Daniel Construction Co.

National Labor Relations Board - Board Decisions

Mar 22, 1979

241 N.L.R.B. 336 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Daniel Construction Company, a Division of Daniel
International Corporation and Southeastern Okla-
homa Building and Construction Trades Council,
AFL-CIO. Cases 16-CA-7592 and 16-CA-7690
March 22, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On December 5, 1978, Administrative Law Judge
Phil W. Saunders issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' and the General Counsel re-
submitted his brief to the Administrative Law Judge
in support of the Administrative Law Judge's Deci-
sion.2
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,3 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.4
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-
In its brief, Respondent moves that the Administrative Law Judge's cita-
tion in fn. 2 of his Decision of two Board decisions involving Respondent be
stricken from the record. Respondent argues that by taking judicial notice of
these two prior unfair labor practice cases, as requested by the General
Counsel, the Administrative Law Judge considered evidence irrelevant to the
issue of whether Respondent acted with union animus in the instant case.
We find that the Administrative Law Judge did not rely on these two prior
decisions in making his findings in the instant case. Accordingly, Respon-
dent's motion to strike is hereby denied.
2 Afer the submission of its brief, Respondent filed a motion to strike the
General Counsel's brief on the grounds, inter alia, that the brief "raises new
issues which were not raised in exceptions to the Board and grossly mischar-
acterizes the record in relation to these issues." Respondent's motion to
strike is hereby denied as lacklng in merit.
3 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility 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 (3rd. Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
4 Although the Administrative Law Judge found that on two occasions
Respondent violated Sec. 8(aX3) by discharging employees because of their
union activities, he failed to provide in his recommended Order that Respon-
dent shall cease and desist from such conduct. Accordingly, we shall modify
the recommended Order in this regard.
Additionally, the Administrative Law Judge omitted from his recommend-
ed Order the proper remedial language used in Board orders directing rein-
statement of employees. Accordingly, we shall modify the recommended
Order in this regard.
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Daniel
Construction Company, a Division of Daniel Interna-
tional Corporation, Muskogee, Oklahoma, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied:
1. Insert the following as paragraph l(f) and re-
letter the present paragraph l(f) as (g):
"(f) Discouraging membership in the Union, or
any other labor organization, by discriminating
against employees in regard to their hire and tenure
of employment or any terms and conditions of em-
ployment."
2. Substitute the following for paragraph 2(a):
"(a) Offer Greg Runyon, D. D. McDougal, Robert
Yeager, William Shell, Joseph Johnson, George
Trammel, Lee Goforth, Lee Sickler, Teddy Muskrat,
Bryan Sickler, and James Scott Shell immediate and
full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights
or privileges previously enjoyed, and make them
whole for any loss of earnings they may have suffered
by reason of the discrimination against them in the
manner set forth in the section of this Decision enti-
tled 'The Remedy.'"
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to give evidence, the National Labor Relations Board
has found that we violated the National Labor Rela-
tions Act, as amended, and has ordered us to post this
notice.
WE WILL NOT solicit employees to engage in
surveillance of union activities.
WE WILL NOT threaten employees that the job
will be shut down because of their union activi-
ties.
WE WILL NOT threaten or give warnings of dis-
charge to employees because of their union ac-
tivities.
WE WILL NOT create the impression that union
activities are under surveillance.
WE WILL NOT threaten loss of work and other
benefits because of union activities.
WE WILL NOT discourage membership in the
Union, or any other labor organization, by dis-
241 NLRB No. 50
336
DANIEL CONSTRUCTION COMPANY
criminating against employees in regard to their
hire and tenure of employment or any terms and
conditions of employment.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
WE WILL offer Greg Runyon, D. D. McDou-
gal, Robert Yeager, William Shell, Joseph John-
son, George Trammel, Lee Goforth, Lee Sickler,
Teddy Muskrat, Bryan Sickler, and James Scott
Shell immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or any other rights and
privileges previously enjoyed, and WE WILL pay
them for any loss of pay they may have suffered
by reason of our discrimination against them,
with interest.
DANIEL CONSTRUCTION COMPANY, A DIVI-
SION OF DANIEL INTERNATIONAL CORPORA-
TION
DECISION
STATEMENT OF THE CASE
PHIL W. SAUtNDERS, Administrative Law Judge: Based
on charges and amended charges filed by Southeastern
Oklahoma Building and Construction Trades Council,
AFL-CIO, herein called the Union,' a consolidated com-
plaint was issued on February 24, 1978, against Daniel
Construction Company, a Division of Daniel International
Corporation, herein called Respondent or Company, alleg-
ing violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended. Respondent filed an an-
swer denying it had engaged in the alleged matter. Both
Respondent and the General Counsel filed briefs.
Upon the entire record and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent is a Delaware corporation engaged as a gen-
eral contractor in the building and construction industry
with its principal office in Greenville, South Carolina, and
is the general contractor for the construction of the Fort
Howard Paper Company facility near the port of Musko-
gee, Oklahoma; such site and facility is the only location
involved in these preceedings. During the past year, Re-
spondent, in the course and conduct of its business opera-
tions, performed services valued in excess of $50,000 in
I In Case 16-CA-7592 the original and first amended charges were filed
herein by the Union on November 4 and December 7, 1977, respectively.
The original, first, and second amended charges were filed in Case 16-CA-
7690 on January 10, 1978, February 6 and 21, 1978. respectively.
States other than the State of South Carolina wherein Re-
spondent's principal office is located.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(6) and (7) of the Act.
III. THE UNFAIR LABOR PRACTICES
The consolidated complaint, as amended, alleges various
8(a)(1) violations including threats of discharge, threats that
the jobsite would be shut down if the Union came in, solici-
tation of employees to engage in surveillance of employees'
union activities, creating the impression of surveillance, and
threats that certain employees would be discharged due to
their union activities. The General Counsel is also alleging
that Respondent violated Section 8(aX3) and (1) of the Act
by discharging 10 employees because they engaged in union
activities. These discharges occurred on November 3, 1977,
and on January 7, 1978. Finally, the General Counsel al-
leges that Respondent violated Section 8(a)(1) of the Act by
discharging its Supervisor James Scott Shell because he re-
fused to terminate certain of his employee crew members
who were engaged in union activities.
This case arose out of a construction project in Musko-
gee, Oklahoma, where Respondent is constructing a large
paper mill for the Fort Howard Paper Company. Work on
phase one of the project began in late December 1976; in
February 1977, Fort Howard Paper Company awarded Re-
spondent a second contract for the construction of another
paper machine, a turbine generator, and additional pulping
and warehousing facilities.
It appears that Respondent is conducting its operations
at the Fort Howard project on an "open shop" basis. As a
result, employees are hired at the construction gate, and in
general its manpower levels have been co-ordinated with
the work progress and requirements. Moreover, like most
construction projects, there have been significant fluctu-
ations in manpower. At the beginning, in January 1977,
there were some 250 employees on the job. This number
increased to 1,000 just before the night shift began in Octo-
ber 1977, and peaked at 2,000 in November or December
1977. There are now approximately 1,100 employees on the
job.
It further appears that in mid or late summer of 1977, the
Union began discussing with its members the organizing of
Respondent's employees, and between late October 1977
and early January 1978, the Union engaged in an organiza-
tional campaign at the Fort Howard jobsite.'
The complaint alleges that in October 1977, Respondent,
through Supervisor Malcom Rainwater, solicited an em-
ployee to engage in surveillance of union activities and also
I As a further preliminary matter. it should also be noted that I have taken
judicial notice, as requested, of two National Labor Relations Board Deci-
sions which found that Respondent had engaged in unfair labor practices.
The first case, Daniel Construction Company. Inc., a Division of Daniel Inter-
national Corporation, 195 NLRB 213 (1972), enfd. 480 F.2d 921 (4th Cir.
1973), and the second case, Daniel Construction Company, a Division of Dan-
iel International, 229 NLRB 93 (1977).
337
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatened employees that the Fort Howard job would be
shut down if the employees selected the Union to represent
them.
Steven Craig credibly testified as to several conversations
he had with Malcom Rainwater, Respondent's personnel
administrator. Craig first met Rainwater when he was hired
by Respondent onto the project. Craig stated that during
the middle of October 1977, while he was working on the
job, he approached Supervisor Rainwater to see if it would
be possible to get a friend of his hired; during their conver-
sation Rainwater asked Craig if he had heard any rumors
on the job. Craig responded by voicing some of the usual
construction gripes, but Rainwater did not drop the subject
and asked Craig if he had heard rumors about union activi-
ties and continued his interrogation by asking if Craig had
attended union meetings. Finally, Rainwater asked Craig to
do him a favor by going to the union meeting the coming
Thursday and report back to him. Craig agreed to do as
Rainwater requested. About I week later after he had at-
tended the union meeting as requested, Craig noticed Rain-
water walking through the work area; after establishing
contact with each other, Rainwater asked about the meet-
ing, and Craig informed Rainwater that the Union had
gone to great expense in their campaign and were also offer-
ing good benefits. Craig asked Rainwater how the Fort
Howard Company felt about union activity on the job, and
Rainwater replied, "If it got to that point, Fort Howard
would shut this place down."3
I have concluded that Craig credibly portrayed the
above-described interchanges with Supervisor Rainwater.
As pointed out, it is also consistent to believe that Rain-
water may have felt that Craig would make an excellent
employee "snitch;" such an arrangement is suggested by
Rainwater's testimony that during the union campaign he
was under the mistaken belief that Craig's father was an
upper level member of Respondent. In fact, Rainwater ad-
mitted that he did not realize Craig's father's actual posi-
tion with another employer until the week of the hearing in
the instant case. I am also in agreement that Rainwater's
statement relative to the Fort Howard Paper Company
shutting the plant down is most certainly a statement which
inherently communicated a threat of plant closure and
especially so since Rainwater admits making the statement
to several employees. In accordance with the above, I find
that Rainwater solicited an employee to engage in surveil-
lance of union activities, and he also threatened employees
that the job or project would be shut down if the employees
selected the Union to represent them, thereby violating Sec-
tion 8(a)(1) of the Act.
It is alleged in the complaint that in late October 1977,
Supervisor Walter Menees threatened an employee of Re-
spondent with discharge if the employee continued to en-
gage in union activities. Gregg Runyon testified that he had
two conversations with Respondent's Foreman Walter
Menees in late October 1977. On October 27, 1977, as Run-
yon was leaving the jobsite, he first encountered Menees.4
I Rainwater denied asking Craig to attend union meetings, but as to clos-
ing the job, he admitted that he "probably" has told employees that the Fort
Howard Company would shut the project down rather than build it on a
"union basis;" however, he could not recall telling this to any particular
employee.
4 Foreman Walter Menees is Runyon's father-in-law.
At this time Foreman Menees told Runyon: "You better
slow it down, I have got word you are going in the next
layoff." The next day Runyon went to his father-in-law's
house and asked what he meant by the above remarks, and
Menees told him the following:
Breezy [Breece] had come up to him . . . and asked if
he knew anything about the union. He said that he did
and he said, "Well, we are going to have to let your
son-in-law go in the next layoff. We think he is taking
an active part in the union and he is passing out cards
all over the job and we are going to have to let him go
in the next layoff. We can't fire him for that reason, but
there are other ways.
Foreman Menees corroborated the testimony of Runyon
by stating that in late October 1977, his foreman, Barry
Breece, told him on the jobsite that "the head office was
getting hot on him about people talking union out there."
Breece also told Menees that "[your] son-in-law [is] the big-
gest one in the middle of it," and, "the first layoff, he [will]
be in it, but it [won't] be for that reason." Foreman Breece
testified in this proceeding but did not confirm or deny the
above statements attributed to him.
As pointed out, the statements made by Foreman
Menees to Runyon do not lose their coercive nature by
virtue of their in-law relationship and especially so since
Menees informed Runyon that Foreman Breece was the
source of the threat. Accordingly, I find that Runyon was
threatened with discharge because of his union activities.
It is alleged that on October 27, 1977, Respondent's Su-
pervisor Ray Weaver also threatened an employee with dis-
charge if his union activities continued. D.D. McDougal
testified that approximately I week before his discharge on
November 3, 1977, he had a conversation near the print-
room with Supervisor Ray Weaver. He stated that prior to
this conversation he had entered the printroom and ob-
served Foreman Weaver and Superintendent Gray Angel
talking; after he had returned to his work Weaver ap-
proached him and informed McDougal that after he had
left the printroom, Angel had made the statement that he
(McDougal) was "a good man," but they were going to
have to let him go because of his union activities.
Foreman Weaver testified that he was in the office with
Gray Angel when McDougal walked in; when McDougal
left Superintendent Gray turned to Weaver and said, "That
is one of the best craftsmen on this job, but, I am going to
have to let him go [because] he is talking union all over this
job." Weaver then replied, "Well, if we are going to let him
go for talking union, we are going to let everybody go that
is talking union, we will have to let half the people on this
job go, including myself." Angel replied, "Well, I am not
going to let nobody go. Somebody above me will have to do
it." Weaver testified that soon thereafter he told McDougal
about Angel's comments-that they were going to have to
let him go for union activity. Angel's remarks to Weaver
are undenied on the record as he did not testify.
I find that the above-described actions of Respondent
constitute a threat in violation of Section 8(a)(1) of the Act,
as Foreman Weaver informed McDougal that Superinten-
dent Angel had made the statement that he would be dis-
charged for his union activities.
338
DANIEL CONSTRUCTION COMPANY
It is alleged that Respondent, by its Supervisor Jim Co-
ker, on or about the first day of September 1977, in a con-
versation with employees, stated that Respondent knew
they were talking union and that the employees were being
watched; in so doing it thereby created the impression that
Respondent had knowledge of their union activities and
was engaged in surveillance of their union activities.
Employee William Shell testified that he was hired by
Respondent at the Fort Howard jobsite in late July 1977,
and between the time he was hired and the middle of Octo-
ber 1977, he worked under Foreman Jim Coker on a mill-
wright crew; approximately 1-1/2 months after he was
hired, he had a union conversation with Supervisor Coker.
Shell asked Coker if he had been in a union, and Coker
replied that he had been a member, and "he didn't care one
way or the other whether it went union or not and to be
careful, if we were writing names down or anything like
that. If they caught us, they were watching us he said they
were watching us."
Employee Ted Muskrat overheard the first half of this
conversation between William Shell and Foreman Coker
but did not recall any of the other parts of this conversa-
tion. Scott Shell also testified to a similar statement made to
him by Coker while he was a journeyman millwright in
October 1977. Initially, Foreman Coker informed Scott
Shell that it did not make any difference to him how the
Union went "one way or another," but then he told Scott
Shell that the, had "better be careful about the activity
because they were laying people off when they caught
them." Foreman Coker did not testify at the hearing.
I find that Coker's statements to Shell and Muskrat are
violative of the Act. As pointed out, Coker obviously left
the impression that union activities were under surveillance.
Such statements restrained and coerced the employees of
Respondent in the exercise of their rights to attempt to or-
ganize a union on the project.
It is alleged that in the late fall or early winter of 1977,
Respondent, by its Supervisor William Spivey, announced
to Respondent's employees working in his crew that if the
job went union the crew would lose the sheetmetal work
they had been doing previously, thus reducing their work
hours and income.
Employee Lee Goforth testified that he had a conversa-
tion with Spivey during October 1977. Goforth stated that
he approached Supervisor Spivey and "told him about the
union, how I thought things would go better and everything
else with the union in there." Spivey then replied:
If you organized a union and got it in here, you would
be screwing yourselves as far as the work, because the
duct work belonged to some other craft.
Employee Lee Sickler testified that he talked with Super-
visor Spivey in November and December 1977. Sickler
stated that he approached Spivey in a work area and "just
asked him what he thought about the Union getting in
there ... , if he would be interested in seeing it get in and if
he would be interested in signing a card." Spivey then re-
plied, "No, [I don't] want to see it come in out [here]....
We would lose a lot of work, work we [are] doing .... We
[will] lose the duct work."
I Supervisor Spivey confirmed having a conversation in November with
Sickler and also confirmed that he had spoken with Goforth. However. Spi-
I am in agreement with the General Counsel that in the
context of the Union's organizational campaign, Spivey's
comments and remarks threatened the loss of work, income,
and benefits if the Union was accepted by the employees,
and therefore were violative of Section 8(aXl) of the Act.
It is further alleged that on or about January , 1978,
Respondent, by its Supervisor Scott Shell, created the im-
pression of surveillance of its employees' union activities by
informing employees that a list of names of union organiz-
ers was in Respondent's office.
Foreman Scott Shell testified that during the last week of
December 1977, he had a conversation with Supervisor
Warren Harrell, his general foreman, at the jobsite. During
this conversation Harrell told Shell "that there were three
or four of my men's names over in the office for union
activities." Shell stated that he then returned to his crew
and informed his employees of what Harrell had told him.
Foreman Scott Shell further testified that a few days later
Foreman Harrell again approached him. On this occasion
Harrell told Foreman Shell that he had four of his men's
names in the office, and if Shell would lay them off and let
the office know it would "put him in solid with the Com-
pany." This time Harrell named four of Shell's crew mem-
bers-Bryan and Lee Sickler, Lee Goforth, and George
Trammel. After this second conversation with Harrell,
Foreman Shell informed the four employees that because of
union activities their names were on a list in Respondent's
office. At least two of the employees involved corroborated
the testimony of Shell as to being informed that their names
were on a list in the office. General Foreman Warren Har-
rell did not testify at the hearing. Therefore, the statements
attributed to him by Scott Shell are undenied.
The nature of Shell's statement to his crew was such that
Respondent's surveillance was clearly communicated to
them. As indicated, Shell had no control over the list, and
this fact was communicated to the crew. In so doing Re-
spondent was again in violation of Section 8(a)(l) of the
Act.
At the hearing the General Counsel amended the com-
plaint to allege that on or about December 10, 1977, Re-
spondent's supervisor, Jim Coker, informed its employees
through a second supervisor, Louie Fritts, by citizens band
radio, that employees would be laid off or discharged be-
cause of their activities on behalf of the Union.
George Trammel, a millwright employee, and another
journeyman millwright on the same crew, Joe Johnson,
regularly switched off rides to and from work. Trammel
testified that as he left the jobsite on the way home in the
morning, he would call for Louie Fritts over his CB radio.
In early December 1977, Trammel and Johnson were re-
turning home and while so doing a message came over the
CB radio from Foreman Louie Fritts. Trammel testified
that Fritts told them that your "old buddy [Foreman] Co-
ker... had a message for you," to which Trammel replied,
"Well, let's hear it," and Fritts stated, "You are going to get
the axe ... you've been caught dealing in the union thing,
activity ... you know they are going to get you." Johnson
corroborated the above testimony, and he also stated that it
vey defended the statements attributed to him by contending that he had
been involved in jurisdictional disputes in the past and realized that the
ductwork his crew was doing was either sheetmetalwork or boilermak-
erwork.
339
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was his understanding from the conversation over the CB
radio that the layoff was due to the crew's union activities.
Fritts stated that while he was employed as a carpenter
foreman on Respondent's jobsite, in or about December
1977, he had a conversation with Respondent's Supervisor
Jim Coker; in this conversation Coker told him that George
Trammel, Joe Johnson, and other members of Scott Shell's
crew were going to be fired because of their union activities.
Fritts further testified that on the following morning he
contacted Trammel and informed him and Johnson over
his CB radio, that "Mr. Coker had told me to get ahold of
[you], that [you] was going to be fired because of [your]
union activities on the job."
From this record it is clear that both Coker and Fritts
occupied supervisory positions with Respondent at the time
the above warning or threat was made, and regardless of
the "friendly" nature of the warning, the message was
clear-you will be fired because of your union activities.
The coercive impact of the statement is clear, and therefore
Respondent was again in violation of Section 8(a)(1) of the
Act.
Respondent argues that Supervisors Walter Menees, Ray
Weaver, Scott Shell, and possibly others were allied with
the organizational activities of the Union, and therefore
they acted as agents for the Union rather than for the Com-
pany in the specific instances noted above.
Walter Menees testified for the General Counsel; in
doing so he freely admitted that he engaged in numerous
activities designed to organize Respondent's jobsite and
stated that on January 3, 1978, he was called into Respon-
dent's office and summarily discharged because he was en-
gaging in union activities.
Ray Weaver testified that he too was engaged in union
activities and attended union meetings while an ironworker
foreman at Respondent's jobsite. Weaver also discussed his
union affiliation with Respondent's Project Manager Don
Buck on November 3, 1977, and during the course of this
conversation Buck interrogated Weaver as to the names of
those attending union meetings, 6 asked if Foreman Menees
was in attendance at such meetings, and also inquired
about the benefits being offered, the crafts involved, and the
amount of support among the employees for the Union.
Buck then informed Weaver that ne would not tolerate his
foreman campaigning for the Union. Later the same day
Weaver was laid off.
Scott Shell was another foreman who was active for the
Union. Shell had authorization cards which he passed out,
he talked to employees, and he went to the union meetings.
Respondent's argument to the effect that certain foremen
were aligned with the employees' attempts to organize
rather than with the interests of management-does not ob-
viate the fact that these people were still Section 2(11) su-
pervisors. Moreover, it appears to me that the interrogation
and discharge of certain supervisors known by Respondent
to be sympathetic toward, if not active in the union cam-
paign, is indicative that Respondent did not "roll over" and
6 Weaver stated that during this meeting Buck handed him a yellow sheet
of paper which had a list of names on it and requested Weaver to examine
the list and determine if they had attended any of the union meetings.
Weaver said that he recognized some of the names on the list-the names of
his crewmembers as well as Scott Shell and other millwrights. Buck denied
that such a list ever existed.
"play dead" during the organizational campaign. However,
at no time were there any pronouncements or indications
by management that the supervisors involved were not act-
ing within the realm of their designated authority. In ac-
cordance therewith, I have found that coercive statements
made or relayed by them, as aforestated, are attributed to
Respondent.
The two ironworkers involved herein as alleged discrimi-
natees, Gregg Runyon and D. D. McDougal, were dis-
charged on November 3, 1977. Both were employed at the
jobsite as ironworkers on Ray Weaver's crew. Runyon testi-
fied that he was hired by Respondent on September 26,
1977, and was employed as an ironworker first class. Run-
yon's organizational activities on the jobsite consisted of
talking favorably about the Union to fellow employees and
attending union meetings. However, as pointed out, it is
clear from this record that Respondent felt that Runyon
was actively engaged in the organizational activities of the
Union. Foreman Barry Breece talked with Runyon's father-
in-law, Walter Menees, and Weaver noticed Runyon's
name on the list he was shown by Project Manager Buck.
Both incidents have been discussed previously.
McDougal testified that he was employed by Respondent
in September 1977 as an ironworker, and that he started
noticing employees on the jobsite engaging in union activi-
ties during mid-October 1977. During October, McDougal
also began engaging in activities designed to further the
Union's organizational objective. Initially, he attended
union meetings and wrote down names and badge numbers
of the employees in his area to get an accurate count of the
employees, and he also discussed the pros and cons of the
Union with other employees during lunch and breaktimes.
He also signed a card.
McDougal was the employee that Foreman Ray Weaver
talked with about his union activities. This discussion oc-
curred in late October after Weaver was told by Foreman
Gray Angel that McDougal was going to be discharged
because he was engaging in union activities. There can be
no serious question but that Respondent had knowledge of
Runyon's and McDougal's union activities prior to the dis-
charges, and this record contains ample evidence in support
thereof.
McDougal testified that on November 3, 1977, he and
Runyon were on the jobsite when they were informed that
they had been laid off. Both of them then encountered
Foreman Ray Weaver, and Weaver told them that he too
had been laid off and mentioned that there had been a
reduction of force. McDougal also testified to a conversa-
tion he had with Foreman Barry Breece after he learned of
the layoff. McDougal approached Breece and asked, "How
come we are getting laid off?" Breece replied, "Well, be-
cause of your high numbers, because you were last hired
in." McDougal then stated, "Well, Ray Weaver, myself and
Raymond Fox were all hired in the same day ... how come
Raymond Fox wasn't laid off?" McDougal continued,
"This man doesn't produce ... why not lay a man off that
doesn't produce as opposed to other men that do?" Breece
replied, "Well, I don't know." Gregg Runyon corroborated
this testimony.
Project Manager Buck testified that the decisionmaking
process to lay off ironworkers on the jobsite started in late
340
DANIEL CONSTRUCTION COMPANY
September or early October 1977, as by this time most of
the structural steel had been erected and the remaining
work to be done involved only miscellaneous ironwork such
as platforms, stairways, and handrails; at this time there
were approximately 100 ironworkers on the payroll. Man-
ager Buck also testified concerning the business consider-
ations underlying the decision to lay off ironworkers. He
stated that in order to meet the budget and at the same time
increase efficiency of operations, the number of ironworkers
would have to be cut in half. Buck stated that the first layoff
of the ironworkers in October 1977 resulted in the transfer
of a number of them to other crafts, as some had abilities to
do more than one job.
Barry Breece, the ironworker general foreman, was ad-
vised by ironworker Superintendent Gary Angel, that Re-
spondent had decided to reduce the number of ironworkers
by approximately 40 people. Breece, who was responsible
for selecting the individuals, testified that the first reduction
took place in late October and consisted of "people we
didn't want to keep," volunteers, and transfers-involving
26 employees. Breece also testified that the layoff of No-
vember 3, 1977, was necessary to meet the required 40-man
reduction in force, that additional transfers of ironworkers
to other crafts could not be accommodated, and that with
some exceptions the selections for the layoffs were made in
accordance with seniority; he then explained the exceptions
to the seniority rule. He stated that three of these men
(Dennis, Isom, and Clemons) were still working on the
night shift, that an exception was made for one man
(Mayes) because he was a leadman, that another was made
for one man (Lester) who was a connector, and that the
only other exception made was for one individual (Scott) in
order to keep a sufficient number of helpers on the job.
The General Counsel points out and argues that Respon-
dent's contention that the November 3, 1977. layoff of
Weaver's ironworkers crew was based on "the numbers" is
clearly inaccurate, and notes the admission by Foreman
Breece that exceptions were made in the cases of several
ironworkers who were on the second shift. It is further
pointed out that examination of General Counsel's Exhibits
8 and 9 reveals that no less than seven ironworkers with less
seniority than the discriminatees continued to work for Re-
spondent for various periods after the discharges here in
question. Therefore, as further argued by the General
Counsel, a minimum of 10 ironworkers (hired after the dis-
criminatees but prior to their layoff) retained their jobs de-
spite the fact that they possessed higher numbers than Run-
yon or McDougal.
After filing briefs in this matter, Respondent also filed a
motion with me seeking permission to either file a reply
brief, to reopen the record, or to strike a certain portion of
General Counsel's brief on the basis that it raises a new
issue which he failed to raise in his pleadings or at the
hearing and has "mischaracterized" the record in relation
to this new issue. Respondent further argues that the Gen-
eral Counsel alleges, on page 24 of his brief, that 10 iron-
workers with less seniority than Runyon or McDougal con-
tinued to work as ironworkers after the termination of
Runyon and McDougal on November 3, 1977; that the cir-
cumstances of 6 of these 10 ironworkers were litigated at
the hearing, at which time evidence was introduced which
explained why these 6 were not terminated before Runyon
or McDougal, but as to the remaining 4-Robert G. Wil-
liams, Terry M. Maxwell, J.H. Aldredge, and A. McEI-
haney-neither their names nor circumstances were raised
before or during trial. Moreover, as also maintained by Re-
spondent, General Counsel's inference that these four
named employees were classified and employed as iron-
workers on the Fort Howard job during the week of No-
vember 3, 1977, is a mischaracterization of the record- that
Respondent maintains weekly payroll prelists for each craft
which denote each employee classified in that craft- that
the payroll prelist for the ironworker craft for the week of
November 3 was marked as Respondent's Exhibit 6, but
was never introduced into evidence however, a witness for
Respondent did read into the record every name which ap-
peared on this list; those named on this list were the only
ironworkers employed during the week of November 3,
1977, and Williams, Maxwell, Aldredge, and McElhaney
were not on the November 3, 1977, payroll prelist. Thus it
is clear, argues Respondent, that although the four employ-
ees were initially hired as ironworkers, they' had been trans-
ferred out of the craft before the November 3, 1977, termi-
nations of Runyon and McDougal.
The General Counsel opposes the motion on the follow-
ing basis:
(1) At the hearing the parties stipulated that (en-
eral Counsel's Exhibits 8 and 9 were authentic records
kept in the ordinary course of business and which rep-
resent a complete record of Respondent's newly hired
had terminated employees between October 1, 1977
and March 1, 1978.
(2) General Counsel's Exhibits 8 and 9 were there-
after duly received into evidence for all purposes. Re-
spondent's Counsel was given an opportunity to rebut
any and all reference that could fairly be drawn from
said documents, and, in fact, offered an explanation for
six of the ten employees listed in General Counsel's
Brief Appendix A.
(3) Sections 102.35 and 102.48(d)(1) of the Board's
Rules and Regulations set out the requirements which
Respondent must allege in order to sustain a Motion to
Reopen the Record or Conduct a Rehearing. Counsel
alleges that Respondent has not specified error which
would require a trial de novo or that its proffered evi-
dence is newly discovered or only became available
after the close of the hearing. Counsel for the General
Counsel would therefore oppose these portions of Re-
spondent's Motion.
(4) Counsel for the General Counsel also opposes
Respondent's Motion for leave to file a Reply Brief
unless Respondent's proposed arguments relate to in-
accuracies in General Counsel's Appendix A. As previ-
ously stated, the records from which Appendix A was
derived were introduced for all purposes and Respon-
dent was afforded an opportunity to rebut or reply to
any inference that could be raised concerning the hire
or discharge of its employees listed thereon.
(5) In addition, Counsel states that he is unable to
locate in his brief to the Administrative Law Judge
where it is argued that the transfer of certain ironwork-
ers employees, which was not conclusively shown to
have occurred in the record, was violative of the Act or
341
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not bonafide. Indeed, Counsel for the General Coun-
sel's arguments represent only a fair reading of Gen-
eral Counsel's Exhibits 8 and 9.
General Counsel's Appendix A shows that ironworkers
William and Maxwell were still working as of November 1,
1978, and that A. McElhaney and J. H. Aldredge were also
still working during the period in question. However, from
the record and exhibits before me, I am unable to specifi-
cally ascertain the exact status of these four ironworkers on
the dates in question; there is some testimony in this record
indicating that five or six ironworkers with less seniority did
remain on the jobsite, and explanations were given as to
why they remained. In evaluation of this testimony it may
well be that the four ironworkers here in question had been
transferred out of the craft prior to the November termina-
tions of Runyon and McDougal. But in view of the fact that
Respondent did not introduce Respondent's Exhibit 6, and
on the basis that General Counsel's Exhibits 8 and 9 were
received into evidence (and out of which Appendix A was
compiled), I must conclude that the General Counsel could
reasonably draw adequate inference from all such circum-
stances in this record to sustain his argument that the four
men here in question were still employed in the ironworker
craft on the jobsite as of November 3, 1977. On this basis,
and for the other reasons stated by the General Counsel, I
hereby deny Respondent's motion. However, in the final
analysis, I place little or no reliance on the contentions and
arguments that these terminations were based on seniority.
In fact, Foreman Breece admitted that only "to a degree" is
there a seniority system of any kind at the Fort Howard
project. Furthermore, various exceptions involving particu-
lar skills were also pointed out wherein such employees
with less seniority were retained while older employees
were discharged.
As detailed earlier, Foreman Walter Menees informed
Runyon that he had received word from Supervisor Barry
Breece that management knew Runyon was active in union
activities, and that they would have to let him go in the next
layoff. Breece did not confirm or deny these statements at-
tributed to him, and therefore this record stands with at
least one open admission by management that Runyon was
discharged because of union activities. Likewise, McDougal
was informed that he would be discharged for union activi-
ties. Foreman Weaver readily admits to such a conversation
with Supervisor Gray Angel and passing on the message to
McDougal; Angel's remarks to Weaver in these respects are
undenied. Breece also testified that in a conversation ap-
proximately I week before the November layoff, Gray An-
gel told Weaver that McDougal was "going to make a fine
man, you know, make a good foreman," and Breece also
stated in his testimony that he felt McDougal was a good
man.
It is, of course, readily understood and accepted that as
the Fort Howard project reached the completion stages,
employees in the craft would be laid off at various times
depending on all circumstances then existing, and eventu-
ally McDougal and Runyon would be included in such le-
gitimate reductions in force unless they were successful in
transferring to other jobs, as admittedly frequently hap-
pened on this project. However, for the reasons previously
set forth, I am convinced that the real motivating factor
triggering the discharge of McDougal and Runyon on No-
vember 3, 1977, was based on their union activities; I there-
fore find that Respondent's discharge of employees D.D.
McDougal and Gregg Runyon violated Section 8(a)(3) and
(I) of the Act.
It is alleged that Respondent discriminatorily terminated
the employment of eight millwright employees on January
7, 1978.' All of these employees worked on the night crew
of Foreman Scott Shell. It appears that during October
1977, Foreman Warren Harrell approached him about be-
coming a crew foreman, and Shell then agreed and selected
the individual named below to fill his crew. Shell's crew was
first assigned to construct and erect the hood for a paper
drying machine called the "yankee dryer," and the work on
the dryer hood was completed in late November 1977.
Project Manager Buck testified that he instituted a night
shift at the jobsite so that the work schedule could be met,
and that the principal reasons requiring use of millwrights
on the night shift were the availability of the overhead
crane and safety factors.
It appears from this record that there were three mill-
wright crews on the night shift. Scott Shell and his crew had
responsibility for assembling and erecting the dryer hood,
but the erection of the ductwork was initially a joint effort
between Bill Spivey and his crew (working nights), and Rex
Lopez and his crew (working days). The third night-shift
crew of millwrights was a small group of riggers under
Foreman Ingram. In the middle of December 1977, when
the ductwork was close to completion, Foreman Spivey and
Ingram and some of their respective crew members were
transferred to the day shift; during the same period of time
several of the millwrights were terminated, but Shell's crew
remained on the night shift and continued to work on the
dryer hood, completing the job the last week they were
employed.
Foreman Scott Shell testified that in late November 1977,
he was complimented by management in the fast and effi-
cient way he and his crew had performed, and about this
time Foreman Harrell told Scott Shell "that Spivey wasn't
getting along too good and that he was afraid he wouldn't
get the duct work done in time for the schedule they had set
up, and he wanted us to get on it and help them finish it."
Foreman Shell then went to his men and asked if they
would stay on nights, and they agreed to do so although
they would have preferred to work the day shift. In fact,
Foreman Shell testified that he had several conversations
with his supervisors about returning his crew to the day
shift. He stated that shortly after the crew completed the
hood and started on the ductwork, Millwright Superinten-
dent Rhyne and Foreman Harrell told them that they could
return to the day shift when the ductwork was completed.
During the middle of December 1977, Shell testified that
Harrell told him that "he was going to get our brass
charged over so we could pick it up on Monday morning on
the day shift," but later Foreman Harrell returned and re-
ported that "[the office] had orders not to charge and brass
over," you will "have to work another week on nights."
During the next week, Shell was confronted by Superinten-
'The employees so named in the complaint are: Bryan Sickler, Lee Sick-
ler, Teddy Muskrat, William Shell, Joseph Johnson, Lee Goforth, George
Trammel, and Robert Yeager.
342
DANIEL CONSTRUCTION COMPANY
dent Jerry Rhyne near the gate, and Rhyne informed Shell
that the crew was going to have to stay on nights. Shell then
inquired, "I would like to know why. I need to tell my
people something about why they are staying on nights."
Shell further testified, "He [Rhyne] just 'hum-hawed'
around a little about, you know the reason. I can't tell you
in plain words." Shell asked him if it was union activity and
he did not say yes or no. and he said, "You know and I
know the reason." Supervisor Shell further testified that on
January 4 or 5. 1978, he had one further conversation with
Foreman Harrell, and during this conversation Harrell
stated that Shell's crew was scheduled to return to the day
shift on the following Monday to work on the roll grinder.
This conversation is corroborated by George Trammel.
On January 7, 1978, Shell's crew was engaged in the final
stages of the ductwork; late in the shift, at approximately
4:15 a.m., Shell observed Superintendent Jerry Rhyne in
their work area, and other members of his crew also noticed
the appearance of Rhyne. The crew members were all en-
gaged in ductwork on different pieces of equipment at var-
ious distances from the actual site of the ensuing conversa-
tion. Foreman Shell testified to the following conversation:
And he came up to me and I told him we were about
finished with our job we were doing and he kind of
hung his head and walked on up to me and said,
"Scotty, I am ashamed to tell you this, but they have
laid your whole crew off." I asked him what was the
problem was it our work. He said, "No, the work is
satisfactory. You have got the best crew on the job."
Said him and Warren didn't have anything to do with
it.
I asked him what was the reason. union activities
and he nodded his head yes. said yes.
Q. (By Mr Ellis) Did he say anything else?
A. Well, I told him, "I guess you know we are going
to file charges against the Company." He said, "I had
hoped we would have better partings."8
This record further reveals that other members of the
crew also overheard this conversation. Lee Sickler and Lee
Goforth were working directly above where the conversa-
tion took place, approximately 10 to 20 feet from the floor,
and during the conversation in question Goforth recorded
"bits and pieces" of what was said on the back of a Skoal
can. George Trammel, who was about 10 feet or so above
the floor, also overheard the conversation.
When the conversation with Rhyne ended, Shell yelled
up to his crew that they were laid off, and Goforth and
Sickler came down from the ductwork with the rest of the
crew. However, before they packed their tools, Goforth
took out a small notebook he used on certain occasions, and
with the aid of Sickler's memory and the Skoal can, copied
the "bits and pieces" of the Rhyne-Shell conversation onto
two pages in the notebook.9
Respondent maintains and argues that Shell's crew was
terminated because of lack of work as part of a reduction of
force, that the decision to reduce the number of millwrights
was justified, that the selection for the layoff was made on a
I Supenntendent Rhyne denied that at any time dunng the conversation
with Shell-did he indicate either by speaking or nodding his head, that the
crew was being terminated because of union activity.
9 See G.C. Exh. 4.
neutral basis, and that the decisionmaking responsibility
rested with Project Manager Buck, who initially determined
that it was time to cut back on the night shift by transfer-
ring some employees to the day shift but did not play a role
in selecting which individuals or crew would be involved.
leaving such decisions to Supervisor Rhyne. It is also
pointed out by Respondent that their initial plan was to
transfer the majority of night shift employees to the day
shift, but when it was determined that additional reductions
were necessary management attempted to find work on the
dav shift for Shell and one or two of his men. Finally it was
decided that there was not enough millwright work to ac-
commodate further transfers, and therefore when the night
shift millwrights completed their work on January 7, 1978,
they were laid off, and the night shift ended at a time when
the manpower level for the entire job was being reduced.
Respondent also maintains that the General Counsel failed
to show by substantial evidence that management had
knowledge of the millwright employees' union activity, and
that knowledge on the part of supervisors in the same
"league" with union organizers (i.e., Scott Shell) cannot be
inferred to Respondent.
Respondent also makes reference in its brief to the con-
versation between Rhyne and Shell on January 7. 1978,
wherein Shell attributed to Rhyne the nod of his head when
Shell inquired if union activities were the reason for the
layoff. Respondent argues that it is inconceivable that Jerry
Rhyne, an experienced, upper-level member of manage-
ment, would state or indicate to Shell that he and his crew
were being laid off because of union activities, even if this
was the reason for their layoff. Respondent further argues
that the witnesses the General Counsel presented to cor-
roborate Shell's testimony in this respect, were intentionally
presented to give them access to a hearing before the Na-
tional Labor Relations Board, that they were obviously
aware of what was needed to support their case and so
came up with this "fabricated story" about Jerry Rhyne
shaking his head and uttering the word "yes." Moreover.
that at the time in question there was welding and grinding
going on in the area, and therefore the noise level would
make it impossible for someone to overhear the conversa-
tion between Shell and Rhyne, and that the notes made by
Goforth do not appear to be trustworthy. In summary'
counsel for Respondent states that there is no basis in the
record for concluding that the millwrights were terminated
because of their union activity: that by December 1977, the
manpower level on the Fort Howard job was being re-
duced, that on January 7, 1978, Scott Shell and his crew
had completed their work. and that the other crews of night
shift millwrights had been disbanded. Furthermore, from
November I. 1977, to March 1, 1978, 63 millwrights were
terminated, and thus statistics confirm that there was not
only a lack of millwright work on January 7, 1978. but from
that date on the millwright work on the Fort Howard proj-
ect has substantially diminished.
In making my final conclusions as to the millwrights, I
will initially consider their union activities and whether
management had knowledge of such activities.
Lee Goforth testified that he was hired by Respondent in
August 1977. as a journeyman millwright. Goforth stated
that he realized that the organizational campaign was in
progress almost from the first day he began work, and that
343
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he personally engaged in various activities designed to aid
the organizational campaign. Among other things, he went
to union meetings, distributed union leaflets, talked with
employees about the benefits of the Union, and distributed
approximately 100 union authorization cards. It appears
that Goforth freely and openly discussed the Union with
several foremen on the jobsite. In August 1977, Goforth
told Gerald Goss, his foreman at the time, that he "thought
the job would be run a lot better and everything else with a
union in there and it would be a lot safer job." Goss did not
testify at the hearing. Goforth talked with Bill Spivey, mill-
wright foreman, in the middle of October, and this conver-
sation is documented previously herein, and found violative
of Section 8(a)(l) of the Act. In November 1977, Goforth
and Lee Sickler also talked with Joel Black, a supervisor.
Sickler and Goforth approached Black, and Goforth ex-
tended his hand to give Black a union authorization card,
and said, "I reckon you know that I am for the Union and
I would like you to sign this card;" Black immediately
jumped back and said he did not want to see them or have
anything to do with them, but that he did not care if the
other men took one. Goforth and Sickler then proceeded to
distribute cards to employees in the area, and Black re-
mained and watched their activities. Lee Sickler corrobo-
rated Goforth's account of the incident and also stated that
he knew Black was the sheetmetal foreman. Black did not
testify.
Lee Sickler stated that he was hired by Respondent in
early August 1977 as a journeyman millwright, and that in
mid-October 1977, he first observed union activities on the
jobsite.
It appears that Sickler personally engaged in the distribu-
tion of 50 to 100 union cards, took part in the distribution
of union literature, and attended union meetings. In addi-
tion, throughout the union campaign, Sickler also talked
with at least two supervisors--Joel Black and Bill Spivey.
Both conversations are previously documented herein.
Bryan Sickler was hired by Respondent on August 15,
1977, as a journeyman millwright. He testified that he at-
tended most of the union meetings. talked with employees
about the Union, contacted about 200 employees while he
was employed on the jobsite, and also passed around ap-
proximately 50 union cards to his fellow employees. Bryan
Sickler further testified that during the first part of Decem-
ber 1977, he and his brother talked with a pipefitter fore-
man at a local store; he stated that he knew the man was a
foreman because he was wearing an appropriately stripped
hard hat, and in their conversation convinced him to take a
couple of authorization cards. It is also clear from this rec-
ord that Sickler got the cards from his "psychodelic"
painted van while the pipefitter foreman was standing
nearby. The General Counsel argues that such a van would
be most noticeable and obviously quite unique for the Mus-
kogee area.
Robert Yeager was hired by Respondent in October 1977
as a millwright helper. Yeager testified that while on the
jobsite he engaged in certain union activities-he solicited
signatures on several authorization cards, attended union
meetings, and signed a union card.
William Shell was hired by Respondent near the end of
July 1977 as a journeyman millwright. He stated that
around the middle of October 1977, he became aware of the
union organizational activities on the jobsite, and that he
personally engaged in these activities-he took down names
of employees on the job, talked to employees on the job,
handed out about 30 union authorization cards, and at-
tended union meetings. This record also clearly reflects that
William Shell discussed the merits of the organizational
campaign with Respondent's Supervisor Jim Coker. This
conversation has been previously detailed herein and was
found to contain a statement showing surveillance and to
be violative of Section 8(a)(1) of the Act.
Joe Johnson was hired by Respondent in June 1977 as a
carpenter; he was then transferred to a crew which was
composed of millwright employees. Johnson stated that he
noticed union organizational activity on thejobsite after the
first union meeting he attended, and that he engaged in
several activities on behalf of the Union while on the job-
site. He testified that he talked to employees about the
Union, passed out approximately 10 union cards, and he
attended union meetings. Johnson also testified that while
on the jobsite he discussed the Union with one supervisor
and an electrical foreman, and that this conversation took
place during the second week of November 1977. Johnson
stated that he noticed a union handbill on the floor, and
that he was going to read it but the foreman said, "[you]
don't want to read that, it [is] just some of that union
trash." Nevertheless, Johnson picked it up and proceeded
to read it, and the foreman stated, "You don't want to get
involved in it. The union won't do anything but just cost
you money. You'll have to pay donations and death bene-
fits and all of that sort." Johnson replied "that [he] was a
member of the Muskogee local here and [he] knew that it
wasn't that way here." During this conversation Johnson
wore his hard hat, which had on it his craft and badge
number.
Ted Muskrat was hired by Respondent around the first
of October 1977 as a journeyman millwright. He stated that
beginning in mid-October 1977, he first observed employees
engaging in union activities, and that he too engaged in
such activities. He attended six union meetings, handed out
approximately 20 to 25 authorization cards, and spoke with
employees around the jobsite. As pointed out, Muskrat was
another of the millwright employees on Scott Shell's crew
that openly spoke about the Union, and during the middle
of October 1977 he accompanied his brother-in-law, Bill
Shell, when they spoke with Foreman Jim Coker, as afore-
stated. Coker did not testify.
George Trammel was hired by Respondent during the
middle of August 1977 as a journeyman millwright. He tes-
tified that during September 1977, he, Shell, and other mill-
wright employees began to think about organizing the job-
site, and in October 1977, he began engaging in union
activities. Initially, he took down names of employees,
talked to people about the Union and about signing autho-
rization cards, passed out handbills on the parking lot, and
solicited signatures on authorization cards. Trammel fur-
ther testified that during October 1977, while he was en-
gaged in writing down names on a list for the Union, he was
approached by Foreman Jim Coker. On this occasion Co-
ker asked, "What is this?" Trammel replied, "Well, we are
taking down a bunch of names of people on the job. We are
thinking about making a move to organize the job here.
344
DANIEL CONSTRUCTION COMPANY
Later we may even have some cards to sign," and Trammel
then asked Foreman Coker if he would like to sign a card.
Trammel stated that he also spoke with two other supervi-
sors about the Union, Bill Spivey and Joel Black. He testi-
fied that during the middle of November 1977, Trammel
approached Spivey and asked him to sign a union card.
Foreman Spivey denied that this occurred, but admitted
that on one occasion he overheard Trammel state, "That
this damn job is going union." Trammel further testified as
to a conversation with Foreman Black in November 1977.
Trammel said that he approached Black on the jobsite and
stated, "Some of the people have approached you about
signing a card and you wouldn't sign one. You made some
false statements here and I would like to discuss them with
you if you would." Black then informed Trammel that he
did not really want to talk about it, but since they were still
on breaktime he would listen. Trammel then proceeded to
tell Black about the benefits of unionization. When he was
finished Foreman Black then turned to his crewmembers
and said, "Do you people know if organized labor moves on
this job we are going to hit the road, we are going to be
dismissed. People out of the local in this area are going to
be without a job." This conversation is undenied as Black
did not testify. As indicated, it is also evident that Trammel
did not restrict his union discussions to the lower echelon
supervisors. He testified that on one occasion he also asked
General Foreman Warren Harrell if he had a book, and
then explained the Union's position on purchasing books.
On another occasion in early December 1977, Trammel
said that he was engaged in the solicitation of union cards
during breaktime, and as he handed the cards to two labor-
ers he looked up and saw Superintendent Cato staring at
him.
In addition to the individual crewmember's accounts of
their union activities, the record also reveals several other
instances when Scott Shell spoke with other supervisors
about his activities and the union activities of his crew.
Foreman Shell testified that shortly after his crew went on
nights, he had a conversation with Foreman Warren Har-
rell on the machine floor. Shell asked Harrell what he
thought about the union organizing, and in reply Harrell
stated he used to belong to a union but let his card go. Shell
informed him that if he waited around he could buy a card
for $25. This conversation also stands undenied as Harrell
did not testify. Scott Shell further testified that in Novem-
ber 1977, he had a conversation with the night Superinten-
dent Cato. Cato had called Shell aside and told him that
someone had stated that he (Shell) was passing out union
cards and that it was not on breaktime or lunchtime. Shell
told him that he had been misinformed, that he was not
passing out cards. Shell then further stated to Cato that
"my men [are] passing out cards, but it was on break time
and lunch time."
Again, there can be no serious question but that the mill-
wright employees involved herein were all extremely active
for the Union, and Respondent had specific knowledge of
their activity. On several occasions Goforth. Lee Sickler,
and Trammel informed at least two or three supervisors of
their union activity. William Shell and Ted Muskrat dis-
cussed the Union with Foreman Jim Coker, and the others
involved also made their union activities quite plain and
open to management. It would also appear that this crew
was unusually active for the Union and, as indicated in the
testimony, assumed the leadership in the organizational
campaign. Goforth distributed about 100 cards; Lee and
Bryan Sickler distributed between 50 and 100 cards; Wil-
liam Shell distributed about 30 cards; Ted Muskrat distrib-
uted 20 to 25 cards; and George Trammel passed out union
handbills on the parking lot.
The General Counsel maintains and argues that the evi-
dence in this case clearly reflects that Respondent manipu-
lated Shell's crew into staying on the night shift in order to
provide it with a quasi-justifiable excuse for their removal
from the jobsite, and that these actions were motivated by
Respondent's animus towards the crew's union activities.
Further, General Counsel maintains that the nature of the
layoff and the reason Shell and his crew were given for the
layoff plainly show Respondent's motivation, and that the
circumstances were setup to show the other night-shift em-
ployees that union organizational activities on the jobsite
would not be tolerated.
I am convinced that the actual motivating factor trigger-
ing the discharge of the millwright crew on January 7, 1978,
was based on their union activities. To find otherwise. I
would first have to ignore the fact that this entire crew was
extremely active for the Union and were the leaders in the
organizing campaign, and also made their extensive partici-
pation for the Union noticeable to all, particularly to sev-
eral supervisors. To find for Respondent I would also have
to ignore the fact that people working at thejobsite, includ-
ing immediate supervisors, considered this crew to be an
excellent one, deserving of the compliments it received. I
would further have to ignore reliable and credited testi-
mony to the effect that supervisors promised Scott Shell on
several occasions that his crew would be returned to the
day shift, and that Spivey's and Ingram's night crews were
split and returned to day work, as testified to by Superin-
tendent Rhyne, which shows that there was still work avail-
able. Moreover, I would also have to ignore that on the
night of the discharges, when specifically confronted by
Foreman Shell as to the reason for the terminations, Super-
intendent Rhyne registered agreement when Shell suggested
it was because of their union activities. This event and con-
versation were corroborated by three millwrights in the im-
mediate area, and I see no valid basis to discredited them. It
appears that they were also close enough to hear regardless
of the noise level elsewhere.
Based on the events and circumstances in this record, the
numerous and serious 8(aXl) statements attributed to su-
pervisors, and on the testimony and evidence in this record
as stated above, I am not prepared to ignore or disregard
the overriding facts outlined herein, which most assuredly
reveal that the layoff of the crew in question, was violative
of Section 8(a)(3) and (1) of the Act, and I so find.
It is also alleged that Respondent discharged its Supervi-
sor Scott Shell because he refused to carry out instructions
of Respondent to harass or discharge employee union sup-
porters or to otherwise restrain and coerce these employees
or, in the alternative, as argued by the General Counsel,
Shell was discharged in order to provide a legitimate excuse
for the termination of certain of Respondent's employees
who were engaged in union activities.
345
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Scott Shell testified that he had been a union member
(Local 1072 in Muskogee) for a number of years and was a
member of this local throughout the time he was employed
by Respondent at the Fort Howard jobsite. Moreover, there
is no question, as Shell freely admits, that he engaged in
certain activities for the Union here involved while at the
jobsite which were designed to further organization of the
Union. Even as a foreman, Shell took numerous authoriza-
tion cards to the job, passed them out, and was able to get
a good number of them signed. He also talked to the em-
ployees about the Union and even went to most of the
union meetings. He discontinued his active participation in
the union campaign when he was told that foremen were
not supposed to participate, and he remained one of Re-
spondent's supervisors until his discharge along with his
night crew on January 7, 1978.
Foreman Shell testified that he had a conversation with
Foreman Warren Harrell during the last week in December
1977. During this conversation Harrell told Shell that
"there was three or four of my men's names in the office for
union activities." Shell said that he reported this conversa-
tion to his crew, and that I or 2 days later he had another
conversation with Harrell. On this occasion Harrel told
Shell that he had four of his men's names in the office.
Harrell said the men were two Sickler boys, Lee Goforth,
and George Trammel. Harrell then stated, "If you [will lay
them off] and let the office know that I laid them off for
union activities it [will] get [you] in solid with the Com-
pany." Shell stated that he did not believe he ought to do
this, but Shell did tell the four men Harrell had named, as
well as the rest of his crew, about the conversation.
Approximately 2 or 3 days later, Shell had another con-
versation with Supervisors Harrell and Jerry Rhyne in the
field office. During this conversation Harrell asked Shell if,
"he had thought about laying the guys off' that he had
mentioned previously. Shell told him, "No."
As also pointed out, the record clearly indicates that
Shell kept his crewmembers informed about what manage-
ment was doing. Shell testified that "most of the time I
would tell them everything that was going on, try to keep
them informed about what was happening." Bryan Sickler
testified that he was informed by Shell that his name was on
the list, and George Trammel testified that he too was so
informed.
Scott Shell testified that during November 1977, he found
out that a foremen's meeting was going to take place, but he
was a little late in getting there. He stated that when he
arrived counsel for Respondent was "telling the people
about what to do and what not to do about the union orga-
nizing, do's and don'ts," and that following these remarks
Manager Buck also gave a short talk. Buck, according to
Shell, informed the foremen that, "if we seen anybody
doing any organizing, why we could always find something
else to lay him off for, fire him or reprimand him." The
General Counsel maintains that Buck's statement fit in with
the overall strategy Respondent employed to ride itself of
the union infestation at its Muskogee jobsite.
Respondent argues, inter a/ia, that even if it can be as-
sumed that Shell's testimony regarding his conversation
with Warren Harrell is truthful, Respondent did not in any
way indicate to Shell that he would be discharged if he
refused to lay off the four men. It is further argued that
Manager Buck credibly denied telling his foremen to fire
people engaged in union activity and then make up another
reason for the discharge; what Buck did tell the foremen
was that they should continue to enforce Respondent's es-
tablished rules and regulations against all employees
whether the employees were supporting the Union.
The National Labor Relations Act, specifically through
Section 2(3) and (11) and Section 14(a), withholds from
supervisors the comprehensive protection which it provides
for employees, as statutorily defined. Nevertheless, this
Board had held-with judicial concurrence-that an em-
ployer's conduct which prejudically or detrimentally affects
supervisors' interests-may constitute a proscribed unfair
labor practice where it directly infringes certain statutorily
guaranteed rights of employees. For example, the Board
has held that concerned employers may not lawfully dis-
charge or otherwise discipline supervisors because they
have refused to commit unfair labor practices against rank-
and-file workers, because such employers may wish to pun-
ish the protected activity of their supervisor's employee-
relatives, or because such conduct provides a pretext for the
termination of rank-and-file participants in concerted ac-
tivity for mutual aid or protection. The Board and court
decisions have been based primarily upon the proposition,
inter alia, that discriminatory treatment directed against su-
pervisors would likely generate fears within the concerned
employer's rank-and-file worker complement, and that like
conduct by them would lead to some like retaliation. How-
ever, discharges or discipline directed against supervisors
have likewise been found subject to statutory proscription
because such conduct persuasively demonstrates the con-
cerned employer's determination to forestall or combat
unionization--thus calculatedly interfering with, restrain-
ing, and coercing employees, with respect to their exercise
of rights statutorily guaranteed. See Fairview Nursing
Home, 202 NLRB 318, footnote 2 (1973); Heck's Inc., 170
NLRB 178, 184 footnote 8 (1968), in this connection.
The credited evidence in this record clearly reveals that
management knew of at least four employees in Shell's
night crew who were engaging in union activities, and Shell
was then told by Supervisor Harrell "to lay them off," as
aforestated. Scott also attended a meeting of the foremen,
wherein they were instructed to terminate union adherents
one way or another.' 0
It appears convincing to me that Respondent violated
Section 8(a)(1) of the Act by discharging Foreman Shell
because of his refusal to engage in unfair labor practices-
his refusal to discharge and/or layoff certain of his em-
ployee-crewmembers because of their union activities.
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
'° The facts found herein are based upon the entire record, from my obser-
vation of the witnesses and their demeanor, and upon substantial reliable
evidence, "considered along with the consistency and inherent probability of
testimony" Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496 (1951).
346
DANIEL CONSTRUCTION COMPANY
It having been found that Respondent discriminatorily
discharged Gregg Runyon. D. D. McDougal, Robert Yeag-
er, William Shell, Joseph Johnson, George Trammel. Lee
Goforth. Lee Sickler, Teddy Muskrat, Bryan Sickler, and
James Scott Shell, I shall recommend that Respondent offer
them immediate and full reinstatement to their former jobs
or, if such jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of earn-
ings they may have suffered by payment to them of the
amount they normally would have earned as wages from
the date of their termination to the date of an offer of rein-
statement. Backpay shall be computed on a quarterly basis
in the manner established by the Board in F W. Woolworth
Company, 90 NLRB 289, 291-294 (1950), with interest
thereon computed in the manner and amount prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977)."
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in conduct described in section II,
above, Respondent has engaged in, and is engaging in, un-
fair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
Upon the foregoing findings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 2
The Respondent, Daniel Construction Company, a Divi-
sion of Daniel International Corporation, Muskogee, Okla-
homa, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
' See, generally. Isis Plumbing Heating Co.. 138 NLRB 716 (1962).
12 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.
(a) Soliciting employees to engage in surveillance of
union activities.
(b) Threatening employees that the job would be shut
down because of union activities.
(c) Threatening and warning employees with discharges
because of union activities.
(d) Creating the impression that union activities are un-
der surveillance.
(e) Threatening loss of work and other benefits because
of union activities.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the National Labor Relations Act, as
amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to the people named above immediate and
regular full-time employment without prejudice to their se-
niority, or other rights and privileges, and make them whole
for any loss of earnings they may have suffered by reason of
the discrimination against them in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Decision.
(c) Post at its place of business and construction site,
copies of the attached notice marked "Appendix."' Copies
of said notice, on forms provided by the Regional Director
for Region 16, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
'J 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."
347