H. R. McBride Construction Co.

National Labor Relations Board - Board Decisions

Feb 27, 1959

122 N.L.R.B. 1634 (N.L.R.B. 1959)

1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The unfair labor practices found herein are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX
NOTICE TO ALL MEMBERS OF DISTRICT 50, UNITED MINE WORKERS OF AMERICA
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT cause or attempt to cause The Herbert Chemical Company,
its officers, agents, successors, or assigns to discharge, to lay off, to reduce
the seniority of, or otherwise to discriminate against its employees within the:
meaning of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner restrain or coerce employees
of the above-named Employer, its successors or assigns, in the exercise of the
rights guaranteed in Section 7 of the Act, except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a)(3) of the Act.
WE WILL notify the above-named Employer in writing and furnish a copy
to William Herman that we have withdrawn our objections to the full rein-
statement of Herman to his appropriate standing on the seniority list.
DISTRICT 50, UNITED MINE WORKERS OF AMERICA,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
H. R. McBride d/b/a H . R. McBride Construction Company and
International Hod Carriers' and Common Laborers ' Union,
Local No. 16 , AFL-CIO. Case No. 33-CA-476. February 27,.
1959
DECISION AND ORDER
On November 25, 1958, Trial Examiner Howard Meyers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that he cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board I has reviewed the rulings made by the Trial Exam-
iner at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
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 Leedom and
Members Bean and Jenkins].
122 NLRB No. 184.
H. R. McBRIDE CONSTRUCTION COMPANY 1635
In agreeing with the Trial Examiner that the Respondent violated
Section 8 (a.) (1) of the Act, we rely not only on the assault of
October 30, which was witnessed by employees of the Respondent,
but also, as did the Trial Examiner, upon the other assaults de-
scribed in the Intermediate Report, even though they were not wit-
nessed by the Respondent's employees. With respect to such other
assaults we find, in view of the relatively small. size of the project
and community where they occurred and their proximity in time
to the assault of October 30, that the Respondent's employees could
reasonably be expected to become aware of them. Moreover, even
assuming absence of knowledge by the Respondent's employees of
such other assaults, we nevertheless find that the violence and threats
of violence employed by the Respondent violated Section 8(a) (1)
of the Act because it was destructive of the rights guaranteed em-
ployees in Section 7 of the Act.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, H. R.
McBride d,/b,/a, H. R. McBride Construction Company, Farmington,
New Mexico, his agents, successors, and assigns, shall:
1. Cease and desist from interfering with, restraining, or coercing
his employees by assaulting, threatening to assault, or by vilifying
persons who are engaged in peaceful and lawfully protected picket-
ing at his place of business, or at any of his job sites, or by engaging
in any like or related conduct.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post in Respondent's place of business and at its various job
sites, located in and about Farmington, New Mexico, copies of the
notice attached hereto marked "Appendix." 3 Copies of said notice,
to be furnished by the Regional Director for the Sixteenth Region
(Fort Worth, Texas), shall, after being duly signed by the Re-
spondent, be posted immediately upon receipt thereof, and be main-
tained for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other ma-
terial.
2 Anchor Rome Mills Inc ., 86 NLRB 1120.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted in this notice for the words "Pursuant to a Decision
and Order" the words "Pursuant to a Decree of the United States Court of Appeals,
Enforcing an Order."
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for the Sixteenth Region in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, I hereby notify my employees that :
I WILL NOT interfere with, restrain, or coerce my employees by
assaulting, threatening to assault, or vilifying picketeers of the
International Hod Carriers' and Common Carriers' Union, Lo-
cal No. 16, AFL-CIO, or picketeers of any other labor organ-
ization who are engaging in peaceful and lawful protected
picketing at my premises or at any of my job sites, or by en-
gaging in like or related conduct.
All my employees are free to become or remain members of any
labor organization or to refrain from such action, except to the
extent that this right may be affected by an agreement in conformity
with Section 8(a) (3) of the amended Act.
H. R. McBRIDE D /B/A H. R. MCBRIDE
CONSTRUCTION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed on March 19 and March 21,
1958, respectively, by International Hod Carriers' and Common Laborers' Union,
Local No. 16, AFL-CIO, herein called the Union, the General Counsel of the Na-
tional Labor Relations Board, herein respectively called the General Counsel I
and the Board, by the Regional Director for the Sixteenth Region (Fort Worth,
Texas), issued a complaint, dated August 13, 1958, alleging therein that H. R.
McBride, d/b/a H. R. McBride Construction Company, herein called Respondent,
had engaged in and was engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act.
Copies of the charges and complaint, together with notice of hearing thereon,
were duly served upon Respondent and upon the Union.
Specifically, the complaint alleged on certain named dates Respondent, through
its officers and agents, engaged in certain stated conduct which interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
'This term specifically includes counsel for the General Counsel appearing at the
hearing.
H. R. McBRIDE CONSTRUCTION COMPANY 1637
On August 20, 1958, Respondent duly filed an answer denying the commission
of the unfair labor practices alleged.
Pursuant to due notice , a hearing was held on September 30, 1958, at Farming-
ton, New Mexico, before the duly designated Trial Examiner . All parties were
represented by counsel and participated in the hearing . Full opportunity was
afforded all parties to be heard, to examine and cross-examine witnesses, to in-
troduce evidence pertinent to the issues , to argue orally at the conclusion of the
taking of the evidence , and to file briefs on or before October 20 , 1958.2 At the
conclusion of the taking of the evidence , Respondent's counsel moved to dismiss
the complaint for lack of proof. Decision thereon was reserved. The motion is
disposed of in accordance with the findings , conclusions , and recommendations
hereinafter set forth . Briefs have been received from the General Counsel, from
Respondent , and from the Union which have been carefully considered.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
I. RESPONDENT 'S BUSINESS OPERATIONS
H. R. McBride , d/b/a H . R. McBride Construction Company , a New Mexico
corporation , has its principal offices and place of business at Farmington, New
Mexico, where it is engaged in the general construction business . During the
12-month period immediately prior to the issuance of the complaint herein, which
is a representative period, Respondent provided and performed construction services
for others valued in excess of $50,000, at points located outside the State of New
Mexico. During the aforesaid 12-month period Respondent provided and per-
formed services to Mountain States Telephone & Telegraph Company , at Farm-
ington, New Mexico , valued in excess of $200,000 , whose gross receipts during
said 12-month period exceeded $ 200,000.
Upon the above undisputed facts, the Trial Examiner finds that during all times
material Respondent was, and now is, engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the Act for the Board to assert
jurisdiction in these proceedings.
II. THE LABOR ORGANIZATION INVOLVED
International Hod Carriers ' and Common Laborers ' Union, Local No. 16, AFL-
CIO, is a labor organization admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint, and coercion
1. The pertinent undisputed facts 3
In June 1957 ,4 Joe Bermudez , the Union's secretary-treasurer, and a committee
representing the Building Trades Council called upon H. R. McBride , the sole
2 At the request of Respondent 's counsel , the time to file briefs was extended to Novem-
ber 7, 1958.
s Respondent called no witnesses.
4 Some evidence was received relating to events occurring more than 6 months before
the filing of the charge herein and the service of a copy thereof. Said evidence was re-
ceived , not as a basis for any findings of unfair labor practices , but solely for such effect
it might have in elucidating, evaluating , and explaining the character and quality of
Respondent 's alleged illegal conduct after the cutoff date. It is well settled that Sec-
tion 10 ( b) of the Act allows consideration of related acts transpiring prior to the statu-
tory limitation date for the purpose of throwing light on the specific conduct within the
period in issue . N.L.R.B. v. Fredrica Clausen, etc ., 188 F. 2d 439 (C.A. 3); N.L . R.B. v.
General Shoe Corporation , 192 F . 2d 504 ( C.A. 6) ; Superior Engraving Company v.
N.L.R.B ., 183 F . 2d 783 ( C.A. 7) ; N.L.R .B. v. White Construction and Engineering Co.,
Inc., 204 F . 2d 950 ( C.A. 5) ; N . L.R.B. v. Ozark Dam Constructors, etc., 203 F. 2d 139
(C.A. 8) ; Banner Die Future Co., 109 NLRB 1401 ; Florida Telephone Corporation,
88 NLRB 1429: Sun Oil Company, 89 NLRB 833. It is also well settled that to prove
Respondent had engaged in unfair labor practices it must be shown that the acts and
conduct relied upon occurred within the 6 -month period or extended into said period.
Joanna Cotton Mills Co. v. N .L.R.B., 176 F. 2d 749 (C.A. 4 ) ; Stewart-Warner v. N.L.R.B.,
194 F . 2d 207 ( C.A. 4) ; Superior Engraving Co. v. N .L.R.B., supra; Universal Oil
Products Company, 108 NLRB 68.
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
owner of Respondent, and after informing McBride what the then prevailing union
wage scales were in the area, requested him to conform to them. Apparently,
McBride did not comply with the request for the Building Trades Council and
the Union began picketing McBride's various job sites located in or about Farm-
ington, New Mexico, sometime during the latter part of June or the early part
of July.
Filiberto Baca credibly testified that: he is a paid professional organizer and
during all times material he was in the joint employ of the Building Trades Council
and the Union; from about August 16 or 17, 1957,5 until January 25, 1958, he
picketed one or more of McBride's job sites; the picket sign he carried bore the
legend, "H. R. McBride Company unfair to organized labor. Building Trades
Council, AFL-CIO"; on October 24, while he was picketing on the public highway
in front of one of McBride's projects, McBride, accompanied by his superintendent,
Blackwood, drove up to the job site in a truck at a speed of about 40 miles per
hour and steered the truck in his direction "and pretty nearly hit me"; then
McBride, after calling him foul and obscene names, said to him, "I'm gonna run
the truck over you and I'm gonna kill you, I'm gonna fight you"; when he invited
McBride to leave the job site and "fight me on [sic] the street," McBride, "called
me a couple of more bad names" and "went into his office"; and during the above-
described name calling, and other antics of McBride, there were one or two em-
ployees working inside the building.6
Baca credibly testified that the next day, October 25, the following incident took
place while he and Carmen Gonzales were picketing the same job site:
he [Gonzales] was carrying the sign like I did, and we [had] . . . the truck
parked across the road and Mr. McBride was coming in back and Carmen
was carrying the sign and I was watching to see if Mr. McBride was going
to run the truck on [sic] him and when Mr. McBride saw me-I was standing
over there by the truck, he said "you s- o- a b-, you stink" and
I says "you so and so."
On October 29, when a truck load of steel approached the aforementioned job
site, Baca displayed his picket sign. Thereupon, the driver of the truck did not
deliver the steel but instead "went back."
On October 30, when another truck load of steel approached near where Baca
and George Jenkins were picketing the same McBride job, the driver of the truck
stopped across the street from the project and Baca went over to the truck to
ascertain the license number thereof. While Baca was so engaged, McBride's
superintendent, Blackwood, went over to where Baca and the truck were and said
to Baca, "You didn't do so good yesterday, you no-good low-down b s
o a b-, I'm gonna kill you, I'm going to run the truck over you." There-
upon, according to Baca's credible testimony the following ensued:
he [Blackwood] had his truck parked at the top of the hill. . . . He said
[to me] "you and every union man, are nothing but low-down b- s
o- a b-, I'm gonna get every one of you, I'm gonna run this truck
and I'm gonna hit you and kill you." I say, "if you try to do that, I'll have
you arrested." and He said, "you can't do it." Then I pointed to the sign
and I said, "we are not no-good low-down, b's, we are people like you are,
and besides we are not scared." And then he said, "You low-down b
s- o- a b- too," and then I pointed to . the sign and he says,
"unfair" and he says, "that sign don't mean a f- thing to me, I don't give
a damn what kind of sign you have" . about that time Mr. Blackwood
is gonna get a wrench or something to hit me. I don't have nothing but
a can opener so I get my can opener and he backed off-then he went in his
truck . . . and he drove the truck and pretty near got my leg so I jump on
top of the curb and gutter . . . and I was caught between the truck load of
steel on this side and he said, "you s- o- a b-, I'm going to kill
you, I'm gonna beat the s- out of you," about that time the truck driver
[of the steel truck] says, "go to it, beat the hell out of these union s
o- a b-," and then two of McBride's employees-an old fellow and
[a] young fellow-every time-they say you so and so s- o- a b-.
. One of them [the employees] come and [attempted] to hit me and the
old fellow told him, "no," but the truck driver [of the steel truck] and this
6 Unless otherwise noted all dates hereinafter mentioned refer to 1957.
6 The record indicates, and'the Trial Examiner finds, that the employees working inside
the building were not cognizant of the aforementioned McBride-Baca incident.
H. R. McBRIDE CONSTRUCTION COMPANY 1639
young fellow come and [attempted ] to hit me too . . . . They didn ' t hit me
because about that time the other picket , Carmen Gonzales was coming out
and they stopped at that point.?
On December 4, while Baca and Joe Wilkins were picketing a high school con-
struction job McBride was then performing , McBride drove up in a truck. After
stopping the truck and after calling the picketeers filthy names and threatening to
assault both of them, McBride picked up a wrench and threatened to hit Baca
with it . Baca then pulled out a knife and held the blade near McBride's heart.
After Baca had released McBride, the latter then went to the truck he had been
driving , picked up a "trailer leg" and threatened to assault Baca with it. McBride
and Baca again came to "grips " and the former was released by Baca when "he
started crying."
On January 9, 1958, while Baca and another person were picketing the high
school construction job, McBride drove up in a truck and , after calling the
picketeers filthy names , said to Baca , "I've been thinking to kill you for a hell of
a long time but I'm afraid of the law."
Jose Rael credibly testified that: while he and Luis Trujillo were picketing a
McBride construction job in the latter part of September , McBride drove up in
an automobile , got out , and after calling him a "bad name " threatened to hit him
with the box McBride had in his hands ; he picked up a can; McBride, after
saying, "hit me first," walked over to where Trujillo was , raised "his arm and
[tried] to hit Luis and missed him and hit the [picket ] sign" thereby tearing it; he
and Trujillo immediately ceased picketing and telephoned the union hall and
reported the incident to a union official ; and later that day he again picketed the
job site and for about 3 days thereafter he picketed another McBride job.8
2. Concluding findings
Under Sections 7 and 8 (a)(1) of the Act it is an unfair labor practice for an
employer to interfere with , restrain , and coerce his employees in the exercise of
the rights guaranteed by the Act . The record , as summarized above, leaves no
room for doubt that McBride 's and Blackwood 's conduct constituted interference,
restraint, and coercion within the meaning of Section 8 (a)(1) of the Act. This
conclusion is buttressed by the fact that Blackwood 's October 30 attempted assault
upon, and vilification of, the picketeers took place in the presence of two McBride
employees , one of whom attempted to assist Blackwood in assaulting Baca and
Wilkins. Under the circumstances , and upon the entire record in the case, the
Trial Examiner finds that Respondent 's conduct , as found herein , would interfere
with , restrain , and coerce Respondent 's rank-and -file employees by indicating what
might befall them if they supported the Union , and therefore such conduct is
violative of Section 8(a)(1) of the Act.9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in con-
nection with Respondent 's operations described in section I, above, have a close,
intimate , and substantial relationship to trade, traffic , and commerce among the
several States , and such of them as have been found to constitute unfair labor
practices tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices in violation
of Section 8(a)(1) of the Act, the Trial Examiner will recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
7 Blackwood was present when one of McBride 's employees attempted to assault Baca
but he took no steps to prevent him from so doing.
8 Trujillo's version of McBride ' s attempted assault upon him and McBride ' s hitting the
picket sign he was carrying is substantially in accord with Rael's version thereto.
e Cf. N .L.R.B. v. Local 140, United Furniture Workers of America, et al., 223 F. 2d
539 (C . A. 2), enfg . 113 NLRB 815.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. International Hod Carriers' and Common Laborers ' Union , Local No. 16,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed by the Act, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Arvey Corporation (Transo Envelope Company Division) and
Printing Specialties and Paper Products Union , Local No. 388,
IPP & AU of NA, AFL-CIO, Petitioner. Case No. 21-RC--6451.
February 27, 1959
DECISION AND ORDER
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. The hearing officer's:
rulings made at the hearing are free from prejudicial error and are
hereby affirmed.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Chairman Leedom and
Members Rodgers and Jenkins].
Upon the entire record in this case , the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organizations involved claim to represent employees of
the Employer.'
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
The Intervenor and the Employer raise their contract as a bar to
the petition. They dispute the Petitioner's contention that, under the
Board's contract-bar principles enunciated in the General Extmttsion
case,2 their contract is removed as a bar by reason of changed cir-
cumstances within its term. The Employer, which operates plants
in Chicago, Illinois, and Jersey City, New Jersey, took steps in the
early part of 1958, to open the Glendale plant involved herein. On
I Display and Miscellaneous Industrial Workers Union , Local 145-B, eAllated with
Distillery, Rectifying and Wine Workers Union of America , intervened on the basis of
its contract covering the requested unit of the Employer 's Glendale, California, plant
employees.
2 General Extrusion Company , Ino., General Bronee A1lointite Products Corp., 121
NLRB 1165.
122 NLRB No. 193.