Circle Contracting Co., Inc.

National Labor Relations Board - Board Decisions

Aug 14, 1963

143 N.L.R.B. 1330 (N.L.R.B. 1963)

1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has duly considered the matter and is of the opinion that
it would not effectuate the policies of the Act to proceed further with
this case.
This case is a companion case to Case No. 10-CC-426, which involved
the same parties as are here involved. The instant case, Case No.
11-CC-16, involves allegations of secondary boycott violations com-
mitted in the States of North and South Carolina. Case No.
10-CC-426 involved allegations of similar violations committed in
the State of Georgia. A separate complaint was issued in each case.
Subsequently the Board issued its Decision and Order in the instant
case, and likewise, a Supplemental Decision and Order in Case No.
10-CC-426 2 The Order in each case is identical in scope and content.
The Order in Case No. 10-CC-426, insofar as it affects Respondent
Local 728, is still outstanding.
We have been administratively advised that Respondent Locals 55,
71, and 509 have each complied in full with the terms of the Order
directed against them in this case. Therefore, this case is now moot
with respect to those Respondents. In view of this fact, and of the
further fact, as stated above, that there is still outstanding in Case No.
10-CC-426 an identical Order against Respondent Local 728 as was
previously issued herein, we believe no useful purpose would now be
served by continuing this case against Respondent Local 728. Ac-
cordingly, we shall dismiss the complaint herein against Respondent
Local 728.
[The Board dismissed the complaint insofar as it alleges that
Respondent Local 728 violated the Act.]
2 133 NLRB 62, member Brown dissenting in part.
Circle Contracting Co., Inc. and Sheet Metal Workers Interna-
tional Union , AFL-CIO. Case No. 5-CA-2308. August 14, 1963
DECISION AND ORDER
On June 5, 1963, Trial Examiner Laurence A. Knapp issued his
Intermediate Report 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 Act, and recommending that it
cease and desist therefrom and take certain affirmative action, as set
forth in the attached Intermediate Report. Thereafter, Respondent
filed exceptions to the Intermediate Report and a supporting brief.'
1 Respondent 's request for oral argument is hereby denied as, in our opinion , the record,
including the Intermediate Report, the exceptions , and brief, adequately present the issues
and positions of the parties.
143 NLRB No. 126.
CIRCLE CONTRACTING CO., INC. 1331
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This case was heard before Trial Examiner Laurence A. Knapp at Richmond,
Virginia, on March 25, 1963. The questions at issue are whether (1) Respondent
discharged one Johnny H. Chatman,' and (2) if so, whether he was discharged on
account of activities protected by the National Labor Relations Act, as amended
(hereinafter called the Act), consisting of his involvement and that of two co-
workers in a complaint in respect of wage rates submitted to governmental authori-
ties. Respondent's first position is that it did not, in fact, discharge Chatman at all,
but that if it did discharge him because of the wage complaint, Chatman's connection
with the complaint was not, under the circumstances of this case, a form of protected
activity.2
Briefs filed by the General Counsel and Respondent have been considered. Upon
the entire record of the case,3 and from my observation of the witnesses and their
respective demeanors on the stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges and the answer admits that in a representative 12-month
period Respondent , a Virginia corporation engaged in the construction industry,
received at its places of business in Virginia directly from out-of-State sources , goods,
materials , and products valued in excess of $50,000. While Respondent at the hear-
ing urged the jurisdictional insufficiency of these admitted facts, they plainly estab-
lish that Respondent is engaged in commerce within the meaning of the Act.
Involved in this particular case are Respondent 's operations in the performance of
a building construction subcontract in Richmond , Virginia. Respondent 's super-
visory personnel on this job were Foreman Paul J. Wilson and Wilson 's superior, one
Andrew Smelland.
II. THE LABOR ORGANIZATION INVOLVED
As stipulated by the parties, Sheet Metal Workers International Union , AFL-CIO,
is a labor organization within the meaning of the Act. Edward I. Gershowitz is
business representative of Local 15 of the Union , and a representative of the Inter-
national Union proper , in the Richmond area.
'While referred to in the complaint as "John" and in the transcript as "Johnnie." it
appears from an exhibit rejected, but signed by Chatman, that his correct first name is
"Johnny " On my own motion, the complaint is hereby amended accordingly
2 In line with the disposition hereinafter made, Respondent's motion to dismiss the com-
plaint is denied.
3 Because they are unimportant, I do not formally correct various errors in the transcript
of the hearing.
717-672-64-vol. 143---85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Chatman was employed by Respondent on July 23, and continued in Respondent's
employ until November 15, 1962. Insofar as is significant for the purposes of this
case, Respondent's workforce consisted of superior sheetmetal craftsmen known as
mechanics and, in addition, helpers and/or laborers. As used on the job, the term
"laborer" referred to Negro and the term "helper" to white workers. While helpers
and laborers both participated in unloading trucks of incoming material, which ar-
rived once or twice a week, only the white helpers assisted the mechanics in the
actual sheet metal installation work and incidental layout, cutting, joining, and like
processing of the material preparatory to final installation. The normal wage rates
of mechanics were $3.40 or $3.57 per hour. The rate of the helpers and laborers.
was either $1.65 or $1.73 per hour, the former being the rate for nonunion, and the
latter the rate for union members.4
Chatman was classified by Respondent as a helper. He received the $1.65 rate
when engaged, but in September he was given an increase to $1.85 per hour, and
thereby became the only helper compensated at more than the $1.65 to $1.73 rates.
Shortly thereafter Smelland told Chatman, in connection with some prospective job in
the basement, that he knew Chatman was worth more than his then wages.
About the end of October, Gershowitz visited the construction project, where he
encountered and fell into conversation with Chatman.5 At some point this conver-
sation centered upon the wages Chatman was receiving and the type of tools he was
using and of the work he was performing, in consequence of which Gershowitz ex-
pressed to Chatman the opinion that the latter was performing the work of a sheet-
metal mechanic and was thus entitled to the $3.40 rate.6 Gershowitz thereupon
offered, and Chatman authorized Gershowitz, to file a complaint on Chatman's
behalf with the appropriate authorities. Upon Gershowitz' inquiry, Chatman then
identified two employees named Tate and Martin as additional workers on the job
in the same situation as Chatman, and Chatman and Gershowitz crossed the hall to
where Tate and Martin were working. There, in a discussion in which Chatman
participated, Gershowitz made to Tate and Martin substantially the same inquiries
and explanations as he had to Chatman, stated that he was going to file a complaint
for Chatman, and asked Tate and Martin if they wished him to do the same on their
behalf. They responded in the affirmative. In these conversations, Gershowitz
explained to each of the three men that he could file a complaint only if authorized
by them to do so, and that he would have to use their names if he did.
In the succeeding days, Gershowitz brought the matter to the attention of two
Federal officials, including a regional representative of the Department of Labor
stationed at Nashville, Tennessee. In due course he was informed by the latter that
the matter had been referred to an official of the Bureau of Medical and Nursing
Facilities (presumably an agency of the Commonwealth of Virginia) in Richmond.
Gershowitz made contact with this official, a Mr. Wayne Harding, and at Harding's
request submitted to him, by a letter in evidence dated November 8, 1962, the names
of the three employees and various particulars concerning the origin and nature of
the underlying complaint.?
On November 14, Mr. Harding called at the project site and asked to see the three
men, whom Wilson then brought from their work for this purpose, to Respondent's
trailer office. As the men arrived there (Chatman first, followed by Tate and
Martin), Harding introduced himself and explained his mission as that of exploring
the complaint filed by Gershowitz. At some point, Harding then engaged in a
"separate" conversation with each employee in the course of which he inquired
whether the respective employee was disposed to execute an affidavit in support of
'The record does not identify the union or unions meant in this testimony
e Gershowitz, who was known to Foreman Wilson, and through whom Wilson had ob-
tained mechanics for the job, had visited the project periodically On one such occasion,
Chatman inquired what were his chances of joining the Union and was informed by
Gershowitz that the Union was not then accepting membership applications.
0 It appears that the building was being constructed with the use of Federal funds and,
in consequence, that Respondent was subject to "prevailing wages" determined under the
Davis-Bacon Act, with $3 40 presumably the minimum rate established for sheet metal
mechanics.
7 Gershowitz' letter to Harding and other evidence received at the hearing concerning
the initiation of the wage complaint matter, was, as I ruled at the hearing, not admitted
for purposes of any consideration of the merits of the wage issue-a matter outside the
scope of this proceeding-but solely in relation to the factual and legal issues posed, under
the Act, in this case.
CIRCLE CONTRACTING CO., INC. 1333
the complaint, or to abandon the claim. Tate and Martin each informed Harding
of their respective decisions to drop the matter and returned to their jobs. The
record is silent on the matter, but it is clear from the later events that Chatman
must have told Harding that he was standing behind the complaint.8
That same afternoon, following Harding's initial discussions with the three men
(which Wilson had observed at a distance but could not overhear), a discussion took
place between Harding and Foreman Wilson. Harding informed Wilson that Chat-
man, Tate, and Martin had filed a wage complaint through Gershowitz and that this
was the subject of his interviews with the men. There also occurred one, and perhaps
two, additional discussions in the trailer in which Harding, Wilson, and Chatman par-
ticipated. In one or another of these discussions (1) Harding queried Chatman
concerning the tools he used, the amount of sheet metal work he did, his length of
employment, and the like; (2) Harding requested a definite decision from Chatman
concerning Chatman's willingness to sign a corresponding affidavit which Harding
would have to prepare; (3) Wilson disputed Chatman's claims to performance of, or
ability to perform, mechanics' work; and (4) apparently prompted by Harding's
reference to the necessity of an affidavit, Wilson cautioned Chatman not to say any-
thing that could have an effect on him until he found out for sure what he was saying.
While Wilson admitted that he may have spoken rather harshly to Chatman during
these discussions, he explained that he felt Chatman's complaint unjustifiable in the
light of Chatman's assignments and that, as I interpret his meaning, he and Chatman
had always talked freely with one another. Before the Harding visit ended, Harding
informed Chatman that he would probably be in touch with Chatman later.
When Chatman reported to work at the trailer office the next morning, the fol-
lowing occurred according to Chatman. Wilson asked him whether he was going
to drop the charges and, when Chatman said, "No," Wilson said, "In that case, we
don't need you no more. If you've got any tools, git em and git off the job." As
Chatman, in the process of leaving, was closing the trailer door, Wilson said, "I have
a truckload of material coming in next Monday, if you want to come down and
unload it like a common laborer all right." Chatman rejected this offer and left
the job, where on the next Friday he picked up his check.
Wilson's testimony concerning what remarks he made to Chatman in the office
that morning is that he asked Chatman whether the latter was going to drop the
charges and that Chatman replied in the negative; that he told Chatman that he had
no work for him that day but that he had a truckload of material arriving on Monday
and that Chatman could work "with" the laborers unloading the truck that day, and
that he told Chatman to pick up any tools he had on the way out. Wilson denied
that he told Chatman he was no longer needed or that he was discharged.
Wilson testified further that he selected Chatman for layoff that day because
Chatman was becoming the "least good" of the men he had.
The first question for decision is whether Wilson, in fact, discharged Chatman,
or merely laid him off temporarily for lack of work. On the evidence previously
summarized and other facts alluded to hereafter, I find that on the morning of
November 15, 1962, Wilson first discharged Chatman from his regular position as
a helper, and then, extending to Chatman the truck-unloading opportunity, offered
to Chatman employment on the next Monday which, by reason of its limited dura-
tion and inferior character, was not equivalent to his regular position as a helper.
In short, I believe the weight of the evidence points to the conclusion that when, in
response to Wilson's question, Chatman stated that he was not going to drop the
complaint, Wilson reacted with an immediate discharge decision, and then, having
second thoughts concerning complete elimination of Chatman from the payroll but
not wishing to make a full retreat, offered Chatman the particular unloading
assignment.
Analysis of the discharge question starts, and ends, with the words Wilson used.
In this regard, things would be at a standoff if I were to consider only Chatman's
assertion, and Wilson's denial, that Wilson told Chatman he was no longer needed.
But admittedly Wilson used other words connoting discharge, i.e., that Chatman
should "git" or "pick up his tools," and (according to Chatman and not expressly
8 While there is testimony by Wilson that Harding talked to the three men separately,
and by Martin that Harding talked to him "alone," there is other testimony by Chatman,
and by Wilson, indicating that the three were in group assembly with Harding outside
the trailer during this first stage of his visit, and that such "separate" inquiries as he
made to them concerning further prosecution of the complaint were addressed to the re-
spective individuals while so assembled together. I find that the latter is what actually
happened.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied by Wilson) "git off the job." The words "pick up your tools and (go, or)
get off the job" are such a common form of discharge terminology in the construc-
tion industry that this accepted meaning might well be noticed judicially. However
that may be, Wilson himself, when asked what he meant by telling Chatman to pick
up his tools, assimilated his words to discharge terminology in explaining, with ref-
erence to his "men down there," that "Sometimes I just tell them to pick up their
tools-he was fired and I would have their checks ready." 9 In the light of this
explanation, which was unhesitantly given, and Wilson's vague, if not evasive, reply
to the question whether he was accustomed to use this expression in the case of a
temporary layoff, and his admissions that at least some men left their tools at the
site during temporary layoffs, and that, since Chatman's only tool was "a screw-
driver or something" he "wouldn't think" it necessary to tell Chatman to pick up
his tools, I discount his much later testimony that he did not know whether the
expression "pick up your tools and go" means employment separation in the lingo
of his trade.
Wilson's intention to discharge Chatman from his regular job, as distinguished
from laying Chatman off for 2 days for lack of work, is further indicated by the un-
persuasive reasons Wilson advanced for selectiong Chatman for the alleged layoff.
Wilson's explanations were (1) that Chatman was becoming the "least good" of
the helpers, and (2) that Chatman had been absent, or laid off for lack of work, on
a considerable number of occasions extending over his entire period of employment.
But Wilson's description of Chatman as his least satisfactory helper is at odds with
the fact that Chatman alone, among all the helpers, received the $1.85 rate (and
apparently was considered worth more by Smelland), and is seriously undermined
by the complimentary opinion Wilson gave of Chatman's capabilities and usefulness
to him, when explaining his purpose in offering Chatman the unloading work pro-
jected for Monday.1° As to Chatman's absences, Wilson testified that he was plagued
by widespread absenteeism on the job and, after extensive testimony concerning
Chatman's record of absences, admitted that he would not characterize Chatman as
an unusual absentee."
For the purpose of the above analysis of Wilson's alleged reasons for selecting
Chatman for a temporary layoff, I assume that there was a lack of work warranting
the layoff of a helper for a 2-day period, a matter on which the record does not
permit of an informed finding one way or another.12 But with this assumption, I
find that Respondent's explanations for the selection of Chatman are not persuasive
and on this subsidiary finding I rest, in part, my finding that Chatman was not, as
Respondent contends, temporarily laid off from his regular position on November 15,
1962.
9 Upon giving this 'testimony, Wilson was then asked whether his use of similar words
to Chatman did not mean the latter was discharged. Wilson denied this, but not on the
ground that this is not what the "pick up your tools" expression normally means, but on
the quite different ground that he went on to tell Chatman that he could return on Monday
for the unloading work. But Wilson could erase the normal meaning of this common ex-
pression as communicated to 'Chatman only if what he said about the Monday work im-
ported Chatman's continuance in his regular job, which I hereinafter find was not the case
10 Wilson testified, inter alia:
Well, Johnnie knew his business. He was a pretty smart boy .... He can take a
bunch of boys and lead them along. He knows where I want everything . . . . He's
a good man at figuring out what he want to do . . . . He leads the laborers.
11 Following Wilson's testimony concerning Chatman's a bsences , the bulk of which were
for lack of work, may well have involved other employees as well, and which were not
compared to those of others, counsel for Respondent stated that Respondent's only purpose
in referring to these absences was to show that Chatman's alleged layoff on November 15
was "consistent" with the fact that Chatmian had been laid off on prior occasions
12 Respondent's sole concrete evidence in apparent support of its claim of lack of work
on November 15 consists of Wilson's testimony that he also sent a mechanic home for lack
of work on that day. But there was no showing that Chatman was the helper for this
mechanic, or that in any other fashion what constituted the lack of work for the mechanic
created a corresponding lack of work for Chatman.
From some cross -examination of Wilson, it would appear that in some pretrial affidavit
not in the record , Wilson had stated that two laborers were laid off for lack of work when
Chatman was The true facts cannot be deciphered from the pertinent interrogation and
the matter can in any case be ignored ; Respondent offered no proof as part of its case
concerning any such other layoffs or any connection between them, if they occurred, and
that of Chatman.
CIRCLE CONTRACTING CO., INC. 1335
Bearing in mind these and other pertinent factors,13 I credit Chatman 's testimony
that Wilson told him on November 15 that he was no longer needed and that by
these words , as well as those relative to picking up his tools, Wilson discharged
Chatman from his helper position . I further find that this discharge action was not
revoked, disavowed, or erased by the Monday work opportunity which Wilson ex-
tended to Chatman some moments later. Here again the words used govern, and
the employment they described , expressly limited in scope ( to unloading ) and either
explicitly or implicitly limited in duration (for the time the truck unloading and
attendant work would require ) fell far short of a statement that Chatman's regular
helper job awaited him on Monday . 14 If the latter was the thought Wilson intended
to convey , clear and simple words were at hand for its expression , and, having just
used words clearly importing discharge , the circumstances called for their use had
Wilson intended to accomplish such a full and immediate retrieval of the situation.
In finding that Chatman was in fact discharged , I have credited Chatman 's testi-
mony that when he announced to Wilson his refusal to drop the complaint , Wilson
thereupon said, "In that case, we don 't need you any more ." From this credited
testimony it follows, and I find , that Chatman was discharged because he had
caused the complaint to be filed in the first place.
The Legal Issues
The complaint charges that Respondent discharged Chatman ( 1) because of his
membership in, assistance to, or activity on behalf of the Union (which if sustained
would be violative of both Section 8(a) (3) and 8(a) (1) of the Act ); or (2) because
he engaged in concerted activities with other employees of Respondent for the
purpose of collective bargaining or other mutual aid or protection (which if sustained
would be violative of Section 8(a)(1) of the Act).
The Alleged Violation of Section 8(a)(1) of the Act
Taking up these issues in reverse order, the undisputed facts show that the wage
complaint arose from a full concert of consideration and determination by and
among Chatman , Tate, and Martin . While Chatman and Gershowitz first con-
versed together , that conversation was followed immediately by the similar dis-
cussions of the identical matter with the similarly situated Tate and Martin. These
latter discussions were not only prompted , in material degree, by Chatman but he
also participated in them, and their result was the determination of Tate and Martin
to join with Chatman ( and necessarily with each other ) to authorize a single com-
plaint by Gershowitz in their behalf or behalves. In manner of evolution and in
substantive objective , there could scarcely have been a clearer and simpler form
of concerted activity by the threesome for their mutual aid and protection . 15 More-
"In contrast to Chatman , with whose general demeanor and specificity of recollection
I was impressed , I have some reservations concerning the dependability of Wilson's
recollection of events His testimony as to how he assembled the men on the occasion of
Harding 's visit, and what group and what "separate" talks the men had with Harding,
and where , when, and in what order these discussions occurred , is distinctly confusing, if
not, in some respects , contradictory . Similarly , long after first testifying that he told
Chatman to pick up his tools and go, and after repeatedly indicating , in extensive examina-
tions concerning the significance of such terms , that he had used them, Wilson hazarded
the possibility that he could have told Chatman to pick up his lunch, rather than his
tools, adding , "I could have told him anything."
i4 While helpers such as Chatman , and on occasions even mecuanfcs and Wilson himself,
assisted in unloading trucks as circumstances might dictate , truck unloading was normally
performed by Negro workers , the class called laborers on the project In view of Wilson's
statement to Chatman that he could return on Monday to work "like" or "with" the
laborers in the projected unloading , there was some exploration at the hearing of the
question whether, by this statement, Wilson intended to penalize Chatman by attaching
to the Monday work opporitunity an interracial association possibly considered objection-
able under the mores of the geographical area involved . I do not pass upon the question
whether this statement violated the Act, for the reason that it was not alleged in the com-
plaint or pointedly litigated at the hearing . Cf the recent Inermediate Report of my
colleague Peterson in Dixie Belle Mills, Inc., et at, Case No . 10-CA-5208 , issued May 17,
1963. and cases there cited.
15 There is an abundance of authority that such group activity in respect of grievances
or complaints concerning working conditions , whether presented to the employer or lodged
with public authorities , constitutes concerted activities protected by Section 8(a) (1). See,
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,over, having been authorized by them, the Gershowitz letter to Harding was itself
a "concerted" activity on their part. The Walls case, infra.16
In its brief, Respondent interprets the evidence as showing that Chatman, Tate,
and Martin each acted individually and not in concert in filing what, in conse-
quences of its evidentiary interpretations, Respondent contends were individual or
separate complaints. Thus, Respondent points to the fact that Gershowitz first ap-
proached Chatman; argues that Chatman accompanied Gershowitz to the talks
with Tate and Martin merely to accommodate Gershowitz; and refers to the absence
of any approach to the Company by the three men, together or through Chatman,
and to what Respondent characterizes as Harding's "separate" interviews with the
three men. On grounds such as those Respondent contends that the three men
"did not act as a group-each acted for himself."
But without restating the entire body of facts, they show that the three men de-
cided upon and put into motion a common course of action looking toward solution
of their common problem, and the community of action thus evolved and executed
is not susceptible of factual or legal trifurcation because a principal initiative was
taken by Gershowitz, or because he first spoke to Chatman, or because the three men
did not, in some other fashion or at some other time, concert themselves differently
or more than they actually did concerning the common wage problem.17 Of course,
Respondent's assertion that "each man acted for himself" is true in the sense that
all collective action is in the interest of the individual participants or members, but
taken as a factual assertion that in this case the three men acted wholly "separately"
in regard to the wage complaint, the contention is simply contrary to the basic facts
this record presents.is On those facts, the "concerted" character of the men's
activity is indisputable.19
The Alleged Violation of Section 8(a)(3) of the Act
Following some precedents of the Board, I refrain from passing upon the question
whether the discharge of Chatman also constituted discrimination "to encourage or
discourage membership in a labor organization," in violation of Section 8(a)(3).
See Merlyn Bunney and Clarence Bunney, Partners, d/b/a Bunney Bros. Construc-
tion Company, 139 NLRB 1516. The remedial order appropriate to remedy a dis-
for grievances presented to the employer , N.L.R.B. v. Bowman Transportation, Inc, 314
F 2d 497 (C A 5) ; cases cited in Joanna Cotton Mills Co. v. N.L R.B , 176 F. 2d 749,
752-754 (C A 4) , and see Sherry Manufacturing Company, Inc., 128 NLRB 739, 740;
and for complaints to public authorities see Salt River Valley Water Users' Association
v N L R B., 206 F 2d 325, 328-329 (C A. 9), and cases there cited; N L.R.B. v. Moss
Planing Mill Co , 206 F. 2d 557. 559-561 (CA. 4), and cases there cited ; Walls Manu-
facturing Company, Inc, 137 NLRB 1317
16 To the extent that previous employer knowledge of the underlying concerted activities
is requisite ( see International Ladies' Garment Workers' Union , AFL-CIO (Walls Manu-
facturing Company) v. N.L.R B., 299 F. 2d 114 (C A.D.C ), and (same case) Walls Manu-
facturing Company, Inc., supra, and 128 NLRB 487), Foreman Wilson was placed in full
possession of the salient facts on the day prior to his discharge of Chatman.
17 While the facts are contrary to Respondent's contention that there was never any
"relation" between Chatman, Tate, and Martin in regard to the complaint, it may be
noted that the cases conferring protected status on varying forms of grievance or petition
activity do not turn on any requirement of simultaneous solicitation or assembly of, or
consideration by, the interested participants (See the discussion and cases cited in the
Intermediate Report of my colleague Singer in Mushroom Transportation Co., Inc., Case
No. 4-CA-2627, issued March 25, 1963.) Their knowledge of the thread of common inter-
est is enough . See the Walls case, supra.
11 The cases relied upon by Respondent involve dissimilar factual situations and, hence,
are inapposite.
19 In a single sentence in his brief , the General Counsel argues that Chatman , Tate, and
Martin collectively "enlisted the assistance of the Union" in the making of the wage com-
plaint, and that this constituted "union activity" protected by Section 8(a) (3) and (1),
citing the Moss Planing Mill case, supra If by this compressed language the General
Counsel is contending that such union-employee collaboration constitutes "concerted
activities" protected by Section 8(a) (1), I pass over this question because it is unnecessary
to a decision of this case, and because I am unaware of any Board or court decision directly
applicable to the peculiar facts of this case. In this latter connection, it may be noted that
in the Moss Planing Mill case the employee concerned was a member of the assisting union,
as the court took into account in referring to "concerted activities . . . by an employee
and a union of which he is a member," whereas in this case neither Chatman nor, pre-
sumably, Tate nor Martin, was a member of the cooperating Union.
CIRCLE CONTRACTING CO., INC. 1337
charge in violation of Section 8(a) (1) of the Act, as recommended below, provides
for all practical purposes the same relief as would be provided in respect of a viola-
tion , if found, of Section 8 ( a) (3).
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a) (1) of the Act, I recommend below that it cease and desist therefrom
and take certain affirmative actions designed to effectuate the policies of the Act,
including offering to Johnny H. Chatman immediate and full reinstatement to his
former or a substantially equivalent position, and making him whole for any loss of
earnings he may have suffered because of the discrimination against him, by pay-
ment to him of a sum of money equal to the amount of wages he would have
earned from the date of his discharge to the date of the offer of reinstatement, less
his net earnings during such period, together with interest thereon at the rate of 6
percent per annum. The loss of pay and interest thereon shall be computed in
accordance with the respective formulas and methods prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Johnny H. Chatman because he engaged in protected concerted
activities, Respondent has interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act and has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that the Respondent, Circle Con-
tracting Co, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining , or coercing employees in the exercise of their
right to engage in concerted activities for their mutual aid and protection by discrim-
inating in regard to their hire , tenure of employment, or any term or condition of
employment.
(b) In any like or related manner interfering with, restraining , or coercing em-
ployees in the exercise of any of their rights protected by Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Offer to Johnny H. Chatman immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges he previously enjoyed.
(b) Make Johnny H. Chatman whole in the manner and in accordance with the
methods referred to in section IV, 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 records necessary to analyze the amount
of backpay due under the terms of this Recommended Order.
(d) Post at its main place of business at Norfolk, Virginia, and at locations where
employees of Respondent are employed, including Richmond, Virginia, copies of
the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by
the Regional Director for the Fifth Region, shall, after being duly signed by a repre-
sentative of the Respondent, be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
20 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."
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall be taken by Respondent to insure that said notices are not altered , defaced, or
covered by any other material.
(e) Notify the said Regional Director , in writing , within 20 days from the date
of this Intermediate Report and Recommended Order , what steps it has taken to
comply herewith.21
n In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps it 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 Natic.aal Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discharge any of our employees or discriminate in regard to
their hire, tenure of employment, or any term or condition of employment,
because they have engaged in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of any of their rights protected by Section 7 of the Act.
WE WILL offer Johnny H. Chatman immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to any rights and
privileges he previously enjoyed.
WE WILL make whole Johnny H. Chatman for loss of pay suffered as a result
of his discharge.
CIRCLE CONTRACTING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United Sates of his 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.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, 21202, Telephone No.
752-8460, Extension 2100, if they have any question concerning this notice or com-
pliance with its provisions.
Local 792, International Association of Bridge , St., uctural, and
Ornamental Iron Workers , AFL-CIO, and its ag 'nt, Keith H.
Dickerson [Nichols Engineering & Materials ( o., Inc.] and
Raymond R. Mubi . Case No. 21-CB-1944. Aug? ..t 15, 1963
DECISION AND ORDER
On May 10, 1963, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in -certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Intermediate Report. Thereafter, the Respondents filed exceptions
to the Intermediate Report and a supporting brief.
143 NLRB No. 125.