Hale and Sons ConstructionDownload PDFNational Labor Relations Board - Board DecisionsAug 12, 1975219 N.L.R.B. 1073 (N.L.R.B. 1975) Copy Citation HALE & SONS CONSTRUCTION MSW Construction, Inc. d/b/a Hale and Sons Con- struction and International Union of Petroleum and Industrial Workers, AFL-CIO, affiliated with Seafarer's International Union of North America, AFL-CIO. Case 31-CA-4894 August 12, 1975 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND PENELLO On June 13, 1975, Administrative Law Judge Irv- ing Rogosin issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief. The General Counsel filed an answering statement. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, MSW Construction, Inc. d/b/a Hale and Sons Construction, Fellows, Califor- nia, its officers , agents, successors , and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board 's established policy not to over- rule 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 (C.A. 3, 1951 ). We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE IRVING RoaosIN, Administrative Law Judge: The com- plaint , issued December 20, 1974 , alleges that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, as amended. 1073 Specifically, the complaint alleges that Respondent (1) on or about November 14, 1974, by its supervisor and agent , S.E. Hale (a) interrogated an employee about his union activities and those of other employees, (b) threat- ened to close its business to discourage union activities of its employees, and (c) created the impression upon employ- ees that it was keeping their union activities under surveil- lance ; (2) on or about November 18, by its president and agent, Marvin "Gene" Hale, threatened to close its busi- ness and discharge union adherents to discourage union activities of its employees, thereby interfering with, re- straining, and coercing its employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(a)(1), of the Act; and (3) on or about November 19, ter- minated the employment of Randy Farmer and Phil Stepp, and has since failed and refused to reinstate them because they had engaged in union or other concerted activities, thereby discouraging membership in a labor organization in violation of Section 8(a)(3) of the Act. Respondent's answer admits generally the procedural and jurisdictional allegations of the complaint but denies the remaining allegations and the commission of unfair la- bor practices.' Pursuant to due notice, a hearing was held before me on February 13, 1975, at Bakersfield, California. The General Counsel was represented by counsel; Respondent, by lay representatives; and the Union, by an International organ- izer . All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce oral and documentary evidence relevant and material to the issues, to argue orally, and to file briefs and proposed find- ings of fact and conclusions of law. The General Counsel and Respondent filed briefs on March 13, 1975. No pro- posed findings of fact or conclusions of law have been filed by any of the parties. Upon the entire record in the case and, based on the appearance and demeanor of the wit- nesses , and the briefs of the parties, which have been duly considered, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleges , Respondent's answer admits, and it is hereby found that, at all times material herein, MSW Construction, Inc. d/b/a Hale and Sons Construction,2 a California corporation, has been engaged in the business of leasing equipment and furnishing personnel to its custom- ers engaged in the business of drilling for oil. In the normal course of its business operations, Respondent annually re- 1 Designations herein are as follows: The General Counsel, unless other- wise stated or required by the context, his representative at the hearing: MSW Construction, Inc. d/b/a Hale and Sons Construction , Respondent, the Company, or the Employer ; International Union of Petroleum and In- dustrial Workers , AFL-CIO, affiliated with Seafarer 's International Union of North America , AFL-CIO, the Charging Party or the Union ; the Nation- al Labor Relations Act, as amended (61 Stat. 136, 73 Stat . 519, 29 U.S.C Sec. 151, et seq.), the Act ; the National Labor Relations Board , the Board. The original charge was filed on November 20, 1974, and served the follow- inq day . Unless otherwise indicated , all events occurred in 1974. The name of Respondent has been corrected to conform to the evidence adduced at the hearing 219 NLRB No. 175 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceives gross revenues in excess of $50,000 from sales to its customers , Getty Oil Company and Standard Oil Compa- ny, firms which meet both the Board's direct inflow and outflow jurisdictional standards. The complaint further alleges , Respondent's answer ad- mits, and it is hereby found that, at all times material here- in, Respondent has been an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Petroleum and Industrial Work- ers, AFL-CIO, affiliated with Seafarer 's International Union of North America, AFL-CIO, the Union herein, is, and at all times material herein has been, a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion Marvin Eugene Hale, familiarly called Gene Hale, presi- dent of MSW Construction, Inc., is the sole proprietor of the business operated as Hale and Sons Construction. S. E. Hale , a son, is vice president of the corporation and superintendent of Hale and Sons Construction , second in authority to his father. There is no issue as to the superviso- ry or agency status of either of these individuals. During October and November, Warren Weisenberger, an International union organizer , began recruiting mem- bership among employees of Respondent and other em- ployers in the area . Weisenberger used as his base of opera- tions the McKittrick Cafe, located in the town of that name , some 14 miles from Respondent 's yard in Fellows, California . It was common knowledge that this cafe, as well as the market across the way, was patronized by Respondent's employees while en route to jobsites at the Getty Oil Company and Lost Hills oil leases. On or about November 1, Phillip Stepp, a welder, and Randy Farmer, a roustabout, both alleged herein to have been discriminato- rily discharged, signed authorization cards at McKittrick designating the Union as their representative. On or about November 13, at Stepp's invitation, Weisenberger went to Stepp 's home to explain the advantages of union affiliation to a group of 15 or 16 employees of construction compa- nies in the area, including 8 or 10 employed by Respon- dent . Several of those present signed authorization cards at this meeting. Next day, Superintendent S. E. Hale, accompanied by Foreman Jerry Shaw, approached Stepp while he was working at the Getty Oil lease jobsite and told him that he understood that there had been a union meeting at Stepp's home the night before . Stepp disputed that it had been a union meeting, and maintained that it had merely been an informational meeting to acquaint employees with the facts about the Union . Hale retorted, "Well, I'm telling you right here and now in front of Jerry, I am not going to go union. I'll close the gates before I do ." He then added , apparently as an afterthought , "I'm not saying I wouldn't ever go union , but I 'm not going to be the first ." Hale urged the men to take care of their equipment , stating that he was trying to replace the equipment wherever possible, and hoped that he would be able to procure a new truck for the welding equipment operated by Stepp . When Herb "Red" Watts, a gang pusher , joined the group, Hale asked him whether he had attended the meeting at Stepp's home the night before. Watts retorted, "No, don't be jumping on me." Hale admitted that he questioned Stepp about the meet- ing at his home, and that he told him that he disapproved. Although Hale , at first, denied stating that he would cease doing business rather than deal with the Union , when con- fronted with his pretrial affidavit, he reluctantly conceded that he made that statement. It is found on the basis of the foregoing that S. E. Hale interrogated Stepp regarding his union activities, and threatened to close down the operation if he were required to deal with the Union . By such statements, Respondent has interfered with , restrained , and coerced its employees thereby violating Section 8 (a)(1) of the Act. The following Monday, November 18, at or about 6:50 a.m., in a meeting lasting about 15 minutes , Gene Hale addressed between 70 and 80 employees from the back of a truck at Respondent's yard. According to Hale, the meet- ing was called to discuss safety measures , including the necessity for wearing hardhats and steel-toed shoes. Hale also took occasion to criticize employees for the length of hair some were wearing and warned that in case of acci- dent resulting from long hair, the insurance company might disclaim liability. Hale testified that he had received complaints from the Getty Oil field superintendent that employees had been arriving late at the jobsite and leaving early and that he reprimanded the group in this regard. Eventually, Hale arrived at the subject of the organiza- tional activity, and declared, "There has been a union guy going around trying to stir up trouble, but I am telling you now, I am not going to go union," adding, "I'll close the gates and let the equipment sit here and let the wheels rot off of it," and concluding, "I can last longer than you guys can." Hale also asserted that the large oil companies had al- ready notified the contractors that if they became union- ized , labor costs would increase so that the oil companies would be unable to afford to do business with the contrac- tors and would instead revert to hiring their own employ- ees. Hale also announced, "We have got a couple of trouble- makers here, and we know who they are. If anything hap- pens they are going to be the first to go.'' 3 According to Tom Richardson, a heavy equipment oper- ator, Hale discussed the pros and cons of unionization, based on some of his past experiences . In this regard, Rich- ardson testified: 3 The above findings are based on the credible and mutually corrobora- tive testimony of Stepp and Farmer . Gene Hale testified that the meeting was held solely for the purpose of discussing safety and punctuality in re- porting to the jobsite He did not, however, categorically deny the state- ments imputed to him by Stepp and Farmer . Jerry Shaw , a foreman, who was present only intermittently during the meeting , nevertheless , acknowl- edged hearing Hale mention the Union as Shaw was leaving to start work for the day. HALE & SONS CONSTRUCTION 1075 Well, he said he had some past experiences with the union like if you was to be laid off, or if there was no work you would have to go to your nearest local, which was in Bakersfield, and be on the work list to go out on a job. And he also said about the union that like now without the union an operator or a roustabout can go out and drive a truck or equipment, but with the union, you have to be in that separate union to do that. Without passing on the accuracy of Hale's purported understanding of the effect of union conditions on employ- ment opportunities and, assuming that, viewed as a pre- diction of the consequences of unionization, the statement could conceivably be protected as free speech, the fact re- mains that Hale did not categorically deny the threat to close his operation if the Union were successful in organiz- ing Respondent's employees. Nor did he deny stating that he was aware of the identity of the "troublemakers," and that they would be the first to be discharged. It is, therefore, found that, by Hale's statements to the employees of the effect of unionization upon the continued operation of the business and the threat to discharge the two union proponents, of whose identity he claimed to be aware, thereby creating the impression that he was main- taining surveillance of employee's union activities, Respon- dent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, in viola- tion of Section 8(a)(1) of the Act. Monday night, November 18, Union Representative Weisenberger was having his dinner at a bowling alley in Taft, when Gene Hale, who testified he was there on his regular bowling night, approached Weisenberger and asked, "Are you that character that's trying to organize those people into the union out at Hale and Sons?" Weis- enberger asked Hale who he was, having concluded from his questions that he was not an employee. Hale identified himself as the owner of the business, and spoke of the meeting that had been held the night before. Referring to the employees as "longhairs," Hale told Weisenberger that he had hired the employee, at whose home the meeting had been held, as a roustabout and trained him as a welder, an obvious allusion to Stepp, that he would get rid of him as well as all the "longhairs," and replace them with "back- holes." 4 As Hale left, he told Weisenberger, "If you harass me any more, I'll have you in court." Concluding that Hale meant to discharge Stepp, Weisen- berger called on Stepp and informed him that on the basis of his conversation with Hale, he would probably be dis- charged. Weisenberger advised Stepp to notify him as soon as that occurred. The following evening, Stepp telephoned Weisenberger's home and left word that he had been dis- charged. Hale admitted his encounter with Weisenberger on the occasion in question and, although he had no recollection of the details of the conversation, conceded asking Weisen- berger if he was the union representative. According to Hale, his meeting with Weisenberger at the bowling alley was a chance encounter. Be that as it may, there can be no 4 A type of equipment used by Respondent. doubt that Hale took the-occasion to discover the identity of the union representative and to attempt to dissuade him from pursuing the unionization of Respondent's employ- ees. Since Hale should reasonably have expected that Weisenberger would relay his statements to the employees, as, indeed, he subsequently did to Stepp, it is found that Hale's statements to Weisenberger constituted interfer- ence, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. B. Discrimination in regard to Hire and Tenure of Employment 1. The discharges of Stepp and Farmer On November 19, the morning after Hale's encounter with Weisenberger, at or about 6:55 a.m., Stepp and his crew left the company yard in the welding truck for their destination at the Getty Oil jobsite. With Stepp, who drove the truck were Randy Farmer, Matt Davis, Pat Latrelle, and two other employees. Another truck, referred to as the gang truck, operated by Herb "Red" Watts, a gang pusher, left with another crew at or about the same time. At or about 7:15 a.m., en route to the oil field, the men in both trucks stopped at the McKittrick cafe as they usually did, Stepp and Latrelle entered the cafe while Farmer and Da- vis remained in the truck. About the same time, Gene Hale arrived in McKittrick in his truck, which he parked at a gas station across the street from the cafe. He was joined soon afterward by Charles Beard, the owner of General Production, another contractor, whose employees the Union was attempting to organize .5 When Hale arrived on the scene about 7:15 a.m., he observed two company trucks, one parked at the McKit- trick market, the other, the welding truck, which Matt Da- vis was driving around the gas station in circles. Hale repri- manded Davis for driving the truck, which Stepp usually operated, and for the manner in which the truck was being driven. Hale reminded Davis that the crew was supposed to be on the job at 7:30, and asserted that they would not be at the jobsite on time. At that point, Farmer, who was in the truck with Davis, interjected that they were waiting for Stepp, and that since he, Farmer, was not driving the truck, he was not going to "take an ass-chewing from me or no- body else." Shortly afterward, Stepp and Watts left the cafe and crossed the street to the market. When they had completed their errand, Stepp, Latrelle, and a third em- ployee got back into the truck. Hale called out to Latrelle that he wanted to talk to him but changed his mind and 5 According to Beard, he had gone to McKittnck to see whether he could meet the union representative . Beard admitted that he had put on a hardhat and work clothes , pretending to be an employee . Since Beard was admitted- ly aware that Weisenberger used the cafe frequented by employees to solicit membership, it is more likely that Beard's purpose was to keep the union activities of his employees under surveillance rather than , as he testified, because he wished to see who the union organizer was who had allegedly told his employees that Beard wanted to "go union ." The General Counsel contends that , like Beard, Lane was in McKittrick to maintain surveillance over the union activities of his employees . While the matter is not altogether free from doubt, in view of Hale 's expressed concern that the employees were not reporting to the jobsite on time , it is found that he was not engag- ing in surveillance of his employees' union activities. 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said he would talk to him later . Hale said nothing to Watts at the time, claiming that he had previously warned him about being on time. Admittedly, however, Hale did not rebuke Stepp because , he testified , he did not want the crews to lose any more time . At or about 8 o'clock, Hale called his son, S . E. Hale , on the shortwave radio at the Midway lease , and told him to bring Farmer in and give him his check because he was "abusing the equipment," and had "got smart with him ." S. E. Hale went to the Get- ty Oil lease and asked Farmer what had happened . Farmer told him that Gene Hale had "chewed his butt out," and nobody was going to do that , underscoring his resentment with an obscene remark . When Farmer asked S . E. Hale to find out whether he had been discharged , Hale said that his father had told him to discharge the "blond-headed kid," but that since he did not know which one his father meant, would permit him to work the rest of the day. At or about 3 o'clock that afternoon, when S. E. Hale returned to the office , he learned that Stepp, too, was to be discharged . On instructions from Gene Hale , S. E. Hale delivered final paychecks , which included wages for Mon- day and Tuesday, the 2 days they had worked that week, to Farmer, Stepp , and Watts . Neither Farmer nor Stepp was told the reason for his discharge at the time. Watts , howev- er, was subsequently rehired. Soon after Farmer was discharged, S. E. Hale encoun- tered Lawson Farmer, Randy's father, at the Getty Oil Company office. Lawson Farmer, a longtime Getty em- ployee , had known Gene Hale for about 15 years. S. E. Hale told Farmer that if Randy "would stick his pride in his pocket and go and talk to [Gene Hale] that he might ... get his job back ." During the conversation , S. E. Hale remarked that Gene Hale had mistaken Randy for "the welder," an obvious allusion to Stepp . Farmer conveyed the message to his son , who later called Gene Hale, and told him of his father's conversation with S. E. Hale. Al- though, according to Gene Hale, Randy did not actually ask for his job, he understood that that was the reason for the call . Gene Hale admittedly asked Randy whether he had reported him to the Labor Board, testifying that he did not believe Randy would have done it. When Farmer con- ceded that he had "turned him into the union ," Hale told Farmer that he was expecting a Board agent the following morning, that he did not know where he stood, and would have to wait until he had talked to her. Farmer also quoted Gene Hale as saying that when he discharged Farmer and Stepp he was under the impression that they were the "main instigators of the union," but that they would be obliged to prove that he had discharged them because of their union activity .6 6 The above findings are based on the credible testimony of Lawson and Randy Farmer, corroborated by Randy 's mother who , at his request, had listened in to the conversation on an extension at their home . Hale acknowl- edged that Randy Farmer had called him , and that he had asked -him if he had turned him in to the labor commission . Hale did not deny the remain- ing statements attributed to him by Randy and Betty Farmer, his mother. Incidentally, Hale acknowledged that he still had this account at the time of the hearing. Contentions and Conclusions regarding the discharges 1. Farmer Respondent contends that the record fails to establish that it had any knowledge of Farmer's union activity at the time of his discharge. While there may be no direct evi- dence of such knowledge, the circumstantial evidence war- rants the inference that Respondent was aware of Farmer's union adherence. Gene Hale had announced at the meet- ing on November 18 that there were two troublemakers, of whose identity the Company was aware, and that if any- thing happened they would be the first to go. S. E. Hale had concluded several days earlier, in his interrogation of Stepp, that he was one of the two employees involved. Gene Hale had assumed, when he later instructed his son to discharge Farmer, that he was one of the two trouble- makers. S. E. Hale later told Randy's father that when Gene Hale had discharged Randy, he had been under the impression that he was the welder, and suggested that Ran- dy might get his job back if he contacted Gene Hale. More significantly, in his telephone conversation with Farmer, overheard by Farmer's mother, Gene Hale asked Farmer whether he had reported him to the Labor Board, and told him that, when he discharged him and Stepp, he believed that Farmer was one of the union instigators. Despite Respondent's contention that it is incredible that Hale would have made such a damaging admission, the prepon- derance of the credible evidence supports the finding that Respondent was aware of Farmer's union membership or adherence at the time of his discharge. Respondent initially rested its discharge of Farmer on the ground that he had been insolent to his employer at McKittrick on the morning of November 19. According to Gene Hale, he was in McKittrick that morning because he was concerned about the tardiness of his crews in reporting for work at the Getty Oil lease, which could have resulted in the loss of the Getty account.' It is undisputed that Farmer shouted at the men, "If you think you are going to put me out of a job," obviously referring to the Getty ac- count, "you are crazy." Whether this remark, which Farmer apparently felt was undeserved, since he and Davis had been obliged to wait for Stepp, who was in charge of the crew, justified Farmer's retort, or whether Farmer's so-called insolence constituted sufficient ground for discharge is really not the issue. The real issue is whether Respondent discharged Farmer solely on that ground or whether it seized on the incident as a pretext to rid itself of a union adherent as a means of dis- couraging membership in the Union. The record, particularly the events previously related, amply establishes Respondent's hostility to the self-organi- zational activities of Respondent's employees. Respondent suspected, if it was not actually aware of Farmer's union membership, and believed him to be one of the two most active union adherents. Without minimizing the serious- ness of Farmer's remark and, granting that it could have furnished adequate ground for discharge, it is doubtful that HALE & SONS CONSTRUCTION 1077 Hale would have discharged Farmer, under ordinary cir- cumstances , for uttering such a remark . Considering the relatively innocuous language , given the nature of the in- dustry, viewed against the high rate of employee turnover (500 a year), and the need for qualified personnel, it is unlikely that Respondent would have resorted to such drastic action were it not for Hale's assumption that Farm- er was one of the two troublemakers whom he suspected of engaging in organizational activities . Hale testified that he decided then and there to terminate Farmer yet said noth- ing to him at the time . One would have assumed that, if Hale felt as outraged as he claimed , he would have termi- nated Farmer on the spot . Instead , he waited until after he had returned to his office , and then notified his son, who was out in the field , to terminate Farmer. As for Respondent's contention that Farmer had abused equipment, when asked to specify the equipment, S. E. Hale testified that he was referring to the welding truck, which Stepp, the welder, and not Farmer, normally operat- ed. Respondent's efforts to establish that it also relied on Farmer's excessive absenteeism , raised for the first time at the hearing, proved unavailing . Pressed to specify occa- sions when Farmer failed to report for work at the Getty Oil field, Gene Hale could recall. only one occasion and was unable to establish the date when this occurred. Fur- thermore, selected timecards, which Respondent intro- duced in evidence, established nothing more than that dur- ing the periods covered by the timecards, Farmer did not consistently work a 40-hour week. The scant and selective records offered fail to support a finding that Farmer was excessively absent from work . Moreover , since Respondent never mentioned this as a ground for discharge prior to the hearing, it must be concluded that Respondent belatedly resorted to this ground as an afterthought to conceal its illegal motivation in discharging Farmer . Significantly, nei- ther of the grounds was mentioned in the pretrial affidavits of either of the Hales or of Foreman Shaw , the sole reason for the discharge being given as Farmer's insolence toward Gene Hale . Finally, the timing of Farmer's discharge, the very day after Gene Hale denounced the Union's organiza- tional campaign and threatened to discharge the two trou- blemakers , stamps the grounds advanced for Farmer's dis- charge as specious. It is , therefore, found, on the basis of the foregoing and upon the entire record , that Respondent discharged Farm- er on November 19, 1974, and thereafter failed and refused to reinstate him, in whole or material part , because it be- lieved that he was one of two active union adherents, and not because of the reasons advanced by it. By discharging and, thereafter failing and refusing to reinstate Farmer be- cause of his union membership and adherence, Respon- dent has discriminated in regard to his hire and tenure of employment to discourage membership in a labor organi- zation , thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. Stepp Respondent contends that there is no evidence that Gene Hale, who ordered his son to discharge Stepp, had any knowledge of his union activity . The contention is without merit. There is no doubt that S. E. Hale, Respondent's highest supervisor , was aware , on the basis of his interrogation of Stepp the day after the union meeting at Stepp's home, that he was actively engaged in unioniza- tion. In view of his status in the hierarchy of management, S. E. Hale's knowledge is attributable to Respondent, even in the absence of any showing that he revealed his knowl- edge of Stepp's union activity to Gene Hale. Moreover, it is utterly unrealistic, in view of the close business and family relationship, to believe that S. E. Hale would have con- cealed this information from his father. Furthermore, Gene Hale's statements to the employees at the November 18 meeting that he was aware of the orga- nizational activity and that he had no intention of becom- ing unionized, in conjunction with his statement that there were a "couple of troublemakers," of whose identity he was aware, and that they would be the first to go if anything happened, justify the inference that he had learned from his son that Stepp was one of the "troublemakers." If any further evidence were needed, the incident of Gene Hale's encounter with Union Representative Weisenberger at the bowling alley, in which Hale mentioned the union meeting, identifying the leader at whose home the meeting had been held, as a roustabout, whom Respondent had trained as a welder, an obvious reference to Stepp, eliminates any doubt that Gene Hale was himself aware of or, at least, suspected that Stepp was a union adherent. Until the date of the hearing, the sole reason advanced for Stepp's discharge was his alleged tardiness in reporting to the Getty jobsite on November 19. Although Stepp and Farmer claimed to have arrived at the Getty jobsite, 2 or 3 miles from the McKittrick Cafe, punctually at 7:30 a.m., the time table as outlined by Gene Hale, partially corrobo- rated by Beard, as well as by Stepp and Farmer, raises some question as to whether Stepp could have arrived at the jobsite by 7:30. Assuming that Gene Hale was concerned about the pos- sibility of losing the Getty account because of the alleged tardiness of employees in reporting at the jobsite, it is evi- dent from his complaints of tardiness and absenteeism in his speech of November 18 that Hale had long been aware of these derelictions. Yet there was no showing that Hale had ever previously made the trip to McKittrick to ascer- tain whether employees were loitering there when they should have been on their way to the jobsite. It was com- mon knowledge that Respondent's employees, as well as those of other contractors in the area, habitually stopped at McKittrick for coffee and to buy food items to take with them to the oil field. While fully aware of this, Respondent tolerated this practice and took no disciplinary action against the employees until it became aware of their inter- est in self-organization. As to the claim that Stepp abused company equipment, Respondent apparently relies on an incident which hap- pened while he was driving a truck on the Lost Hills run. Stepp reported to Foreman Shaw that the truck had devel- oped a "knock." On inspection, it was discovered that there was no oil in the crank case. Although Stepp had been instructed to check the oil before each trip, he had neglected to do so. Admittedly, however, the truck was in such dilapidated condition that it required a gallon of oil 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on each one-way 100-mile trip to Lost Hills. Foreman Shaw admitted that the truck finally gave out several weeks after Stepp had ceased driving the vehicle. According to Shaw, Stepp had also carelessly driven his truck over a pipeline on several occasions , and Shaw had warned him about this , although he admittedly never re- ported the incident to Gene Hale or any other manage- ment representative prior to Stepp's discharge . Since Re- spondent was not aware of these derelictions at the time of Stepp's discharge, they could hardly have formed a ground for discharge. Respondent further contended at the hearing that a sub- stantial reason for Stepp's discharge was that he was not a certified welder, as required by law, according to Respon- dent, and had refused to submit to a test to obtain his certification even though Respondent has undertaken to make the necessary arrangements. The fact is that Stepp had been certified as a structural steel welder, and that Gene Hale had accepted this as evi- dence of Stepp's qualifications . Hale acknowledged that 90 percent of the welding work in his operation was per- formed on drain lines , which Stepp had authority to do under his certificate . Although Stepp admitted that he was not qualified to performwelding on a steam-generator, ac- cording to his undisputed testimony , none of the other welders employed by Respondent was qualified to perform this work and, on one occasion when it became necessary at the Getty oil field, an outside welder was brought in from an oil field construction work and , on one occasion when it became necessary at the Getty oil field, an outside welder was brought in from an oil field construction crew to perform this work. Moreover , according to Stepp's un- contradicted testimony , S. E. Hale had advised him after he was hired that if anyone inquired as to his qualifications he was merely to say that he was certified . Respondent also contended that while working at Lost Hills, Stepp had welded a steam line, which did not hold. Significantly, Re- spondent never mentioned any of these reasons as grounds for discharge prior to the hearing, relying solely on the alleged tardiness on the day of his discharge. It is further significant that Watts, the gang pusher, and driver of the other truck, who was discharged the same day, ostensibly for the same reason as Stepp , namely tardi- ness , his own as well as that of the members of his crew, for which he was held responsible , was subsequently rehired, later laid off, and again rehired. Respondent argues that this establishes a lack of discriminatory motive with regard to Stepp . As Respondent admits, however, there was no showing that Watts was a union adherent or sympathizer and, in the absence of such a showing, it may not be infer- red that the reinstatement of Watts indicates the absence of discrimination toward Stepp. In the absence of any co- gent explanation, it may be concluded that the disparate treatment of Stepp resulted from his known union activity. Nor does the fact that Respondent did not discharge all union adherents establish a lack of discriminatory motive against Farmer and Stepp.8 9 "An employer's failure to discharge all the union adherents does not necessarily indicate an absence of discriminatory intent as to those he did discharge." W. C. Nabors Company, 89 NLRB 583, enfd . 1% F.2d 272 (C.A. As in the case of Farmer , discharged the same day, the timing of Stepp's discharge , within days of S. E . Hale's interrogation of Stepp , and the day after Gene Hale's ex- pressed opposition to unionization, the threat to close Respondent's operation , and to discharge the "two trouble- makers" lends further support to a finding of discriminato- ry motivation. It is, therefore , found, on the basis of the foregoing and the entire record, that Respondent discharged Stepp on November 19 , and thereafter failed and refused to reinstate him, in whole or material part, because he had engaged in union activities of which Respondent was aware and disap- proved, and that the reasons advanced by it were resorted to as a pretext for eliminating a strong union activist. By so doing, Respondent has discriminated in regard to the hire and tenure of employment of its employees to discourage membership in a labor organization, thereby violating Sec- tion 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate , and substantial relation to trade, traffic, and com- merce among the several States and 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 within the meaning of Section 8(a)(1) and (3) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It has been found that Respondent discharged Phillip R. Stepp and Randell L. "Randy" Farmer, and thereafter failed and refused to reinstate them because they had en- gaged in protected union activity to discourage member- ship in a labor organization in violation of Section 8(a)(3). Normally, it would be recommended that Respondent of- fer both said employees immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, with backpay in accordance with the Board's usual policy. In Stepp's case, however, the record establishes that at the time of the hear- ing he was serving a sentence in the Kern County Jail for misdemeanor burglary, after being apprehended on Janu- 5); Duro Test Corporation, 81 NLRB 976; Stewart-Warner Corporation, 55 NLRB 593. It is not necessary, not is it ordinarily feasible to discharge or fad to recall every union member or adherent in order to discourage union activities. This may be accomplished by making "an example" of some of the union adherents. N L.R.B. v. Link-Belt Company, 311 U.S. 584, 602; N.L.R.B. v. National Garment Company, 166 F.2d 233, 238 (C.A. 8), cert. denied 334 U.S. 845; Montgomery Word & Co. v. N.L.R.B, 107 F.2d 555, 559 (C.A. 7); F. W. Woolworth Company v. N L.R.B., 121 F.2d 658, 661-662 (C.A. 2); Shedd-Brown Mfg. Co, 102 NLRB 742 (Supplemental Decision and Order, 103 NLRB 905), enfd. 213 F.2d 163, 174 (C.A. 7); Broward Marine, Inc., 112 NLRB 1443, fn. 1 (1955); Santa Fe Drilling Company, 171 NLRB 161 (1%8). HALE & SONS CONSTRUCTION 1079 ary 22, 1975. It will, therefore, not be recommended that Respondent be required to offer him immediate and full reinstatement . 9 It will, however, be recommended that Re- spondent make Stepp whole for any loss of pay he may have suffered as a result of the discrimination against him from November 19, 1974, the date of such discrimination, to January 22, 1975, the date he was apprehended, less net earnings during such period , with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 298 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will further be recommended that Respondent offer Farmer immediate and full reinstatement to his for- mer position or, if that position no longer exists, to a sub- stantially equivalent position , without prejudice to his se- niority or other rights and privileges, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him from the date of such discrimi- nation to the date of Respondent 's offer of reinstatement, less net earnings during such period, with backpay comput- ed as aforesaid. In view of the pervasive nature of Respondent's unfair labor practices , including discrimination against employ- ees, manifesting an attitude of opposition to the purposes of the Act, it will further be recommended, to protect the rights of employees generally, that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in the Act. ° Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. MSW Construction, Inc. d/b/a Hale and Sons Con- struction , Respondent herein , is, and at all times material herein has been, an employer engaged in commerce and in a business affecting commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. International Union of Petroleum and Industrial Workers , AFL-CIO , affiliated with Seafarer 's Internation- al Union of North America, AFL-CIO, the Union herein, is, and at all times material herein has been , a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By interrogating employees about their union activi- ties, sympathies , and desires ; creating the impression of keeping employees ' union activities under surveillance; threatening employees with closure of operations for the purpose of discouraging them from supporting the Union; and threatening to discharge union adherents to discourage membership in and support for the Union, Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7, thereby vio- lating Section 8(a)(1) of the Act. 9 See Gifford-Hill & Co., Inc., 188 NLRB 337, 338 (1971). 10 N.L.R. B. v. Express Publishing Company, 312 U.S. 426; N L R.B v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); May Department Stores d/b/a Famous-Barr Company v. N.L.R. B., 326 U .S. 376 ; Bethlehem Steel Company v. N.L R B., 120 F.2d 641 (C.A.D.C). 4. By discharging Phillip Stepp and Randell L. "Randy" Farmer, on November 19, 1974 , and thereafter failing and refusing to reinstate said Farmer because of their protected union activities, thereby discriminating in regard to their hire and tenure of employment , to discourage membership in a labor organization , Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(3), and has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7, thereby vio- lating Section 8(a)(1). 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby make the following recommended: ORDER 11 MSW Construction, Inc. d/b/a Hale and Sons Con- struction, Respondent herein, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Union of Petroleum and Industrial Workers, AFL-CIO, affiliated with Seafarer's International Union of North America, AFL-CIO, or in any other labor organization of its em- ployees, by discharging or refusing to reinstate any of its employees, or in any manner discriminating in regard to the hire or tenure or terms and conditions of employment of any of its employees because of their union affiliation or activities. (b) Interrogating employees about their union activities, sympathies, and desires; creating the impression of keeping employees' union activities under surveillance; threatening employees with closure of operations for the purpose of discouraging them from supporting the Union; and threat- ening to discharge union adherents to discourage member- ship in and support for the Union. (c) In any manner interfering with, restraining, or coerc- ing its employees in,the exercise of the right to self-organi- zation, to form labor organizations, to join or assist Inter- national Union of Petroleum and Industrial Workers, AFL-CIO, affiliated with Seafarer's International Union of North America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such rights may be affected by any agree- ment requiring membership in a labor organization as a 11 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. 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Randell L. "Randy" Farmer immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and priv- ileges, and make him and Phillip R. Stepp whole for any loss of earnings each 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 and determine the amount of backpay due the employees under the terms of this recommended Order. (c) Post at its place of business in Fellows, California, copies of the attached notice marked "Appendix." 12 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 31, after being duly signed by Respondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that in all other respects, the complaint be dismissed. 12 In the event that the Board's 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." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Internation- al Union of Petroleum and Industrial Workers, AFL- CIO, affiliated with Seafarer's International Union of North America, AFL-CIO, or any other labor organi- zation of our employees by discharging or otherwise discriminating in regard to the hire or tenure or terms or conditions of employment of our employees be- cause of their union affiliation or other protected con- certed activities, except to the extent authorized by the proviso to Section 8(a)(3) of the Act, as amended. WE WILL NOT interrogate employees about their union activities, sympathies, and desires; create the impression that we are keeping our employees' union activities under surveillance; threaten employees with closure of our operation for the purpose of discourag- ing them from supporting the Union; or threaten to discharge union adherents to discourage employees from engaging in union activities. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the right to self-organiza- tion, to form labor organizations, to join or assist In- ternational Union of Petroleum and Industrial Work- ers, AFL-CIO, affiliated with Seafarer's International Union of North America, AFL-CIO, or any other la- bor organization, to bargain collectively through rep- resentatives of their own choosing, to engage in con- certed activities for the purpose of mutual aid or protection, or to refrain from engaging in any and all such activities, except to the extent that said right may be affected by an agreement requiring membership in a labor organization as provided in the proviso in Sec- tion 8(aX3) of the Act. WE WILL offer Randell L. "Randy" Farmer immedi- ate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiv- alent position, without prejudice to his seniority and other rights and privileges, and make him and Phillip R. Stepp 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 the Decision entitled "The Remedy." All our employees are free to become and remain, or refrain from becoming or remaining, members of the above-named labor organization, or any other la- bor organization. MSW CONSTRUCTION, INC. d/b/a HALE AND SONS CONSTRUCTION Copy with citationCopy as parenthetical citation