Bron Construction Co.

National Labor Relations Board - Board Decisions

Mar 20, 1979

241 N.L.R.B. 276 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bron Construction Co., Inc. and Loren R. Montgom-
ery. Case 17-CA-8029
March 20, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On November 13, 1978, Administrative Law Judge
Robert Cohn issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief, and Respondent filed a
brief opposing the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Bron Construction Co.,
Inc., Marshall, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil-
ity unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 We adopt the Administrative Law Judge's conclusion that Respondent
did not violate Sec. 8(a)( I) of the Act by laying off Montgomery. In so doing.
however, we disavow his reliance on Klate Holt Company, 161 NLRB 1606
(1966). Rather, we find that the General Counsel has not established that
Respondent laid off and/or did not recall Montgomery for other than valid
reasons.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This proceed-
ing held pursuant to Section 10(b) of the National Labor
Relations Act, as amended, was heard at Marshall, Mis-
souri, on June 22, July 11-12, 1978, pursuant to due notice.
The issues presented for decision are whether Bron Con-
struction Co., Inc. (herein the Company or Respondent), by
and through its agents and supervisors, unlawfully threat-
ened employees for engaging in concerted activities pro-
tected by Section 7 of the Act, and unlawfully terminated
two employees because they engaged in protected con-
certed activities.'
At the hearing, I permitted the General Counsel to
amend the complaint to allege that a person employed by
the Respondent, one Aubrey Thomas, was a supervisor
within the meaning of Section 2(11) of the Act. However,
upon completion of the General Counsel's case-in-chief, I
granted a motion by Respondent to dismiss the complaint
to the extent that Thomas' supervisory status had not been
proven by substantial evidence. At the close of the hearing,
oral argument was waived; however, helpful, posthearing
briefs have been received from counsel for the General
Counsel and from counsel for Respondent, which have
been duly considered.
Upon the entire record in the case, including my observa-
tion of the demeanor of the witnesses,2 I make the follow-
ing:
FINDINGS OF FACI
1. JURISDICTION
Respondent, a Missouri corporation, is engaged in the
construction industry as a general contractor at various job-
sites in the State of Missouri, including a jobsite located at
the Marshall State School and Hospital, Marshall, Mis-
souri. In the course and conduct of its business operations
within the State of Missouri, Respondent annually pur-
chases goods and services valued in excess of $50,000 di-
rectly from sources located outside the State of Missouri.
Additionally, Respondent annually sells goods and services
valued in excess of $50,000 directly to customers located
outside the State of Missouri.
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
As previously noted, the Respondent, a general contrac-
tor, was engaged at all times material in the construction of
four group homes at the Marshall State School and Hospi-
tal in Marshall, Missouri. Construction at that jobsite com-
menced in the spring of 19773 and continued throughout
that year and into 1978. Respondent either employed di-
rectly or subcontracted the personnel involved in such a
construction project, such as laborers, carpenters, cement
finishers, painters, and the like. The employment comple-
ment of Respondent started, as might be expected, with a
handful of laborers and built up to a maximum comple-
ment of approximately 13 to 14 employees during the late
summer and early fall of 1977.4 Subsequently, that number
I The original charge was filed on December 14, 1977: the complaint and
notice of hearing issued January 23, 1978.
2Cf. Bishop and Malco, Inc., dbl/a Walker's., 159 NLRB 1159, 1161
(1966).
3 All dates hereinafter refer to the calendar year 1977, unless otherwise
indicated.
4 See Resp. Exh. 1.
241 NLRB No. 37
276
BRON CONSTRUCTION CO., INC.
diminished somewhat as the foundations of the buildings
were completed and bad weather commenced to approach
in the fall. It was late in October that the two alleged dis-
criminatees, Loren (Tom) Montgomery and Neale Sowers,
were laid off by Respondent.
Respondent was under a contract with the State of Mis-
souri to perform the construction work and, as such, was
required to pay its employees the prevailing wage for their
respective classification as determined by the Prevailing
Wage Division of the Missouri Department of Labor. It is
also a requirement of the Prevailing Wage Division that the
wage rates so prescribed are posted in a conspicuous place
at the jobsite.
At all times material, Respondent had a collective-bar-
gaining agreement with the Congress of Independent
Unions covering all of its employees. Contractual provi-
sions included a standard union-security clause as well as a
clause which required Respondent to pay to the Union's
Health and Insurance Fund the sum of 40 cents per hour
for each man hour worked.'
1. Neale Sowers, Jr.
The record reflects that Respondent employs a small
corps of employees with diverse skills who may be consid-
ered more or less permanent employees. The remaining em-
ployees are hired by Respondent in the area in which the
jobsite is located. One of the former type employees was Ed
Layton, a carpenter, who had commenced work at the Mar-
shall jobsite about June. However, the Respondent, during
the summer of 1977, had another construction job in Ve-
rona, Missouri, and was apparently having difficulty secur-
ing competent employees in that area. Accordingly, in July,
Layton was transferred by Respondent from Marshall to
Verona to assist at the latter project. On July 26, Neale
Sowers, Jr., was hired to replace Layton. As far as the rec-
ord shows, Sowers was a reasonably competent worker;
however, the record also indicates that on occasion he had
difficulties with fellow workers which came to the attention
of the job superintendent. Thus, employee Roy Giffen testi-
fied that Sowers was a good worker but he would "get mad
and throw fits," and when he would engage in such conduct
he would throw his tools on occasion. Giffen complained to
the job superintendent about Sowers several times, but Job
Superintendent Harris would only tell Giffen that if he had
any more problems with Sowers, to keep Harris informed.
Nevertheless, Harris subsequently transferred Giffen to
work with another carpenter, Cleo Durham. Harris never
warned nor disciplined Sowers concerning this conduct.
On or about September 21, Sowers was in the company
trailer on the jobsite on an occasion when Superintendent
Harris was not there. Sowers noticed some papers lying on
the desk, one of which was a wage scale which indicated
that carpenters should be paid at a rate in excess of that
which Sowers was receiving at the time. The following Fri-
day, September 23, Sowers had a conversation with Harris
in which he advised the latter of what he had seen, and
"wanted it straightened out." Harris replied that he would
take care of it over the weekend-that he would take it up
5 These clauses become significant with respect to the case of alleged un-
lawful discrimination to the Charging Party.
with Vice President Bron. When Sowers asked what Harris
thought would come of it, Harris responded that there was
a possibility that Sowers could get laid off or fired, or that
Bron "might shut the whole job down.", Shortly thereafter,
on the same day, Harris called Sowers back into the trailer
and said he had checked with the Company's office and
learned that the Company had been paying Sowers at the
wrong rate and showed him what his new rate would be.
When Sowers asked Harris about backpay, Harris re-
sponded that he would compute the hours over the week-
end. Sowers then asked about the other carpenters on the
job, to which Harris responded that he considered only
Sowers and Cleo Durham would be paid the carpenter's
rate, and that the remainder of the employees were still
going to be classified as laborers regardless of the type of
work they were doing. Sowers told Harris that he did not
think Harris could "get by with that, because once the state
saw the books, they would realize that just two carpenters
did not build the whole job."'
The following week Sowers asked Harris if the latter had
figured his back wages to which Harris responded that the
Company attorney advised that the company need not pay'
Sowers for the back hours. Sowers responded that he in-
tended to call the State Prevailing Wage Department.
which ended the conversation. That evening, at his home.
in the presence of employee Tom Montgomery, Sowers
telephoned the Prevailing Wage Division of the Missouri
Department of Labor, reported the incident to a secretary
who responded that she would report it to her boss. The
following day, Harris called Sowers into the trailer, handed
him a check for his back hours, and told him he had better
get the job done.
On or about October II, Ralph Morrow, an inspector
with the Missouri Labor Department, Prevailing Wage Sec-
tion, came to the jobsite and had a conversation with Mark
Harris, the job superintendent. When Morrow asked Harris
where the payrolls were and where the wage determinations
were posted, Harris responded that the payrolls were kept
on the jobsite but he declined to show them to Morrow
until he checked with his home office, which he did at that
time. Harris informed Morrow that the payroll could be
seen at the Company's accountant's office and gave Mor-
row the name and telephone number of the accountant.
The wage determination was not posted, and Morrow ad-
vised Harris that the Company was in violation for that; he
thereupon wrote a violation and gave it to Harris at that
time. In addition, Harris advised Morrow orally that there
were eight laborers and two carpenters on the job at that
time.'
On Friday, October 28, Sowers was laid off by Harris and
given two paychecks. Harris told Sowers that the Company
did not presently need him, but there was a chance that
there might be something for him later on. When Sowers
asked Harris why he was being laid off, Harris said they
6 Uncontradicted testimony of Sowers.
Uncontradicted testimony of Sowers.
* Morrow, whose testimony I credit, further stated that he had a conversa-
tion with one of the employees (Sowers) pnor to his visiting the jobsite on
October I 1. However, Morrow adrmtted that he never told Hams or anyone
else at the Company that an) employee had made a complaint to the Pre-
vailing Wage Division.
277
I)DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were bringing another employee from another jobsite. Sow-
ers asked why Harris did not make the replacement with an
employee who had been hired since Sowers (apparently re-
ferring to Cleo Durham who had been hired by the Com-
pany in September). According to Sowers' testimony., which
is uncontradicted on this point. Harris responded that he
would replace anyone he desired. When Sowers asked if
Harris would put that in writing, Harris said that he did not
have to. When Sowers asked if he should check back later
for work, Harris responded affirmatively, "please check
back."'
On December 8, the Company notified Sowers by mail.
pursuant to his request, that he was terminated or laid off
"due to replacement by tenured employee from another
job."
On Januar, 3. 1978, Morrow returned to the jobsite and
had a conversation with Harris. Morrow again asked for
the names and job classifications of employees which tHarris
provided. Morrow noted that there had been some changes
to which Harris replied that the company "had laid off
some and had hired some, they got rid of their troublemak-
ers."]0
Harris testified that he had known Layton for at least 5
years, had worked with him on other projects with the
Company. and knew .ayton to be a very meticulous car-
penter especially with trim work: that Layton was working
on the Marshall jobsite when Harris arrived in June. and
that when Bron advised Harris that .ayton would be
moved to Verona. Harris objected; that Bron insisted, and
l.ayton was transferred: that at least a month prior to Sow-
ers' laoff'. Ilarris had talked to Bron about getting Layton
back at Marshall but that Bron had resisted, saying that the
superintendent at the Verona jobsite still needed Layton.
Harris reported to Bron that he wanted Layton back be-
cause Sowers was not doing what he (Harris) felt was his
job that he was spending too much time in the office read-
ing the plans and was harassing other employees on the job
to the point of making threats. However, Bron resisted Har-
ris' entreaties until the end of October.
Harris stated that at the time Layton returned there were
only two carpenters on the job--Sowers and Cleo Durham:
that Durham was retained rather than Sowers because Dur-
ham was more compatible with the other employees, that
his production and accuracy was as good as -if not better
than Sowers, and that the Company does not have a se-
niority system for purposes of' layoff.'
2. Loren (Tom) Montgomery
Montgomery was hired by the Company on May 25 to
work at the Marshall jobsite. Pursuant to the union-security
clause in the contract, he joined the Union on or about July
27. Thereafter, in August and September, he became curi-
ous as to a deduction on his paycheck in the amount of 42
cents per hour and inquired of Superintendent Harris con-
cerning the matter. Harris was unaware of the reason for
I Uncontradicted leslimon) of Sowers. Subsequently. Sowers acknowl-
edged that he had contacted Htarris on several occasions to inquire about
work, and Harris said that the Company still no longer needed him.
m0 Credited testimony of Morrow, a disinterested itness.
It is noted that there is no seniority provision in the collective-bargain-
ing agreement.
the deduction, and referred Montgomery to the union stew-
ard, Barney. The following day, in September, Montgom-
ery had a conversation with Harris and Barney on the job-
site in the presence of employee Howard Rader. Barney
explained that the 42 cents per hour was intended for health
and welfare, including food stamps and cigars for congress-
men, "and things like that." Montgomery opined that it
appeared to him as if the money was going into someone's
pocket.
Sometime later in September, Montgomery had occasion
to meet Neale Sowers at his home at which time Sowers
called the Prevailing Wage Division, as previously set forth.
Several days later, Montgomery himself telephoned the
Prevailing Wage Division and spoke to a man by the name
of Ellis. He told Ellis that he (Montgomery) felt that he was
doing carpenter's work, and also explained the disagree-
ment with the Company and union concerning the 42-cent-
per-hour deduction. In early October he observed that the
Prevailing Wage Schedule was posted in the trailer, which
had not been the case previous to that time.
On the following Friday, according to Montgomery's tes-
timonyv, there was a conversation in the trailer among Har-
ris and several of the workers in which Harris explained
that there had been a mistake in the payroll -that the Com-
pan)y was actually paying the employees too much money
and this would be corrected. However, Harris stated that
the employees would not be required to pay any of the
money back and that they would actually receive more re-
muneration since they would be in a lower tax bracket.
A few days later Montgomery telephoned (from his sis-
ter's house) the Prevailing Wage Division again and spoke
with Ellis. He inquired if the investigation had commenced
and advised Ellis that he was afraid of losing his job. Sev-
eral days later he testified he had a conversation with Vice
President Bron at the jobsite in which he told Bron that he
(Montgomery) had heard some rumors that the State Pre-
vailing Wage Division was investigating the job, and asked
if that were so. Bron replied affirmatively, but told Mont-
gomery "not to worry about it, nothing would ever come of
this, that they had had this type of trouble before and they
had won in court."' 2
Toward the end of October, Montgomery secured leave
from Harris to go into the hospital for a couple of days.
While there he submitted the health insurance card to the
hospital. Later, to his surprise, he was told that his insur-
ance did not cover the hospital services. Montgomery tele-
phoned the Union at its Alton, Illinois, office and was ad-
vised that they had not received the money from Bron
Construction Company from May until August. Where-
upon, Montgomery called the Company and spoke to its
president, Mrs. Bron, who later rectified the mistake. Subse-
quently, on or about October 26 or 27, Montgomery re-
turned to the jobsite. However, it apparently rained for sev-
eral days thereafter and Harris finally told Montgomery
12 Testimony of Montgomery. Bron did not recall any conversation with
Montgomery in early October or late September, but did not deny the same.
Under all circumstances. I credit Montgomery.
Respecting the change or correction in the remuneration of the employees
testified to by Montgomery, Bron explained that the Company had found
that they had been computing the wage rates erroneously because they had
been adding in some fringe benefits, and that was the reason for the correc-
tion.
278
BRON CONSTRUCTION CO., INC.
that he would be laid off-that he (Harris) did not have
anything else for him to do at that time."
On December 8, pursuant to Montgomery's request, the
Company notified him that he was "laid off due to comple-
tion of job phase." This was explained by Bron to mean
that near the end of October the Company had completed
the foundations for all four buildings in the project. The
Company was a little ahead of schedule as far as comple-
tion of the project was concerned. He discussed the matter
with his sister, Greta Bron, an official of the Company who
handles the financing, procuring and job scheduling for the
Company. It was determined that in late October the foun-
dation work had been completed and that the Company
had a larger employee complement than was needed at the
time, particularly, as noted, since the Company was slightly
ahead of schedule in its work. Accordingly, it was deter-
mined that a lay off of semiskilled workers was called for.
Rock Bron discussed the situation with Harris, who agreed
and suggested the names of the employees to be laid off.
According to Harris' assessment of Montgomery, the latter
was reasonably satisfactory but not one of his better em-
ployees; that on one occasion he had become angry with
Montgomery for sitting on a water jug when all other em-
ployees were working, and that Montgomery had partici-
pated in some work that later had to be corrected such as
being involved in a wall that had been hung upside down,
and some concrete work that had to be redone, all of which
occurred within a month prior to his layoff.
B. Analysis and Concluding Findings
After a careful consideration of all the evidence in the
record, I conclude and therefore find that there is substan-
tial evidence to sustain the contention of the General Coun-
sel that both of the alleged discriminatees engaged in con-
certed activities protected by Section 7 of the Act during
their employment at the Company. However, I am not con-
vinced that there is substantial evidence to sustain the bur-
den of proof of the General Counsel that such concerted
activity was the motivating factor for the layoff of the two
individuals involved. I shall therefore recommend that the
complaint be dismissed to that extent.
As respects Neale Sowers, Jr., the record is clear that in
late September Sowers discovered that the Company was
paying him an incorrect wage rate under the Missouri pre-
vailing wage regulations, and protested this fact to Superin-
tendent Harris. It is equally clear that such protest was
made not only on behalf of himself but all other employees
who should have been classified as carpenters. When Harris
indicated to Sowers that the Company did not intend to
pay the loss for back hours, Sowers threatened to contact
the Missouri Prevailing Wage Division. Thus, whether or
not Respondent knew that Sowers contacted the prevailing
wage department prior to his lay off (and there is no direct
I" According to the testimony of Harris. there were four to six employees
also laid off at that time. Their names were Tumlinson. Haley. Green "and a
couple of others." Laborers retained at the time Montgomery was laid off
were Giffen. Brown, and Aubrey Thomas.
Company records reflect that the size of the crew at the jobsite declined at
that time from 14 until it reached a nadir of 9 near the end of November.
The employment complement then returned to 12 in December and then
tapered off to 7 thereafter. Harris testified that of the employees laid off at
the time of Montgomery. Tumlinson and Haley were subsequently recalled
evidence of this fact), the evidence is clear that Respondent
was advised of Sowers' protest on behalf of himself and
other employees similarly situated of Respondent's non-
compliance with a state statute, and it has been held that
such conduct constitutes protected concerted activity
Consequently, Harris' threat to Sowers that a possible con-
sequence of Sowers' activity might be that he would be laid
off or discharged, or that Bron might shut the job down.
constituted a threat for engaging in concerted activity in
violation of Section 8(a)( I) of the Act.
However, the question of whether Sowers' subsequent
layoff was motivated by his engagement in such concerted
activity is a much more difficult question. The undisputed
evidence shows that he was hired as a replacement for Lay-
ton, an experienced workman who had been employed by
the Company for many years, and with whom Superinten-
dent Harris had a long and congenial relationship. I credit
Harris' undisputed testimony that he had requested from
Bron the return of Layton for some time prior to the end of
October. but that Bron had resisted such request because of
the need for Layton in Verona; that at the time of Layton's
return to Marshall in late October there was an economic
need for the reduction of the work crew at Marshall. and
there had to be a choice between the layoff of Sowers or
Durham, the only carpenters remaining on the job: that
Harris preferred the retention of Durham because he pos-
sessed skills at least as competent as Sowers but was more
congenial with the other workers than Sowers, who admit-
tedly lost his temper while working with some of the other
employees: that there is no evidence that Respondent main-
tained a strict seniority policy so that even though Sowers
was employed prior to Durham, such required Durham's
dismissal due to seniority. All such factors considered, I am
not prepared to hold that, upon Layton's return to Mar-
shall, Sowers would have been retained in the place of Dur-
ham had Sowers not engaged in protected concerted activi-
ties.'5
That is not to say that Respondent was not displeased
with Sowers because of his threat to report the wage rate
situation to the State of Missouri. However, I find appropri-
ate to the circumstances of this case the following language
of the Board in Klate Holt Company, 161 NLRB 1606. 1612
(1966):
Moreover, even if we were prepared to find that Re-
spondent was seeking an opportunity to terminate Da-
vis because of its annoyance with the way in which he
engaged in protected activity. we would not, in this
case, find that Respondent discriminatorily discharged
him. The mere fact that an employer may desire to
terminate an employee because he engaged in unwel-
i See, e.g., Self Cycle & Marine Distributor Co., Inc. 237 NLRB No. 9
(1978) (pursuit of unemployment compensation claim) G I'R., Inc. 201
NL.RB 147 (1973): General Teanmsters Local Union No. 528., ec (Theatres
Senrice Companv). 237 NLRB No. 38 (1978). and cases cited therein.
5 I am not unmindful of the statement of Harris to Morrow on January 3.
1978, to the effect that the company had rid itself of some of the "trouble-
makers" This term has been used as a euphemism for union leaders or
agitators. See, e.g., American Electro Finishing Companr. Inc. 212 NL.RB 654
(1974). However, in this case, the facts show that Sowers had In fact been
troublesome in his relations with other employees concerning work problems
having nothing to do with concerted activities. Accordingl, such statement
of Hams is not, in context, as persuasive as it might he in other cases.
279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
come concerted activities does not, of itself, establish
the unlawfulness of a subsequent discharge. If an em-
plovee provides an employer with a sufficient cause for
his dismissal by engaging in conduct for which he
would have been terminated in any event, and the em-
ployer discharges him for that reason, the circumstance
that the employer welcomed the opportunity to dis-
charge does not make it discriminatory and therefore
unlawful.
It might be added that there is no evidence that, follow-
ing the layoff, Respondent recalled any carpenters to work
at the jobsite. Accordingly there is no substantial evidence
upon which to base a finding that there was a subsequent
illegal refusal by Respondent to recall Sowers to work fol-
lowing the layoff. Accordingly, I shall recommend that the
complaint, to the extent that it alleges discriminatory treat-
ment of Sowers, be dismissed.
With respect to the case of Montgomery, the record
shows that prior to his layoff he had protested to manage-
ment the alleged wrongful checkoff of 42 cents per hour
from his wages to the Union's health and welfare fund, as
well as the failure of the Company to properly check off or
transmit funds to the Union to enable him to pay for his
hospitalization. In either event, such protest had to do with
the proper administration of the collective-bargaining
agreement, and may therefore be properly considered to be
concerted activity on the theory that it is merely an exten-
sion of the concerted activity which culminated in the col-
lective-bargaining agreement." However, the undisputed
evidence is that near the end of October the Company was
completing a phase of its construction contract, was slightly
ahead of schedule, and as a result, laid off some four to five
employees of which Montgomery was one. Although the
evidence shows that subsequently Respondent recalled sev-
eral of the employees so laid off, it did not recall all of them
and, in my judgment, the record does not support a finding
that Montgomery was so superior a workman as far as com-
petency and skill are concerned that it may be said that
Montgomery would have been retained or recalled had it
not been for his engagement in concerted activities." I shall
therefore recommend that the case, insofar as it alleges dis-
crimination to Montgomery, be dismissed.
111. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II,
above, occurring in connection with its interstate opera-
tions, have a close, intimate. and substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
I See Merlyn Bunnev and Clarence Bunney, Partners, d/bla Bunney Bros.
Construction Copan)y, 139 NLRB 1516, 1519 (1962); Interboro Contractors,
Inc., 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967); cf. Alleluia
Cushion Co., In-, 221 NL.RB 999, fn. 2, (1975).
l~ See Klate Holt C(ornpanv, supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. By threatening an employee that he could be termi-
nated, or that Respondent might shut down the jobsite be-
cause of an employee's engagement in concerted activities,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them by
Section 7 of the Act, thereby violating Section 8(a)(1) of the
Act.
3. By advising employees that it would be futile to en-
gage in concerted activities protected by Section 7 of the
Act, Respondent has violated Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER s
The Respondent, Bron Construction Co., Inc., Marshall,
Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with termination or shut-
down of a construction jobsite because of employees' en-
gagement in concerted activities protected by Section 7 of
the Act.
(b) Advising employees that it would be futile to engage
in concerted activities protected by Section 7 of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post as its Marshall, Missouri, jobsite copies of the
attached notice marked "Appendix."'9 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 17, after being duly signed by Respondent's represent-
ative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
I' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
19 In the event that this Order is enforced by a judgment of a 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,"
280
BRON CONSTRUCTION CO., INC.
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(b) Notify the said Regional Director for Region 17, in
writing, within 20 days from the date of this Order what
steps Respondent has been taken to comply herewith.
11 Is FURFHER ORDEREDI that the complaint be dismissed
in all other respects.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees that they will be
terminated, or that we will close down a jobsite, should
they engage in concerted activities to obtain better
working conditions.
WE WIL.L NOT advise employees that it would be fu-
tile to engage in concerted activities which are guaran-
teed them in Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to engage in, or refrain from engaging in,
any or all the activities specified in Section 7 of the
Act, except to the extent that such right is affected by
the proviso to Section 8(a)(3) of the Act.
BRON CONSTRUCTION CO., INC.
281