J. J. Cook Construction Co., Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1973

203 N.L.R.B. 41 (N.L.R.B. 1973)

J. J. COOK CONSTRUCTION COMPANY
J. J. Cook Construction Company, Inc. and Empire
Building Corporation and International Union of
Operating Engineers , Local 627, AFL-CIO. Case
16-CA-4733
41
or serve to remedy the unfair labor practices found 4
Accordingly, we shall delete that requirement from
the Administrative Law Judge's recommended Order.
ORDER
April 20, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On November 21, 1972, Administrative Law Judge
Thomas S. Wilson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 2 of the Administrative Law Judge and to
adopt his recommended Order with the modification
noted below.
While we agree with the Administrative Law Judge
in his finding that Respondent violated Section
8(a)(3) and (1) of the Act, we do not agree that the
facts in this case render appropriate the extraordinary
remedy proposed by the Administrative Law Judge.
In the absence of a showing that Respondent's initial
refusal to retain counsel was based on mere caprice,'
we do not find that ordering payment of the transpor-
tation expenses will effectuate the purposes of the Act
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to overrule
an Administrative Law Judge's resolutions with respect to 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,
enfd . 188 F.2d 362 (C.A 3) We have carefully examined the record and find
no basis for reversing his findings
1 The Administrative Law Judge, apparently through inadvertence, failed
to state the basis for his finding that Respondent is an employer within the
meaning of Sec 2(6) and (7) of the Act Since J J Cook Construction
Company, inc., had contracts in 1971 with the U S. Army Corps of Engineers
totaling over $200 ,000, we find the Respondent 's activities have a substantial
impact on the national defense and it will effectuate the purposes of the Act
to assert jurisdiction herein . Ready Mixed Concrete & Materials, Inc, 122
NLRB 318.
3 The Board will, in a case involving a respondent who engages in frivolous
litigation , issue as part of its order a requirement that respondent bear the
cost of the litigation of all the parties . Tudee Products, Inc, 194 NLRB 1234,
and 196 NLRB 158. (Chairman Miller dissented in Tudee II from giving such
a remedy solely on the ground that, in his view, the record failed to support
a finding that the defense asserted was frivolous) However, we do not see
how the situation involved in this matter can he deemed to fall into that
category or is analagous to it
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
Order of the Administrative Law Judge, as modified
herein, and hereby orders that Respondent, J. J.
Cook Construction Company, Inc., and Empire
Building Corporation, Oklahoma City, Oklahoma, its
officers, agents , successors , and assigns, shall take the
action set forth in the said recommended Order, as
modified below:
Delete paragraph 2(b) and reletter remaining para-
graphs accordingly.
There is no evidence that Respondent had had any prior contact with
Board procedures . Nor is there evidence that in retaining counsel Respon-
dent was attempting to gain an undue advantage by delaying the case in the
hope of making it difficult for General Counsel's witnesses to appear. Cer-
tainly, counsel's request for time to familiarize himself with the issues of the
case and prepare a defense was, under the circumstances , quite reasonable
DECISION
STATEMENT OF THE CASE
THOMAS S. WILSON, Administrative Law Judge: Upon a
charge and amended charges duly filed on April 3, May 5,
and June 1, 1972, by International Union of Operating En-
gineers , Local 627, AFL-CIO, herein referred to as the
Charging Party or Local 627, the General Counsel of the
National Labor Relations Board, referred to herein as the
General Counsel I and the Board respectively, by the Re-
gional Director for Region 16 (Fort Worth, Texas), issued
its complaint thereon dated June 16, 1972, against J. J.
Cook Construction Company, Inc., and Empire Building
Corporation, herein referred to as the Respondent or indi-
vidually as Cook Co. and Empire.
The complaint herein alleged that Respondent had en-
gaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (a)(1) and (3)
and Section 2(6) and (7) of the National Labor Relations
Act, as amended, herein referred to as the Act.
Respondent by Jack Cook on July 7, 1972, filed an an-
swer admitting certain allegations of the complaint but de-
nying the commission of any unfair labor practices. On
August 21, 1972, at the resumption of the hearing, Counsel
Harrington filed answers on behalf of Cook Co. and Empire
individually, which also admitted certain facts alleged in the
complaint but denied the commission of any unfair labor
practices. In some respects, the answers filed on August 21
conflict with admissions made in the answer of July 7, 1972.
i The term specifically includes the attorneys appearing for the General
Counsel at the hearing.
203 NLRB No. 6
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice , a hearing hereon was held before me
in Oklahoma City, Oklahoma, on August 1 , 2, and 21, 1972.2
All parties appeared at the hearing , were represented by
counsel , and were afforded full opportunity to be heard, to
produce and cross-examine witnesses , and to introduce evi-
dence material and pertinent to the issues . At the conclusion
of the heanng , oral argument was waived . Briefs have been
received from General Counsel and Respondent on October
11, 1972.
Upon the entire record in the case and from observation
of the witnesses , I make the following:
FINDINGS OF FACT
I BUSINESS OF RESPONDENT
J. J. Cook Construction Company, Inc., herein Cook
Co., is, and has been at all times material herein , a corpora-
tion duly organized under and existing by virtue of the laws
of the State of Oklahoma, having its principal office and
place of business at 5131 North Classen, Oklahoma City,
Oklahoma , and is now , and has been at all times herein
mentioned , continuously engaged in the building and con-
struction business.
Empire Building Corporation , herein Empire , is, and has
been at all times material herein , a corporation duly organ-
ized under and existing by virtue of the laws of the State of
Oklahoma , having its principal office and place of business
at 5131 North Classen, Oklahoma City, Oklahoma, and is
now, and has been at all times herein mentioned , contin-
uously engaged in the building and construction business.
The complaint herein alleged:
Respondent is composed of two corporations, name-
ly, J. J. Cook Construction Company, Inc., and Em-
pire Building Corporation, which are, and at all times
material herein have been , affiliated businesses with
common officers, ownership and directors and consti-
tute a single integrated business enterprise ; the said
directors and officers formulate and adminster a com-
2 At the opening of the hearing on August 1, 1972, upon my request for
the appearances , J J (Jack) Cook announced that he was representing each
of the corporations here involved, of each of which he was and is the presi-
dent A few minutes thereafter , while Jack Cook and General Counsel were
having trouble discussing stipulations , I suggested that , if Respondent had
an attorney cognizant of labor law, it might assist the hearing At that time,
Jack Cook rejected the suggestion with the comment that "I'm aware that it
might assist , but I feel that we shouldn't be burdened with this expense "
However, after testifying as a 43(b) witness called by General Counsel for
about 50 pages of transcript, lack Cook turned to me during a hiatus in the
proceeding with a request for a recess because he felt the need for legal
representation because, as he explained the following day, "I feel like, due
to the questions that are being put to me, that I feel like I do need to be
represented by proper counsel to keep from jeopardizing my position " The
hearing was thereupon immediately recessed until 2 p.m for that purpose
At 2.30 p.m , August 1. Respondent 's present counsel , John Hamngton,
appeared and requested a week 's postponement of the hearing in order for
him to prepare for trial I thereupon recessed for that purpose until 10 a in
August 2
On August 2, Harrington requested either a further postponement of the
heanng or permission to withdraw as counsel because he had not had
adequate time to prepare it was then mutually agreed to postpone the
hearing to August 22, which the parties subsequently agreed to advance to
August 21, at my request
After 2.30 p.m., August 1, Attorney Harrington acted as Respondent's sole
counsel.
mon labor policy for the aforenamed companies, af-
fecting the employees of said companies.
The admitted facts here disclose that Cook Co. and Em-
pire have the following officers in common:
J.J (Jack) Cook-president and owner of 75 percent of the
stock.
Ronald Johnson-vice president and owner of 23 to 25
percent of the stock.
Gary Reid-secretary.
The treasurer of Cook Co. is Jack Cook's wife, Betty H.
Cook , whereas the treasurer of Empire is Beatrice Gerhart.
The aforementioned individuals also constitute the board
of directors for the particular individual corporations.
The headquarters of Cook Co. are located in suite 101
and those of Empire in suite 106 in a building located at
5131 North Classen which is owned by Jack Cook. Suites
101 and 106 therein are separated by the first-floor corridor
of the building. Although the two corporations have sep-
arate telephone numbers , these telephones are interconnect-
ed on a common switchboard located in suite 106. Most of
the clerical employees paid by checks drawn on Cook Co.
work in 101 whereas most of those paid by checks drawn on
the Empire account work in 106 . However , the single com-
puter on which the payrolls for these two corporations are
made out is located in 106 and is used interchangeably by
all the employees. At least three-quarters of the supervisors,
as well as the Charging Parties herein , are employed inter-
changeably by these two corporations but are computerized
on the Empire payroll , and one-quarter of the supervisors
on the Cook Co. payroll are, regardless of which
corporation's work they happen to have been performing
during the pay period.; All these employees are paid by
checks according to their computerization because , as Jack
Cook expressed it, "very seldom would they switch payrolls
because it messes up the computer."
Jack Cook and/or Johnson determined whether Cook
Co. or Empire would bid in a job as general contractor.
Empire also is a subcontractor on some jobs where Cook
Co. is the general contractor.4
The type of project, according to the testimony, often was
determinative as to which corporation would be the general
contractor . "Water and sewer treatment plants and resi-
dential work, we usually do under Empire," according to
Jack Cook. Whereas schools, churches, and industrial
buildings were normally done by Cook Co . In this regard,
Jack Cook testified:
For the record, this is quite common. Several people
have multicompany operations, just because . . . with
the subcontracting situations, some subcontractors are
prepared to work open shop or some are prepared to
work union... .
Cook further amplified on this as follows:
A. A school or church would be built by Cook Con-
struction as the general contractor.
TRIAL EXAMINER Is that due to the difference in fi-
Cook also testified that, in such cases, "we usually make an intercompany
adjustment "
Some subcontracts between Cook Co and Empire appear to have been
slightly nebulous at best . When asked who decided to subcontract a certain
job of Cook to Empire, Johnson answered
Tee Wrmm I don't know that actually it was set down as a firm
decision [to subcontract ] made on that specific job But the personnel
that were going to do the job were Empire Building Corporation people
J. J. COOK CONSTRUCTION COMPANY 43
nancing?
THE WITNESS No it's mainly to meet competition.
TRIAL EXAMINER How does it help in meeting compe-
tition?
THE WITNESS Well, mainly, all residential construc-
tion is open shop. So, you can not pay union wage scale
and be competitive.
TRIAL EXAMINER. And the other . . . that would be
the work that Empire is doing, the open shop work, is
that right?
THE WITNESS. As subcontractor, yes.
TRIAL EXAMINER' And the work that Cook takes on
in its own name would be union work, is that right?
THE WITNESS In general , but not necessarily.
Thus it becomes obvious that Jack Cook and Ronald
Johnson also had a "multicompany operation" through
which they did the business requiring union conditions and
employees under the name Cook Co., while doing the non-
union or open shop business under the name of Empire. The
corporate veils cannot hide this.
Jack Cook and Johnson determine the labor policies for
both corporations although, according to them, their super-
visors do most of the hiring.
Consequently, I have no hesitation to find, as I here do,
that J. J. Cook Construction Company, Inc., and Empire
Building Corporation are affiliated businesses and consti-
tute a single integrated business enterprise.
II THE UNION INVOLVED
International Union of Operating Engineers , Local 627,
AFL-CIO, is a labor organization admitting to membership
employees of Respondent.
III THE UNFAIR LABOR PRACTICE
A. The Facts
At the time of their discharges on March 23, 1972, Wilmer
Glover and Stafford Winn had been steadily employed by
Respondent, either Cook Construction and/or Empire for
15 and 14 years, respectively. In fact, Jack Cook testified
that Glover had been the first laborer employed by Respon-
dent when it was originally organized in 1956 and had been
working ever since. Glover and Winn had been members of
either the Laborers Union or Local 627 throughout their
employment.
Originally Glover and Winn had received their pay on the
checks of Cook Co. However, after the incorporation of
Empire in 1961, they thereafter were paid on checks of
Empire. No explanation for this change was ever given the
employees. There had been no change in their work so far
as they could discern for they continued to operate on Jack
Cook's orders on work which, as this record proves, was
work being performed by Cook Co. or Empire indiscrim-
inately.5
In March 1968, when Glover and Winn were working on
a job in Bethany, Oklahoma, Business Agent Bob Willabee
came upon the premises, saw them operating heavy equip-
ment, and stated that they would have to join the Operating
Engineers to continue that work. Glover reported the inci-
dent to Ron Johnson. Johnson apparently saw the obvious
advantage in having Glover and Winn as members of the
Union because they promptly joined the Union and paid
their initiation fees with money supplied by Johnson. In-
deed, since 1970 Glover and Winn have paid their union
dues individually but have been reimbursed by Respondent
for these payments. From this it is clear that Respondent
saw considerable benefit in having these two employees
operating its heavy equipment on both union and nonunion
jobs and able to say honestly that they were members of the
Union.
However, even on that occasion, Johnson protected him-
self by saying that he could not afford to pay Glover the
union scale because he did not have that much work to do.
Despite that comment, Glover and Winn, after having
joined Local 627 under those financial arrangements, con-
tinued to work steadily as heavy equipment operators on
both Cook Co. and Empire projects until their discharge on
March 23, 1972.
Sometime in October 1971, at a project referred to in this
record as Putnam City West, apparently a housing develop-
ment and therefore a nonunion (Empire) job, Glover asked
Jack Cook if he could not draw the union scale as an opera-
tor. Cook answered that he would see. Neither Glover nor
Winn heard anything further on this proposal from Cook.
In November 1971, Glover requested Supervisor Ed Wa-
sha to ask Cook about having himself and Winn paid the
union scale for their work. Washa reported back that this
was impossible because, if Glover and Winn were raised, all
the other heavy equipment operators would have to be
raised also. Glover complained that Respondent was paying
the union scale to its white equipment operators but not to
its three black heavy equipment operators .6
In February 1972, Glover and Winn saw Jack Cook in his
office and requested a raise in pay. They pointed out that
they had requested such a raise months earlier , but that
nothing had come of it. Cook's answer was, "What do you
want to do, draw as much money as me?" Cook then an-
swered that he could not give them a raise, but that he could
give them more hours of work.
In March 1972, Glover reminded Respondent Superin-
tendent Paul Keathley, who was paid by Cook Co., that he
was a member of the Operating Engineers and thought that
he should be drawing the union scale for his work. Keathley
agreed. But nothing was done about it.
Also in early March 1972, Glover and Winn were work-
ing apparently for Cook Co., as it was a union job, at Tinker
Air Force Base when an army lieutenant came up to Glover
ment and continued working on a housing development at 63rd and Warren
Streets in Oklahoma City , a nonunion job where Empire was the general
contractor They were paid for this work , as usual , by an Empire check.
Washa himself testified that both he , Glover , and Winn worked as ordered
by Jack Cook on whatever job they were sent to without knowledge or
5 In fact, as disclosed hereinafter , in their last week of employment , Glover interest in whether it was a Cook Co. or an Empire job . Jack Cook testified
and Winn worked for Respondent on the Western Electric project , a union that on occasions an intercompany adjustment was made in such cases.
job where Cook Co. was the contractor, and immediately on its completion, 6 Actually Winn and Glover were being paid about $2 per hour less than
on orders of Respondent 's dirt supervisor , Washa, moved their heavy equip - the scale
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and inquired as to whether he was being paid the union
scale. When Glover hedged with a "yes and no" answer, the
lieutenant demanded a straight answer and received a "no."
From Tinker Air Force Base , Glover and Winn were
ordered to, and did, move with their heavy equipment to a
Cook Co. [union] job at the Western Electric project in
Oklahoma City. On or about March 17, while working at the
Western Electric job, Glover and Winn requested Washa to
call Jack Cook because they were not being paid the union
scale. Later that afternoon, Ron Johnson (Cook being out
of the office) came to the Western Electric project, had
Glover and Winn brought to the construction shed there,
and then said, "I understand that you all have some griev-
ance." Glover agreed that was so and said , "what it amounts
to is just paying me the scale . . . you've got white folks'
prices and black folks' prices out here." Johnson answered,
"Well, I will pal you the scale for the 2 days that you have
left in the hole and the 2 more, we only have 2 more days
of work here and when you get through here I don't have
anything more for you to do."8 Glover replied, "Well, ok,
I will accept it if you will pay me all my back time."
Johnson's reply was, "No, I am not talking about no damn
back time . I am talking as of 30 seconds ago." This sugges-
tion Glover refused. Johnson pulled two bank drafts out of
his pocket but did not make them out. He inquired of Winn
if he was "going with Glover?" Winn answered, "If you've
got to give him his, you might as well give me mine too."
That concluded the conversation but, as Johnson passed
Washa on his way from the construction shack, he instruct-
ed Washa "to get him two more operators for Monday
morning."9
According to Johnson's testimony, as he left the Western
Electric project, he stopped at the guardhouse there and had
the guards remove the names of Glover and Winn from the
list of employees eligible for admission to the project.
Acting upon the advice of the union business agent whom
they consulted and who stated that he would talk to Cook,
Glover and Winn reported back to the Western Electric
project as usual on Monday. The guards permitted them to
the project without question.10 They worked there all day.
At about 3 p.m. that afternoon, Washa came on to the
project and stated that he did not think anyone was working
that day except him.
Glover and Winn worked all day Tuesday at the Western
Electric project until Washa arrived in the afternoon and
ordered them to move their heavy equipment to another
project at 63rd and Warren Streets, apparently a housing
development and a nonunion (Empire) job. This they did
and worked there all day Wednesday with Washa present
on numerous occasions.
7 The "2 days in the hole" referred to the 2 working days of the past week
for which Glover had not yet been paid . Glover had also worked that Sat-
urday which under the union contract would have been at time and a half.
9 This was untrue as Supervisor Washa at the hearing named about four
projects on which Winn and Glover would have worked but for their dis-
charges
9 Washa's testimony indicated that he actually made no effort to secure
other operators until the following Friday, March 24.
10 Johnson had no explanation as to how the employees had gotten through
those gates on Monday to go to work. Winn and Glover were admitted to
the project without question
About 9 a.m. on Thursday, March 24, Jack Cook and
Washa came up to Glover and Winn as they were servicing
their equipment at 63rd and Warren Streets in preparation
for further work there. Jack Cook greeted them with "Didn't
Ron Johnson fire you all last Friday?" The men answered
that they were not fired because they had not been paid as
required by state law. Cook replied, "As far as I am con-
cerned, you were fired last Friday." The men then asked
Cook if he had not received a copy of the union contract."
Cook retorted, "Who are you going to be loyal to, to me or
to the Union?" The employees stated that they wanted
Cook to abide by the contract. Cook then inquired as to who
told them to report for work on Monday. The answer was
"Sam Martin," president of Local 627. Cook replied, "Let
Sam Martin feed you then," and instructed the men to find
themselves something else permanent to do. That ended the
employment of Glover and Winn.
Thus were Glover and Winn discharged. They have not
been reinstated since.
B. Conclusions
Judging from Respondent's "Suggested Findings of Fact
and Conclusions of Law," Respondent here appears to be
relying on about four defenses which, according to it, re-
quire a dismissal of the complaint herein. A study of these
alleged defenses shows that each is either factually errone-
ous, legally wrong, or frivolous.
Number 4 of these suggested findings reads:
4. Cook Construction and Empire are not integrated
companies.
This suggested finding is both factually and legally incor-
rect. The facts disclose that Jack Cook and Ron Johnson,
individuals, are engaged in the building construction busi-
ness under the names of Cook Co. and of Empire. Jack
Cook personally owns 75 percent of the stock of each corpo-
ration while Johnson owns approximately 25 percent of the
stock of each. Jack Cook and Johnson make the decisions
for each of the corporations. Regarding their use of the
names of Cook Co. and/or Empire in their construction
business Jack Cook's testimony quoted in full on this point,
supra, contains the following:
Q. [By General Counsel] Assuming its the type of
job that J. J. Construction would want, whose name
would you bid on it in? J. J. Cook, or Empire.
A. It all depends on the job this is the reason for the
two entities. Some work is ... .
11
THE WITNESS I mean, some work we prefer to do in
Cook Construction, some work we prefer to do in Em-
pire.
Cook could not remember that there was any mention of a union con-
tract or that he had ever seen that contract before However , Jack Cook
testified that "In general, the business agent is kind enough to tell us whether
we're violating it [the AGC-Operating Engineers agreement ) or not ." Despite
these denials, if such they were , when the employees mentioned being paid
"the scale," neither Cook nor Johnson indicated any doubt but that the
employees referred to the Union's scale of wages
J. J. COOK CONSTRUCTION COMPANY
After Jack Cook and Johnson decide under which corpo-
rate name they will do the particular project, they order the
same employees out to perform the necessary work without
regard to whether it is a Cook Company or an Empire job.
In their last few days of employment, for example, employ-
ees Glover and Winn were ordered to, and did, work at the
Western Electric project, a Cook Company or union job,
and then were ordered to a housing development at 63rd
and Warren Streets, an Empire or open-shop job. Supervi-
sor Ed Washa worked the same jobs. Washa, himself, ac-
knowledged that he never knew nor cared whether he was
working on a Cook Company or an Empire project. He, like
Glover and Winn, went where he was ordered by Jack Cook
or Johnson. All three were paid by checks drawn on the
Empire account, regardless of the project where they had
been working and regardless of who was technically the
employer, Cook Co. or Empire. Jack Cook testified that this
was so because , after an employee 's name had once been
programmed into the corporations' common computer, it
was likely to "mess up" the computer if that employee's
name were changed to another payroll. So these three em-
ployees, at least, were always paid by Empire no matter if
all their time working during that pay period had been spent
technically with Cook Co. as their employer.12 On the other
hand, Superintendent Keathley who also worked indiscrim-
inately on Cook Co. and Empire jobs was paid by Cook Co.
check.
Jack Cook was correct when he testified that "several
people have multicompany operations" in the construction
industry. In fact, Jack Cook and Johnson operate one such
"multicompany operation" under the names of Cook Co.
and Empire, one being used for projects requiring unions
and one for open-shop operations, with both being handled
for their own interests by Jack Cook and Johnson.
Respondent's brief cites the fact that each corporation
had its own stationery, telephone numbers (which just hap-
pen to be interconnected), offices (which just happen to be
across the corridor), etc. But, as the operations of Jack Cook
and Johnson were both union and open shop, both Cook
Co. and Empire were a necessary integrated requirement for
the successful pursuit of the construction business as prac-
ticed by Jack Cook and Johnson. In fact, that was the very
purpose and function of these two corporations.
Perhaps 50 years or more ago the corporate veil was
considered sacrosanct and could never be pierced. Because
of just such "multicompany operations" as that operated by
Jack Cook and Johnson, the law now permits the corporate
veil to be pierced and the phrase "corporate fiction" is now
in frequent use in the law books.
Accordingly, I have no hesitation in finding, as the facts
require, that Cook Co. and Empire were at all times material
here affiliated and integrated companies constituting the
Respondent here.13 They were also joint employers of the
Charging Parties.
The second defense raised by the "Suggested Findings"
is as follows:
12 Yet Respondent contends that there was no interchange of employees
between these two corporate entities
13 See Barwise Sheet Metal Co., Inc, a Division of A,rtron, Inc, 199 NLRB
372.
45
6. The complaining witnesses , Winn and Glover,
voluntarily left the employment of Empire.
In the light of Jack Cook's own testimony (as well as that
of Johnson), this finding is so factually wrong that it is
shocking that Respondent even makes the contention. Jack
Cook testified as follows:
A. Of course, I didn't know about the incident of
Mr. Johnson going out on Friday afternoon until the
following week. And when I did find out about it and
I called Mr. Washa and asked him why they were work-
ing when Mr. Johnson had discharged them and when
I found out they were working I went out to the jobsite
and had a conference with him and Mr . Washa and in
essence backed up Mr. Johnson terminating them. It is
beyond my knowledge why they were there when they
had been terminated. [Emphasis supplied.]
The undisputed facts prove beyond a question of a per
adventure of a doubt that Respondent discharged employ-
ees Glover and Winn, once on March 17 and again on
March 24, in fact. I so find.
Respondent 's third defense was stated as follows:
3. There is no existing collective-bargaining agree-
ment between Cook Construction and the Union.
On this point, however, Johnson testified as follows:
A. J.J. Cook Construction, Incorporated normally
does abide by the [AGC-Union] contract, yes, sir.
Cook Co. admittedly had been a member for 4 years of
the Oklahoma Chapter of the Builders Division of the Asso-
ciated General Contractors of America, Inc., and admitted-
ly AGC negotiates contracts on behalf of its members with
labor unions which are binding upon both its members and
the locals of the Union. AGC had negotiated such a con-
tract with the Operating Engineers which was binding on
both Cook Co. and Local 627. Jack Cook testified that he
was "unsure" whether Cook Co. was bound by the contract
or not. However, Cook Co.'s main function in the opera-
tions of Jack Cook and Johnson was to permit them to
operate as a union general contractor. To do this required
contracts with the Union. Although Jack Cook purported to
be perplexed as to whether Cook Co. was bound by this
contract with the Union, he testified that he had never seen
a copy of the contract. However, Cook testified that "In
general , the business agent is kind enough to tell us whether
we're violating it [the contract] or not."
I find that Cook Co. was in fact bound by the AGC-
Operating Engineers contract-although, actually, it is im-
material to the decision here as to whether Respondent was
bound by that contract or not.
The fourth and final defense, the last which needs to be
considered here, is to be found in three of the "Suggested
Findings" as follows:
1. There was no concerted activity."'
11. The Union showed no interest in support of the
claimed position of employees Winn and Glover, either
at the time of the termination of their employment, the
previous 4 years, or at the time of the hearing.
12. No fellow employees of Winn or Glover ap-
peared to have any sympathy or support for the posi-
tion of Winn and Glover.
14 Both Board and court cases are to the contrary.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Number 11, above, is factually accurate except for the
fact that it was Local 627 which filed the charge and which
also appeared at the hearing.
Although number 12 is factually accurate so far as the
record here is concerned, I am at a lost to understand why
the Respondent included numbers I1 and 12, above, be-
cause each of them is totally immaterial so far as the con-
certed activities of employees Glover and Winn are
concerned. If, perchance, Respondent considered that num-
bers II and 12 were subsidiary findings of number I and
proved a fatal deficiency in the allegation of concerted ac-
tivity, Respondent is completely mistaken as to the law on
the subject. Under the law, the interest of the Union and/or
of the remainder of the employees in the problems raised by
Glover and Winn is not prerequisite or even required for the
actions of those named employees to constitute protected
concerted activity. On this question, such are quite immater-
ial."
Of course, in view of all the testimony of all the parties,
there is, and can be, no doubt but that Glover and Winn
were discharged first by Johnson and lastly by Jack Cook.
Nor can there be any doubt but that, in each instance,
Respondent discharged these employees because they had
the temerity to ask for a raise in pay and that Respondent
abide by its agreement with the Union and pay them the
union scale. Further, there can be no doubt but that the
request for a wage increase and/or the demand that Re-
spondent abide by their collective-bargaining agreement
constituted protected concerted and/or union activity on
the part of Glover and Winn. Discharging employees for
engaging in such protected concerted and/or union activity
is, of course, a violation of Section 8(a)(1) and (3) of the Act.
I so find.
Glover and Winn were, in fact, engaged in a protected
concerted activity when requesting that Respondent either
give them a raise in wages or pay them the [union] scale for
their work for Respondent. They were likewise engaged in
a protected concerted activity and/or union activity in de-
manding that Respondent live up to its contract with the
Union by paying them the contract scale of wages. For
making such demands Respondent discharged them both,
once on March 17,16 and again on March 24.
By discharging Glover and Winn for engaging in the
above protected concerted activities, Respondent violated
Section 8(a)(1) of the Act. By discharging Glover and Winn
for grieving to Respondent that Respondent was not abid-
ing by its contract with the Union in failing to pay them
each according to the union wage scale, Respondent viola-
ted both Section 8(a)(1) and (3) of the Act. I so find. In
either case, the remedy would be the same.
15 N L R B v. Interboro Contractors, Inc, 388 F.2d 495 (C A 2, 1967).
N L R B. v Ben Pekin Corp., 452 F.2d 205 (C.A 7, 1971) N L R B v H C
Smith Construction Co, 439 F.2d 1064 (C.A. 9, 1971 ) Also see Bi-State
Warehousing, Inc and Associated Shippers, Inc, 192 NLRB 608 C & I Air
Conditioning, Inc, 193 NLRB 911. N.L R B v. Guernsey- Muskingham Elec-
tric Co-op Inc, 285 F.2d 8 (C.A 6, 1960). N L R B v. Phoenix Mutual Life
Insurance Co 167 F.2d 983 (C.A 7, 1948), cert. denied , 355 U S 845, Crown
Central Petroleum v. N L. R B , 430 F 2d 724 (C A 5, 1970) The Millgard
Corporation, 189 NLRB 533
1 Johnson's statement to them that he had no more work for them after
they completed the excavation work at the Western Electric project was
untrue as noted heretofore
IV THE EFFECT OF THE UNFAIR
LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III,
above , and occurring in connection with Respondent's op-
erations described in section I, above , have a close , intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing the free flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that they cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discriminated in regard to
the hire and tenure of employment of Stafford Winn and
Wilmer Glover on March 24, 1972, because they were en-
gaging in protected concerted activities and union activities,
I will recommend that Respondent offer each of them full
and immediate reinstatement to his former job or, if that job
no longer exists , to a substantially equivalent position with-
out prejudice to his seniority or other rights and privileges
and make him whole for any loss of pay he may have
suffered by reason of said discrimination against him by
payment to him of a sum of money equal to that which he
would have earned at the union scale rate of pay from the
date of the discrimination to the date of Respondent's offer
of reinstatement less his net earnings during such period in
accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, with interest thereon at 6 percent
per annum.
I will, in addition to the usual remedies required to correct
the unfair labor practices found above, order Respondent
to pay all the transportation costs of the General Counsel,
the union representative at the hearing , the court reporter,
and my own necessitated by the resumption of the instant
hearing on August 21, 1972, following Respondent's request
for a postponement of the instant hearing on August 2 as
noted heretofore.
As the postponement of August 2 and resumption of the
hearing on August 21 was solely at the request of, and for
the benefit of Respondent, it seems only fair that Respon-
dent, rather than the taxpayers, pay the added costs of the
instant hearing necessitated thereby.
The facts here show that Jack Cook, president of both
Cook Co. and Empire, as well as the owner and operator of
a large number of other enterprises , deliberately chose at the
opening of the instant hearing on August 1 to announce that
he personally would represent Cook Co. and Empire be-
cause , as he subsequently explained , he felt that Respondent
"should not be burdened" in this matter with the expense
of legal representation . This was a conscious and deliberate
decision of an experienced businessman who knew the im-
port of the complaint served on him on June 16, 1972.
However, after testifying for about 50 pages as an adverse
witness called by General Counsel, Jack Cook abruptly, but
also deliberately, abandoned his original position stated
above and requested the right to secure adequate legal rep-
resentation in order, as he phrased it, not to "jeopardize"
J. J. COOK CONSTRUCTION COMPANY 47
I
Respondent's position in the hearing. The granting of this
request by Cook necessitated the postponement and the
resumption of the hearing with the added expenditures
mentioned above.
Neither of these decisions can be excused on the basis of
mexperience or ignorance. The decisions were those of an
experienced businessman deliberately arrived at. Conse-
quently the added costs entailed thereby should be borne by
the requesting part, the Respondent here. It would be unfair
that the taxpayers should be burdened with the added ex-
penses caused by Respondent's own deliberate neglect.
Because of the type of unfair labor practices engaged in
by the Respondent, I sense an opposition by Respondent to
the policies of the Act in general and I deem it necessary to
order Respondent to cease and desist from in any manner
interfering with the rights guaranteed its employees in Sec-
tion 7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record herein I make the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of
employment of Wilmer Glover and Stafford Winn and by
discharging each of them on March 24, 1972, because of the
fact that they engaged in concerted protected activities, as
well as union activities in attempting to enforce compliance
with the union agreement, Respondent has engaged in and
is engaging in unfair labor practices in violation of Section
8(a)(1) and (3) of the Act.
2. By interfering with, restraining, and coercing its em-
ployees in the rights guaranteed them in Section 7 of the
Act, Respondent has interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 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 in this case, I
hereby issue the following recommended:
ORDER 17
Respondent, J. J. Cook Construction Company, Inc. and
Empire Building Corporation, Oklahoma City, Oklahoma,
its officers, agents successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating in regard to
the hire and tenure of employment or of any terms or condi-
tions of employment of any of its employees because of their
concerted and/or union activities.
(b) In any manner interfering with, restraining , or coerc-
ing its employees in the exercise of their rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Stafford Winn and Wilmer Glover and each
of them immediate and full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
position without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss
of pay he may have suffered by reason of said discrimina-
tion against him at the rate and in the manner set forth in
the section of this Decision entitled "The Remedy," with
interest thereon at 6 percent per annum.
(b) Pay all the transportation expenses of the General
Counsel , the union representative , the court reporter, and
the Administrative Law Judge necessitated by the resump-
tion of the instant hearing on August 21, 1972, following the
Respondent's requested postponement of the hearing on
August 2, 1972.
(c) Preserve and, upon request , make available to the
Board or its agents , for examination and copying , all payroll
records , social security payment records , timecards , person-
nel records and reports , as well as all other records neces-
sary to analyze and compute the amount of backpay due
under the terms of this Decision.
(d) Post at its Oklahoma City, Oklahoma, offices and all
other of Respondent 's facilities copies of the attached notice
marked "Appendix." 18 Copies of said notice on forms pro-
vided by the Regional Director for Region 16, after being
duly signed by Respondent 's representatives , shall be post-
ed by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter , in con-
spicuous places , including all places where notices to em-
ployees are customarily posted , including Respondent's
corporate offices . Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered , defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that , unless Respondent noti-
fies said Regional Director within 20 days from the date of
the receipt of this Decision , in writing, that it will comply
with the foregoing Order, the National Labor Relations
Board issue an order requiring the Respondent to take the
action aforesaid.
17 In the event no exceptions are filed as provided by Sec. 102.467 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
18 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 in any manner discharge or discriminate
in regard to the hire and tenure of employment or of
any term or condition of employment of any of our
I
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees because of their concerted and/or union
activities.
WE WILL offer to Stafford Winn and Wilmer Glover
immediate and full reinstatement to his former job or,
if that job no longer exists , to substantially equivalent
positions , without prejudice to his seniority or other
rights and privileges and WE WILL pay each of them for
any loss of pay at the union scale he may have suffered
by reason of our discrimination against him , together
with interest thereon at 6 percent per annum.
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of their rights
to self-organization to form , join , or assist a union of
their choice , to bargain collectively through a collec-
tive-bargaining agent chosen by our employees, to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any such activities.
Dated By
J. J. COOK CONSTRUCTION COMPANY,
INC
EMPIRE BUILDING CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 819 Taylor Street, Federal Office
Building, Room 8-A-24, Fort Worth, Texas 76102, Tele-
phone 817-334-2921.