's Chillicothe
plants, excluding temporary and casual drivers, and
all other employees and supervisors. On August 19,
the Regional Director sent a form letter to the Employer
requesting "an election eligibility list, containing the
names and addresses of all the eligible voters" in
accordance with "the requirements set forth by the
Board in Excelsior Underwear Inc., 156 NLRB 1236.
On August 23, in 'response, the Employer sent to the
Regional Office a list of the names and addresses of
six drivers "entitled to vote at the election to be held
September 11," without reference to the Excelsior case,
and which constituted the Employer's own interpretation
of eligibility under the terms of the consent-election
agreement. Subsequently, a union agent placed his signa-
ture on this list. Omitted from the list are the names
of Paul Hatfield and Calvin Moss, the two employees
in question who were challenged at the election. The
Employer contends that the Union agreed to an eligibility
list which limited the specific employees entitled to
vote. I find no merit in this position. Indeed, it is
inconceivable that the Union would agree to exclude
Calvin Moss, an employee leader, and the one chosen
by other drivers and the Union as a particular representa-
tive to attend the representation hearing. At best, I
find the Union's signature on the list is ambiguous
and, without the clearest evidence, I would not construe
it as a binding agreement as to disenfranchise any
employees otherwise eligible to vote. Under the estab-
lished Board rule, absent a written and signed agreement
which expressly provides that the issues of eligibility
resolved therein shall be final and binding upon the
parties,", there is no basis for barring a determination
of the eligibility of Hatfield and Moss at this time.
The Employer also contends that Hatfield and Moss
are ineligible and excluded from the unit as temporary
and casual employees. Driver Fultz testified that, during
his employment for about 7 years, he worked from
mid-April through November of each year, and that
when laid off for the winter, the company merely said
that it will call when it wants him in the spring. Potter,
an employee of 10 years," testified that nothing is said
when he is laid off at the end of November, that Respond-
ent sends word when employment is to be resumed
the next spring. Superintendent Dyer testified he normal-
ly does not tell a driver upon hiring how long he is
going to work, and he never hires a man permanently.
Hatfield was first employed in 1936 and worked two
seasons; from 1949, he worked three seasons; and in
1960, one season. He was hired in April 1968 and
laid off the latter part of November. Nothing was ever
said at the end of the season about coming back in
the spring. When hired in 1968, he did not tell Dyer
he was looking for part-time work, as he expected
to work every day. He told Dyer that if a driver "with
a family" had to be laid off, he would willingly take
the layoff. Although initially he had minor revenue from
the rental of two houses, after August his only source
of income was his driving job. When Calvin Moss was
hired in June, Dyer said nothing to him concerning
the duration of the job.
In 1968, Hatfield worked 31 full consecutive weeks
after his hire, in 16 of which he worked in excess
of 40 hours, and in 15 he averaged more than 30 hours.
Moss worked 11 full consecutive weeks, in 7 of which
he worked in excess of 50 hours, and in four he worked
over 40 hours. So far as material, the records in evidence
generally reflect that the amount of their work during
the 1968 season was substantially comparable with that
of the six drivers contained on the Employer's eligibility
list. And it is not alleged,that there were any differences
in the conditions of work for all these drivers.
In the construction industry, perhaps more especially
in highway building, it is recognized that the availability
of work is not consistent or year-round, but is largely
contingent upon weather conditions. In these substantial
periods of slack, the employees usually need to rely
upon other employment. Consequently, the test of tem-
porary or part-time employment for election purposes
must be considered in light of the peculiar intermittent
nature of the work in this industry." The Employer
admittedly engaged all employees at the commencement
of each season on the same basis. Although they may
have worked in past years, the employees are not told
that they are permanent; nor are they adivsed that
their employment is of a temporary or casual nature.'"
Absent such a specific understanding, the issue must
be decided on the objective facts. Hatfield was fully
employed during the entire season from April through
November. Moss was employed on the same terms
from the time of his hire in June until his discriminatory
discharge on September 3. In all the described circum-
stances, I find that both had a reasonable expectancy
of future employment and a substantial continuing inter-
est in employment conditions as to be entitled to vote
in the election."' Finally, it is "suggested" by the
Employer that if Hatfield and Moss are found eligible
to vote, then Conley, "another employee similarly cir-
cumstanced" who did not vote in the election, is likewise
eligible, and that a new election should therefore be
ordered. The simple answer is that Conley had the
same opportunity to vote as did the other drivers, includ-
ing Hatfield and Moss, and was in no material way
prevented from doing so. The suggestion is rejected.
"' E g., Norns-Thermador Corporation, 119 NLRB 1301; Prestige
Hotels, Inc., 125 NLRB 207.
" The named Employer was established in 1967, confined to the
materials business previously part of the operations of its parent, Brewer
& Brewer Sons, which continued as a separate company in road construc-
tion. Potter, Fultz, and other drivers performed their same work without
change, except as to the company name
'" See Daniel Construction Company, Inc., 133 NLRB 264, Lloyd
A Fry Roofing Co., 121 NLRB 1433
" E g , Grundy Electric Cooperative, Inc., 88 NLRB 424
See, e g , Personal Products Corporation, 114 NLRB 959, Western
Hyway Oil Company, 106 NLRB 125, Fall River Gas Works Company,
82 NLRB 962
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE EFFECT OF Ir1=IE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section
III, above , occurring in connection with the operations
of Respondent in section I, above , have a close , intimate
and substantial relation to trade , traffic , and commerce
among the several States and tend to lead to labor
disputes, burdening and obstructing commerce and the
free flow of commerce.
V1. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices , I will recommend that it cease
and desist therefrom and tyke certain affirmative action
designed to effectuate the policies of the Act . In view
of the discriminatory discharge , which goes "to the
very heart of the Act," a broad cease -and-desist `order
is recommended.21
It has been found that Respondent unlawfplly dis-
charged Calvin Moss in violation of Section 8(a)(3) of
the Act. It will therefore be recommended that Respond-
ent offer this employee immediate and full reinstatement
to his former or substantially equivalent position , without
'prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings suffered
by reason of the discrimination against him, by the
payment of , a sum of money equal to that which he
normally would have earned, absent the discrimination,
from the date of the discrimination to the date of the
offer of reinstatement , less net earning during such
period , with backpay computed on a quarterly basis,
in the manner established by the Board in F. W. Wool-
worth Company , 90 NLRB 289. Backpay shall carry
interest at the rate of 6 percent per annum, as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that Respondent preserve
and make available to the Board, upon request, all
payroll records , social security payment records, time-
cards, personnel records and reports, and all other
records necessary and useful to determine the amounts
of backpay due and the rights of reinstatement under
the terms of these recommendations. '
Upon the foregoing findings of fact, and upon the
entire record in the cases , I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Calvin Moss, thereby discouraging
membership in the Union , Respondent has engaged in
and is engaging in unfair labor practices in violation
of Section 8(a)(3) of the Act.
21 N L R B v Express Publishing Company , 312 U S 426, N L R B
v Entwistle Mfg Co , 120 F 2d 532 (C A 4)
4. By the foregoing , and by other acts and conduct
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.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act'. •
RECOMMENDED ORDER
Upon ' the basis of the above findings of fact and
conclusions of law , and upon the entire record in the
cases, it is recommended that Respondent , Brewer &
Brewer Materials , Inc., Chillicothe , Ohio, its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activities and sentiments ;, disparaging the
reputation of employees as law -abiding citizens because
of their union leadership or adherence ; or threatening
employees with discharge , or other reprisals , for engag-
ing in union activities.
(b) Discouraging membership in Teamsters Union
Local No . 413, affiliated with the International Brother-
hood of , Teamsters ; Chauffeurs ; Warehousemen and
Helpers of America , or in any other manner discriminat-
ing in regard to hire or tenure of employment or any
term or condition of employment.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
,2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Calvin Moss immediate and full reinstate-
ment to , his former or substantially equivalent position,
without prejudice to his seniority, or other rights and
privileges , and make him whole for any loss of earnings,
in the manner set forth in "The Remedy" section of
the Trial Examiner ' s Decision.
(b) Notify the above -named employee if presently
serving in the Armed Forces of ,the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the Uni-
versal Military and Training and Service Act, as amend-
ed, after discharge from the Armed Forces.
(c) Preserve and, upon request ; make available to
the Board or its agents all payroll and other records,
as • set forth in "The Remedy" section of the Trial
Examiner ' s Decision.
(d) Post at its Chillicothe , Ohio , plants, copies of
the attached notice marked "Appendix. "22 Copies of
2s In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for
the words " the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order 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 "
BREWER & BREWER MATERIALS, INC
said notice, on forms provided by the Regional Director
for Region 9, after being duly signed by Respondent,
shall be posted immediately upon receipt thereof, in
conspicuous places, and be maintained for 60 consecutive
days Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by
any other material
(e) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Decision,
what steps Respondent has taken to comply herewith 23
23 In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify the Regional
Director for Region 9 in writing within 10 days from the date of
this Order what steps Respondent has taken to comply herewith
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Exam-
iner 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
After a full trial before a Trial Examiner of the National
Labor Relations Board at which all sides had the chance
to present evidence, it has been found that we violated
the law and we have been ordered to post this notice
to inform our employees of their rights and to carry
out its provisions
WE WILL NOT ask you anything about a union,
or who is in the Union, or who favors the Union,
in a manner which would coerce you regarding
your rights under the Act
WE WILL NOT threaten to fire you, or punish
you, or treat you differently in any way, if you
join or work for any union
WE WILL NOT do anything to discredit the reputa-
tion of any employee as a law-abiding citizen
because he is a leader in the Union, or works
for the Union, or is in favor of the Union
WE WILL NOT discharge, or otherwise discrimi-
nate against any employees, in order to discourage
membership in or support for Teamsters Local
No 413, Affiliated with the International Brother
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization
795
WE WILL NOT in any other manner interfere
with , restrain , or coerce you in the exercise of
the rights guaranteed employees in the National
Labor Relations Act, which are as follows
To organize themselves
To form, join, or help unions
To bargain as a group through a representa-
tive they choose
To act together for collective bargaining
or other mutual aid or protection
To refuse to do any or all of these things
Since it has been found that we unlawfully fired
Calvin Moss, WE WILL offer to give him back
his job, and WE WILL pay him for the earnings
he lost, plus 6 percent interest
All our employees are free to become or remain,
or to refrain from becoming or remaining, members
of any labor organization of their choice, except to
the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as
a condition of employment, as authorized by Section
8(a)(3) of the Act
BREWER & BREWER
MATERIALS, INC
(Employer)
Dated By
(Representative ) (Title)
Note We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, Room 2407,
Federal Office Building, 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686