Justak Brothers and Co.

National Labor Relations Board - Board Decisions

Jan 7, 1981

253 N.L.R.B. 1054 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Justak Brothers and Company, Inc. and Laborers
Local Union No. 41, Laborers International
Union of North America and State of Indiana
District Council, Laborers International Union
of North America. Case 13-CA- 18947
January 7, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.I.O, AND
ZIMMERMAN
On June 30, 1980, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief,' and the General
Counsel filed a brief in opposition to Respondent's
exceptions.
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, find-
I Respondent also filed, and the General Counsel opposes, a motion to
reopen he record to allow it to introduce into evidence a transcript of a
hearing and a decision by the review board of the Indiana Employment
Security Division which, it alleges, has a hearing on the issue of whether
or not employee Thomas Waugaman was discriminatorily discharged, as
found by the Administrative Law Judge Respondent's motionl is hereby
denied. The decision of the Indiana review board, upon which Respond-
ent relies, undoubtedly was rendered under a statute with different defini-
tions, policies, and purposes from those of the National Labor Relations
Act. Furthermore, Respondent has not shown that the unfair labor prac-
tice issue was considered by the state agency in reaching its decision. Fi-
nally. our decision herein, as well as that of the Adnlinistrative Law
Judge, "must be based uponi an independent consideration and evaluation
of the evidence received in this unfair labor practice proceeding " See
Bolsa Drainage, Inc., 242 NLRB 728 (1979).
253 NLRB No. 146
ings, 2 and conclusions3 of the Administrative Law
Judge and to adopt her 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 the Respondent, Justak Brothers
and Company, Inc., Whiting, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule a administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have
carefully examined the record and find no basis for reversing her find-
ings Nor do we find any merit to Respondent's contention that the Ad-
ministrative Law Judge's credibility resolutions, findings, rulings, and in-
terpretation of the evidence demonstrate bias and prejudice on her part
against Respondent. Rather, having carefully and fully considered the
record and the Administrative Law Judge's Decision herein, we perceive
no evidence that she prejudged the case, made any prejudicial rulings, or
demonstrated a bias against Respondent in her analysis or discussion of
evidence.
Respondent has also excepted, inter alia, to the Administrative l.aw
Judge's finding that Scott Allen and Leslie Hott were temporary employ-
ees ad should, therefore, be excluded from the bargaining unit, and to
her finding that the missing authorization cards of employees David
Byrum and Matthew Ignaszewski should be counted. We find it unneces-
sary, however, to rule on these issues since any findings in this regard
would neither prove to be determinative nor affect the Union's majority
status
Respondent has additionally excepted to the Administrative Law
Judge's failure to include employee Wendell Wright in the unit. We find
no merit t this exception since the documentary evidence submitted to
determine which employees were on the payroll during the relevant
period of July 7 to July 13, 1979. fails to establish that Wright was em-
ployed by Respondent during that period
3 The Administrative Law Judge found that "[B]ecause the Union ob-
tained majority status on Julie 28, 1979, and Respondent began its unfair
labor practices before that date, [Respondent's] bargaining obligation will
be deemed to have arisen on June 28, 1979." However, inasmuch as the
Union's demand for recognition was made on July 12, 1979, and all of
Respondent's unfair labor practices are effectively remedied by ur Order
herein, we find that Respondent's bargaining obligation arose on July 12,
1979 Trading Port, Inc., 219 NlRB 298, 301 1975): aynh, lrophv Corp.,
236 NlRHB 299 (1978).
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
case was heard in Chicago, Illinois, on December 10-14
and 17-21, 1979, pursuant to a charge which was filed on
July 23, 1979, and a complaint which was issued on Sep-
tember 28, 1979, and was amended from time to time
during the hearing. The questions presented are whether
the Respondent, Justak Brothers and Company, Inc.: (a)
violated Section 8(a)(1) of the National Labor Relations
Act, as amended (the Act), by allegedly threatening em-
ployees with reprisals for support of the Laborers Local
Union No. 41, Laborers International Union of North
America and State of Indiana District Council, Laborers
1054
JUSTAK BROTHERS AND COMPANY
International Union of North America (the Union),
promising and granting them benefits to dissuade them
from union activity, giving them the impression that
their union activities were under surveillance, and inter-
rogating them about their union activity; (b) violated
Section 8(a)(3) and (1) by allegedly discriminating
against employees Thomas Waugaman, David Clousing,
and Eric Myers because of their union activity; and (c)
in view of the foregoing alleged unfair labor practices
violated Section 8(a)(5) and (1) by admittedly refusing to
bargain with the Union, which had allegedly obtained
valid authorization cards from a majority of employees
in an appropriate unit under circumstances which alleg-
edly call for a bargaining order.
Upon the entire record,' including the demeanor of
the witnesses, and after due consideration of the briefs
filed by Respondent and by counsel for the General
Counsel (the General Counsel), I hereby make the fol-
lowing:
FINDINGS OF FACT
1. JURISDICTION
Respondent is an Indiana corporation with its principal
office and place of business in Whiting, Indiana, where it
furnishes laborers and vacuum truck services to oil refin-
eries and related businesses. Most of this work is per-
formed for and on premises owned by the Amoco Oil
Company or Energy Cooperative, Incorporated (ECI).
During the calendar or fiscal year preceding the issuance
of the complaint, a representative period, Respondent
purchased and received at its Whiting, Indiana, facility
goods valued in excess of $50,000 directly from points
outside Indiana. I find that, as Respondent concedes, Re-
spondent is engaged in commerce within the meaning of
the Act, and that assertion of jurisdiction over its oper-
ations will effectuate the policies of the Act.
The Union is a labor organization within the meaning
of the Act.
II. THE ALLt.EGED UNFAIR LABOR PRACTICES
A. Alleged Independent Violations of Section 8(a)(l)
As described in greater detail infra, on June 26, 1979,2
the Union held a meeting at which a number of Re-
spondent's personnel signed authorization cards. On June
27 and 28, the Union obtained some additional signed au-
thorization cards.
Among those who signed cards at the June 26 union
meeting were Enrique Miranda and Rodrigo DelReal.
On the following day, while Miranda was on the job,
William Parks told him that Parks knew "somebody
here" had some union cards, and asked Miranda, "[D]o
you know anybody here that has any cards . . . union
I have inserted extra copies of pp. 2 and 4 into G.C Eh. 3, in the
hope that portions which are difficult to read on one copy may be easier
to read on the other. Certain errors in the transcript are hereby noted
and corrected.
I wish to thank counsel for their post-hearing cooperation in obtaining
copies of missing exhibits. Counsel were unable to find copies of GC
Exh. 115, which is missing from all exhibit folders.
2 All dates hereafter are 1979 unless otherwise indicated.
cards signed?" Miranda untruthfully replied that he knew
nothing about it. Also on June 27, while DelReal and
four or five other laborers were waiting at the Amoco
plant to be taken back to Respondent's facility in a van
driven by Parks, Parks pulled DelReal to one side and
said that "some guys" were handing union cards to Re-
spondent's employees. DelReal untruthfully replied that
he knew nothing about the Union. Respondent contends
that Parks, Miranda, and DelReal were all employees,
but that Miranda and DelReal were supervisors if, as the
complaint alleges, Parks was a supervisor; these issues
are resolved infra, part II,F,2,j.
The complaint alleges, and the answer denies, that
Carlos Godines was a supervisor within the meaning of
the Act; this issue is resolved infra, part II,F,2,j. Miranda
testified in English as follows: About June 28, Godines
and Parks drove Respondent's van to the jobsite, where
Miranda was working with several others whose names
he could not recall but whose employee status is not
challenged. Godines told them to get into the van and
then said in Spanish, the native language of all those
present except Parks:
[Carlos Godines] starts to say to us the same
thing about I know some of your guys you got
some card to sign. The other ones they was quiet.
They did not say anything. But I told them I do not
know anything about it. I think if you get those
guys in here, they don't know either because they
never told me nothing.
Then he started to say like, you guys try to bring
the union in here, they want to take all your
money, all your check. Like when these men are
here or Bill [Parks] give a check to you Friday, the
union guys are going to take all your money from
you. So you work for nothing is what he say.
He started to say like, you guys have some kinds
of help because you have a long name and long
social security number. You know, he was trying to
tell all these things.
I told him I don't know nothing but this thing. I
told Carlos, I don't know nothing. But I need some
protect because in the night time you never know
you get sick and got to go to the hospital, you need
insurance. And they got to ask me in there where
you work, I told them. You got insurance, no, I do
not have any. See. That is what I told them.
I need insurance because I have a family. And he
say, "Well, you got your papers, we can do some-
thing for you. We can help you if you've got the
papers." I say, "Yeah." And he started to say like,
you realize you don't sign the cards, union cards,
we can give you some help. He was talk by man-
agement. That is what he was talking about.
Q. (By Mr. Keys) What else do you remember
him saying, Carlos?
A. He say we will not try to, you know, in case
he don't you know, that we try to help you. I
forgot, he say something like the other guys can
1055
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
help because they was from Mexico, something like,
you know, he was trying to say.
JUDGE SHERMAN: Would you repeat that, please?
You said something about the other guys and I did
not get what you said after that. Something about
the other guys from Mexico.
THE WITNESS: Yes.
JUDGE SHERMAN: Would you please repeat what
you said, because I did not hear it properly.
THE WITNESS: Yes. Carlos say that all the guys
can have help like raise or insurance, whatever, be-
cause he say I am from Mexico is what he say.
Like, you guys you try to bring the union, maybe
you have to go back to Mexico is what he say.
I don't know why he say that for, you know.
Maybe he try to say something, I don't know. That
is what he say.
Parks, who speaks almost no Spanish, was called by
both parties as a witness, but was not asked about this
conversation. Godines denied ever having a conversation
with Miranda about the Union or ever promising benefits
to any employees. For demeanor reasons, I regard Mir-
anda as a more honest witness than Godines.
Respondent's employees are eligible for medical and
life insurance, for which Respondent pays half the cost,
after 3 months of employment, but Miranda and several
other Spanish-speaking employees credibly denied, in
effect, that they had known this.3 Miranda's next pay-
check after this conversation with Godines included a
50-cent pay increase which Miranda had not asked for.
Also, a day or two after this conversation, Godines told
Miranda, who had worked for Respondent for less than
3 months, that he could fill out an insurance form at the
office. About 2 or 3 days later, at the close of the work-
day, Miranda went to the office and obtained the form.
As Miranda left the office, he was approached by Gene
Burkat, who is admittedly a supervisor. Burkat asked
Miranda whether he had returned his insurance papers to
the office. Miranda said no. Then, Burkat asked him
whether he knew who had been passing out union cards.
Although Miranda had signed a card at the first union
meeting and had successfully induced others to sign, he
said that he knew nothing about it. Burkat thereupon ac-
cused Miranda of being in the United States illegally.
Miranda said that he was a United States citizen, and
pulled out a card to prove it. Burkat asked why Miranda
did not speak good English. Miranda replied that he had
never been to school before.4 Miranda never did fill out
his insurance form. He was laid off about 3 weeks later,
and never returned to Respondent's employ.
At or about the same time as the van incident, Go-
dines approached employee Carlos Chairez while he was
3 Respondent maintains on its bulletin board an announcement regard-
ing this insurance, without any reference to the 3-month requirement.
However, the announcement is in English, which Miranda and most of
the laxborers cannot read Office Manager Karen Jaustak testified that most
Spanish-speaking applicants come in with a translator, and that Respond-
ent tells the employees about the availability of insurance.
4 My findings as to the Burkat-Miranda conversation are based on a
composite of credible portions of Miranda's and Burkat's testimony To
the extent that Burkat may have denied the discussion of Miranda's citi-
zenship, for demeanor reasons I credit Miranda.
at work, and asked him whether he had signed a union
card. Chairez untruthfully replied no. Godines then told
him to keep on working. 5
Employee Anselmo Acosta was the only witness who
testified about an incident which occurred after he
signed a union card on June 26 but before a late June in-
cident related below where Godines discussed deporta-
tion, and in the presence of Godines (who testified for
Respondent), "Armando," "Carrillo," and "Zavala." Ar-
mando's full name is not shown in the record, and at this
time Respondent employed two persons named "Car-
rillo" (one of whom testified) and two named "Zavala"
(one of whom testified). Acosta testified through a Span-
ish-English interpreter, and has very limited understand-
ing of English. Acosta testified that Joseph Simko said
something in English to him, "Armando," Carrillo, and
Zavala, during which Simko used the English word "sig-
nature" and wiggled his hand as if he were writing. Still
according to Acosta, he, "Armando," Carrillo, and
Zavala thereupon all said, inferentially in Spanish, that
they had not signed. At this time, Acosta and Zavala, at
least, had in fact signed cards. 6 Acosta testified that he
does not know the meaning of the English word
"union." The General Counsel alleges, and Respondent
denies, that Simko was a supervisor; this issue is resolved
infra, part lI,F,2,j.
Three or 4 days later, on a jobsite where Respondent's
laborers were performing work for Amoco, Godines told
employees "Armando," "Zavala," Jose Martinez, and
Acosta, in Spanish, that those who had signed cards
would be laid off, "immigration" was going to be
"thrown on" them, and those who did not have papers
would be "kicked out of the country." 7
In mid or late July, in the presence of laborer Pedro
Moreno (whose status is resolved infra, part II,F,2,j) and
employees Rafael Cardiel, Felix Campos, and Abel
Ayala, and, inferentially in Spanish, Godines talked
about the Union and said that the employees who did
not have their papers could be sent back to Mexico.8
B. Further Alleged Independent Violations of Section
8(a)(1); Alleged Discrimination Against Thomas
Waugaman
Thomas Waugaman was hired by Respondent in Feb-
ruary 1979 to work as a truckdriver. Before the begin-
ning of the workday on Thursday, June 28, he conferred
in Respondent's employee parking lot with Union Busi-
ness Representative Rudy Sparks. While talking, they
were joined by Union Representative Joseph Pullins and
by truckdrivers David Clousing and Eric Myers. During
this discussion, all three of the drivers signed union
I My findings in this paragraph are based on Chairez' testimony For
demeanor reasons, I do not credit Godines' denial.
Both Zavalas signed cards on June 26. See infra.
My findings in this paragraph are based on Acosta's testimony and,
as to the date, on his prehearing affidavit, which as to the date as r-
ceived in evidence as past recollection recorded. For demeanor reasons. I
do not credit Godines' denial.
I-his finding is based on Cardiel's testimony. For demeanor reasons, I
do riot credit Godines' denials.
1056
JUSTAK BROTHERS AND COMPANY
cards.9 While those five were conferring, Parks pulled
into the parking lot. Waugaman said that Parks was one
of Respondent's supervisors and that the drivers had to
be going. All of them thereupon left the area. Truck
Foreman Ronald Kritch, who is concededly a supervi-
sor, admittedly saw Waugaman, at least, talking with
Sparks.
About 9 or 10 that same morning, Waugaman ap-
proached truckdriver Stanley Przewoznik on the job,
while both of them were supposed to be working. At
that time, Przewoznik was dumping his load at the sepa-
rator. Waugaman, who had no work to perform in that
area, gave Przewoznik a union card, and spent 10 or 15
minutes trying to induce him to sign it. Przewoznik de-
clined to sign, on the ground that he was a truckdriver
and the Union was a laborers' union. Waugaman asked
whether truckdriver William Welch was working.
Przewoznik said yes, but he did not know exactly where
Welch was working. Then, Waugaman drove off in his
truck.
After putting the blank card on his clipboard,
Przewoznik telephoned Kritch that Przewoznik had left
his brown bag lunch at the shop. He asked Kritch to
bring it to him because he wanted to talk to Kritch.
When Kritch arrived, Przewoznik said, according to
Kritch, that Waugaman had approached Przewoznik
with a union card. Neither Przewoznik nor Kritch testi-
fied that Przewoznik told Kritch that Waugaman was en-
gaging in this activity during working hours. Kritch said
that he wanted to report this incident to Company Presi-
dent Gary Justak.' ° Then, Kritch drove back to the
office, picked up Justak, and drove him back to
Przewoznik. Kritch testified that Przewoznik showed
Justak the union card which Waugaman had given him,
and said that this had occurred on company time. Com-
pany witnesses Przewoznik and Justak were not asked
about the substance of this conversation. Kritch asked
where Waugaman was working, and Przewoznik replied
that Waugaman was working on the other side of the re-
finery. A few minutes later, Kritch and Gary Justak ap-
proached Waugaman while he was dumping a load from
his truck. Justak asked if he and Kritch could have a
card to join the Union. " Justak further said that he had
heard that Waugman was using company time in a com-
pany vehicle to go out and visit the other drivers and
distribute union cards. Waugaman untruthfully said that
he did not know what Justak was talking about. Justak
said that what Waugaman did on his own time was his
business, but what he did on company time was Justak's
business; that Waugaman had had several previous acci-
dents, for which he had received a disciplinary layoff;
9 My finding as to the date is based on Myers' card, which is dated
June 28, and on Clousing's testimony Waugaman's card is dated June 27.
and Sparks dated this conference as June 27. However, from all four
men's description of the events surrounding the execution of these cards,
I am satisfied that all three cards were signed during the same confer-
ence.
'o My findings up to this point in the paragraph are based on a com-
posite of Przewoznik's testimony and credible parts of Kritch's testimony
For demeanor reasons I do not accept Kritch's testimony that Welch
was also present and gave a similar account of a conversation with Wau-
gaman
II Justak had in fact been a member of the Union for 6 years. but at
the time of the hearing he was no longer a member
and that it would greatly benefit him if he would have a
better attitude toward his job, stay on his job, perform
his job, and take care of his personal business on his own
time. Justak said that he would be keeping an eye on
Waugaman to see that he did not pass out cards on com-
pany time, and that, if Justak learned that Waugaman
was passing out cards on company time, "You may get a
union in here, but you will not be here." 2 There is no
evidence and no claim that Respondent has ever forbid-
den solicitation or distribution "on company time" on
behalf of any organizations other than unions.
That evening, at quitting time, Kritch asked truck-
driver Clousing whether Waugaman was passing out
union cards. Clousing said "possibly." Kritch said,
"[W]ell it didn't matter anyway, [Waugaman] was on his
way out."' About 4:30 or 5 o'clock, when Myers
walked into Kritch's office, an employee behind him
said, "Here's one of those union boys." Kritch replied, "I
don't care who signed any of those Union cards because
[Gary Justak's] going to get rid of them anyway."
Union Representative Sparks is a large man with red
hair and a red mustache, who presents a distinctive ap-
pearance. About 6:30 the following morning, June 29,
Sparks parked his car across the street from the employ-
ee parking lot. After about 15 minutes, during which
Sparks waited in his car, Parks pulled in and went into
Respondent's facility. A few minutes later, Supervisor
Kritch came out of the shop and approached Sparks,
who got out of his car and introduced himself as a union
representative. Kritch introduced himself and said,
"[T]here's not going to be a union here." Sparks asked
whether Kritch knew that he could not terminate some-
body for wanting to join the Union. Kritch said that he
realized this, but that people could be terminated for
safety violations, that his job was to terminate people for
safety violations "whenever they mess up," that he
would "find a safety violation or some kind of violation
on these men here," and that he had a stack of applica-
tions "that high." Sparks asked whether Kritch was
denying Sparks the right to talk to the men. Kritch said
no, but that he did not want to see Sparks around the
Company bothering Kritch's drivers any more. Then,
Kritch went back into the shop. Sparks waited around a
little longer, but none of the drivers showed up, so he
left. 14
12 My findings in this paragraph are based on a composite of credible
portions of Waugaman's and Justak's testimony During this conversation.
Kritch was sitting on the passenger's side of the company truck. Justak
was sitting on the driver's side, and Waugaman was standing outside the
truck and next to the driver's side. Because of Kritch's physical location
and the noise in the area, he was unable to hear the Justak-Waugaman
conversation
13 My findings in this paragraph are based on Clousing's testimony
For demeanor reasons. I do not credit Kritch's denial
" My findings in this paragraph are based on a composite of credible
parts of Sparks' and Kritch's testimony, which as to the material in the
text does not substantially conflict Kritch, but not Sparks, testified that
Kritch said he did not want Sparks to talk to "my people on my time"
Kritch explained this alleged remark on the ground that he had seen
Sparks talk to Waugaman a few minutes after Waugaman should have
clocked in For demeanor reasons. I regard Sparks' version of the events
just before the Sparks-Kritch conversation as more reliable than Krllch's
version In any event, the result herein would he unaffected if I credited
Kritch's testimony in this respect
1057
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Waugaman punched in that morning,' 5 another
employee told Waugaman that Kritch wanted to see him.
Kritch told Waugaman that Kritch did not want the
Union in there, and that Kritch was not about to lose his
job because of it. Kritch further said that he would be
watching Waugaman and trying to "get" him on some
kind of safety violation, for coming in late for work, or
for coming back late from lunch. Kritch reminded Wau-
gaman that he already had a warning for missing 5 days
of work, and said that if he got three warnings he would
be terminated. Waugaman told him to go ahead and
watch Waugaman, and that Kritch would not catch him
doing anything. 6
The lunch period for Respondent's truckdrivers is
noon to 12:30 p.m. Justak had told the employees that, if
they did not wish to bring their lunches, they could go
to eat somewhere relatively close to the jobsite. Wauga-
man and other truckdrivers frequently left the jobsite to
get their lunch.
A few hours after the Waugaman-Kritch conversation,
Waugaman drove his truck to a hot dog stand, bought
his lunch, and drove back to the ECI jobsite to eat. As
he was entering the ECI gate and driving toward the
jobsite, he encountered Justak, who had been eating
lunch with an ECI supervisor. Waugaman testified that
this encounter took place about 12:30, and Justak testi-
fied that it took place at 12:40.' 7 Because Waugaman tes-
tified without contradiction that Justak said nothing to
him at that time, although Justak testified that he reacted
to the incident by contacting Kritch by radio and in-
structing him to prepare a warning notice, in view of
Justak's unreliability as a witness in other respects (see
infra), and for demeanor reasons, I credit Waugaman.
When Waugaman returned to Respondent's facility about
3:30 p.m. to clock out, he found attached to his timecard
a warning notice signed by Kritch. Checks were inserted
before the printed entries "Time Violation" and "Failure
to Do Assigned Work," and the following hand-printed
notation had been added, "Was not back on job at 12:30.
Suppose [sic] to leave job at 12:00 and be back on job
pumping at 12:30." Waugaman credibly testified that,
two or three times a week, truckdrivers Welch and Ray
Camper, neither of whom signed a union card, took 45
' Drivers assigned to ECI are supposed to punch in at 6:30, and driv-
ers assigned to Amoco are supposed to punch in at 7:30. Waugaman
worked on ECI's premises that day, and he testified that he punched in at
7:30. However, there is no evidence that he was reproached for clocking
in late that morning.
i6 My findings in this paragraph are based on Waugaman's testimony.
Kritch testified that he told Waugaman he would be terminated if he re-
ceived three writeups, but Kritch attached this remark to an alleged con-
versation during which he relayed an alleged customer complaint about
speeding and told Waugaman he would be fired if the customer barred
him from its premises because of subsequent speeding incidents. About
early March, Respondent advised its drivers that anyone reported speed-
ing in a plant would be fined. Because there is no evidence that Wauga-
man was fined or received any written warnings in connection with
either of the alleged speeding incidents about which Kritch testified (al-
though later that day, Waugaman received a written warning ostensibly
for overstaying his lunch break by 10 minutes), and for demeanor rea-
sons, I discredit the testimony of Kritch summarized in this footnote.
17 Although Waugaman had his lunch with him and had not yet eaten
it, Justak had no way of knowing this.
minutes to an hour for lunch. ti Waugaman testified that
he had no reason to think that management knew they
were overstaying their lunch break. However, Kritch
testified that Justak frequently checks the drivers on
lunch hours. Kritch further testified that the refineries
watch the lunch hours of Respondent's drivers because,
on occasion, outside contractors' employees who are on
the clock cannot do anything unless the driver is there.
At the close of the workday that day, June 29, Kritch
stated at a truckdrivers' safety meeting that he had heard
a rumor about a union being started, and that "it wasn't
fair to start a union in on Gary [Justak]. After all, Ron
[Kritch] had given [the drivers their] job." 1 9 A few min-
utes later, Kritch told drivers Myers and Clousing that
Kritch was a good fighter, that he did not want the
Union "in there," and that, if he ever caught Sparks in
the yard, Kritch would beat him up.2 0
On the following Saturday, June 30, Waugaman was
scheduled for "on-call" duty (see infra, part II, E). Driv-
ers assigned to such duty are issued a beeper (pager) and
a recharger for the weekend, and are supposed to carry
the beeper at all times. The morning of that day, Wauga-
man was instructed to go to work at an Amoco jobsite.
Waugaman gave the only testimonial evidence about
what he did on the job that day. According to Wauga-
man, he reported to an Amoco foreman "over by the
area by the fire job;" Waugaman finished one job as-
signed to him; and, after waiting around for a while, he
was told by the Amoco foreman that the next job prob-
ably would not be ready to do until later on the after-
noon, that Waugaman could leave the jobsite, and that
the foreman would call Respondent's office and have it
call him back out if he were needed.
In the afternoon of June 30, Waugaman returned to
Respondent's facility, parked Respondent's truck,
punched out, and left the facility. At about 6 a.m. on
Monday, July 2, he telephoned Kritch that Waugaman
would not be in because he had a dental appointment.
Kritch said, "Don't bother coming in, because you are
terminated." Kritch did not say why Waugaman was ter-
minated. The next day, July 3, Waugaman went to the
office to get his paycheck and turn in his beeper and re-
charger. Kritch told Waugaman that he had to go over
to the yard office to turn in his uniforms. He did so, and
also looked at his timecard. On his timecard was a termi-
nation notice written and signed by Justak. This docu-
ment states, "Beeped 3 times Saturday at 6:00 p.m. did
not answer. Left job before it was finished told pumper
his shift was finished." The notice is dated "7-1-79."2'
'8 Camper was still in Respondent's employ at the time of the hearing,
and testified on Respondent's behalf, but was not asked about this matter
19 This finding is based on Clousing's testimony, partly corroborated
by Myers. Employee Camper testified that he had never heard Kritch
make any remark about the Union in any safety meeting, but the record
fails specifically to show that he attended this particular meeting, and his
testimony in other respects is internally inconsistent (see nfra, part II1, E).
For demeanor reasons, and in view of Kritch's demonstrated untruthful-
ness in other respects (see infra), I discredit his denial.
z0 My findings in this sentence are based on a composite of Myers' and
Clousing's testimony. Kritch was not asked about this conversation.
21 My findings as to the Kritch-Waugaman conversations on July 2
and 3 are based on Waugaman's testimony. Kritch testified that he
Continued
1058
JUSTAK BROTHERS AND COMPANY
Waugaman testified that his beeper did not go off at all
that weekend. This issue is resolved infra.
As to the incidents which took place after Waugaman
clocked out on Saturday, June 30, and before he saw his
termination notice on Tuesday, July 3, during the last 2
days of the 10-day hearing Respondent tendered the tes-
timony of Parks, Bufkay, Kritch, and Justak. Also, as to
these events, the General Counsel called Burkat, Kritch,
and Justak as adverse witnesses during the first 2 days of
the hearing.
Parks testified that about 4 p.m. on Saturday, June 30,
while the Amoco supervisor was signing the worksheet
at his usual hour, Burkat asked Parks by two-way radio
to see one of the Amoco shift foremen at the "#2 ultra
former" about a request from Amoco for a second
vacuum truck. Still according to Parks, he thereupon
went to the #2 ultra former and spoke to Amoco em-
ployee Glenn Boara, who said that none of Respondent's
trucks was there. Parks went on to testify that he said
Burkat thought one truck was already there and the
Amoco foreman, in Boara's presence, replied, [T]he
other guy left . . . he said his shift was over and he had
to go home." Still according to Parks, he relayed this
message to Burkat, who said he would try to get "the
guy" back out there. As to what action was eventually
taken to supply a vacuum truck to Amoco, Parks' testi-
mony is susceptible to the interpretation that a truck was
taken to the #2 ultra former from the Lakefront loca-
tion, where he and two truckdrivers had been working
earlier that day, by Parks himself or (a less probable in-
terpretation) one of the truckdrivers at Parks' instruc-
tions; but Parks clearly did not testify that Burkat issued
such instructions to a driver other than Parks.2 2
Respondent's last two witnesses were Burkat and
Justak. On the last day of the hearing, and after Parks
had testified for Respondent, Respondent had marked for
identification, as Respondent's Exhibits 41 and 42, what
appear on their face to be truck timesheets for June 30.23
After Burkat testified that documents of this type are
made and preserved by Respondent as normal business
records, I received these exhibits into evidence. At least
learned on July 1 that Justak had drawn up Waugaman's termination
notice, that when Waugaman telephoned on July 2 about his dental ap-
pointment Kritch told him to come in the next morning, July 3, and that
Kritch told him on July 3 that he was discharged. Kritch testified that he
might have told Waugaman about his discharge during their July 2 con-
versation but could not recall doing so. Kritch testified that on July 3 he
told Waugaman that he was discharged for not answering his beeper and
for leaving his job without permission, and that ecept for saying "O K."
Waugaman made no responsive comments. I find somewhat implausible
Kntch's testimony that he may not have told Waugaman until July 3
about his discharge, and that Waugaman made no responsive comment.
Also, the parties stipulated that on July 2 Waugaman was notified of his
discharge. Accordingly, and for demeanor reasons, I credit Waugaman's
version.
22 The testimony was as follows:
A. By Mr. Parksl . . . I relayed the message back to Mr. Burkat
and he said, he would try to get the guy back out there. Then, the
way it worked out, I had to take a truck I had working at the lake-
front and go over and do the job because-
Q. IBy Mr. Bell, Respondent's counsel] Is that all you recall about
that incident?
A. Yes.
2a The exhibits are carbon copies. In the normal course of business, the
top copy is retained by the customer, in this case Amoco
if uncritically read (see infra fn. 29), Respondent's Exhib-
it 41, which if genuine would have been filled out by
Waugaman, indicates that he did not leave the"#2 ultra
former" until 4:30 p.m., about a half hour after Parks (ac-
cording to his testimony) received Burkat's call about
Amoco's request for a truck and probably after Parks'
arrival at the "#2 ultra former" according to Parks' testi-
mony.
Burkat did not testify about any conversations with
Parks that day, or that Burkat at any time believed that
Amoco wanted a second truck at any jobsite. As an ad-
verse witness for the General Counsel, Burkat testified
that Amoco's request for a truck was received by him at
"between 5:00 and 6:00" which was I or 2 hours after
Burkat reported this request to Parks according to Parks'
testimony. 2 4 Burkat testified that he thereupon tried four
times (the termination slip signed by Justak says three
times) to beep Waugaman, and also tried to telephone
him at home, but received no response. Eventually, ac-
cording to Burkat, he directed truckdriver Matthew Ig-
naszewski, who had been working at Amoco's Lakefront
location, to perform the job allegedly abandoned by
Waugaman; as previously noted, Parks testified that it
was Parks who either performed that job or arranged for
its performance. 2s Burkat testified that, thereafter, he
asked the Amoco foreman why he had sent Waugaman
home, and the foreman replied that Waugaman had said
his shift was over at 4:30 and that the foreman had not
immediately called for a replacement because he assumed
that one would arrive automatically. Burkat testified that
his conversation with the foreman occurred between 5
and 6 o'clock after the replacement truck arrived; Re-
spondent's Exhibit 42, purportedly a timesheet on whose
basis Respondent is paid, states that the truck arrived at
6; and the termination slip drawn up by Justak asserts
that Waugaman was beeped at 6. Moreover, as previous-
ly noted, Parks testified that he advised Burkat before a
truck reached the foreman's jobsite that the foreman had
said Waugaman had left of his own volition on the
ground that his shift was over. When testifying as ad-
verse witnesses for the General Counsel, and several
days before Respondent's Exhibits 41 and 42 were re-
ceived into evidence, both Burkat and Justak testified
that the job which Waugaman abandoned was at "II
24 As a witness for Respondent 10 days later. Burkat testified that he
received the Amoco call "somewhere about 5 oclock or so." According
to Parks, Burkat told him at 4 pm about Amoco's request. Waugaman's
termination slip states that he was beeped at 6 pm
2 June 30 was the last day on which Ignaszesski actually worked for
Respondent. His personnel folder indicates that he failed to report for
work on Monday. July 2, and on July 2 was terminated because of such
failure Unlike the General Counsel. I see nothing inconsistent beturen
Resp. Exh 42 a purported truck timesheet which states that Igrnaswekil
worked for 4 hours on June 30 on the #2 ultra former." and Resp l xh
24, which states that on June 30 he worked a total of 13-1/2 hours he
printed form for the truck timesheet on its face indicates, and Respotnd-
ent's counsel in effect stated. that such a form is filled out for each sepa-
rate job
Employee Roy Camper was also scheduled for "on-call" duty on June
30, was physically present at the Lakefront site during the consersatmli,
about sending a truck to the job allegedly abandoned by Waugamanl. and
according tlo urkat ma hase participated in such consersation,
Camper was still working for Respondent at the lime of the hearing, and
testified on its behalf. but was not asked about this incident
1059
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pipe still." Respondent's Exhibits 41 and 42 state, as did
Parks in his testimony, that the job in question was at the
"#2 ultra former."
Justak testified as an adverse witness for the General
Counsel that he was at Respondent's facility when
Burkat allegedly tried to beep Waugaman, but Burkat
did not so testify. Justak testified that Burkat tried to
beep Waugaman five times, but Burkat testified to four
attempts, Office Manager Karen Justak's entry on Wau-
gaman's personnel folder recites four attempts, and
Justak stated on Waugaman's termination slip that three
attempts were made. Justak testified on the first day of
the hearing, as an adverse witness for the General Coun-
sel, that he saw Waugaman's truck parked in Respond-
ent's parking lot on June 30 when Burkat was allegedly
trying to beep Waugaman, and that this was truck 7; and
Kritch testified that Burkat told him that Waugaman had
left the Amoco job in truck 7; but Respondent's Exhibit
41, offered in evidence on the 10th and last day of the
hearing, gives Waugaman's truck number as 26. Justak
testified that he discussed Waugaman's discharge with
Burkat on June 30, and with Kritch on July 1 or on the
morning of July 2, but neither Burkat nor Kritch so testi-
fied. Kritch testified that Burkat told him on July I of
the discharge decision, but Burkat did not so testify. As
an adverse witness for the General Counsel, Kritch testi-
fied on the second day of the hearing that Burkat told
him on the evening of Sunday, July I, that Kritch
"would have to terminate Mr. Waugaman on Monday
when he came in, for not answering the beeper." On the
ninth day of the hearing, and after the receipt into evi-
dence of Waugaman's termination notice signed by
Justak and dated July 1, Kritch testified that on the eve-
ning of July I Burkat told him that Justak "had written
up the note for termination. That was all that was said,"
and that on the morning of July 2, Kritch found on his
desk a note from Justak instructing Kritch to terminate
Waugaman for leaving the job without permission and
for not answering his beeper. Justak's testimony does not
mention such a note, and it was not produced. Justak tes-
tified that he decided on Saturday, June 30, to discharge
Waugaman; Justak was not asked why he attached to
Waugaman's termination notice the date of Sunday, July
1, allegedly the day after Justak's alleged ischarge deci-
sion. Justak testified that Burkat told him that the beeper
had been used to notify Waugaman to report to the
Amoco job, but Burkat testified that he did not know
whether the beeper had been used.
28 Kritch testified that
Burkat told him that Waugaman had been called to the
job "on stand-by," and Justak's testimony on the first
day of the hearing strongly implies that the only job per-
formed by Waugaman on June 30 was the job for which
he was initially called in (according to Justak, standing
by at the 11 pipe still), but Respondent's Exhibit 41,
authenticated and received into evidence on the last day
of the hearing, states if uncritically read that Waugaman
worked on the "#2 ultra former" job for 7 hours, and
Respondent's Exhibit 24 (d), which purports to be a pay-
roll record maintained by Respondent and was also auth-
2r Waugaman testified that Burkat notified him of the job by tele-
phone
enticated and received into evidence on the last day of
the hearing, states that Waugaman worked 11-1/2 hours
on June 30.
In view of the foregoing inconsistencies, and after con-
sidering the demeanor of the witnesses, I discredit Bur-
kat's and Justak's testimony that they beeped Waugaman
during the afternoon of June 30. Rather, I credit Wauga-
man's denial that he was beeped at any time after he
began to work at Amoco.
2 7 Also, I credit Waugaman's
testimony, which is not directly contradicted, that the
Amoco foreman told him that afternoon that he could
leave the job. Further, I discredit Parks' testimony that
before a truck was transferred from the Lakefront site
Amoco told him Waugaman had left the job without
permission and Parks relayed this message to Burkat,
Burkat's testimony that he received a similar report di-
rectly from Amoco after a truck was transferred and
after Burkat asked why Amoco had sent Waugaman
home, and Justak's testimony, uncorroborated by Burkat,
that Burkat relayed this message to him.
In making the foregoing findings, I am aware that the
testimony of Waugaman that he worked about 5 hours
on June 30 is irreconcilable with Respondent's Exhibit
24(d), which states that he worked 11-1/2 hours that
day. 28 However, when considered in light of Justak's
testimony that he was advised that Waugaman had aban-
doned the job at 4 or 4:30 p.m. and Justak's assertion in
Waugaman's termination notice that Respondent had un-
successfully tried to "beep" him at 6 p.m., this 11-1/2-
hour entry in Respondent's Exhibit 24(d), is also irrecon-
cilable with Justak's testimony that Waugaman started
work at 8 or 9 a.m. that day.
29 Moreover, the testimony
of Waugaman, unlike that of Justak, is consistent with
the inference required by Respondent's Exhibits 24 and
41 that Waugaman worked on two jobs that day.
30
I need and do not determine whether he was beeped that morning
im connection with being told to report to Amoco
28 Waugaman testified that he clocked in between 9:3( and 10 a.m. and
clocked out at or about 230 p.m.
29 Waugaman's truck timesheet for the "#2 ultra former" job on that
day states, in its final form. that lie worked from 9:30 to 4:3(0 and a total
of 7 hours It does not refer at all to a lunch break, although lturkat testi-
fied that Amoco would not pay for an employee's lunch break period
unless it asked him to work during that period, and that, if he did so, the
truck timesheet would note "no lunch taken " Oviously, the "30" entries
could have been written at any time; and, moreover, at one point a "30,"
entry was written over by another "30" where the "3" is unlike the "3's"
on Waugaman's union card and in the portions of the truck timesheet
other than the time entries. The "4" in "4:30" looks as if it might origi-
nally have been a "I." The "9" in "9:30" has plainly been altered. It ap-
pears to have been a "6" at one time, a "10" at another time, and (per-
haps) an "II" at still another time. All material parts of this document, if
genuine, would have been filled out by Waugaman, but the General
C'ounsel did not recall him on rebuttal to testify about it
"o On the ninth day of the hearing, I requested that Respondent's
counsel bring in the best evidence he had regarding the number of hours
worked by Waugaman on June 30., and regarding when he started and
stopped work on that day Counsel stated that Waugaman's "timesheets"
had been thrown away, but he would "bring whatever is the next best
thing." On the 10th day of the hearing, counsel produced one truck time-
sheet for Waugaman, but in effect stated that it did not cover all the jobs
he worked on that day Counsel did not offer other June 30 truck time-
sheets for Waugaman. or explain their absence Later that hearing day.
which was the last, counsel produced what purports to be a record of
hours worked by each employee during the payroll week beginning June
301, which document had been assigned Resp Exh 24 before or during
Continued
1060
JUSTAK BROTHERS AND COMPANY
The hearing was held in Chicago, Illinois, 500 miles
from Clousing's present home in Rock Rapids, Iowa. At
the conclusion of Clousing's Friday, December 14, testi-
mony, arrangements were made for Clousing to tele-
phone the Board's receptionist in its Chicago office on
Monday, December 17, to ascertain whether Respond-
ent's Atlanta, Georgia, counsel wanted Clousing to
return for further examination. Clousing did not testify
again, and he was not asked about any conversations
with Waugaman, nor with Kritch about Waugaman,
after Waugaman's discharge. On Thursday, December
20, Kritch, who showed himself to be an unreliable wit-
ness in a number of respects, testified that, 2 days after
Waugaman's termination, Clousing told Kritch that
Clousing and his wife were at Waugaman's house when
Waugaman's beeper went off and Waugaman had ig-
nored it. I hereby adhere to my action at the hearing in
sustaining the General Counsel's timely objection to such
testimony on hearsay grounds, and, accordingly, afford it
no weight in determining whether Waugaman was
beeped that weekend.
C. Further Alleged Independent Violation of Section
8(a)(I): Alleged Discrimination Against David
Clousing
1. Events on June 28
David Clousing was hired by Respondent in April as a
truckdriver. As previously found, he, Waugaman, and
Myers, at Sparks' and Pullins' behest, signed union cards
before work on June 28, on the street in front of the
truck garage, where they were seen by Parks. That same
day, during the 12-12:30 lunch break, Clousing drove
from his jobsite at the Amoco tunnel to the Amoco La-
kefront jobsite, where he passed out union cards to four
or five other drivers employed by Respondent at that
jobsite. About 12:15 or 12:20, Parks drove within 10 feet
of him and looked at him.
About 12:30 or 12:35, after distributing the union
cards, Clousing returned to his jobsite and resumed
work. Then, Justak drove up and asked what time was
lunchtime. Clousing said 12. Justak asked what Clousing
was doing eating at 10:30. Clousing replied that he nor-
mally had a sandwich around 10:30.31 Justak asked him
what he had been doing out at the Lakefront. Clousing
replied that he had been eating lunch. Justak told him
that he was "through."
Clousing thereupon drove his truck back to the yard,
parked it, and drove his car over to Respondent's main
office, where he saw Truck Foreman Kritch and asked
why Clousing was being fired. Kritch told him to wait a
minute. Then, Clousing was told to go into Justak's
office, where Justak, his wife Karen (Respondent's office
manager), Parks, and Burkat were gathered. Clousing
again asked Kritch why Clousing was being fired. Kritch
said, for having other employees sign union cards. Clous-
ing untruthfully denied doing this. Justak said that Parks
had seen Clousing out at the Lakefront passing out cards,
the eighth day of the hearing, when Resp. Exh. 17 and 25 were received
into evidence.
31 Clousing in fact ate a sandwich on the job at 10:30 that morning
while his truck was pumping oil
that Justak did not want a union in there, and that he
would shut down before a union got in there. Mrs.
Justak said that she had had things to do with a union
before, and that the union dues would cost the employ-
ees more than the dues were really worth. Justak said
that Clousing could come back to work if he would tear
up any union cards he had. Justak told Clousing that he
was rehired, and Clousing returned to work.
My findings as to the events on June 28 are based on
Clousing's testimony. Parks was called as a witness by
both the General Counsel and Respondent, but was not
asked about this matter. Mrs. Justak denied ever having
had a conversation with Clousing concerning union ac-
tivities. Burkat testified that he attended a "late morn-
ing" meeting in late June or early July among Clousing.
Kritch, and Justak, but that Burkat was not there
throughout the conversation and was "never really tuned
in on" it. Justak testified that about a week after his con-
versation with Waugaman about distributing union cards,
which conversation could not have occurred before his
June 28 execution of a union card, Justak saw Clousing
drive his truck onto the jobsite about 12:45, and that
Justak was "quite perturbed" about Clousing's taking an
extended lunch period. Justak further testified that
Clousing had had several previous warnings for coming
in late, but no warnings dated before June 28 appear in
his personnel file. Justak testified, in effect, that at the
jobsite he discharged Clousing. Justak went on to testify
that later that day during a meeting among Justak.,
Clousing, Burkat (who was "in and out"), and Kritch,
Justak told Clousing that he was not supposed to go to
the Lakefront to eat and had taken an extended period
for lunch; Clousing said he had had a sandwich at 10:30;
Justak said no, Clousing had just added to his lunch
period; Clousing asked for another chance; and Justak
said, "O.K., but one more and that will be the end of it."
Justak did not testify that any warning notice was issued
to Clousing on this occasion, and, in fact, testified that
he could not recall that Clousing received any "more"
warning notices between the date of this conference and
Clousing's separation several weeks later. Kritch denied
making any statements to Clousing about the Union
during this meeting, but was not asked about Justak's re-
marks. Without corroboration from Justak, Kritch testi-
fied that Justak told him to issue a warning slip to Clous-
ing for taking a "one hour" lunch that day; but Kritch
was unsure whether Justak issued these instructions
before I p.m., an hour after the beginning of the 12-
12:30 lunch break. Kritch testified that he in fact issued a
warning slip which is dated June 28, several days before
the date which Justak testimonially attached to Clous-
ing's alleged late lunch, and which was received in evi-
dence as the General Counsel's Exhibit 70. In view of
the foregoing inconsistencies between Justak's and
Kritch's testimony, the internal inconsistencies in
Kritch's testimony, Kritch's failure to corroborate criti-
cal portions of Justak's testimony, and demeanor consid-
erations, I credit the testimony of Clousing set forth in
the two preceding paragraphs, and also his testimony
that he never saw the General Counsel's Exhibit 70
before it was shown to him at the hearing. For the same
I 10(1 I
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasons, I discredit Mrs. Justak's denial of any conversa-
tion with Clousing about the Union, Justak's version of
his on-the-job conversation with Clousing about his
lunch period, Justak's denial that he ever talked to
Clousing about union activities and knew he had any-
thing to do with the Union, and Kritch's testimony about
the purported warning slip received in evidence as the
General Counsel's Exhibit 70.
2. The July 2 warning slip allegedly issued to
Clousing
During a period which included July 2, employee
Myers had no home telephone and no automobile.
During this period, Clousing drove Myers to work in
Clousing's automobile, even when the two worked dif-
ferent hours. On July 2, Myers was supposed to report
for work at or about 7:30 a.m. However, that morning
Clousing overslept. At 9:30 a.m., Kritch telephoned
Clousing, who was supposed to report to work at 3:30
p.m. that day, and asked him to come in because Myers
had not shown up. Clousing said that he would be there
as soon as he could. He got up, dressed, picked up
Myers (who was still asleep when Clousing reached
Myers' home), and drove out to the yard, which they
reached about 11 a.m. Kritch told Myers to go home and
Clousing to go to work. Clousing worked from 11 a.m.
to midnight that day.
My findings in the foregoing paragraph are based on
Clousing's testimony.3 2 Kritch testified that both Myers
and Clousing were late to work that morning and, in
effect, that both were supposed to start work at about
the same time. Kritch was unable to recall whether he
issued a warning notice to Myers on that day.33 Further,
Kritch was not asked to explain Clousing's uncontradict-
ed testimony that, on July 2, Kritch sent Myers home
without permitting him to work at all, while permitting
Clousing to work 11-1/2 hours. 34 n view of Kritch's
demonstrated untruthfulness in connection with other al-
leged warning notices to Clousing discussed supra and
infra, because (as Kritch tacitly admitted) it seems likely
that Kritch would have treated both alike if both had
been late, and for demeanor reasons, I do not credit
Kritch's testimony that Clousing came to work late on
July 2, and that on July 2 Kritch issued a warning notice
to Clousing, received in evidence as the General Coun-
sel's Exhibit 71, stating that on that date Clousing did
not show up for work on time. Rather, I credit Clous-
ing's testimony that he started work early that day and
that he had never seen the General Counsel's Exhibit 71
before the hearing.
3. The July 23 Sparks-Parks incident
The parking lot which Amoco maintains for its con-
tractors, including Respondent, is reached by a road
owned by Amoco and perpendicular to the public road.
On July 23, at or about the hour when Respondent's em-
32 Myers could not remember anything about the incident.
al The parties stipulated that Kritch did in fact issue Myers such a
notice on that day.
3' As indicated in connection with Waugaman's discharge, Respondent
preserves records showing how long each employee worked each day.
However, the July 2 records were not produced.
ployees usually returned to this parking lot at the close
of their workday, Union Representative Sparks drove his
car into the lot to find employee Miranda, who on June
27 and 28 had helped Sparks obtain union cards from
Respondent's employees. An undisclosed number of em-
ployees were there. One of them told Sparks that Mir-
anda had been laid off.3 5 Then, Parks drove Respond-
ent's van into the parking lot, to which he was carrying
several employees from their Amoco jobsites. The em-
ployees around Sparks said "Parks, Parks," and they all
scattered. Then, Sparks drove out of the parking lot,
turned onto the Amoco road in the direction opposite to
the public road, and drove to a trailer maintained by the
Morrison Construction Company, which employed some
railroad construction members of the Union who worked
in the area and who also used the Amoco contractors'
parking lot. Sparks parked his car, a station wagon, off
the road and in front of the trailer, and was about to get
out when Parks pulled his van behind the station wagon.
Sparks then put his car into reverse gear and started to
back up, but Parks did not move his van. Then, Sparks
moved his car at an angle, whereupon Parks backed up
and tried to keep Sparks from getting back on the road,
but without making contact with Sparks' vehicle. Sparks
eventually managed to get his car back on the Amoco
road and, at a moderate speed, drove back to the right-
angled intersection between the Amoco road and the
public road. Parks drove after him and pulled up his van
just a few inches behind. Sparks then made a right turn
onto the shoulder of the public road and stopped. Sparks
and Parks got out of their respective vehicles. Parks told
Sparks to stop "harassing" Parks' "people." Then, both
returned to their vehicles and drove off.
My findings in the foregoing paragraph are based on
Sparks' testimony and credible parts of Parks' testimony.
Parks testified, in substance, that he drove up to Sparks'
car, which according to Parks was parked next to a
firewall at a point between the parking lot and the Mor-
rison trailer and about 100 feet from the trailer, in order
to obtain the license tag number of the car. Still accord-
ing to Parks, after taking down Sparks' license plate
number Parks drove behind Sparks' car along the
Amoco road toward the public road in order to return
the van to Respondent's premises, and without making
any effort to follow Sparks' car or to run it off the road.
Parks testified that, at the intersection, Sparks left his car
first, but that Parks initiated the conversation by asking
Sparks what he was doing in the parking lot. According
to Parks, Sparks replied that he was going to the Morri-
son trailer, Parks said that Sparks was not supposed to be
in the parking lot, "we weren't supposed to have any-
body in the parking lot, so I told him he would get us
into trouble by coming into the parking lot." According
to Parks, the only other conversation was that they told
their names to each other. Parks testified that employees
of three or four other Amoco contractors, perhaps in-
cluding Morrison, park in that lot. Parks testified that
a" Sparks' testimony about this message was not received to prove that
Miranda was laid off. Miranda later testified that he was in fact laid off
some time in July Respondent's payroll records and his testimony show
that he was laid off on a date between July 13 and July 20
1062
JUSTAK BROTHERS AND COMPANY
Burkat had told him that morning to look out for
"strange cars" in the parking lot, and that Parks reported
Sparks' Indiana license plate number (Parks did not tes-
tify that he reported Sparks' name) to Burkat that eve-
ning, but Burkat did not corroborate such testimony. a6
In view of these peculiarities in Parks' testimony, and for
demeanor reasons, I credit Sparks, and discredit Parks'
version of where Sparks parked and the conversation be-
tween them at the intersection, and Parks' denial that he
followed Sparks and tried to keep him off the road.
4. Clousing's separation from Respondent's employ
Clousing decided that he wanted to take July 24 off.
He knew that he probably could not obtain permission to
take the day off simply because he wanted to, because
Respondent had a lot of work to do, so on the morning
of July 24 he untruthfully advised Kritch that Clousing's
baby was sick and Clousing had to take him to a doctor,
who would not be available until 10:30 a.m.37 Kritch
told him that, after going to the doctor, he should either
come in or call Kritch that he could not make it. Clous-
ing neither went to work that day nor called Kritch
back.
On July 25, Clousing reported to work at 7:30 a.m.
Kritch asked if he had a doctor's slip to show that his
baby was sick. Clousing said no, that he had left it at
home. Kritch told him to go home and get it. Clousing
said that he would, and then started walking toward his
car. After walking about half the distance to his car,
Clousing turned around, went back, and told Kritch that
Clousing did not have a slip because his baby had not
been sick. Kritch said, "No," accused him of being down
at the union hall on the previous day, and said he was
"through." Clousing had spent the previous day, July 24,
at home, and had not been to the union hall that day or
on any other occasion. The Board hearing pursuant to
the Union's representation petition began on July 24.
Later that day, Clousing's wife telephoned Kritch and
asked why her husband had been fired. Kritch replied
that Clousing had not been fired, but instead had quit.
My findings as to the July 25 Kritch-David Clousing
conversation are based on Clousing's testimony. When
testifying as an adverse witness for the General Counsel
on the second day of the hearing, Kritch initially testi-
fied that Clousing quit, but could not recall why. Later
that day, Kritch testified that, on July 25, he issued a
document, received in evidence as the General Counsel's
Exhibit 72, which purports to be a warning slip to Clous-
ing stating that he was supposed to be in at 10:30 a.m. on
July 24 and did not call in. Kritch testified that this slip
was based on an incident where Clousing said he was
taking his baby to the doctor, and would be in after that.
(When later testifying as a witness for Respondent,
Kritch testified in response to my questions that he
wrote this slip at the end of the day on which Clousing
3 Burkat testified that, so far as he knew, Amoco does not request a
list of the license plates of the employees who park in the parking lot
where they are picked up by the van.
a' My finding that Clousing had this conversation with Kritch is based
upon their testimony. Mrs. Justak had a tendency to testify that she had
seen events which she was merely told about I do not accept her testi-
mony that Clousing called her.
was supposedly going to take his baby to the doctor.)
Then, Kritch testified that, on the day after he issued the
General Counsel's Exhibit 72, he issued the General
Counsel's Exhibit 73, which bears the same July 25 date
as the General Counsel's Exhibit 72, which purports to
be a warning notice alleging that Clousing "lied to me
about baby being sick," and states, "Due to excessive
days off 3 days off without pay, next warning notice
given means termination." After testimonially authenti-
cating this document, Kritch went on to testify that
Clousing did not report for work on July 25, and that,
on the following day, he admitted having lied about his
baby's illness and said he had been at the the union hall.
Kritch went on to testify that he then told Clousing he
was being given 3 days off without pay for the warning
notices he had and for lying to Kritch, and that Clousing
did not say anything. After that, Kritch testimonially
authenticated a "Personnel Change Notice," received in
evidence as the General Counsel's Exhibit 74, which
states that it was prepared on July 24 (the day before the
date attached to the purported warning notices, G. C.
Exhs. 72 and 73), states that Clousing quit, and is signed
by Kritch. After authenticating this document, Kritch
testified that he did not understand why Clousing got
two warnings the day after he supposedly quit, and fur-
ther testified (contrary to his previous testimony that
Clousing made no reply to Kritch's statement that Clous-
ing was being given 3 days off without pay) that Clous-
ing said he could not afford a 3-day layoff and that he
quit. When testifying for Respondent on the ninth day of
the hearing, Kritch testified that the day after Clousing
was supposed to take his baby to the doctor Kritch told
Clousing that he was being given 3 days off without pay
for lying to Kritch plus "his previous warning notices
for coming in late," whereupon Clousing said he could
not afford the 3-day penalty and would quit and seek
other employment.
Justak testified that on a date or dates which he did
not specify, he and Kritch "discussed that if Mr. Clous-
ing would keep repeatedly not showing up for work and
not call off like required, that he would have to replace
him because we were busy and needed the truck." Still
according to Justak, the two decided that Clousing
would be terminated "the next time that he didn't show
up and didn't call off." The July 2 Clousing-Myers inci-
dent discussed above is the only incident before July 24
as to which there is any evidence at all that Clousing
"didn't show up and didn't call off." As previously
pointed out, as to that incident Respondent merely
claims that he reported to work late; and in fact, as pre-
viously found, he started work early on that day. After
Kritch had testimonially authenticated the "Personnel
Change Notice" signed by him, dated July 24. and stat-
ing that Clousing had quit and was not eligible for rehire
(G. C. Exh. 74), Respondent offered Clousing's person-
nel file into evidence. This file contains another "Person-
nel Change Notice," which has checkmarks before the
entries "Termination" and "Voluntary," states that the
termination was effective July 24 and that Clousing was
eligible for rehire, and is dated July 24 and signed by
Justak. There is no evidence as to why two such forms
106h3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were prepared. Both forms state that July 23 was the last
day Clousing worked.
In view of the inconsistencies as to date in the forego-
ing documents prepared by Kritch and in his testimony,
and for demeanor reasons, I discredit his testimony that
on July 25 Clousing said he quit, discredit Kritch's testi-
mony that he prepared these documents in good faith
about the dates they bear, and credit Clousing's denial
that before the hearing he saw the two purported warn-
ing notices bearing the date of July 25, the day Clousing
was terminated. Further, I discredit Justak's testimony
that before Clousing's termination Justak and Kritch
agreed to discharge Clousing the next time he was late,
for demeanor reasons, because Kritch failed to corrobo-
rate Justak's testimony in this respect, because Kritch
eventually testified (and a purported July 25 warning
notice states) that Clousing's failure to report to work
caused Kritch to suspend him for 3 days, and because
there is no credible evidence that before this July 24 fail-
ure to report Clousing had ever been late, either with or
without calling in.""
D. Alleged Discrimination Against Eric Myers
Eric Myers was hired by Respondent as a driver on
June 6. On June 28, shortly before clocking in, Myers,
Waugaman, and Clousing, at Sparks' and Pullins' behest,
signed union cards in front of the main gate to Respond-
ent's yard, where all five were seen by Parks. That eve-
ning, a fellow employee identified Myers as a "union
boy" to Kritch, who said that Respondent was going to
get rid of the employees who had signed union cards.
Myers was on weekend call on Saturday, July 28, and
Sunday, July 29. He was beeped at 8 or 9 a.m. that
Sunday, and a telephone number to call was relayed on
the beeper. At that time, Myers was at his brother's
house in DeMott, Indiana, about 55 or 60 miles from Re-
spondent's facility. Myers' brother's telephone was out of
order. Myers went to a pay telephone about a mile away
and called the number specified on the beeper. His call
was answered by Comptroller Mikel M. Justak, Gary
Justak's brother and admittedly a supervisor, who told
Myers to come into the yard. Myers said that he was
pretty far away and it would take him 1-1/2 or 2 hours
to get to the yard. Mikel Justak told him, "That's O.K.
Come on in and make it as soon as you can." Myers then
went back to his brother's house, grabbed a sandwich
and the rest of his clothes, and left for Respondent's
yard, which he reached about 2 hours after he heard the
beeper.
When he arrived, Mikel Justak asked him what had
taken him so long to get there. Myers replied that he had
told Mikel Justak that Myers was pretty far away and it
would take him a little while to get there. Mikel Justak
said that he had beeped Myers a second time and he had
3 I note. moreover, that Justak's testimony about his alleged agree-
ment with Kritch tends to support the conclusion that Clousing was dis-
charged after the July 24 incident. the "next time" he came in late
However, Respondent's payroll records, to which Respondent does not
advert in this connection, are consistent with its contention that Clousing
quit on July 25 or 261 Respondent's usual practice is to pay employees off
when they are discharged, bhut to pay them on their regular paydays if
they quit Clousing's last two paychecks are dated July 27 and August 3
not responded. Myers truthfully said that he had not
been beeped a second time. Mikel Justak said that he did
not want to argue about it and that Myers should talk to
Gary Justak about it. Myers asked whether this meant
that he was fired. Mikel Justak did not respond, and
Myers left.
Myers did not talk to Gary Justak, because Myers did
not have Gary Justak's telephone number and did not
know how to reach him. The next day, Monday, July 30,
Myers reported for work to Kritch at 7 a.m., as usual,
and gave Kritch the beeper and recharger issued to
Myers the preceding Friday for use over the weekend.
Kritch told him to report to the main office to pick up
his check. Myers asked why he was being fired. Kritch
replied, for failing to answer his beeper. Myers then
went into the office of Gary Justak, who gave him a
check dated July 27, the preceding Friday, for about
$170. 39 The outside of Myers' personnel folder states
that he was discharged on July 27. Myers testified with-
out testimonial contradiction that he did not receive a
written termination notice. His personnel file contains a
yellow carbon copy and a green carbon copy of a "Per-
sonnel Change Notice," dated July 29 and purportedly
signed by Gary Justak, which states that Myers was
being terminated effective Sunday, July 29. Under "Re-
marks," the document states, "On weekend duty. Paged
on Sunday at 8 a.m.-answered 8:20 said will be in in a
few minutes, reported at 10:57-Lost job because of late
showing. Felt[?] disregard of all rules pertaining to week-
end call duty."40
My findings regarding the contacts between Myers
and Mikel Justak are based on Myers' testimony. Mikel
Justak testified that he paged Myers about 8 a.m. on
Sunday, July 29, but received no answer; paged him
again 10 or 15 minutes later, and 5 to 10 minutes later
received a call from Myers. Still according to Mikel
Justak, he told Myers that a driver was needed "right
away" and Myers replied that he would be in in a
"couple of minutes." (Myers credibly testified that his
home was a 20-minute drive from Respondent's facility.)
Mikel Justak went on to testify that he waited 30 to 40
minutes, by which time it was after 9 a.m. and more than
an hour after he had received his first page for the truck,
and then paged Myers a third time but received no
answer. According to Mikel Justak, he waited for Myers
another 10 minutes and then paged another driver, who
said he would be "right in"; but immediately after that,
the customer called in to say that because of the delay,
the customer had made other arrangements to perform
the work and no longer wanted a truck from Respond-
-a Myers testified that he thought, but was not sure, that Justak made
out Myers' check while he was there. Respondent's records also show a
$308 check to Myers dated July 27, inferentially received by Myers on
July 27, the regular payday; and fail to show any subsequent paychecks
made out to him. On July 3 Waugaman had received two checks dated
July 3-inferentially, one for the pay period eding June 29 and one for
the pay period ending Jul) 6, for which he would have been paid on July
6 and 13, respectively. had he not been discharged. The record contains
no testimrnoiial explanation for the July 27 date on Myers' last-received
paycheck.
'0 These "Personnel Change Notices" are made out in triplicate, the
top copy being pink Mrs Justak testified that frequently, but not always,
the pink copy is given Io the employee
1064
JUSTAK BROTHERS AND COMPANY
ent. At this point, according to Mikel Justak, he tele-
phoned the other driver and told him not to come in.
Mikel Justak further testified that Myers came in about
11 or 11:30, whereupon Mikel Justak said that Respond-
ent had lost the job because it had taken Myers so long
to get there, that Mikel Justak had thought Myers would
be in right away and he was not, that he had not called
Mikel Justak, that he had paged Myers a third time, and
that Gary Justak would probably want to see Myers
Monday morning to explain what happened. Mikel
Justak testified that he could not "remember [Myers]
really saying much of anything."
Mikel Justak went on to testify that thereafter he
wrote an account of these events to Ronald Kritch, and
that this document was Respondent's Exhibit 23, which
purports to be a note to "Ron" from "Mike." This docu-
ment, which Mikel Justak testified was dated by him, is
dated July 27, which was a Friday. but purports to relate
events which occurred on a Sunday; it is undisputed that
on Monday, July 30, Myers was told of his discharge
and received his final paycheck, dated July 27. More-
over, although Mikel Justak testimonially identified the
customer as Industrial Fuel, both Kritch and Gary Justak
identified it as Amoco. In view of these discrepancies,
and for demeanor reasons, I discredit Mikel Justak's testi-
mony about the events on July 29, including his contacts
with Industrial Fuel and his testimony about why and
when he prepared Respondent's Exhibit 23, and credit
Myers.
My findings as to the Myers-Kritch discharge inter-
view are based on Myers' testimony, and on Kritch's tes-
timony as an adverse witness for the General Counsel.
Kritch testified for Respondent that during the discharge
interview he also stated that Myers had untruthfully
stated when he was hired that he had transportation to
work, 4 that Myers had been late to work on three or
four different occasions, 4 2 and that Kritch had caught
him smoking on refinery property. Kritch went on to
testify that he told Myers that the cost of a missing pair
of pants would be deducted from his final paycheck
unless he returned the pants, and Myers said "he would
be looking for [Kritch] when [he] got off work." As to
what was said during this interview, I credit Myers' ver-
sion, including his denial that he threatened Kritch, for
demeanor reasons, because in testifying as an adverse
witness for the General Counsel Kritch did not state that
during the discharge interview he referred to Myers' al-
leged deficiencies or that Myers threatened him, and be-
cause Kritch is much taller and heavier than Myers.4 '
Myers' personnel file contains a purported warning
slip, dated July 16 and purportedly signed by Kritch,
which states, "Caught sitting in truck-motor off-no
' Myers' June 4 employment application contains a check in the "yes"
box after the question "Will you have transportation to work"' As previ-
ously noted, about July 2 he was late to work because he had no car and
the employee whom Myers expected to drive him to work overslept As
Kritch knew, Myers had acquired a car by the time he was discharged
42 Myers admitted having been late to work on more than one occa-
sion His personnel file contains two warning slips (June 7 and July 2) for
being late, including the warning slip in the incident involving Clousing
(see supra at part I,C,2)
e3 Kritch is about 6 feet 4, weighs 280 pounds, and is 32 years old
Myers is 5 feet 7, is of average to stocky build. and is 27 years old
hoses hooked up-smoking." Kritch was not asked to au-
thenticate this document. I credit Myers' denial that this
incident occurred, and his testimonially uncontradicted
testimony that he never received a warning about it. 4 4
Myers' personnel folder also contains a purported
warning slip, purportedly signed by Kritch and dated
July 5, which states "Caught eating lunch in tavern and
drinking beer." Kritch was not asked to authenticate this
document. Myers credibly testified without contradiction
that he had one beer with a sandwich at lunch, and that
Gary Justak later told him not to do this any more. I
credit Myers' testimonially undenied testimony that he
never received a warning slip based on this incident.
Gary Justak testified that it was he who decided to
discharge Myers, and that he reached this decision after
receiving a telephone call from Mikel Justak. Mikel Jus-
tak's testimony does not refer to such a call. Contrary to
Gary Justak, Kritch testified that it was he himself who
decided to discharge Myers, and that he reached this de-
cision on the basis of a note from Mikel Justak which
Kritch saw on his desk on Monday morning, July 30.
The personnel change form in Myers' personnel folder,
purportedly signed by Gary Justak, is dated Sunday.
July 29, states that Myers' discharge was effective that
day, and refers only to the alleged July 29 beeper inci-
dent. The cover of the file folder states that Myers was
discharged on July 27, and contains the undated entry, in
unidentified handwriting, that he was terminated because
of "Several warning notices. Didn't answer page."
E. Respondent's Rules and Practices Regarding
Beeper Violations
As previously noted, Respondent contends that Wau-
gaman and Myers were discharged at least partly for fail-
ure to respond to their beepers. Although Respondent's
drivers normally work a regular weekly schedule, each
driver is also required to be "on call" at least one week-
end per month. A driver who is "on call" is issued a
beeper (a paging device) and a recharger at the close of
the regular working day on Friday, and returns them at
the beginning of the regular working day on Monday.
The driver is expected to remain within earshot of his
beeper throughout this 60-hour period, to keep the
beeper charged, and to test it periodically to make sure it
is working.
Justak testified that a driver who is "on call" is re-
quired to stay within 20 miles of Whiting, 4 5 to answer
his beeper within 5 minutes of his first call, and to report
to work within a half hour after the first call. Mrs.
Justak testified that employees are permitted to reside
anywhere they choose, without geographical limitation.
Respondent's witness Ray Camper, a truckdriver since
early 1979, initially testified that when he was hired
" The employment contract signed by Myers, which Kritch had told
him he did not have to read and which he did not read. forbids smoking
in a refinery without the job foreman's permission he contract further
states. "Definitely no smoking or ,ou ill he terminated immediately'"
' At hc time of the hearing. Respondent's office facilities ere locat-
ed in Whiling, Indiana, and its truckdrivers rportled to work at Respond
ent's maintenance garage Hanlnond, Indiana TIhe record fails to hows
the distance between hes to, facilitles
1(065
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Justak or Kritch told him that, when he was on call, he
was responsible for getting to a job within an hour.
Thereafter, he testified that he had seen posted on a bul-
letin board, and also personally received, Respondent's
Exhibit 14, which according to him had been in effect
"as long as I've been there." This document states, inter
alia:
Termination results immediately if
1. You fail to respond verbally within 20 min-
utes of st page.
2. You fail to report to work within I hour
from st page.
After authenticating this document, Camper testified,
"[Y]ou have to be able to get to the garage within a half
hour" when on weekend call. He further testified that
when he was on weekend call, about 85 percent of the
time he stayed at the garage. This testimony aside, there
is no evidence of any sleeping facilities at the garage. On
one occasion in late June, Mikel Justak gave both of the
drivers who were then on weekend duty permission to
visit an amusement park about 125 miles from Respond-
ent's facility.
Parks serves on weekend duty, calling the drivers in to
work; and at one time this was also done by Godines.
Gary Justak testified that, when Parks and Godines were
on weekend duty, they had to be able to get to the
garage within 20 minutes. However, Gary Justak stated
in his prehearing affidavit that there were no restrictions
on where they had to be when on weekend duty. Parks
testified that, when he is on weekend duty, he was usual-
ly at home, "with his beeper you don't have to be tied
down . . . as long as you are within the calling range of
the beeper."4 6
Gary Justak testified that he regards beeper violations
as important because on-call drivers are often beeped to
clean up butane, propanes, alcohol, and methanol, all of
which are highly flammable. Mikel Justak testified that
the job for which Myers was beeped in on the Sunday
before his discharge was cleaning up a spill from an as-
phalt tank, and that part of this cleanup job had been
performed on Saturday. Parks testified that the job
which was allegedly supposed to be performed by Wau-
gaman after he clocked out the Saturday before his dis-
charge, and which Parks and the truck timeslips attribut-
ed to the "#2 ultra former," was cleaning out a fuel gas-
line which had to be cleaned out before Amoco could
safely reactivate a unit which had been shut down for
more than a month.
4 7
Gary Justak testified that Robert Potter, John Gaddini,
Evan Tite, Richard Francis, and William Francis were
discharged for "beeper violation."
As to Potter, Justak testified that a laborer reported
having found Potter's beeper, a $1,200 device, lying on a
snowbank in front of the office; Justak asked Potter why
46 Ga;y Justak testified that the range of the beeper is about 50 miles.
However, on at least one occasion Myers was beeped in from a location
about 125 miles from Respondent's facility.
47 As previously noted, Gary Justak and Burkat attributed this job to
the "II pipe still " They did not testify about the nature of the problem
there.
he had not reported that he did not have his beeper with
him; Potter, who was drunk, told Justak "what [he]
could do with" the beeper; and Justak thereupon dis-
charged him for "failing to carry his beeper." His termi-
nation notice recites eight reasons for his discharge, one
of which reasons was "seven complaints and two cancel-
lations of portable toilets" in I day. He was later rehired.
As to Gaddini, Justak testified to having discharged
him after Justak telephoned him on Friday at his home
that he had left his pager at the office and Gaddini said
he could not be on weekend call that weekend because
he had to go to a dance with his girlfriend. However,
Gaddini's personnel file refers to several reasons for his
termination, including overstaying a I-day funeral leave
by day and twice reporting to work late, and further
states that he was discharged after he failed to come in
for a week and had been replaced.
Justak testified that Evan Tite had been discharged for
failure to respond to his beeper when beeped by Truck
Foreman Fred Behrens. According to Justak, Tite's ter-
mination notice consists of a document in Tite's person-
nel folder which purports to be a "warning notice"
signed by Behrens and which states "didn't answer page,
3 pages." This document is dated "2-20." While the doc-
ument itself does not specify a year, the year was neces-
sarily 1978, because the file shows that Tite was hired on
February 3, 1978; Justak testified that Behrens was the
foreman who preceded Kritch; and Kritch testified that
he became truck foreman about November 1978. Howev-
er, Respondent's payroll records show that Tite worked
for Respondent during all but one (March 31) of the pay-
roll weeks ending February 10 through April 21, 1978.48
I conclude that the Tite warning notice is in fact what it
purports to be, and that Tite was merely warned, and
was not discharged, for failing to answer his beeper.
As to truckdrivers Richard and William Francis, who
are brothers, Gary and Karen Justak testified that both
were separated from Respondent's employ at about the
same time, and Respondent's files show that William was
4" This finding is based upon the documents (consisting of payroll re-
cords for such payroll weeks, plus a covering letter from Gary Justak)
attached to the General Counsel's motion to reopen the record for the
receipt of such documents, which motion is attached to the General
Counsel's brief. The motion is hereby granted; the documents in question
are hereby received in evidence as G.C. Exh. 119; and Respondent's
motion to strike from the General Counsel's brief its arguments based on
such documents is hereby denied. International Brotherhood of Electrical
Workers, AFL-CIO. Local 648 [National Electrical Contractors Association
Dayton. Ohio Chapter] v. N.L.R.B., 440 F2d 1184 (6th Cir. 1971). Re-
spondent neither challenges the authenticity of these documents nor seeks
to explain them. I ordered that the General Counsel be given an opportu-
nity to inspect these records after the hearing in order to enable the Gen-
eral Counsel to check the accuracy of Resp. Exh. 52, a chart which pur-
ports to summarize, inter alia, the length of employment of the employees
who, like Tite, were in its 1978 work force. Tite's length of employment
(I I weeks, as shown by Respondent's payroll records, rather than about 2
weeks, as Justak in effect testified) is plainly relevant to the accuracy of
Resp. Exh. 52. Moreover, Respondent errs by asserting, in its opposition
to the General Counsel's motion to reopen the record, that "I[the issue
was not when Evan Tire was discharged, but why he was discharged."
The Tite warning notice appears on its face to show that he was merely
warned, and not discharged, for failing to answer his beeper, and the
payroll records belie Justak's testimonial explanation of that document
1066
JUSTAK BROTHERS AND COMPANY
separated about December 1978.49 Kritch, Respondent's
truck foreman at this time, testified that Myers and Wau-
gaman aside, he had never fired any truckdrivers for not
answering their beeper. William Francis' file contains a
letter from Mrs. Justak to the Indiana Employment Secu-
rity Division, stating that he had quit and was not dis-
charged, and a finding by a deputy of that agency that
he had quit. Gary Justak testified, in effect, that he dis-
charged both brothers during a single telephone conver-
sation with Richard Francis which occurred on a Satur-
day and outside his wife's presence. Mrs. Justak testified
that, on a Monday, she or her husband in her presence
telephoned William Francis and asked him why he had
not come to work on Saturday when beeped; either Wil-
liam told her or her husband told her that, William had
told him, William was not going to be on weekend call,
he did not want to answer his beeper, and he quit; and
that thereupon Justak or Mrs. Justak told William,
"That's fine. You're fired anyway." Justak testified that
at the time of the Francis brothers' separation, about De-
cember 1978, they had worked for Respondent for about
2 weeks, but their files show hiring dates of no later than
July 1978 (see supra at fn. 49).50 In attempting to explain
why she advised the Indiana Employment Security Divi-
sion that William Francis had quit, Mrs. Justak testified
that the surest way to avoid being charged with an un-
employment compensation claim is to establish that the
employee quit. She testified at one point that William
had stated on his claim form that he quit; at another
point, like her letter to the division, that he had stated he
was fired; at another point, in effect, that his unwilling-
ness to perform weekend duty showed that he intended
to quit or was the equivalent of quitting; and at another
point, in effect, that he quit but was going to be fired
anyway. Each of these brothers' files contains a small.
undated sheet of paper, apparently in the same unidenti-
fied handwriting, which states, "Failure to answer
beeper" and asserts that this occurred on three occasions.
On the basis of the foregoing evidence, I conclude that
William Francis quit and was not discharged. However,
I accept Justak's testimony that he discharged Richard
Francis after he told Justak about 3 a.m. on a Saturday,
when Richard was on call, that he had shut off his
beeper completely, did not want to work overtime, and
was not going to answer.
On a morning in April 1979, when Waugaman and
Camper were on weekend duty, Kritch beeped Camper
to call the office. Then, Kritch beeped Waugaman to call
the office. When Waugaman telephoned the office,
Kritch told him that Kritch could not get hold of
Camper and wanted Waugaman to come out to work.
at My December 1978 finding is based on the February I and 28, 1979,
dates on the papers in William's file regarding his unemployment com-
pensation claim, on the fact that Richard's file contains documents show-
ing that he was working for Respondent in July 1978, on the January
1978 dates of their employment applications, and on Justak's testimony
that William came to work "slightly after" Richard
50 Justak also testified that they came over to Respondent from an-
other firm because they wanted a "group insurance plan" which Re-
spondent had. Richard Francis' personnel file suggests that in January
1978 he elected not to receive Blue Cross-Blue Shield coverage, which in
July 1978 he decided to obtain It is unclear what kind of "group insur-
ance" Justak's testimony refers to
Waugaman did so."1 At the time of the hearing, Camper
was still in Respondent's employ and he never received a
warning notice for a beeper violation, although during
about 11 months in Respondent's employ, he received six
warnings-for failing to wear safety glasses, for failing to
wear a hard hat or safety glasses, for calling off when he
was supposed to return to work Monday, for failing to
call in the next day (for which he was fined $10), and for
coming to work late (with a $10 fine for the third such
offense in a week).
In view of the foregoing evidence, I do not credit Jus-
tak's testimony that "[a] beeper violation is an automatic
termination." Rather, I conclude that beeper violations
sometimes lead to termination, sometimes lead to warn-
ings, and sometimes lead to no action at all, depending
on all the circumstances. Furthermore, in view of the in-
consistencies in the testimony of Respondent's witnesses
regarding beeper rules, and between their testimony and
the rules set forth in Respondent's Exhibit 14, 1 do not
believe that Respondent in fact systematically promul-
gates and enforces hard-and-fast rules concerning these
matters, and I do not credit Kritch's testimony that
newly hired truckdrivers are always given Respondent's
Exhibit 14. Rather, I credit Waugaman's testimony that
he was told when hired that he had to answer his beeper
within an hour after it went off, but was never told that
when he was on call he had to stay within a certain dis-
lance of his home (which is in the same city as Respond-
ent's maintenance garage) or that, within a certain time
after being called or answering his beeper, he had to be
where he was being sent; Myers' testimony that he was
never told that he had to report in to the yard within a
certain time after being called, or that he had to stay
within a certain number of miles from the yard; and
Clousing's testimony that he was told to answer the
beeper as soon as he got to a telephone, but was never
told of any rules about how far he could go away from
home or away from Respondent's facility.
F. The Refusal To Bargain; the Union's Alleged
Majority
1. The July 12 demand and refusal; the critical dates
for showing majority
Although dated June 28, the Union's bargaining
demand was received by Respondent on July 12 and re-
jected that same day. The General Counsel alleges that
Respondent's unfair labor practices had begun by June
28, and that a majority of the unit employees on that
date had signed operative union authorization cards. The
General Counsel further alleges that a majority of the
unit employees on July 12, the date of the bargaining
demand and refusal, had signed operative union authori-
zation cards. At the outset of the hearing, Respondent
conceded the relevancy of these dates, assuming ar-
sl My findings as to this incident are based on Waugaman's testimony
Camper testified that he had never been late when beeped Kritch testi-
fied that to his knowledge, Camper never showed up late on a weekend
call o the extent that such testimony may constitute a denial of Wauga-
man's testimony that on one occasion Camper did not respond to his
beep at all, I credit Waugaman, for demeanor reasons and in iew of the
inconsistencies In other parts of Camper's and Kritch's testimony
1067
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guendo the commission of pre-June 28 unfair labor prac-
tices and the propriety of a bargaining order on a major-
ity showing as of a relevant date.
2. The individuals in the unit
The parties agree to the appropriateness of a unit con-
sisting of all laborers, truckdrivers, mechanics and me-
chanics' helpers, excluding office clerical employees,
guards, and supervisors. There appears to be no dispute
that the 57 employees listed infra, Appendix Al, were in
the unit on both June 28 and July 12; and that the five
employees listed infra, Appendix A2, were in the unit on
June 28 but not July 12. Further, there appears to be no
dispute that Ronald Kritch and Gene Burkat should be
excluded as supervisors and that Linda Kritch and Mary
Beth Jurbala should be excluded as office clerical em-
ployees.
For the reasons stated below, I find that the persons
listed infra, Appendix A4, were in the unit on both June
28 and July 12, that the persons listed infra, Appendix
A3, were in the unit on July 12 but not June 28, and that
nobody other than those listed in Appendix A was in the
unit on either date. Accordingly, I conclude that the
June 28 unit consisted of the 77 employees listed in Ap-
pendixes Al, A2, and A4, and that the July 12 unit con-
sisted of the 77 employees listed in Appendixes Al, A3,
and A4.
a. J. B. Sanitation Service employees (Tayce Brown,
Curtis Sutton, and Andre Wadley)
Respondent seeks to include, and the General Counsel
would exclude, three individuals employed by J. B. Sani-
tation Service, Inc. J. B. Sanitation Service is an Indiana
corporation which obtained its certificate of incorpora-
tion on January 29, 1979, more than 5 months before the
date of the bargaining demand. J. B. Sanitation's direc-
tors and incorporators are Gary Justak (Respondent's
president), Karen Justak, and Margaret Y. Justak; its
president is Karen Justak; its vice president is Gary
Justak; its resident agent is Gary Justak; it has the same
post office box mailing address as Respondent; and its ar-
ticles of incorporation provide, inter alia, that it is a
close-family corporation whose shareholders and direc-
tors are limited to members of the immediate family. J.
B. Sanitation's stock is held either by Respondent or by
Respondent's stockholders, who include or perhaps con-
sist of Gary Justak.
J. B. Sanitation provides portable chemical toilet rent-
als to area contractors. So far as the record shows, in
June and July 1979 its only employees were Curtis
Sutton and Andre Wadley, both truckdrivers, and Tayce
Brown. J. B. Sanitation and Respondent have the same
129th Street office facilities in Whiting, and their trucks
are serviced at the same 131st Street maintenance garage
in Hammond. However, J. B. Sanitation also has a
garage on Schreg Avenue in Whiting, which so far as
the record shows is not used by Respondent. Both cor-
porations have the same telephone number and use the
same order forms (also used to record the issuance of
equipment to Respondent's personnel), which bear the
names of both corporations. Justak testified that J. B.
Sanitation and Respondent keep their trucks in the same
area, and that their truckdrivers use the same locker
room and timecard, and "just worked together."
J. B. Sanitation's truckdrivers drive small vacuum
trucks which clean chemical toilets. These trucks are
smaller versions of the trucks used by Respondent's driv-
ers, and require less skill. Respondent's drivers are capa-
ble of handling J. B. Sanitation's trucks, but drivers who
can handle J. B. Sanitation's trucks are not necessarily
capable of handling Respondent's trucks, and there is no
evidence that truckdrivers employed by either corpora-
tion ever drive the trucks used by the other corporation.
Respondent's truckdrivers are supervised by Kritch, but
J. B. Sanitation's truckdrivers are supervised by Gary
Justak. J. B. Sanitation's truckdrivers do not necessarily
attend the periodic safety meetings which Respondent's
drivers are required to attend. Before J. B. Sanitation's
January 1979 incorporation, Sutton was in Respondent's
employ as a truckdriver, and Wadley was in Respond-
ent's employ as a laborer; according to Karen Justak,
most of the laborers' jobs are unskilled and at entry
level. When these two employees were transferred to J.
B. Sanitation's payroll, they retained their eligibility for
vacations. Their names are included on the list of em-
ployees on whose behalf Respondent made payments for
medical insurance in June and July 1979. J. B. Sanita-
tion's drivers are salaried, while Respondent's drivers are
hourly paid. The record is otherwise silent as to how the
wages and benefits of J. B. Sanitation's employees com-
pare to those of Respondent's employees.
Although employed by J. B. Sanitation, Tayce
Brown's name appears on payroll sheets maintained by
Respondent for its employees. The exhibit folder in-
cludes Respondent's payroll records between January 5
and May 25, 1979. The first of these payroll sheets which
bears her name is the sheet for the payroll week ending
May 11, 1979.52 Justak testified that Brown was a col-
lege student working "throughout the summer," that she
checked in the field to see whether the drivers were per-
forming their jobs correctly and reported "discrepancies"
to Justak, that if she had an opportunity while out on in-
spection she would make a sales call, and that "she was a
student and went back to school." Her last date of em-
ployment with Respondent fell between July 23 and 27.
I agree with the General Counsel that J. B. Sanita-
tion's employees should be excluded from the unit. J. B.
Sanitation is a separate corporation which is engaged in
a business different from Respondent's. The drivers em-
ployed by these corporations have separate immediate
supervision, perform different kinds of work on different
kinds of trucks, and do not (so far as the record shows)
perform each other's work or perform work for the same
customers. Indeed, there is no evidence that Wadley was
capable of driving Respondent's trucks. Moreover,
Brown's work was limited to J. B. Sanitation's oper-
ations. See Peter Kiewit Sons' Co. and South Prairie Con-
struction Co., 231 NLRB 76 (1977), affd. sub nom. Local
52 See the G.C Exh. 16a-116. This exhibit was offered and received
solely in connection with Ruth Hicko's status However, no response has
been filed to my April 17. 1980, order to show cause why this exhibit
should not also be considered In connection with Brown's status.
1068
JUSTAK BROTHERS AND COMPANY
627, International Union of Operating Engineers, AFL-
CIO v. N.L.R.B., 595 F.2d 844 (D.C. Cir. 1979). In any
event, I conclude that Brown should be excluded from
the unit as a temporary employee. Georgia-Pacific Corpo-
ration, 195 NLRB 258, 259 (1972).
My findings as to the date of J. B. Sanitation's incor-
poration, the identity of its directors, incorporators, and
resident agent, and the shareholder and director limita-
tions imposed by its articles of incorporation are based
on pages 1-6 of the General Counsel's Exhibit 118 for
identification, which purports to be a photocopy of such
articles. This document is attached to papers filed by the
General Counsel simultaneously with the General Coun-
sel's February 29, 1980, post-hearing brief, and the Gen-
eral Counsel moves for its receipt into evidence. The ac-
curacy of this copy is not questioned by Respondent. Re-
spondent made no contention until the 10th and last day
of the hearing, December 21, 1979, that J. B. Sanitation's
employees should be included in the unit.53 Moreover,
on earlier days during the hearing, Respondent's presi-
dent testimonially denied that such a corporation even
existed. On the seventh day of the December 1979 hear-
ing, Justak testified as an adverse witness for the General
Counsel that a company known as "Service Sanitation"
was formerly known as "J-B Sanitation," that "Service
Sanitation" is a corporation of which Gary Justak is vice
president and Karen Justak is president, and that it "pro-
vides portable chemical toilet rentals to area contrac-
tors." Justak went on to testify that in July 1979 "Serv-
ice Sanitation didn't exist; it existed as J. B. Sanitation,
which was and has been until late September or early
October of this year [1979], Justak Brothers. So an em-
ployee of J. B. Sanitation was an employee of Justak
Brothers; it was not a separate company." Then Justak
testified that, in July 1979, Respondent did not carry J.
B. Sanitation's employees on its payroll because, "at the
time, we were hoping to break J. B. Sanitation away
from Justak Brothers, so we started another checking ac-
count." Immediately thereafter, he testified that Brown,
whose name appears on Respondent's payroll, was em-
ployed by J. B. Sanitation. Later that day, he again
stated that while Brown was working, "there was never
a separate entity" called J. B. Sanitation. Thereafter,
Justak testified from time to time that the chemical toilet
company had been incorporated "recently" as Service
Sanitation, and on the 10th and last day of the hearing he
added for the first time the assertion that the incorpora-
tion had been effected in Indiana in November 1979. The
seventh and last page of the General Counsel's Exhibit
118 for identification (which is attached to the General
Counsel's February 1980 post-hearing brief) is a Febru-
ary 4, 1980, statement, bearing the seal of the Indiana
Secretary of State and his signature through his deputy,
that no records of Service Sanitation exist in his office.
Respondent has filed no objection to the General Coun-
b3 Indeed, in supplying documents on December 10 in purported com-
pliance with a November 19 subpena calling for, Inter alia, "weekly pay-
roll records [covering] all individuals o(n Respondent's payroll." Re-
spondent failed to supply the payroll records for Wadley and Sutton
After taking the position that they should he included, Respondenl
agreed to provide such records after the close of the hearing No conten-
tion is made that Respondent failed to compl) with this undertaking
sel's post-hearing motion that this page be received into
evidence, and it is hereby received.
Respondent opposes receipt of J. B. Sanitation's incor-
poration papers (the first six pages of G.C. Exh. 118 for
identification) largely on the ground that they could
have been introduced at the hearing if the General Coun-
sel had exercised due diligence. However, as shown,
during the hearing Gary Justak repeatedly denied the ex-
istence of any entity called J. B. Sanitation. Moreover,
he repeatedly testified to the incorporated status of Serv-
ice Sanitation, dated this alleged incorporation as several
months after the refusal to bargain, and did not until the
last day of the hearing name the alleged state of incorpo-
ration, an allegation critical to establishing that no such
incorporation existed. In view of Justak's hearing testi-
mony in this respect, the General Counsel could not
have been expected to obtain during the hearing the in-
corporation papers for a corporation whose existence
Justak denied, and whose incorporation occurred on a
date about 10 months before the date which Justak at-
tached to the incorporation of the entity which (accord-
ing to his inaccurate testimony) now operates the chemi-
cal toilet enterprise. Nor is the relevance of these incor-
poration papers limited to Gary Justak's credibility.
Rather, these papers establish that three individuals
whose unit placement is in dispute were not at any rele-
vant time in the employ of Respondent Corporation, but
rather were at all relevant times in the employ of an-
other corporation. Manifestly, this evidence is highly ma-
terial to whether these individuals should be included in
the unit. Accordingly, I hereby grant the General Coun-
sel's motion to receive into evidence the remaining por-
tions of the General Counsel's Exhibit 118.
b. Thomas Waugaman and Marvin Nielsen, Jr.
Although truckdriver Thomas Waugaman was dis-
charged on July 2, he will be included in the unit on the
July 12 demand date, and his replacement will be ex-
cluded, because, as found infra, Waugaman was dis-
charged for union activity. Independent Sprinkler & Fire
Protection Co., 220 NLRB 941, 960 (1975), enfd. 95
LRRM 2064 (5th Cir. 1977). Truckdrivers Marvin Niel-
sen, Jr., and James Spearman were the only two truck-
drivers who started working for Respondent during the
payroll week after Waugaman's discharge. Because nei-
ther signed a union card, it makes no difference which is
regarded as his replacement. For convenience, I will
regard Nielsen as Waugaman's replacement, and exclude
him.
c. Ruth Hicko
Respondent contends that Ruth Hicko is a regular
part-time employee, that she is a "dual purpose" employ-
ee who performs inventory control work as well as cleri-
cal work and that she should be included in the unit.
Justak testified on December 21, 1979, that she spends
half her time as an "inventory control clerk," that her in-
ventory control work is performed at the maintenance
garage, that she has worked for Respondent "steadily"
since on or about December 1976, that he was "pretty
sure" she had worked for Respondent from January
1069
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through May 1979, and that she works every or practi-
cally every Thursday. He further testified that she pre-
fers to be and is paid every month or every 2 months.
The General Counsel offered in evidence, at various
times, Respondent's payroll records between January 5
and December 7, 1979, except for the weeks between
May 19 and June 15. These records show that Respond-
ent issued her a paycheck on August 3 based on a gross
pay of $76.50, and a paycheck on October 26 also based
on a gross pay of $76.50. Aside from Justak's testimony,
which I do not credit in light of these records, there is
no evidence that Hicko received any pay during the 4-
week period for which there are no records. Assuming
she was paid the $2.90 hourly minimum rate prescribed
by the Fair Labor Standards Act during this period (29
U.S.C. Sec. 206(a)(1)),54 these paychecks establish that
she worked about 26 hours during the first 7 months of
1979, and about 26 hours during the 2 months ending
October 19. Hicko's name does not appear on any pay-
roll records for any week after October 19, nor does it
appear on the computer printout of persons on the pay-
roll for the week ending July 6. 1 conclude that Hicko
was a casual or irregular part-time employee, and shall
exclude her from the unit. Pilot Freight Carriers, Inc. and
BBR of Florida, Inc., 223 NLRB 286, 303 (1976); Gafner
Automotive & Machine, Inc., 156 NLRB 577, 578, fn. I
(1966), enfd. 400 F.2d 10 (6th Cir. 1968); Squire Shops,
Inc., 218 NLRB 158, 165-166 (1975), enfd. 559 F.2d 486
(9th Cir. 1977); M. J. Pirolli & Sons, Inc., 194 NLRB 241,
249 (1972), enfd. 80 LRRM 3170, 68 LC 12,843 (Ist Cir.
1972), cert. denied 409 U.S. 1008 (1972).
d. Joseph Nowak
Respondent would include mechanic Joseph Nowak,
and the General Counsel would exclude him. Nowak has
a full-time job with another employer. Justak testified
that Nowak had been with Respondent "since we start-
ed"; that he kept a record of his own hours on a calen-
dar in the garage; that he worked for Respondent "quite
a bit"; and that he was paid in cash. Justak testified that
it was "hard to say" whether the omission of Nowak's
name from the payroll for a particular week meant that
he did not work during that week. Of about 24 payrolls
covering the period between June 15 and November 30,
1979, his name appears on about 6, the last appearance
being on the payroll for the week ending August 3. The
gross pay shown on these documents ranged from $35 to
$100. Respondent's Exhibit 24 is a business record con-
sisting of a computer-printed list of employees, and a
handwritten entry of the number of hours they worked
each day during the payroll week ending July 6, 1979.
The computer-printed names on this document include
Nowak's name. According to this document, he worked
1-1/2 hours on Monday, July 2, and 4 hours on Thurs-
day, July 5; his gross pay for that week was $55 or $10
an hour. The foregoing evidence leads me to conclude
that Nowak, whose name does not appear on the payroll
for the payroll week ending July 13, is a casual or irreg-
ular part-time employee, and, therefore, should be ex-
cluded from the unit. See cases cited supra in connection
54 The record does not show her hourly rate.
with Hicko. Moreover, Respondent's failure to produce
documents similar to Respondent's Exhibit 24 for other
relevant periods leads me to conclude that, if produced,
they would have corroborated this conclusion. 55
e. Timothy King and James Lampa
The General Counsel would exclude, and Respondent
would include, Timothy King and James Lampa. Justak
testified on December 21, "We've had all through the
summer months and still do employ at this time two
part-time helpers in the garage area, Timothy King and
James Lampa."5 6 King performed no work for Respond-
ent between July 1 and November 30, nor is there any
evidence (other than Justak's testimony, which I do not
credit in light of the payroll records) that King per-
formed any work thereafter. Between June 15 and July
1, King worked only on Saturday, June 30, for 6 hours,
and Sunday, July 1, for 8 hours. For this 14 hours of
work, his gross pay was $31.50-that is $2.25 an hour.
Lampa worked during about 6 of about 24 payroll peri-
ods between June 15 and November 30; he did not work
at all between August 4 and October 13. His gross
weekly pay during the weeks he worked ranged between
$24.75 and $55.10. Taken together, Respondent's Exhibit
24B and the General Counsel's Exhibit 105j show that at
least as of July I he was paid about $2.25 an hour.
I conclude that, as of the July 12 demand date, King
was no longer in Respondent's employ, and should be
excluded for that reason. Moreover, I find that both
King and Lampa were irregular part-time employees and
should be excluded on both June 28 and July 12 for that
additional reason and that reason, respectively. See the
cases cited in connection with Hicko.
f. Scott Allen and Leslie Hott
Respondent would include Scott Allen and Leslie
Hott, and the General Counsel would exclude both of
them as temporary employees. Allen, aged 19, began
work for Respondent during the payroll week ending
July 6, 1979. His personnel file states in Burkat's hand-
writing that Allen was terminated on July 27, 1979, be-
cause he was going back to school. His job application
states that he had completed I year of college, and gives
"Summer job" as his reason for leaving in 1977 and 1978,
respectively, the only two previous jobs shown on his
application. Hott, aged 20, began working for Respond-
ent during the payroll week ending July 13, 1979. Her
personnel file states that she was hired on June 19, and
(in Burkat's handwriting) that she was terminated on
August 17 because she was going back to school. Her
application states that she had 2 years of college, and
11 Golden State orrtting Company, Inc.. d/b/a Pepsi-Cola Bottling Com-
pan), of Sacramento v. N.L.R.B., 414 U.S. 168, 174 (1973); N.L.R.B. v.
Con Bros. Mfg. Co., 187 F2d 329, 332 (7th Cir. 1951); nternational
Union, United .4Automobile. Aerospace and Agricultural Implement Workers
of America (UAW) [Gyrodyne Co. of America] v. N.L.R.B., 459 F.2d 1329,
1335-39 (D.C. Cir 1972); Zapex Corporation, 235 NLRB 1237, 1239
(1978).
,o The General Counsel's brief points out that G.C. Exh. 116 indicates
that both were hired about February or earlier However, this exhibit
was received in evidence for limited purposes which do not include
King's and L.ampa's status.
1070
JUSTAK BROTHERS AND COMPANY
gives as a reason for leaving a June-August 1978 job,
"Back to school." Both Allen and Hott were classified as
laborers. Karen Justak testified that this work requires no
education. Gary Justak testified that none of his employ-
ees who work during the school year has one or more
years of college.
I conclude that Allen and Hott were hired for the
summer only and that, as such, they were temporary em-
ployees who should be excluded from the unit. Georgia-
Pacifc, supra, 195 NLRB at 259 (1972). 57
g. Francisco Arredondo, Silverio Gonzalez, Jesus
Sanchez, and Sergio Herrada
Respondent contends that Francisco Arredondo, Sil-
verio Gonzalez, Jesus Sanchez, and Sergio Herrada were
temporary employees and should be excluded. The Gen-
eral Counsel contends that they should be included.
All of these employees were working for Respondent
on the July 12 demand date, for at least 4 months previ-
ously, and for at least a month afterwards. Sanchez
worked for Respondent for 17 months; the others
worked for Respondent for 6 or 7 months. A large ma-
jority of all persons hired by Respondent work less than
6 months.
Burkat noted on the files of Arredondo and Gonzelez
that the employee "went to Mexico." Burkat testified
that he made this entry on Arredondo's file some time
after his September 2 separation, and after receiving this
information from other laborers. Burkat further testified
that he entered "SCI" (stopped coming in) on Silverio
Gonzalez' file, and that thereafter his brother told Burkat
that Silverio "was going back to Mexico," whereupon
Burkat crossed out the "SCI" and wrote "went to
Mexico." Burkat went on to testify that "[t]hey had been
working to try and get [Silverio Gonzalez] squared away
to stay in the States. I do not know if a problem came up
or not."
Burkat wrote on the outside of Sanchez' file, "Quit,
went back to Mexico." Burkat testified that he made this
notation "fairly close" to, and perhaps before, Sanchez'
October 24 separation. Burkat went on to testify that
about a week before October 24 Sanchez, who spoke
little or no English, approached him with another man,
who told Burkat (who speaks no Spanish) in English that
Sanchez was going to Mexico; Burkat was not sure
whether the man said "back to" Mexico. Burkat went on
to testify that the man said Sanchez wanted his check for
the following week, and that the following Friday,
which was payday, Sanchez picked up, without express-
ing surprise at getting two checks instead of one, checks
for the two consecutive payroll weeks terminating that
day. Respondent's records show one Friday, October 12,
check to Sanchez of about 138; one Friday, October 19,
"I M. J. Prolli, supra 194 NLRB at 250, does not point to a different
result. The arrangement made with the employer by the employees there
included in the unit did not impose any definite terminal date on their
employment.
Karl Kovach's personnel file states that he was hired on June 11 and
wu terminated on August 13 because "Back to School." His employment
application states that he was 18 years old and does not show that he
ever attended college or whether he had finished high school The Gen-
eral Counsel's brief in effect concedes that Kovach should be included in
the unit.
check to Sanchez of about $167; one Friday, October 26,
check to Sanchez of about $167; one Friday, November
2, check to Sanchez of about $37; and no checks to him
thereafter. 5 8
Herrada's personnel file contains the notation "went to
Mexico." Burkat testified that he has no personal knowl-
edge of that.
There is no evidence that Arredondo or Herrada had
ever been in Mexico before Burkat's testimony that the
man who accompanied Sanchez may have said he was
going "back" to Mexico is the only evidence that San-
chez had ever been there.
I agree with the General Counsel that Arredondo,
Gonzalez, Sanchez, and Herrada were not temporary
employees, since the record fails to show that any of
them was hired by Respondent to work until any definite
terminal date. M. J. Pirolli, supra, 194 NLRB at 250.
h. Eugene Rosen
Eugene Rosen was hired on July 3. The General
Counsel contends that Rosen quit before the demand
date, and for that reason should be excluded. Respond-
ent's position is unclear. Justak testified, and Rosen's per-
sonnel folder states, that Rosen quit on July 6. However,
his name appears on the payroll for the payroll week
ending July 13, as well as the payroll week ending July
6. Another page of the document from which Respond-
ent's Exhibit 22 was physically detached would have
shown the days, if any, on which Rosen worked between
July 7 and 13. In view of Respondent's failure to supply
this page, I resolve against Respondent any doubts about
whether Rosen, who did not sign a card, was still in the
unit on July 12. See cases cited supra at fn. 55. 1 find that
he was not in the unit on July 12 or any time thereafter.
i. Arthur Gamblin
Respondent contends that Arthur Gamblin started
work on July 12, the day of the Union's bargaining
demand, and should be included in the unit on that date.
The General Counsel contends that he did not start work
until July 13. Gamblin's personnel file contains an appli-
cation for employment dated July 12 at the top and July
13 next to his signature; a signed acknowledgment by
Gamblin, dated July 13, that he had read Respondent's
rules; and an entry on the file cover, in an unidentified
hand, that Gamblin had been hired on July 13.
Respondent offered into evidence what purports to be
the last page of a pay form maintained by Respondent in
the ordinary course of business, which states how many
hours each employee worked during the payroll week
ending July 13. Most of the names on this sheet are
printed by computer, but Gamblin's name is handprinted
in ink. This document states that Gamblin worked 5-1/2
hours on July 12 and 8-1/2 hours on July 13. This docu-
ment was authenticated by Mary Beth Jurbala, a secre-
tary in Respondent's employ. She was unable specifically
to recall the events which led up to this entry, but she
Sn Burkat testified that it was not normal for Respondent to give two
checks to an employee who quit, but Sanchez "had been with us for a
while We just fell that obligation toward him"
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that it was in bookkeeper Linda Kritch's "hand-
writing" and that the entry "would have been" made
pursuant to Jurbala's instructions because Gamblin's
name was on the hours records kept by Ronald Kritch
(and destroyed in the ordinary course of business) but
not on the computerized list, which is made out a week
ahead of time. The General Counsel's brief questions
whether this entry was made when the document was
initially prepared, and points to the fact (not adverted to
by the General Counsel at the hearing when opposing
the admission of this document) that, if inserted in its al-
phabetical position, Gamblin's name would have ap-
peared on a portion of this list not offered into evidence.
However, the fact that Waugaman's name appears on the
computer-printed portions of the document, although
Waugaman was told on July 3 about his discharge, indi-
rectly corroborates Jurbala's testimony that the name of
Gamblin, hired no earlier than July 12, did not appear on
the computer-printed list. Moreover, Respondent's Ex-
hibit 24, a similar form for a different period, contains
similarly placed entries regarding employees not on the
computerized list. Furthermore, the General Counsel's
failure to advert at the hearing to the incompleteness of
this exhibit deprived Respondent of the opportunity to
produce the missing page. See N.L.R.B. v. Local 490, In-
ternational Hod Carriers Building and Construction Labor-
ers Union, AFL-CIO [Dickmann-Pickens-Bond], 300 F.2d
328, 332-333 (8th Cir. 1962). On the basis of this exhibit,
I find that Gamblin started work on July 12, and include
him in the unit on that date.
j. Alleged supervisors
(1) Evidence regarding supervisory status
The General Counsel contends that Carlos Godines,
William Parks, Joseph Simko, and Andrew Vrabel
should be excluded as supervisors, but that so far as ma-
terial here nobody else should be excluded on that
ground. Respondent's brief and much of its evidence de-
scribes as "leaders" or "leadmen" these 4 individuals and
10 other individuals, namely, John Calderon, Raymond
Carrillo, Rodrigo DelReal, Eustalio Dominguez, Robert
Doss, Enrique Miranda, Pedro Moreno, Carlos Ponce,
Manuel Salaises, and Heriberto Unate. Except for Mir-
anda and Pedro Moreno (both card signers) 59 there is no
probative evidence that any of these 10 was a "leadman"
on more than I day. 6°
Respondent's operations are under the overall manage-
ment of Gary Justak. Respondent's labor force consists
5a Of these 14 alleged "leadmen." 5 allegedly signed cards during the
relevant period: DelReal, Miranda, Pedro Moreno, Ponce, and Salaises
'o The laborers' names and dates served as "leadman" are as follows
Unate January 15, 1979
Salaises April 10, 1979
Calderon May 11, 1979
Doss May 14, 1979
DelReal May 24, 1979
R. Carrillo August 20, 1979
Dominguez August 25, 1979
Ponce September 13, 1979
Resp. Exh. 43 was offered and received in evidence for limited pur-
poses which did not include showing who worked as a "leadman" on
July 12, 1979.
of office employees (directly supervised by Karen Justak,
who in her husband's absence is in complete charge of
the business), mechanics and mechanics' helpers (directly
supervised by Kritch and Mikel Justak), truckdrivers (di-
rectly supervised by at least Kritch), and laborers. All
these admitted supervisors report directly to Gary
Justak. It is undisputed that Burkat, who also reports di-
rectly to Gary Justak, is a supervisor with respect to the
laborers. The General Counsel contends that Godines,
Parks, Simko, and Vrabel were supervisors with respect
to the laborers, and that Godines and Parks were also su-
pervisors with respect to truckdrivers.
Respondent provides laborers to its customers to per-
form particular jobs, frequently but not always of a
short-term nature. During June and July 1979, most of
Respondent's work was performed for two customers,
Amoco and ECI. On a particular day during these
months, the number of laborers who were actively per-
forming work for Respondent averaged 30 to 55, and the
number of different jobs on which they were working
averaged 6 to 9.
Hiring and firing of laborers is done by Burkat. When
appropriate management representatives of Amoco, Re-
spondent's principal customer, decide that unskilled labor
is needed from Respondent to perform a job, they esti-
mate about how many laborers will be needed and about
how long the job will last, and give this information to
Amoco's central planning office, wnich tells them the re-
lease number assuring, for bookkeeping purposes, the
proper charge to the proper job. Central planning then
telephones Burkat or Gary Justak about the job, but the
record fails to show whether they are advised of
Amoco's management estimates. When ECI has a job to
perform, ECI maintenance engineer Donald Staroscsak
telephones Burkat and tells him what the job is and how
soon it must be finished, but not how many people to
send over. Upon receiving such a call from Amoco or
ECI, Burkat goes out to the jobsite, checks the job, and
determines how many men are needed and how long the
job will take. If he does not have enough men ready and
available to go to work, he hires some.
Respondent performs work under the jurisdiction of
Amoco's manager of the oil movement division, Oral
Kozeny; Amoco's superintendent of turnarounds and
construction, Richard Glaser; and Amoco's supervisor in
the utility, maintenance, and engineering group, Joseph
Dickey. Kozeny's division uses Respondent principally
to clean up oil spills. Glaser's division uses Respondent
for jobs which may last from 2 hours to years; at the
time of the December 1979 hearing, Respondent was dig-
ging holes around a leak which Amoco was repairing ill
its underground water system and was stripping some in-
sulation. Dickey's division used Respondent for cleaning
various buildings and cleaning a biopond which dis-
charges water into Lake Michigan; such jobs may last
from a day to a month.
Dickey credibly testified that, when making Respond-
ent's initial prestart check of a job under Dickey's juris-
diction, Burkat may bring a "leadman" with him, that
Simko had been the "leadman" Dickey had worked with
1072
JUSTAK BROTHERS AND COMPANY
the longest,6 and that Godines, Parks, Vrabel, Domin-
guez, and Pedro Moreno had all served as "leadmen" on
jobs under Dickey's jurisdiction.6 2 Inferentially, Simko,
at least, had accompanied Burkat on these initial visits to
the jobsite. Inferentially, if accompanied by a "leadman,"
Burkat at least sometimes consulted the "leadman" in
preparing his estimates. During this initial visit to a job-
site under Dickey, Burkat and Amoco got "lined up" on
who Respondent's "leadman" and Amoco's supervisor
were going to be. Glaser credibly testified that on jobs
under his jurisdiction an Amoco supervisor and a Justak
"leadman" were assigned to each job, or sometimes to
two jobs, being performed by Respondent's personnel.
Burkat decides each morning which specific laborers
are to go to the site of each specific job. An Amoco su-
pervisor sometimes tells Burkat what laborers Amoco
wants on the job, and Burkat gives all the weight he can
to such requests. 63 ECI never makes such requests.
Burkat also decides who is to be the "leadman" on each
job.
Respondent's contract with ECI provides, inter alia:
Independent Contractor
[Respondent] agrees that [Respondent] is an inde-
pendent contractor, and that no tax, assessment or
legal liability of [Respondent], or of his agents or
employees, becomes by reason of this order an obli-
gation of [ECI]. Any work or service to be per-
formed is to be entirely under [Respondent's] super-
vision, direction and control and shall be done in a
thorough, first class, workmanlike manner and sub-
ject to the approval of [ECI's] authorized repre-
sentative.
Respondent's contract with Amoco provides, inter
alia:
[Respondent] shall diligently and carefully per-
form all work required hereunder in a good and
workmanlike manner, and if permitted to subcon-
tract shall be fully responsible for all work and
services performed by subcontractors. [Respondent]
shall be an independent contractor and [Amoco]
shall have no right to exercise supervision as to the
manner or method of performing the job.6 4
61 At the time of the December 1979 hearing. Simko had been work-
ing at Amoco's jobsites, usually the Lakefront jobsite, for a year and a
half, except for I week when Simko was on vacation and Parks substitut-
ed for him
62 Dickey was not asked to give any frequency or dates in this connec-
tion. So far as the probative evidence shows, Dominguez as a "lead-
man" for Respondent on only I day. August 25, 1979. Dickey testified,
'[T]he man In the while hat is the leadman " This testimony aside, there
is no evidence that Dominguez ever wore a white hat.
a This finding is based on Burkat's testimony Kozeny, Glaser, and
Dickey all denied any knowledge of such requests, but they would not
necessarily know whether their subordinates directed such requests to
Burkat directly.
6 In vies of this sentence, I do not accept Company President Jus-
tak's testimony that Respondent's contract with Amoco provides that
Amoco supervisors are to tell individual laborers of Respondent what to
do, and that this contract does not provide that Amoco supervisors are
not responsible for supervising Respondent's employees.
After tendering the foregoing testimony. Justak went on to testify that,
rather than being assigned directly to one of Respondent's leadmen, some
Both contracts call for payment to Respondent of a
specified hourly rate for each laborer, and a higher speci-
fied rate for each labor foreman. ECI's contract further
states, "Maintenance labor requires a foreman with the
addition of a fourth man to the customer." The persons
working for Respondent at a particular customer's job-
site always include at least one person who is designated
a "leadman," but at least as to Amoco the same person is
sometimes designated the "leadman" on more than one
job at the same time.
Burkat comes to the office at or about 7 a.m., about 40
minutes before the laborers are supposed to report for
work. The evening before or the morning of every
working day, Burkat makes out a worksheet which sets
forth the location and the job number of each job to be
performed that day, and the name of each individual
who is to work on each job. He inserts the notation
"(F)" after some of the names so listed; Burkat testified
that this notation means leader or foreman. Burkat then
makes several Xerox copies of the worksheet, and dis-
tributes them to the persons who are to drive employees
to the various jobsites in a company van.
During the period here involved, Simko usually drove
the laborers to his usual jobsite at Amoco's Lakefront,
Parks usually drove the laborers to other Amoco job-
sites, and Godines usually drove them to ECI; but Mir-
anda and Pedro Moreno testified that on occasion they
drove a van to the job, and on occasion Burkat did so.
Justak testified that a "good portion" of those "leaders"
with drivers' licenses were given vans to drive laborers
into the refinery. Burkat testified, in effect, that all the
van drivers were leaders, but Staroscsak credibly testi-
fied that the van is sometimes driven by a laborer. Parks,
Godines, and Simko made check marks on the worksheet
to record which employees on the list had actually re-
ported to work.6 5 When the vans were driven by some-
one else, the van drivers used their copies of the sheet to
ascertain the jobsites where laborers were to be dropped
off and to make sure that the total number of laborers in
the van equaled the total number who were supposed to
be dropped off at these sites.
Parks credibly testified that, when he drives laborers
to the jobsites, he wears a two-way radio in his belt to
enable him to communicate with Respondent's office. He
further credibly testified that the van driver is "usually"
the person who has the two-way radio, and that the rest
of the laborers do not have such a radio. Aside from in-
ferences which might be drawn from the use of this
radio and the fact that Respondent drives the laborers to
the jobsites, the record fails to show the distance be-
tween Respondent's facility and most of the various job-
of Respondent's laborers are assigned directly to an Amoco supervisor to
whom they report, who supervises them, and who gives them their job
assignments and tells them what to do. In vies of the inconsistency be-
tueen the Amoco contract and his related testimony, and for demeanor
reasons, I accept his testimony, described i this paragraph, only to the
extent consistent with nim subsequent findings i this connection
~s This finding is based on Juslak's testimony, partly corroborated by
l'arks For demeanor reasons, I do not accept Burkat's testimony that he
himself usuall! checked off the names
1073
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sites, or between the various sites themselves. 66 Howev-
er, Amoco's Lakefront jobsite is about a mile and a half
from Respondent's facility, and about a mile from
Amoco's "tunnel" jobsite. Gary Justak testified that Re-
spondent relies on Parks, Godines, and Simko to relay
information to the laborers from himself, Burkat, and
Kritch, at least where the latter three cannot directly
communicate with the laborers.
Before Respondent began performance of a job for
ECI, ECI maintenance engineer Staroscsak would tell
Godines or (on one occasion) Parks, and also Respond-
ent's main office, the specifics for the job. Then, Godines
would tell the laborers what to do.
Kozeny testified that Respondent is supposed to pro-
vide a "leader man" with every four or five laborers that
it furnishes, and that this is the individual to whom
Amoco would look to give directions to Respondent's la-
borers. Glaser, who has 22 supervisors reporting to him,
credibly testified that as to every job performed by Re-
spondent within his jurisdiction, some of which may last
for years, every morning the Amoco foreman assigned to
that job gets together with the "leadman" on that job,
normally Vrabel, to discuss what should be done that
day. The only such "leadmen" whom Glaser could iden-
tify by name were Vrabel and Parks, but Glaser testified
that there were others, depending on the workload. He
further testified that the "leadmen" are identified by an
"F" on the timesheets brought to him (normally by
Vrabel) every evening for signature by Glaser or the su-
pervisors who report to him. As to the individuals listed
supra in fn. 60, the only document identifying any of
them as more than a laborer is such a notation on the ti-
mesheet whose date is there set forth. Amoco Supervisor
Dickey, with five supervisors under him, credibly testi-
fied that, when Respondent's crew report to the jobsite,
Amoco's supervisor tells the "leadman" what the Amoco
supervisor wants (for example, the dimensions of a
trench to be dug), where he wants it done, and "safety
regulations" (for example, location of underground elec-
tric wiring). Burkat testified that the difference between
what the Amoco supervisor does and what Respondent's
"leader" does is that "Our man is working."
When ECI or Amoco concludes that Respondent has
too many employees on the job, ECI or Amoco tells Re-
spondent to cut down the next day, but not the names of
specific people to remove from the job. On occasion,
ECI or Amoco will transfer some or all of Respondent's
laborers to jobs other than the one to which they were
initially assigned.
At the end of each day, Amoco and ECI management
receive as to each job a list of which Justak personnel
worked on that job and the number of hours they
worked. The customer's approval of this document con-
stitutes an acknowledgment that the work was per-
formed and is the basis for the customer's payments to
Respondent. This document is usually prepared by
Burkat, but on occasion, Godines has prepared this docu-
ment for submission to ECI.
6" Respondent's October 1979 motion for a bill of particulars asserted
that the Amoco oil refinery covers an area of approximately 1,1(X) acres
and comprises over 30 buildings.
Gary Justak testified that he does not supervise the la-
borers. Further, he stated in his prehearing affidavit that
neither he nor Kritch nor Burkat is able to provide effec-
tive immediate supervision of all the laborers all the
time. Burkat testified that he spends 4 to 5 hours a day in
the office. Burkat further testified that he goes out to the
jobsite area to check whether the men are on the job,
safety precautions are being taken, and the jobs are being
done. He did not testify about the number of hours he
spends performing these checks. Employee Hernandez,
who worked for Respondent between February 1979 and
late September 1979, credibly testified that most of the
time he worked with Parks, and that, when Hernandez
worked with Parks, Burkat "hardly ever" came out on a
job he was working on. Laborer DelReal, who worked
with Parks before July 23, 1979, and with Godines be-
tween mid-August and late September 1979, credibly tes-
tified that Burkat came to DelReal's jobsite perhaps once
a week. Laborer Pedro Moreno, who worked with Parks
and Godines between March 1978 and October 1979,
credibly testified that he saw Burkat go by Moreno's job-
site once or twice a day, but was not aware that Burkat
was coming to check on the workers. Laborer Cardiel,
who worked with Godines between March and Novem-
ber 1979, credibly testified that, although Burkat "may
have" come out to the job, he never told Cardiel what to
do and may not have actually come to see him on the
job.
Dickey testified that neither he nor the five supervi-
sors under him supervise any of Respondent's laborers.
He further testified that when he sees individual laborers
in Respondent's employ who are sleeping, "goofing off,"
or doing something dangerous, he ascertains the employ-
ee's name from the leadman and then gets in touch with
Burkat. Dickey testified that about all he does in discuss-
ing the matter with the "leadman" is to get the offending
employee's name "because [the leadman] can't do any-
thing about it." Glaser testified that, although Amoco su-
pervisors evaluate Respondent's performance of a project
as a whole, they do not evaluate the performance of indi-
vidual laborers employed by Respondent, and do not
handle requests of individuals employed by Respondent
for permission to leave the job early. Glaser further testi-
fied that in certain cases Amoco would tell Respondent
that a particular employee of Respondent's had violated
a safety rule. On one occasion, Glaser telephoned Re-
spondent's office to express displeasure at the fact that
one of its employees was sleeping on the job. Justak was
not in the office, so Glaser told Parks, who was in the
office, that Glaser did not want the employee to work at
Amoco any more. Parks conveyed this message to
Burkat, and the problem was corrected to Glaser's satis-
faction. ECI engineer Staroscsak credibly testified that,
once or twice a day, he spends a total of 20 or 30 min-
utes inspecting jobs being performed by Respondent. He
further credibly testified that he had worked with Go-
dines, and at one time Parks, as Respondent's leaders,
that Staroscsak used the "leaders" to relay instructions to
the laborers, and that if a job is not being done right, he
notifies both the "leader" and Respondent's main office.
He also credibly testified that when Respondent's labor-
1074
JUSTAK BROTHERS AND COMPANY
ers take breaks or lunch is up to Respondent's "main
office," that he makes no decisions about their requests
for time off, and that he resolves their complaints only if
they pertain to safety reasons.6 7 Additionally, he testified
that the "leaders" are responsible for making sure the la-
borers are working, "but if they are not working then
that would come under . . . my jurisdiction."
Parks and Godines had contact with the laborers
either when dropping them off at the job, when inspect-
ing them on the jobsite several times during the day,68
or when working beside the laborers.6 9 During these
contracts, Parks and Godines showed or told the labor-
ers what to do, and the laborers did as they were told.7 0
Like Parks and Godines, Simko inspected jobsites. Parks
and Godines had power to transfer employees between
jobs. When employees had problems on the job, those
working for Parks would talk to him and those working
for Godines would talk to him. Parks would tell laborers
to do what they were supposed to be doing or go home
and to stop "loafing" or sleeping on the job, transferred
employees from jobs which had been completed during
the day to jobs which were still in progress, has warned
an employee to wear safety glasses, and transported an-
other employee back to the parking lot because he had
no safety glasses, even though Burkat may have known
that that employee and another employee had no safety
glasses when Burkat assigned them to the job. Parks
would receive and dispose of laborers' requests for per-
mission to go home early. Parks has also designated bi-
lingual employees to act as "pushers" who are supposed
to relay to the laborers in Spanish Parks' instructions in
English, and to relay to Parks the laborers' requests for
permission to leave early. One of these "pushers" was
Pedro Moreno. About July 1979, Parks told Pedro
Moreno that he was a foreman.71 Simko trained Re-
e6 In view of this credible testimony by Staroscsak, and Justak's dem-
onstrated unreliability about the extent to which customers' personnel su-
pervise Respondent's aborers (see supra at fn 64), I do not credit Jus-
tak's testimony that ECI "will appoint [an ECIl representative who, in
most cases, supervises the activity of our people"
a* My finding that they made such visits is based on the testimony of
Pedro Moreno, Jesus Hernandez, DelReal, and Rafael Cardiel. For de-
meanor reasons, and in view of Parks' unreliability as to other issues (see,
e.g., in/fra, fn. 74), do not accept Parks' denial that he would make such
inspections Parks and Godines would also use the van during the work-
day to pick up materials and equipment needed by the laborers
e9 Parks, Burkat, and Amoco's and ECt's representatives all testified
that Parks and Godines perform laborers' work I conclude that they did
so during time left over from their other duties or, perhaps, in emergen-
cies. I am not persuaded otherwise by the testimony of various employ-
ees that they never saw Parks or Godines perform laborers' work. Truck-
driver Camper credibly testified that, about late November, he saw Parks
and the laborers cleaning an incinerator.
70 This finding is based on the testimony of Pedro Moreno. Hernan-
dez, Cardiel, Alfred Garcia. and Antonio Ayala Lombardo. Indeed, at
one point Parks testified. "I]f I want [Spanish-speaking] employees to use
a certain tool or do a certain thing, I'll demonstrate right there for them
or do the same thing I'm doing, this is what I want you to do, like this "
7 I so find in view of Parks' failure to deny Pedro Moreno's testimony
in this respect. However, I cannot accept Moreno's further testimony,
even though undenied by Parks, that Parks told him not to perform phys-
ical work any more. As found elsewhere, Parks and Godines themselves
performed such work from time to time, and Pedro Moreno admittedly
performed physical work thereafter, although he testimonially attributed
this to inability to "stand sitting around. looking at them working with
my arms resting. We were supposed to be working together." Nor do I
accept his testimony that he had power, which he admittedly never exer-
spondent's laborers and showed them how to work.
When ECI needed work to be performed after hours, it
would get in touch with Respondent's main office. When
overtime was to be worked, Parks and Godines would so
advise the laborers and keep a record of the overtime
they worked. Parks and Godines distributed paychecks
on payday. On occasions when Respondent no longer
has work for laborers, the laborers have been given
layoff letters (bearing Burkat's or Gary Justak's signa-
ture) by Parks or Godines or have been told by Godines
that there is no work.
Notwithstanding the provisions of Respondent's con-
tract with Amoco, laborer Miranda credibly testified that
on at least one occasion Parks told Miranda to do what
Amoco's foreman told the employees to do, and Mir-
anda, who is bilingual, relayed the Amoco foreman's
instructions to the others in Miranda's crew, who spoke
only Spanish. Also, laborers Hernandez and DelReal cre-
dibly testified that on occasion Parks would leave Re-
spondent's laborers on the Amoco jobsite with instruc-
tions to do what an Amoco supervisor told them to do.
DelReal testified that this occurred two or three times
while he was working at Amoco jobsites, to which he
was assigned for at least a month. In view of his testimo-
ny in this respect, the provisions of Respondent's con-
tract with Amoco, and the testimony of Amoco's man-
agement, I do not accept Parks' testimony that, the
Amoco supervisor was regularly in charge of the labor-
ers whom Parks dropped off at the jobsite. Parks also
testified that, as to jobs where he himself works, the
Amoco supervisor tells Parks what work is to be done,
but I do not read Parks' testimony as indicating that the
Amoco supervisor tells Parks which individual laborers
to assign to which jobs, and I would not credit any such
testimony in view of the contrary testimony, summarized
above, of Amoco's management.
Respondent requires each individual in its employ to
sign a form contract of employment. This contract sets
forth a specified starting rate for "Laborers," a higher
starting rate for "Truck Drivers," and a still higher start-
ing rate for "Supervisors." The contract further provides
that salary increases are to be at Respondent's discretion.
In addition, the form contract states:
(Supervisor only)
The Employee shall be the supervisor as well as
a consultant for Employer and agrees to devote his
full time and attention and best efforts to the per-
formance of his duties hereunder, which shall in-
clude such additional supervisory duties on behalf
of the Employer and other operations of a character
in keeping with his position as supervisor of Em-
ployer as may from time to time be assigned to him
by the Employer.
Also, the form contract states that employees are entitled
to "various breaks at the discretion of [Respondent's]
cised, t fire, to reprimand, and to recommend hire Moreno testified that
Parks was either his equal or his immediate superior. and there is no
claim or csidence that Parks had power to fire or to recommend hire
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foreman. The general guideline is the allowance of one
morning and one afternoon break per day."
The contracts of employment signed by Parks, Go-
dines, Simko, and Vrabel each state that the contracting
individual is employed as a "foreman." The contracts
signed by Calderon and Pedro Moreno state that the
contracting individual is employed as a "laborer," and
there is no evidence that any of the other alleged lead-
men signed a "foreman" contract. 7 2 The contracts of
employment used in June and July 1979 call for a labor-
er's starting rate of $3.50, a truckdriver's starting rate of
$4.35, and a "supervisor's" starting rate of $5. Parks was
hired in February 1979 at $7 an hour. At the time of the
December 1979 hearing, Parks, Godines, Simko, and
Vrabel were all receiving about $8 an hour. 73 Admitted
Supervisors Mikel Justak, Kritch, and Burkat are sala-
ried; admitted employees, and all the "leaders," are
hourly paid. However, Parks grossed more than ad-
mitted Supervisor Burkat, Parks' alleged immediate supe-
rior, during 15 of 24 payroll weeks between June 9 and
November 30. During the first of these weeks, Parks
grossed more than twice as much as Burkat. Parks was
hired as a foreman.74 Godines and Simko were initially
hired as laborers; the record fails to show the capacity in
which Vrabel was initially hired. All the other alleged
"leadmen" were hired as laborers, and at all material
times were referred to as laborers in Respondent's own
personnel records. So far as the record shows, none was
hired at more than $3.50 an hour. Respondent's records
indicate that during the payroll week ending July 6,
1979, their hourly pay ranged from $3.50 (Ponce) to $6
(Pedro Moreno). 7 5 Godines, Park, Simko, and Vrabel
work steadily for Respondent, while the rank-and-file la-
borers do not. 76 Godines, Parks, Simko, and Vrabel
wear white hard hats, whereas laborers wear green hard
hats.7 7 Parks, Simko, and Vrabel all speak English as a
12 No job title appears on the contract signed by Albert Smith, who
was not in Respondent's employ on the critical date but was designated
as "(F)" on a time record submitted to Amoco on March 20, 1979 Em-
ployee Castaneda's testimony suggests that Smith may have been a
"pusher."
71 Godines was on layoff status at the December 10, 1979, opening of
the hearing, and when he testified on December 20. He worked 40 hours
during the payroll week ending on November 23, but did not work
during the following week.
74 This finding is based on Burkat's testimony and l'arks' employment
contract. In view of this evidence, I do not accept Parks' testimony that
he was not hired as a foreman, or his uncorroborated testimony that
when he was hired he told Justak that he did not want to be a supervisor.
7s Taken together. Resp Exh 24 and G C. Exh. 1OSi t indicate that
during that week they were paid about the fillowing rates: Calderon
$5.25, R. Carrillo $4, DelReal $3.75, Dominguez $4.55, Doss $4.30, Mir-
anda $4.50. Pedro Moreno $6, Ponce $3.50, Salaises $4, and Unate $4 25.
As to some of these, there is other evidence of their pay scale, not neces-
sarily consistent with the foregoing exhibits.
'6 Burkat testified that the "leaders" suffer irregularity of employment
with the same frequency as laborers However, Respondent's records
show that Godines, Parks, Simko, and Vrabel worked every week be-
tween the payroll week ending June 15 and the payroll week ending No-
vember 23, 1979 A this point. (Godines was laid off, but the others con-
tinued to work (Assertions in the General Counsel's brief regarding earli-
er periods rely on G.C. Exh. 116, which was received in evidence for
other purposes only.)
77 Justak testified that bilingual laborers ear gold hard hats Some of
Respondent's laborers testified in English although their native language
is Spanish, but there is no evidence that any of them wore gold hard
hats.
Spanish, speaks very good English. The Justaks, Burkat,
and Kritch all speak English as a native language. The
record affirmatively shows that Gary and Karen Justak
and Burkat do not understand Spanish; and there is no
evidence that Mikel Justak or Kritch can understand
Spanish.
Respondent provides admitted Supervisors Mikel
Justak, Ronald Kritch, and Burkat with a company vehi-
cle to be used for personal as well as business reasons,
includes them in a profit-sharing bonus system, makes
contributions to individual retirement accounts on their
behalf, and pays the rental for their uniforms. Inferential-
ly, none of these benefits is received by any of Respond-
ent's other personnel, including "leaders." Also, Re-
spondent pays all the premiums for the insurance cover-
age of these three admitted supervisors, but only half the
premiums of Respondent's other personnel (including
"leaders"), who after 3 months of service are eligible for
coverage under the same policy. Admitted Supervisor
Burkat receives a 3-week paid vacation; admitted Super-
visor Kritch, who has not worked for Respondent as
long as Burkat, receives a 2-week paid vacation; and
other personnel, including "leaders," receive I week's
paid vacation after I year of service.
About 10 laborers testimonially identified Parks as
their "boss" or foreman; and truckdriver Waugaman de-
scribed him to Sparks and Pullins as a "supervisor."
About seven laborers identified Godines as their "boss"
or foreman, and about three so identified Simko. Laborer
Almanza so described Pedro Moreno, and laborer
Aguayo so described Calderon.
Gary Justak testified that admitted Supervisor Kritch,
admitted Supervisors Mikel Justak, Godines, and Parks
"volunteered" to perform weekend call duty. Gary
Justak further testified that Godines and Parks are re-
ferred to as "supervisors" on the weekend call schedules.
A "supervisor" on weekend call duty receives requests
from customers for drivers to perform emergency work.
The call-duty "supervisor" selects the driver from the
two or three drivers scheduled by Kritch to be "on call"
that weekend and sends that driver to the job. 78
(2) Conclusions regarding alleged supervisors
It is clear from the record that Respondent's work
force includes some supervisors, in addition to Respond-
ent's admitted supervisors, over Respondent's laborers.
Thus, Justak admitted that he does not supervise the la-
borers, and that Kritch and Burkat are unable to provide
effective immediate supervision of all the laborers all the
time. Justak's testimony in this respect is corroborated by
the evidence showing that Burkat did not pay frequent
visits to the jobsites where the laborers are working, and
by Kritch's supervisory duties with respect to the truck-
drivers. Moreover, Respondent's contract with Amoco
withholds from Amoco the right to exercise supervision
as to the manner or method of performing the job, and
Respondent's contract with ECI provides that "Any
work or service to be performed is to be entirely under
tH Communications are made by use of an answering service, beepers,
and direct telephone connections.
1076
JUSTAK BROTHERS ANI) COMPANY
[Respondent's] supervision." Furthermore, and consist-
ently with these contracts, members of Amoco and ECI
management testified that they do not supervise Re-
spondent's laborers. While some low level Amoco super-
visors do nevertheless provide some occasional first-F!ne
supervision over Respondent's laborers, the void left by
Respondent's admitted supervisors is not filled by these
Amoco foremen's occasional exercise of authority, be-
cause of its infrequency and its vulnerability to upper
level Amoco disapproval in view of Respondent's con-
tract with Amoco. Also, much of the evidence indicates
that Respondent's laborers are peculiarly in need of su-
pervision. Thus, there is a high turnover among them,
Respondent does not require them to have any education
or prior work experience, they work at locations phys-
ically separated from one another and from Respondent's
office, they work in areas where fires are very easy to
start and very dangerous, they perform some work
where they risk lead poisoning unless they wear protec-
tive clothing, and many of them speak little or no Eng-
lish.
Further, the four individuals (Parks, Godines, Simko.
and Vrabel) whom the General Counsel alleges to be su-
pervisors bear strong facial indicia that it is they who
provide the necessary supervision. They are the only
persons among Respondent's laborers who have signed
employment contracts naming them as foremen. They
are paid significantly more than laborers who are admit-
tedly employees (more than twice as much as some of
them), and their monetary compensation is comparable
to that received by Burkat, who is admittedly a supervi-
sor over the laborers and is allegedly the immediate su-
pervisor of these four foremen. 79 Laborers who are ad-
mittedly employees are frequently laid off, but these four
foremen work almost continuously. There is no substan-
tial evidence that any of Respondent's personnel, other
than these foremen and Pedro Moreno, wore white hard
hats rather than green.
Further, the record directly shows that Parks, Go-
dines, and Simko inspect jobsites, make records of which
laborers report to work, and are relied on by Respondent
to relay information to the laborers (sometimes through a
two-way radio) from President Justak and admitted Su-
pervisors Burkat and Kritch, at least on the frequent oc-
casions where the latter three cannot directly communi-
cate with the laborers. Also, the record directly shows
that Parks, Godines, and Simko show or tell the laborers
what to do, and the laborers do as they are told. I infer
that Vrabel performed the same duties as the other three
foremen, in view of the evidence that he was normally
the "leadman" on jobs within Glaser's jurisdiction and
every day discussed with an Amoco foreman what was
to be done that day, the evidence that Parks sometimes
filled in for Vrabel, and the absence of credible evidence
that as to Vrabel's crew these functions were performed
by anyone else. The record directly shows that when
79 As previously noted, Parks' gross weekly earnings usually exceed
Burkat's. All four foremen are paid about $8 an hour, with time and a
half for overtime Accordingly, for a 45-hour week they would receise
about S380. Burkat, who regularly works at least 9 hours a day during
the week, often works on Saturday or Sunday, and is on call around the
clock, receives 400 a week.
employees had problems on the job, those working for
Parks talked to him and those working for Godines
talked to him. I infer that those working for Simko and
Vrabel did the same, in view of the absence of evidence
that as to their crews these functions were performed by
anybody else.8 °
In addition, Parks and Godinc, had power to transfer
employees between jobs: while on weekend call duty,
Parks and Godines selected the truckdrivers to perform
emergency jobs from the two or three whom Kritch as-
signed to "on-call" status: Godines sometimes prepared
the daily time record on which ECI's payments to Re-
spondent are based: Parks enforced at least some safety
requirements, disposed of requests for permission to go
home early, and designated individuals to act as "push-
ers"; and Simko assisted admitted Supervisor Burkat in
estimating how many laborers would be needed for cer-
tain jobs and how long they would last. I conclude from
the foregoing that in the exercise of independent judg-
ment Parks, Godines, Simko, and Vrabel responsibly di-
rected laborers; that when performing weekend duty,
Parks and Godines, in the exercise of independent judg-
ment, responsibly directed the truckdrivers who were as-
signed to "on-call" status; that all four were supervisors
within the meaning of Section 2(11) of the Act; and that
all four should be excluded from the unit.
However, contrary to Respondent, I do not believe
that this conclusion requires a like conclusion as to the
10 other laborers whom Respondent's brief describes as
"leaders" or "leadmen."' 1 In the first place, so far as the
record shows, eight of these served as "leadman" for
only I day, on dates some of which are rather remote
from (6 months before and 2 months after) the date of
the Union's bargaining demand. Moreover, there is little
or no testimony which names one of these eight individ-
uals (listed .supra at fn. 60) and then describes that partic-
ular individual as actually doing something different
from ordinary laborers. Furthermore, under the circum-
stances of this case, I give practically no weight to the
characterization of any personnel as "leadmen." Thus,
because persons whom Respondent so characterizes are
paid from $3.50 to $8 an hour, I cannot accept Justak's
and Burkat's testimony that "leadmen" all have the same
responsibilities. Rather, I attribute Respondent's charac-
terization as "leadmen" of persons some of whom were
paid its beginning rate for laborers to the fact that Re-
spondent's contracts and practices with ECI and Amoco
permitted Respondent to receive extra money (not
passed along to the individual worker) for a limited
number of "labor foremen," with any specification re-
garding minimum qualifications; to Respondent contrac-
tual obligation to provide ECI with a "foreman" with
four-man crews performing certain work, also without
any specification regarding minimum qualifications; and
.0 When a crew including DelReal was working for Simko, Parks told
them that Simko was their "hnbs "
"I The General Counsel's excellent brief relies on the fact that, during
the representation case hearing, Respnrident did not take the position that
such persons were anything other than laborers. However. Respondent's
addlitlwlral representation case ciltellti n that Parks. Simko, Ciodines, and
Vrabel were also mere laborers shows hat Respondent has taken a con
sitent position in this connection
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the wide daily fluctuation in the total number of la-
borers who actively work for Respondent. Moreover,
because Respondent had an affirmative interest in dis-
couraging any inquiry from Amoco and ECI into the
qualifications of these "labor foremen" for whom Amoco
and ECI were paying a premium,8 2 and because the
Amoco and ECI management personnel who testified at
the hearing could have only limited opportunity to ob-
serve which of Respondent's personnel were actually di-
recting the work at these various jobsites, I give limited
weight to such management personnel's description of
the duties performed by unnamed persons identified
merely by Respondent's "leadman" description to its cus-
tomers. I conclude at this point that the eight individuals
listed supra are not supervisors, and should be included
in the unit at all material times.
Miranda worked for Respondent for about 14 weeks,
after which he was laid off on a date between July 13
and July 20. Gary Justak testified that Miranda acted as
a foreman during six of these weeks, including a week
which included July 10; and Burkat testified that Mir-
anda served as a leader "quite often" during the summer.
The only corroborative documentary evidence submitted
by Respondent shows that he was listed as "F" on July
10.83 This testimony by Justak and Burkat aside, the
only evidence suggesting that Miranda was a supervisor
is Miranda's testimony that, on an occasion whose dura-
tion and date he was not asked, Parks told Miranda, who
is bilingual, to find out from an Amoco foreman what
Miranda's crew was supposed to do, and relay this to the
other members of the crew, who could not speak Eng-
lish. Miranda's hourly hiring rate was $3.50, the starting
rate for laborers. He received two 50-cent raises, the
second in early July; as found infra, this second increase
was for the purpose of inducing him not to support the
Union. His final rate was $4.50, 50 cents less than Re-
spondent's starting rate for foremen. His personnel file
gives his job title as laborer at the time of his layoff. Mir-
anda speaks passable English, but he cannot read it.
When working for Respondent, he did cleaning and
sweeping, and often drove Respondent's van to the job.
He testified that he was a laborer like the others. He was
never told that he was in charge of his crew. I conclude
that Miranda had no authority responsibly to direct em-
ployees in the exercise of independent judgment, that he
was not a supervisor at any material time, and that he
should be included in the unit.
Pedro Moreno was hired in March 1978 at $3.50 an
hour. His native language is Spanish, and his understand-
ing of and ability to speak English are rather limited. In
1979 and (perhaps) 1978, Moreno acted as a "pusher,"
not claimed to be a supervisory position. When Moreno
acted as a "pusher," Parks told him to show and tell the
four or five other members of Moreno's crew what to
8: Similarly, Respondent had an affirmative interest in withholding
from laborers, whose pay remained the same during periods when Re-
spondent was describing them as "leaders" to its customers, the fact that
they were being so described and that, therefore, Respondent was receiv-
ing a premium for their services. Thus, DelReal and Miranda, both bilin-
gual, credibly denied, in effect, that they had ever been told they were
"leaders."
s3 Resp. Exh. 43 was offered and received for limited purposes which
did not include showing who acted as leadmen on July 12.
do, and to find out from the Amoco foreman what to do.
Parks would come around to check on the work two to
four times a day, and during these visits would tell the
members of the crew, "You have to do this and this job
I want you to do like this, and like this." Laborer Her-
nandez credibly testified that he understood Moreno to
be an interpreter of directions given by Parks and "the
Amoco people." About the spring of 1979, when
Moreno was receiving $5.50 an hour, Parks told him that
he was now a foreman. Moreno did not then receive a
wage increase, there is no credible evidence that Mor-
eno's duties thereupon changed (see supra at fn. 71), and
Respondent's records at all times describe him as a labor-
er. On an undisclosed date before July 19, his hourly rate
increased to $6, $1 above the starting hourly rate for
"foremen," and this was his rate when he was laid off at
the end of October. On a date not disclosed in the
record, Moreno began to wear a white hard hat like Su-
pervisors Parks, Godines, Simko, and Vrabel. I conclude
that, at least in June and July 1979, such directions as
Moreno issued to the laborers did not involve the exer-
cise of independent judgment by him, that he was not a
supervisor, and that he should be included in the unit.
(3) The authenticity and operative effect of the
cards
The authorization cards on which the General Counsel
relies for establishing the Union's majority state, in Eng-
lish only:
Headquarters
905-16th Street,
Washington, D.C.
General President
ANGELO FOSCO
General Secretary-Treasurer
W. VERNIE REED
City
Date
I, the undersigned, hereby designate Local Union
No.---of the Laborers' International Union of
North America, affiliated with AFL-CIO, as my
collective bargaining representative in all matters
pertaining to labor conditions, wages and hours of
employment, and
(If not yet a member,) I do hereby apply for
membership in Local No.---affiliated with the
above International Union and agree to abide by all
the provisions of the Constitution and By-Laws of
said Local and the International Union.
Print Name----- ---------------
Phone No.------
Signature (x) --------
Social Security No.-------__
Date of Birth ------- -
Address ---------------
Respondent does not deny, and I find, that this language
unambiguously authorizes a local union identified in the
1078
JUSTAK BROTHERS AND COMPANY
blanks to represent the signer for collective-bargaining
purposes.
For the reasons stated below, I find that, of the 77 em-
ployees in the unit on June 28, 45 had signed authentic
and operative union cards on or before that date and
that, of the 77 employees in the unit on July 12, 42 had
signed authentic and operative union cards on or before
that date. The identity of the employees who signed such
cards is summarized in tabular form in Appendix A,
infra.
(a) Cards allegedly signed at the June 26 meeting
A number of the employees allegedly signed cards at a
union meeting conducted on June 26, at the union hall in
Hammond, Indiana, by Union Representatives Sparks,
Pullins, Robert Faulkenburg, and Hoyle Green. Also
present were employee Luis Almanza's brother Pedro,
someone named Juan Nuno Fregozo, and a bilingual in-
dividual named "Julio," none of whom ever worked for
Respondent, so far as the record shows. I infer that all or
practically all the others in the audience were persons in
Respondent's employ. I base this inference on the testi-
mony of a number of workers that the others present
were in fact their fellow workers, and on Sparks' credi-
ble testimony that most of them were wearing hard hats
with Respondent's name on them.
During this meeting, the union representatives ad-
dressed the gathering in English. "Julio," Pedro Al-
manza, and laborers DelReal, Castaneda, and Miranda,
all of whom are bilingual, translated the union repre-
sentatives' remarks to those present who could not un-
derstand English.8 4 Also, "Julio" and Castaneda translat-
ed the card into Spanish, and explained in Spanish how
to fill it out. Laborer DelReal, whose native language is
Spanish but whose English is quite good, testified that he
did not hear any inaccurate translations. Similarly, Mir-
anda, whose native language is Spanish but who speaks
passable English, testified that "Julio" translated into
Spanish the same thing that the union representatives
said in English.
During the meeting, Union Representative Faulken-
burg told the employees that they had a right under Fed-
eral law not to be threatened or discharged because they
joined a union. Faulkenburg further said that the Union
would like to represent the employees if they wanted a
union. The union representatives told the employees that,
if a majority signed union cards, the Union could get an
election; but first the Union would have to see whether
an election was needed, because perhaps the Union could
reach an agreement with Respondent without having an
election, Sparks said that the employees could sign a
card if they wanted to, and that "there was no obliga-
tion." Faulkenburg said that the employees could not go
"backwards" with the Union, and asked if they had any
questions. The employees asked a number of questions
about benefits, and what they would gain from the
Union. The union representatives said that the Union
would try to obtain medical insurance, paid holidays, and
81 My finding that Miranda engaged in this activity is based on the
testimony of Castaneda, Hernandez, and J Zavala For demeanor rea-
sons, I do not accept Miranda's denial.
higher wages, but did not promise anything.8 5 I find
nothing in the foregoing remarks which would render in-
operative any authorization cards signed at that meeting.
Pullins, Sparks, and a number of employees credibly
testified that during this meeting a number of those pres-
ent signed union authorization cards and gave them to
the union representatives. Pullins and Sparks both testi-
fied that they did not know by sight most of the employ-
ees present and, indeed, did not of their own knowledge
know whether most of such persons were in Respond-
ent's employ. Pullins and Sparks testified that Pullins put
his initials on the cards which were given to him, and
Sparks testified that he put his initials on the cards which
were given to him. A number of persons whose purport-
ed cards bear Pullins' initials credibly testified that they
signed these cards at that meeting. 8 6 Pullins credibly tes-
tified that during this meeting he received and initialed a
number of other cards purportedly signed by persons
whom the General Counsel could not locate. The pur-
ported signatures on most of these cards are listed in the
attached footnote. 8 7 Similarly, Sparks testified that
during this meeting he received and initialed a number of
cards purportedly signed by persons whom the General
Counsel could not locate. The purported signatures on
some of these cards are listed in the attached footnote. 88
Even in the absence (as here) of an expert witness re-
garding handwriting, Rule 901(b)(3) of the Federal Rules
of Evidence empowers me to find whether the signatures
are genuine by comparing them with admittedly authen-
tic exemplars. U.S. v. Woodson, 526 F.2d 550, 551-552
(9th Cir. 1975); U.S. v. Rich, 580 F.2d 929, 936 (9th Cir.
1978), cert. denied 439 U.S. 935 (1978); Cato Show Print-
ing Co., Inc., 219 NLRB 739, 756 (1975) (Cory). The
record includes undisputedly authentic exemplars of the
signatures of all the employees listed supra at fns. 87-88.
I have compared each of these cards with such exem-
plars. While there are certain discrepancies between the
cards and the exemplars,8 9 the signatures on all but one
85 My findings in this paragraph are based on a composite of credible
portions of the testimony of Pullins. Sparks, Hernandez. Castaneda.
Chairez. Miranda, and J Zavala. For demeanor reasons, I do not accept
Pullins', Sparks'. and Castaneda's testimony that an election was not men-
tioned, Castaneda's testimony that higher wages were not mentioned, or
the testimony of Castaneda, Chairez, and J. Zavala indicating that the
Union promised to obtain such improvements.
8R Iuis Almanza. Rafael Cardiel, Ismael Castaneda, Carlos Chairez.
Rodrigo DelReal. Jesus Hernandez, Emilio Magana. Enrique Miranda.
and Javier Zavala. At the heanng, Respondent objected to the receipt of
the cards purportedly signed by Cardiel, Chairez. and J. Zavala on the
ground of alleged discrepancies between the signatures on the cards and
these persons' signatures as they appear in Respondent's records. After
comparing these signatures and considering the witnesses' demeanor, I
find to be authentic all of the authorization cards bearing the purported
signatures of the nine persons listed in this footnote Indeed, Respondent's
brief does not contend otherwise
"' Juan Adame, Ismael Aguilar, Roberto Arredondo, Abel Ayala, Lu-
ciano Ayala, Modesto Ayala, Salvador Calvillo, Antonio Garcia, Sergio
Herrada, Manuel Hidrogo. I'erfecto Longoria, Aredondo Margarito.
Carlos Moreno II (see infra f 92), Santiago Padilla, Carlos Ponce. Ro-
dolfo Tisnado, Jose Vaiquez, and Cirilo Zavala.
s" Francisco Arredondo, Ramiro Ordaz. and Manuel Salaises
L" More specifically: One digit of the social security number on the
Juan Adamte authorization card differs from the number on the exemplar.
a W 4 form Both the printed and the written signatures on GC Exh. 14
gase the employlee, nanme as "Roberto Arredondo", this corresponds to
Continued
1079
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of these cards appear to be written by the same person as
the signatures on the relevant exemplars. The only ex-
ception is the purported signature of Aredondo Margar-
ito in the General Counsel's Exhibit 13. As to this signa-
ture, because the signature is in cursive writing and the
exemplar is hand-lettered, a comparison is insufficient to
enable me to determine whether they were written by
the same person. At this point, I find to be authentic the
cards bearing the purported signatures of all the persons
listed supra at fns. 87-88 except Margarito.
One of the cards bearing Pullins' initials is a card bear-
ing the purported signature of Ancelmo Acosta, and re-
ceived in evidence as the General Counsel's Exhibit 6.
Acosta credibly testified that he signed a union card at
the June 26 meeting. He was not sure whether the card
he signed was the General Counsel's Exhibit 6 or a simi-
lar card. Acosta, whose native language is Spanish and
who understands very little English, testified through a
Spanish-English interpreter that at the June 26 meeting
an interpreter said, "That we were going to sign the card
so the union could get in at the place where we were
working." I believe the card signed by Acosta is the
General Counsel's Exhibit 6, but would give equal effect
to action by him in signing a similar and unproduced
card. J. P. Stevens & Co., Inc., 244 NLRB 407 (1979)
(James O. Davis); Dubois Fence & Garden, Co., Inc., 156
NLRB 1003, 1004 (1966). Further, I conclude that the
Spanish explanation which Acosta received regarding
the card's purpose is sufficient to render the card opera-
tive. See Maximum Precision Metal Products, Inc., 236
NLRB 1417, 1424-25 (1978) (Yepez).
Pullins also testified that, during the June 26 meeting,
he received the General Counsel's Exhibit 21 from some-
one in attendance whom he had never met before, and
that Pullins thereupon initialed that card. This document
is a union card which bears the purported signature of
Felix Campos, which signature is not in the same hand-
writing as the Campos exemplars. The General Counsel
represented that, as of the December 10 opening of the
hearing, he had no reason to think that the General
Counsel would be unable to locate Campos. On Friday,
December 14, the fifth day of the hearing, counsel for
the General Counsel stated to Respondent that the Gen-
eral Counsel had attempted to locate Campos but could
not;9 0 and notified Respondent that on Monday, Decem-
ber 17, the General Counsel intended to offer Campos'
the printed version on the exemplar, a W4 form, but the signature there-
on is "Robert Arredondo " The signatures on G.C Exh. 17 are "Modesto
Ayala," hut the signature on the exemplar, a W-4 frm, is "Mtdeso
Ayala Avila"; I attribute this discrepancy to the employee's effort to
avoid the confusion created in United States records by adherence to the
Latin custom of using the mother's after the father's surname Perhaps as
a vestige of this custom, the exemplar, a W-4 form, contains a '"C." after
the name of Perfccto Longoria. wshile tile card does not Gi.C Exh. 51
contains the signature "Carlos Moreno," as does one of the exemplars,
but the other exemplar is signed "Carlo Moreno."
G C Exh 59, signed by Carlos Ponce, conltaints a hand-lettered 4" in
the first blank calling for the local number, and a "41" ill the second such
blank. I do not think this error renders the card inoperative as a designa-
tion of the Union, Local 41
90 Campos' name appears on Respondent's payroll betveen June 28
and the payroll week ending September 28 He received a paycheck
dated October 5 His name does not appear on any of the subsequent
payroll documents received into the record, the latest of which lists pay-
checks dated December 7
prehearing affidavit under Rule 804(b)(5) of the Federal
Rules of Evidence.9 Also on December 14, the General
Counsel gave Respondent the most recent address for
Campos of which the General Counsel was aware, a
copy of the English translation of Campos' affidavit, and
a copy of the purported Campos authorization card.
After the lunch break on Monday, December 17, the
General Counsel offered Campos' prehearing affidavit
into evidence to show that, during a meeting at the
union hall where some people from the Union spoke,
Campos asked "one of his companions," who is not
named in the affidavit, to put Campos' name on a card
for the Union. Respondent's counsel does not question,
and I find, that Campos was unavailable as a witness
within the meaning of Rule 804(a) (5). United States v.
Medico, 557 F.2d 309, 315 (2d Cir. 1977); 4 Weinstein,
Evidence 804(a) [01], pp. 804-33 (1979). Further, Re-
spondent's counsel does not question, and I find, that the
relevent portions of the affidavit constitute evidence of a
material fact, and that the statement is more probative on
the point for which it is offered than any other evidence
which the General Counsel can procure through reason-
able efforts. Contrary to Respondent, I find that under
the circumstances, the prior notice requirements of Sec-
tion 804(b)(5) were sufficiently complied with. United
States v. Carlson, 547 F.2d 1346, 1355 (8th Cir. 1976),
cert. denied 431 U.S. 914 (1977); Furtado v. Bishop, 604
F.2d 80, 91-93 (Ist Cir. 1979); 4 Weinstein, Evidence
1803(24) [01], pp. 803-294 to 803-295 (1979). Respond-
ent's counsel stated on the record that although the
Board agent who took the affidavit was trustworthy the
affidavit itself did not have guarantees of trustworthiness
sufficient to bring it within the scope of Rule 804(b)(5).
However, it appears that a person who wilfully makes a
i9 Rule 804(b)(5) states:
Rule 804 Hearsay Exceptions: Declarant Unavailable
(a) Definition of unavailability-"Unavailability as a witness" in-
cludes situations in which the declarant
(5) is absent from the hearing and the proponent of his statement
has been unable to procure his attendance . . . by process or other
reasonable means.
(b) Hearsay exceptions-The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(I) Former testimony
(2) Statement under belief of impending death .
(3) Statement against interest ..
(4) Statement of personal or family history
(5) Other exceptions A statement not specifically covered by
any of the foregoing exceptions but having equivalent circumstan-
tial guarantees of trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and
the interests of justice will best be served by admission of the
statement ito evidence. However. a statement may not be ad-
nmitted under this exception unless the proponent (of it makes
known to the adverse party sufficiently in advance of the trial or
hearing to provide the adverse party with a fair opportunity to
prepare to meet it, his intention to offer the statement and the par-
ticulars of it, including the name and address of the declarant.
108RO
JUSTAK BROTHERS AND COMPANY
false sworn statement to a Board investigator may vio-
late 18 U.S.C. §1001, and be subject to a fine up to
$10,000 and/or imprisonment for up to 15 years. United
States v. Krause, 507 F.2d 113 (5th Cir. 1975); United
States v. Lambert, 501 F.2d 943, 945-946 (5th Cir. 1974).
Nor do I perceive any obvious reason why Campos
would have been untruthful in swearing to the Board
agent that he had authorized the signature on his card. I
conclude that the "trustworthiness" requirement has
been satisfied. See Copperweld Steel Co. v. Demag-
Mannesmann-Bohler, 578 F.2d 953, 963-964 (3d Cir.
1978); United States v. Lyon, 567 F. 2d 777, 784 (8th Cir.
1977), cert. denied 435 U.S. 918 (1978); Medico, supra,
557 F.2d at 313-316. Finally, I conclude that the general
purposes of the Federal Rules of Evidence and the inter-
ests of justice will best be served by admission of the af-
fidavit for the purpose specified by the General Counsel.
On the basis of this affidavit, Pullins' testimony, and the
other evidence regarding this meeting, I conclude that
the Campos card bears his authorized signature, and that
it was executed and delivered to the Union on June 26.
Respondent challenges the authenticity of the cards
bearing the purported signatures of Orlando Altamirano,
Jose Martinez, and Carlos Moreno I.92 The General
Counsel stated on the record that those purported signers
could not be found. Sparks testified that he received
these three cards at the June 26 meeting, and thereupon
placed his initials on all three. His initials do appear
thereon; and the signatures and certain other handwritten
entries on all three of these cards resemble those in com-
pany personnel records.9 3 Respondent contends that
these three employees could not have signed cards
during this meeting, because Sparks (partly corroborated
by Pullins) testified that this meeting began at 5 or 5:30
p.m. and lasted about an hour; Respondent's records
show that these three employees all worked about 11-1/2
hours on June 26; and Burkat testified that, if they
worked that long, their working day would have lasted
until 8 p.m. However, employee Castaneda testified that
the meeting took 3 hours; employee Chairez testified that
the meeting took 2-1/2 hours "more or less"; the card
signing occurred at the end of the meeting; Burkat's tes-
timony is demonstrably unreliable in other respects (see,
e.g., supra, part II,B, and F,2,g); and the date stamps on
the back of all three cards show that they were received
by the Board's Regional Office on July 2. I believe that
the record preponderantly shows these three cards to be
authentic.
(b) Cards obtained by Sparks on June 27 and 28
On June 27 and 28, Sparks met at the Amoco parking
lot after work with laborer Miranda, who had signed a
union card on June 26. On both such occasions, Miranda
was accompanied by other persons whom Sparks had
g: Respondent's records so designate Moreno in order to distinguish
between him and another employee with the same name, designated on
Respondent's records as Carlos Moreno II.
1a Altamirano's W-4 form bears a social security number which differs
by one digit from the number on the card. Moreover, his W-4 form bears
the signature "Orlando A.M Altamirano,." while the "A." After "Orlan-
do" is inserted on the card in an ink different from that used for the rest
of the card.
never met before and whom Miranda identified to Sparks
by name. Some of these persons gave Sparks union au-
thorization cards which had already been signed, and
some signed cards in Sparks' presence. Sparks initialed
the cards which were given to him. Among the cards
which Sparks received in the parking lot were those
bearing the purported signatures of Lorenzo Carillo, Sil-
verio Gonzalez, and Manuel Samarron. The signatures of
these cards seem to me to be written by the same person
as the exemplars. I conclude that all three are authentic.
(c) Destroyed cards (Byrumn and Ignaszewski)
Employee Clousing credibly testified that, on June 28,
he gave union cards to employees David Byrum, Mat-
thew Ignaszewski, and two or three of Respondent's
other drivers whose names he could not remember. Still
according to Clousing's credible testimony, all of these
employees filled out these cards, signed them, and gave
them back to Clousing with the request that he turn
them over to Sparks. Clousing further credibly testified
that, after he was discharged and left the area, he tore
these cards up. I agree with the General Counsel that
Byrum's and Ignaszewski's cards should be counted.
Hedstrom Company' a ubsidiary of Brown Group, Inc.,
223 NLRB 1409, 1411 (1976) (Hammer), modified and
remanded 558 F.2d 1137 (3d Cir. 1977); Aero Corporation,
149 NLRB 1283, 1291 (1964) (Lindsey), enfd. sub nom.
International Union, United .utomobile, Aerospace and Ag-
ricultural Implement WorAers of .4meriea, AFL-CIO v.
V.L.R.B., 363 F.2d 702 (D.C. Cir. 1966), cert. denied
Aero Corp. v. .VL.R.B., 385 U.S. 973 (1966). The Board's
refusal in A.cro to count the unproduced cards of
McKnight and Taylor was based on the absence of evi-
dence that their cards were signed by the relevant date
(149 NLRB at 1291). While the counted unproduced
cards in ledstromn and Aero were signed by employees
who testified at the hearing, testimony by the signers is
not the only basis for inferring the execution of de-
stroyed cards. Aero, supra, 149 NLRB at 1288, fn. 12.
(d) Cards signed by Clousing, Myers. and Waugaman
Clousing, Myers, and Waugaman authenticated their
own respective cards. They signed these cards at the in-
stance of Sparks and Pullins, who said that they would
like to organize and represent the employees, and that
the cards could help the employees to get benefits and
more pay. Sparks also told Waugaman, at least, that
"they were trying to get enough people to sign the cards
to hold an election at Justak's."
Respondent does not challenge the authenticity of
these cards, nor does it appear to challenge the operative
effect of the cards signed by Clousing and Myers. How-
ever, Respondent does challenge the operative effect of
the card signed by Waugaman, a literate employee of at
least average intelligence whose native language is Eng-
lish and who has completed 12 years of school. After
signing the card, he attempted to induce other employees
to sign cards. I do not regard Sparks' statements to Wau-
gaman as a representation that an election was the card's
sole purpose nor did W'augaman, who testified that the
purpose of the card was "getting enough people to sign
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the cards, so that they would have to hold an election to
get a union in." Waugaman's card will be counted, not-
withstanding his further testimony that it was not his un-
derstanding that the card was to apply for union mem-
bership or that the Union would be his bargaining repre-
sentative. See N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575, 606-609 (1969).
G. Analysis and Conclusions
1. The alleged independent violations of Section
8(a)(1)
In agreement with the General Counsel, I find that
Respondent violated Section 8(a)(l) when Supervisor
Godines told four Spanish-speaking employees that those
who had signed cards would be laid off and subjected to
an investigation by "immigration" and those without
papers would be "kicked out of the country" and when
Godines implied to four Spanish-speaking employees that
the union organizational movement might cause employ-
ees without papers to be sent back to Mexico. In this
connection, I note Company President Justak's testimony
that Respondent does not ask job applicants whether
they are United States citizens. I further find, in agree-
ment with the General Counsel, that Respondent violat-
ed Section 8(a)(1) when Supervisor Kritch told employee
Waugaman that, because of Waugaman's union activity,
Kritch would be watching Waugaman in order to find a
reason for firing him, and when Company President
Justak told employee Clousing that Supervisor Parks had
seen Clousing out at the Lakefront passing out cards,
thereby giving him the impression of surveillance, and
that Justak would shut down before a union got in
there; 94 and when Kritch gave employees Myers and
Clousing the impression of surveillance by displaying
knowledge and resentment of the union connections of
Sparks, who had obtained union cards from them in
front of the garage earlier that day.
Also in agreement with the General Counsel, I find
that Respondent further violated Section 8(a)(l) when
Supervisor Parks asked employee Miranda whether he
knew anybody that had signed union cards, when Parks
impliedly asked employee DelReal about the distribution
of union cards to employees, when Supervisor Burkat
asked employee Miranda whether he knew who had
been passing out union cards, when Supervisor Godines
asked employee Chairez whether he had signed a union
card, and when Supervisor Kritch asked employee
Clousing whether employee Waugaman was passing out
union cards. In finding such interrogation to be unlawful,
I note that these questions sought information useful for
discrimination, that Respondent later discriminated
against three employees including Waugaman and Clous-
ing for union activity; that Respondent disliked the
Union and threatened retaliation against employees for
union activity, that the interrogation of Clousing about
Waugaman was accompanied by an implied threat that
Waugaman would be discharged for union activity, that
none of such interrogation was accompanied by assur-
94 Although the complaint does not allege that the threat of shutdo wn
was unlawful, I am satisfied that this issue was fully litigated See discus-
sion infra.
ances against reprisal, that Miranda and Chairez gave un-
truthful replies, and that Respondent neither claims nor
told employees about any legitimate reason for such
questioning.
In addition, I agree with the General Counsel that Su-
pervisor Godines' remarks on or about June 28 to several
Spanish-speaking employees in a company van violated
Section 8(a)(l) because they gave the employees the im-
pression of surveillance over their union activity, prom-
ised the employees higher wages and medical insurance
if they did not try to bring in the Union, and threatened
that they might be deported if they did try to bring in
the Union. Further, I agree that the unrequested 50-cent
wage increase included in the next paycheck received by
Miranda, the only employee present during Godines' re-
marks who expressed interest in the Union, constituted a
grant of benefits to induce Miranda to reject the Union,
and, therefore, constituted an additional violation of Sec-
tion 8(a)(1). 95
Also, I find that Respondent violated Section 8(a)(1)
when Company President Justak told employee Wauga-
man that Justak had heard that Waugaman had been
using company time in a company vehicle to solicit other
drivers to sign union cards, thereby giving Waugaman
the impression of surveillance, and threatened him with
discharge if he passed out union cards on company time.
A ban on such solicitation activity is lawful only if the
ban also extends to solicitation for organizations other
than unions, and there is no evidence or claim that Re-
spondent ever forbade any solicitation other than union
solicitation. Moreover, even a nondiscriminatory ban is
lawful only when the employer makes it clear (as Justak
did not) that employees are free to engage in such solici-
tation, even on the clock, when neither the soliciting em-
ployees nor the solicited employee is supposed to be ac-
tively working. 96
In addition, I find that Respondent violated Section
8(a)(l) when Supervisor Kritch told Clousing, in effect,
that Waugaman "was on his way out" because he had
been passing out union cards. While the complaint does
not allege that this remark constituted an unfair labor
practice, the General Counsel's brief so contends, and I
am satisfied that the matter was fully litigated in view of
the relevance of these events to the discrimination which
the complaint alleges in terms. Vic Tanny International,
Inc., 232 NLRB 353, 354 (1977), enfd. 622 F.2d 237 (6th
9s Justak denied that this was the reason for the increase. and testified
that "the only benefits anybody ever received was for merit." I do not
accept this testimony, for demeanor reasons and because of his failure to
spell out the "merit" considerations which allegedly led to Miranda's
5wage increase.
96 In connection with urging that Justak's threat to Waugaman was
ulawful, the General Counsel's February 1980 brief states that it was al-
leged as unlawful in par. Vll(f) of the complaint, which alleges that, on
or about June 27, Justak "threatened an employee with discharge for
having engaged in union and/or other protected concerted activities."
Respondent's April 1980 "Motion to Strike Allegations Not Included in
the Complaint" makes no reference to this conversation Moreover,
Justak gave his version of the conversation on direct examination as Re-
spondent's last witness Accordingly, I regard the legality of this part of
Justak's remarks as properly before me notwithstanding the General
Counsel's statement on the record, while examining Waugaman, that the
complaint does not allege it to be unlawful
1082
JUSTAK BROTHERS AND COMPANY
Cir. 1980); Great Plains Beef Company, 241 NLRB 948,
fn. 55 (1979).
However, I do not agree with the General Counsel
that the evidence preponderantly establishes that Super-
visor Simko asked several employees whether they had
signed union cards. I believe that the testimony of Span-
ish-speaking employee Acosta, the only witness who tes-
tified about this incident, fails sufficiently to show the
content of Simko's remarks in English. Nor do I find
that Respondent violated the Act when Supervisor
Kritch remarked to employee Myers and another em-
ployee, after Kritch had learned about Waugaman's and
Clousing's distribution of union cards, that Company
President Justak was going to get rid of the employees
who had signed union cards. At the hearing, the General
Counsel specifically stated that this incident was not al-
leged in the complaint as an unfair labor practice; nor
did the General Counsel allege it as such until filing his
post-hearing brief. Crest Door Company, 219 NLRB 648,
fn. 2 (1975).
2. The alleged discrimination against Waugaman,
Clousing, and Myers
I agree with the General Counsel that Waugaman,
Clousing, and Myers were all discharged because of their
union activity in violation of Section 8(a)(3) and () of
the Act. Thus, the evidence shows that Respondent
strongly opposed the Union and repeatedly threatened to
discharge or inflict other reprisals on employees because
of their union activities. Waugaman was personally ad-
vised of or mentioned in some of these threats, including
Kritch's threat to find a pretext for discharging him; and
threats of reprisals against employees for union activity
were also made in the presence of Clousing and Myers.
Moreover, the credited evidence establishes that, before
discharging these employees, Respondent was aware of
their union activity. As to Waugaman, such knowledge is
shown by Kritch's threat to Waugaman, by Kritch's
statement to Clousing that Waugaman was "on his way
out" because he was passing out union cards, by Kritch's
and employee Przewoznik's testimony that Przewoznik
reported to Kritch and Justak employee Waugaman's un-
successful efforts to induce Przewoznik to sign a union
card, by Kritch's admission that he observed a parking
lot discussion between Waugaman and Union Repre-
sentative Sparks, and by Supervisor Parks' observation of
all three employees when they were signing cards in Pul-
lins' presence and at the behest of Sparks, who on the
following day identified himself to Kritch as a union or-
ganizer. As to Clousing, such knowledge is shown by
Company President Justak's subsequently rescinded
action in Kritch's presence, on the very day that Parks
thus observed Clousing and later saw him passing out
union cards, in telling Clousing that he was being dis-
charged because Parks had seen him passing out union
cards. As to Myers and Clousing, such knowledge is
shown through Parks and by Kritch's remarks to Myers
and Clousing, shortly after they were observed by Parks
when they were signing cards for Sparks, that Kritch did
not want the Union in there, and that, if he ever caught
Sparks in the yard, Kritch would beat him up. As to
Myers, such knowledge is further shown by a fellow em-
ployee's description of him to Kritch as "one of those
union boys." 9 7
The credited evidence further shows that, upon learn-
ing that Clousing had given a false reason for his absence
on July 24, the first day of the Board representation case
hearing, Respondent discharged him for the express
reason that it suspected him of having gone to the union
hall the previous day.98 Moreover, the record shows
that the lawful reasons tendered by Respondent for dis-
charging Waugaman and Myers were not the real rea-
sons. Thus, Respondent claims that it discharged Wauga-
man for failing to answer his beeper on the afternoon of
June 30; but he was not in fact beeped that afternoon.
Also, Respondent claims that it discharged Myers for
taking too long to report to Respondent's facility after he
telephoned Respondent in response to his beep. Howev-
er, during this telephone conversation, he advised Super-
visor Mikel Justak that it would take Myers 1-1/2 or 2
hours to get to the yard; Mikel Justak replied, "That's
O.K .... make it as soon as you can"; Myers did in
fact arrive about 2 hours after hearing the beeper; and
the length of time which he consumed in reaching the
facility was no more than Respondent in practice al-
lowed.
Further support to the General Counsel's contention
that the discharges were discriminatorily motivated is
provided by Respondent's action in tendering fabricated
documents and mutually inconsistent evidence in at-
tempted support of its defenses to the discharge allega-
tions. These defects in Respondent's evidence are sum-
marized above, and to repeat them would unduly length-
en an already long Decision.
Also, I agree with the General Counsel that Respond-
ent violated Section 8(a)(3) and (1) by issuing Waugaman
a warning slip, dated June 29, alleging that he had taken
an overly long lunch break; by inserting in Clousing's
personnel file purported warning slips, dated June 28 and
July 2, alleging respectively that he had taken an overly
long lunch break and had reported to work late; by in-
serting in Clousing's personnel file two purported warn-
ing slips, both dated July 25 (the date of his discharge),
alleging respectively that he had failed to report to work
on July 24 and that he was being suspended for 3 days
for lying about his baby's illness; and by inserting in
Myers' personnel file two purported warning slips, dated
July 5 and July 16, which alleged respectively that he
had been smoking on the premises of Amoco's refinery
and (with a check mark before "failure to do assigned
work") had been eating lunch and drinking beer in a
tavern. The credited evidence establishes that Waugaman
and Clousing had not overstayed their lunch breaks; that,
in any event, to Respondent's knowledge others took
more than a half hour for lunch without being reproved
g7 In view of these incidents, and for demeanor reasons I do not credit
the testimony of Justak or Kritch that they were unaware of Clousing's
and Myers' union activity
is The record would not permit a finding that Clousing was dis-
charged because of the mere falsity of his explanation for his absence.
rather than because Respondent mistakenly attributed his absence to his
union activity. Respondent's exhibits and evidence assert that he was
given a 3-day suspension (not discharged) for falsely explaining his ab-
sence. and that Clousing thereupon quit
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefor; that Clousing had not reported to work late;
and that, when Justak learned Myers had drunk one beer
with his lunchtime sandwich, Justak merely told him not
to do this again. Furthermore, the credible evidence
shows that Clousing was never given a 3-day suspension,
and that he and Myers never saw these purported warn-
ing slips naming them. Also, the evidence shows that the
late lunch documents related to lunch periods during
which Waugaman and Clousing were distributing union
cards and that Waugaman received his warning notice
after Foreman Kritch threatened Waugaman with dis-
charge if he received two more warnings and told him
that, because of Waugaman's union activity, Kritch
would be watching Waugaman to "get" him for, among
other things, coming back late from lunch. Finally, the
record shows that Respondent eventually discharged all
three for union activity, and tendered documentary and
other evidence in an effort to show that Waugaman and
Myers were discharged for lawful reasons and that
Clousing quit because of the purported warning notice
imposing a suspension (although, according to Respond-
ent's records, Clousing quit the day before the date of
this notice).
I conclude that Respondent issued a warning slip to
Waugaman falsely alleging that he had overstayed his
lunch break, and inserted what purports to be a similar
slip in Clousing's personnel file, and also inserted a pur-
ported warning slip falsely alleging that Clousing had re-
ported to work late, because they had used their lunch
breaks to distribute union cards, because they had signed
union cards and had attempted to induce others to sign,
and because Respondent thought that such slips would
seemingly document pretexts for discharging them be-
cause of their union activity. Further, I conclude that
Respondent inserted the purported July 25 warning slips
in Clousing's file because Respondent thought they
would document Respondent's contention that Clousing's
separation was due to a voluntary quit rather than to a
discriminatory discharge. Also, I conclude that Respond-
ent inserted these purported warning slips in Myers' per-
sonnel file because Respondent thought they would doc-
ument pretexts for discharging Myers for union activity.
I find that, by issuing this warning slip to Waugaman and
inserting these purported warning slips in the personnel
files of Clousing and Myers, Respondent violated Section
8(a)(3) and (1) of the Act. While the complaint does not
allege that Respondent violated the Act in connection
with the Clousing and Myers warning slips, I find that
these issues were fully litigated; see cases cited supra at
part II,G,I. I note, moreover, that, as to Myers, the al-
leged incidents described in these purported warning
slips were initially brought up during the cross-examina-
tion of Myers by Respondent's counsel, and the purport-
ed slips themselves were offered by Respondent through
Mrs. Justak as part of Myers' personnel file.
3. The allegedly unlawful refusal to bargain and the
requested bargaining order
As previously found, the Union had obtained authentic
and operative authorization cards from a majority of the
unit employees as of June 28, the day after Respondent
began its unfair labor practices, and as of July 12, the
day when Respondent received and rejected the Union's
bargaining request. Also, as previously found, beginning
on June 27, the day after the first authorization cards
were signed, Respondent began to engage in unfair labor
practices which had the tendency to undermine the
Union's majority and to procure the Union's defeat in
the election which the Union later requested. Whether in
such a case the refusal to bargain constitutes an 8(a)(5)
violation and calls for a "second-category" bargaining
order turns on whether the possibility of erasing the ef-
fects of past unfair labor practices and insuring a fair
election is slight and employee sentiment once expressed
through cards would, on balance, be better protected by
a bargaining order. Among the factors material in
making such an assessment are the extensiveness of an
employer's unfair labor practices in terms of their past
effect on election conditions and the likelihood of their
recurrence in the future. Gissel, supra, 395 U.S. at 614-
615.
On the basis of these standards, I agree with the Gen-
eral Counsel that a bargaining order should issue here.
Respondent's unfair labor practices began on the day
after the first authorization cards were signed, and con-
tinued until at least July 30 even assuming that by that
date Respondent had completed its unlawful insertion
into the personnel files of discriminatees Clousing and
Myers the purported warning slips intended to mask the
unlawful reasons for their discharge. These unfair labor
practices included discharging three employees because
of their union activity; issuing or filing of warning slips
or purported warning slips in reprisal for employees'
union activity or providing seeming documentation of
pretexts for their discriminatory discharge; threatening to
discharge or lay off employees for union activity; threat-
ening to procure the deportation of undocumented aliens
because they had signed union cards or because of the
union movement; threatening to close down Respond-
ent's operations if they were organized by a union;
giving employees the impression of surveillance over the
kind of union activity for which Respondent threatened
and effected reprisals; coercively interrogating employ-
ees regarding such activity; promising benefits to em-
ployees if they did not engage in union activity; and
granting a wage increase to one union activist for the
purpose of inducing him to abandon the Union. All of
Respondent's admitted supervisors, except Mrs. Justak,
were shown to have actively participated in the forego-
ing unfair labor practices; such participants included Re-
spondent's president and principal stockholder and his
brother; and, at the time of the hearing, five of the par-
ticipants were still actively working for Respondent and
the sixth had been on layoff status for 2 weeks. Nor is
there any evidence that Respondent has made any effort
to neutralize any of these unfair labor practices.
I conclude that the foregoing conduct calls for an
8(a)(5) finding and the issuance of a bargaining order.
Respondent's unfair labor practices-which included
threats both in words and by example that unionization
would lead to loss of jobs and perhaps deportation,
whereas abandonment of unionization would lead to in-
creased benefits-at least arguably rendered the Union
1084
JUSTAK BROTHERS AND COMPANY
unable to maintain its majority status. Further, I con-
clude that a cease-and-desist, reinstatement-backpay, and
notice-posting order would be insufficient to permit a
fair election within a reasonable time. In the first place,
Respondent's assorted and partly executed threats to the
employees' jobs and its partly executed promise of bene-
fits to discourage unionization lead me to conclude that
the damage to the employees' ability to exercise a free
choice has already been done, even assuming that Re-
spondent does not resume its unfair labor practices. Ac-
tions speak louder than words in labor relations as else-
where, and employees are particularly sensitive to the
prospect of losing their jobs because of unionization and
receiving benefits for rejecting it.99 Accordingly, I think
it unlikely that the coercive impact of the unfair labor
practices shown in the instant record would be over-
come by a Board-composed notice posted under Board
(and perhaps judicial) compulsion, or even by the return
of the discriminatees should they choose to accept Board
(and perhaps judicially) compelled reinstatement
offers.' ° ° See N.L.R.B. v. Henry Colder Company, 447
F.2d 629, 631 (7th Cir. 1971). In the second place, I am
doubtful whether such an order would deter Respondent
from continuing its unfair labor practices. These unfair
labor practices were at least partly generated by Re-
spondent's top management, and included threats to
engage in unfair labor practices in the future. Moreover,
after Gary Justak received the charge herein attacking
(inter alia) Waugaman's discriminatory discharge and
Clousing's revoked discriminatory discharge, Respondent
discriminatorily discharged Clousing and Myers and fab-
ricated documents in attempted justification. In view of
the foregoing, I find that Respondent's refusal to bargain
with the Union calls for an 8(a)(5) finding and a bargain-
ing order. Jim Baker Trucking Company, 241 NLRB 943
(1979); Henry Colder, supra, 447 F.2d at 631; C & W
Super Markets, Inc., 231 NLRB 403 (1977), enfd. 581
F.2d 618 (7th Cir. 1978); Altman Camera Co., Inc., 207
NLRB 940 (1973), enfd. 511 F.2d 319 (7th Cir. 1975).
The cases discussed in Respondent's brief present ma-
terial factual differences. Thus, in White Pine, Inc., 213
NLRB 566 (1974), the union actually won a Board elec-
tion. M. O'Neil Co., 211 NLRB 150 (1974), affd. 514
F.2d 894 (D.C. Cir. 1975), involved authorization cards
which were 4 years old at the time of the Board's deci-
sion, and the unfair labor practices consisted in their en-
tirety of remarks to about 50 employees in a 1,300-em-
ployee unit, by first-line supervisors without authority to
carry out severe threats. Most of the unfair labor prac-
tices in Montgomery Ward & Co., Incorporated, 198
NLRB 52 (1972), were directed against persons whom
the employer believed in good faith, although mistaken-
ly, to be supervisors. In Cato Show Printing Co., Inc., 219
NLRB 739 (1975), the union obtained most of its authori-
zation cards after the commission of most of the employ-
er's unfair labor practices, and the discriminatee was one
99 See Gixsel. supra. 395 U.S. at 619-620, N.LRB. v Exchange Parts
Company. 375 U.S 405, 409 (1964).
'0 Indeed, although the General Counsel did not allege that employee
Acosta's September layoff was discriminatorily motivated, he credibly
testified to a belief that he and others were laid off because "somehow
they found out we had signed" for the Union.
of a group of employees all the rest of whom had been
lawfully laid off with the discriminatee, and many of
whom, like the discriminatee. had not been reemployed.
The single unlawful discharge in Munro Enterprises. Inc.,
210 NLRB 403 (1974), occurred in a context of lawful
economic layoffs, and the single unlawful threat was
made more than 2 months before the union's recognition
demand and merely consisted of a threat to abandon the
existing practice of letting employees leave a few min-
utes early. Nine additional cases cited but not discussed
in Respondent's brief likewise presented materially differ-
ent facts. 0 '
Respondent further contends that no bargaining order
should issue because no cards were ever expressly re-
voked, and because about 12 employees' action in signing
cards between August and the end of November, "long
after any unlawful acts by Respondent had ceased," al-
legedly shows that such unlawful acts did not undermine
the Union's majority.' 0 2 Also, although Respondent's
brief does not advert thereto, the Union conducted three
meetings after the June 26 meeting-one after the date
that the Union demanded recognition (attended by 10 to
20 employees), one later in the summer (attended by not
more than 20 employees), and one about November 16,
less than a month before the hearing began. However,
the fact that the Union's June 28 card majority (45 out of
77) was obtained in a 2-day period before the discrimina-
tory discharges were effected and before the commission
of most of Respondent's other unfair labor practices ren-
ders inapposite Harper and Row Publishers. Inc. v.
N.L.R.B., 476 F.2d 430, 435-436 (8th Cir. 1973); Arbie
Mineral Feed Co. v. N:L.R.B., 438 F.2d 940, 944-945
(8th Cir. 1971); and Cato Show, supra, 219 NLRB 739, in
all of which the union acquired a majority after the em-
ployer had engaged in significant unfair labor practices.
Moreover, the card signers' failure affirmatively to
revoke their cards does not lead me to conclude that Re-
spondent's unfair labor practices left them and the non-
0t The Board has been judicially admonished to explain n what re-
spects a case with a Gissel theory bargaining order differs from others
where no such order has issued. However. I do not read this admonition
as extending to cases which the employer has merely cited without dis-
cussing, and which on their face do not appear to bear any particular re-
semblance to the case being litigated. I have, of course, read the cases
cited in Respondent's brief. Among the cases so cited is N.L.R.B. v
Armcor Industries. Inc.. 98 LRRM 2441 (3d Cir 1978) By unpublished
order dated July 10. 1978. this opinion was vacated and the case was set
for rehearing en bane after which the Board's decision (227 NLRB 1543
11977)) was denied enforcement without opinion by an equally divided
court 588 F.2d 821 (3d Cir. 1978).
102 This contention obviously assumes these cards to be authentic, op-
erative, and shown to have been executed during rather than before the
August-November period. Howeser, during the hearing or in Respond-
cnt's brief, Respondent's counsel has challenged one or more of such as-
sumptions as to almost every one of the cards specified by it in support
of its contention in the text. I find that the folloving persons signed cards
during this period: Francisco Aguayo. Antonio Ayala Lombhardo Ray-
mond (Ramon) Carrillo, Thomas Diaz, Alfredo Garcia. Santiago Huitron,
Jose Madrigal. Luis Magana, Roberto Magana, Hermenejildo Monarrez,
Mario Morales, and Alfonso Pineda. I find that the card executed by
Hluilron was inoperative because he cannot speak English and the solici-
tor did not tell him the purpose of the card I can find no eidence that
Madrigal worked for Respondent at any material ttim
John Calderon also signed a card before Noember 2. but the record
fails to show whether he did so before or after the Union demanded rec-
ognition
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signers capable of casting uncoerced ballots. Further-
more, the fact that 13 employees did sign cards over a 4-
month period after the unfair labor practices had
"ceased"' 0 3-although far fewer and much more slowly
than the 45 who signed in a 2-day period before the first
discriminatory discharge-does not show that Respond-
ent's unfair labor practices did not cause an antiunion de-
cision by other employees, or even that such unfair labor
practices would not have led to second thoughts by the
card signers. Orlando Paper Co., Inc., 197 NLRB 380,
388-389 (1972), enfd. 480 F.2d 1200 (5th Cir. 1973).
Respondent further contends that a bargaining order is
inappropriate because of the high turnover in the bar-
gaining unit. The most recent payroll in the record, for
the payroll week beginning December 1, 1979, lists about
41 employees in the bargaining unit, including discrimin-
atee Waugaman's replacement (Nielsen) and two employ-
ees (whose identity I find unnecessary to determine) who
replaced discriminatees Clousing and Myers. Of these 41,
about 15 were in the bargaining unit on June 28 and July
12, 1979, and a 16th was in the unit on July 12. Of these
16, about 6 signed authorization cards on or before June
28, and a 7th (Calderon) signed on a later date not
shown in the record. During the payroll week ending
November 30, Respondent's payroll lists 43 unit employ-
ees, including 20 laborers who are not clearly identified
in the record; as of December 10, Respondent's work
force included 7 truckdrivers (available, but not all nec-
essarily actively working), 10 laborers, 2 mechanics, and
2 mechanics' helpers; on December 17, Respondent's
work force included the same number of truckdrivers
and 13 laborers; and, on December 20, 8 laborers and an
undisclosed number of truckdrivers were actively work-
ing.
Board precedent calls for me to give little or no
weight to such evidence of turnover. See, e.g., Tartan
Marine Company, 247 NLRB No. 73, fn. 8 (1980). Taking
such a factor into account gives "an added inducement
to the employer to indulge in unfair labor practices in
order to defeat the union in an election. He will have as
an ally, in addition to the attrition of union support inevi-
tably springing from delay in accomplishing results, the
fact that turnover itself will help him, so that the longer
he can hold out the better his chances of victory will
be." N.L.R.B. v. L. B. Foster Company, 418 F.2d 1, 5
(9th Cir. 1969), cert. denied 397 U.S. 990 (1970), cited
with approval in Colder, supra, 447 F.2d at 630 (7th Cir.
1971); see also Franks Bros. Company v. N.L.R.B., 321
U.S. 702, 703-705 (1944). To be sure, employees (here, a
majority of the unit) who were hired after the union ob-
tained its majority will be compelled by a bargaining
order to accept representation by a union which they
could have had no voice in selecting or rejecting.'04
103 Respondent's unfair labor practices never did "cease," in the sense
that, at least as of the close of the hearing, the three discriminatorily dis-
charged employees had never been offered reinstatement or made whole,
and Respondent had never tried to neutralize any of its other unfair labor
practices. However, this consideration strengthens, if anything, Respond-
ent's contention based upon events after the third and last discriminatory
discharge.
104 Of course, the same is true of employees hired after the lawful ex-
ecution of a recognition agreement or collective-bargaining agreement,
the execution of a settlement agreement which includes an undertaking to
However, as the Supreme Court noted in Gissel, supra,
395 U.S. at 613:
There is, after all, nothing permanent in a bargain-
ing order, and if, after the effects of the employer's
acts have worn off, the employees clearly desire to
disavow the union, they can do so by filing a repre-
sentation petition. For, as we pointed out long ago,
in finding that a bargaining order involved no "in-
justice to employees who may wish to substitute for
the particular union some other . . . arrangement" a
bargaining relationship "once rightfully established
must be permitted to exist and function for a reason-
able period in which it can be given a fair chance to
succeed," after which the "Board may . . . upon a
proper showing, take steps in recognition of
changed situations which might make appropriate
changed bargaining relationships." Franks Bros.,
supra, at 705-706.
The courts of appeals have frequently, although not
always, given more weight to turnover evidence than
does the Board. To the extent that such approaches may
be irreconcilable, I am expected to follow the Board's
views. Ford Motor Company (Chicago Stamping Plant) v.
N.L.R.B., 571 F.2d 993, 996-997 (7th Cir. 1978), affd.
439 U.S. 891 (1979). However, the courts have also rec-
ognized the force of the considerations summarized in
the preceding paragraph, and, accordingly, have general-
ly been unwilling to afford controlling weight to evi-
dence of turnover. See, e.g., Colder, supra, 447 F.2d at
630 ; N.L.R.B. v. Gruber's Super Market, 501 F.2d 697,
705 (7th Cir. 1974); N.L.R.B. v. Storack Corp., 357 F.2d
893, 896-897 (7th Cir. 1966). The factors favoring a bar-
gaining order in the instant case would render the turn-
over factor controlling in any determination to withhold
such an order here.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all material times, Carlos Godines, William
Parks, Joseph Simko, and Andrew Vrabel were supervi-
sors within the meaning of Section 2(11) of the Act.
4. At all material times, John Calderon, Raymond Car-
rillo, Rodrigo DelReal, Eustalio Dominguez, Robert
Doss, Enrique Miranda, Pedro Moreno, Carlos Ponce,
Manuel Salaises, and Heriberto Unate were employees
within the meaning of the Act.
5. Respondent has violated Section 8(a)(1) of the Act
by threatening employees with layoff, discharge, and de-
portation because of union activity; by threatening to
shut down before a union got in; by giving employees
the impression of surveillance over union activity; by in-
withdraw recognition or to bargain, or the eligibility date of a Board rep-
resentation election. While the policy considerations underlying these
classes of cases are not necessarily present here, such cases do show that
Gissel type bargaining orders do not present the only situations where
employees are bound by representation decisions made before they were
hired.
1086
JUSTAK BROTHERS AND COMPANY
terrogating employees about union activity; by promising
employees higher wages and medical insurance if they
did not try to bring in the Union; and by granting an em-
ployee a wage increase to induce him to reject the
Union.
6. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging employees Thomas Waugaman,
David Clousing, and Eric Myers; by issuing warning
slips to Waugaman and Clousing; and by inserting pur-
ported warning slips in the personnel files of Clousing
and Myers.
7. The following employees constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act: All laborers, truck-
drivers, mechanics and mechanics' helpers employed by
Respondent at the facility which as of December 10,
1979, was located at 1701 129th Street, Whiting, Indi-
ana; 10 excluding employees of J. B. Sanitation Services.
Inc., office clerical employees, guards and supervisors as
defined in the Act.
8. The Union has been at all times since June 28, 1979,
and including July 12, 1979, and still is, the exclusive
bargaining representative of such employees, within the
meaning of Section 9(a) of the Act.
9. Respondent has violated Section 8(a)(5) and (1) of
the Act by refusing to recognize the Union as the repre-
sentative of the foregoing unit on and after July 12, 1979.
10. The unfair labor practices set forth in Conclusions
of Law 5, 6, and 9 affect commerce within the meaning
of the Act.
II. Respondent has not violated the Act through con-
duct by Joseph Simko.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom. Because Respond-
ent has committed a number of serious violations of the
Act through (inter alia) its president and its top-level su-
pervisors, and because such unfair labor practices includ-
ed threats to commit unfair labor practices in the future,
I conclude that, unless restrained, Respondent is likely to
engage in continuing and varying unlawful efforts in the
future to prevent its employees from engaging in union
and protected concerted activity. Accordingly, Respond-
ent will be required to refrain from in any other manner
infringing on employees' right to engage in such activity.
N.LR.B. v. Express Publishing Company, 312 U.S. 426,
437-439 (1941); N.L.R.B. v. Southern Transport, Inc., 343
F.2d 558, 561 (8th Cir. 1965); N.L.R.B. v. East Texas
Pulp d Paper Co., 346 F.2d 686, 689-690 (5th Cir. 1965);
Hickmort Foods, Inc., 242 NLRB 1357 (1979).
Affirmatively, Respondent will be required to offer
Thomas Waugaman, David Clousing, and Eric Myers
immediate reinstatement to the jobs of which they were
unlawfully deprived, or, if such jobs no longer exist, to
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges previously en-
10' Gary Justak testified on December 10. 1979, that Respondent
planned to move its office from Whiting to Hammond. Indiana, in about
2 weeks.
joyed; and to make them whole for any loss of pay they
may have suffered by reason of the discrimination
against them, less net earnings, to be computed in the
manner prescribed in F W. Woolworth Company, 90
NLRB 289 (1950), with interest as called for in Florida
Steel Corporation, 231 NLRB 651 (1977).'06 Also, Re-
spondent will be required to remove the unlawfully
issued warning slips and the unlawfully inserted purport-
ed warning slips from these employees' files and deliver
such documents to the respective employees. In addition,
Respondent will be required to bargain with the Union,
on request. Because the Union obtained majority status
on June 28, 1979, and Respondent began its unfair labor
practices before that date, the bargaining obligation will
be deemed to have arisen on June 28, 1979. Also, be-
cause Spanish is the native language of many of Re-
spondent's employees, and many understand little or no
English, Respondent will be required to post appropriate
notices in Spanish as well as English.
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 107
The Respondent, Justak Brothers and Company, Inc.,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with layoff, discharge, or
deportation because of activity on behalf of Laborers
Local Union No. 41, Laborers International Union of
North America and State of Indiana District Council,
Laborers International Union of North America, or any
other labor organization.
(b) Threatening to shut down before a labor organiza-
tion gets in.
(c) Giving employees the impression of surveillance
over union activity.
(d) Promising employees higher wages and medical in-
surance if they do not try to bring in a union.
(e) Granting employees wage increases to induce them
to reject the Union.
(f) Interrogating employees about union activity in a
manner constituting interference, restraint, and coercion.
(g) Discharging, issuing warning slips to, inserting pur-
ported warning slips in the personnel folders of, or oth-
erwise discriminating against any employee with regard
to his hire or tenure of employment or any term or con-
dition of employment, to discourage membership in the
Union or any other labor organization.
(h) Refusing to recognize and bargain collectively
with the Union as the exclusive representative of the fol-
lowing appropriate unit:
All laborers, truckdrivers, mechanics and mechan-
ics' helpers employed by Respondent at its facility
o6 See, generally, Isis Plumbing & Heating Co., 138 NLRB 71t 1962).
0'7 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
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which on December 10, 1979, was located at 1701
129th Street, Whiting, Indiana; excluding employees
of J. B. Sanitation Service, Inc., office clerical em-
ployees, guards and supervisors as defined in the
Act.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer Thomas Waugaman, David Clousing, and
Eric Myers reinstatement to the jobs of which they were
unlawfully deprived or, if such jobs no longer exist, sub-
stantially equivalent jobs, without prejudice to their se-
niority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay they may have
suffered by reason of the discrimination against them, in
the manner set forth in that part of this Decision entitled
"The Remedy."
(b) Remove the following warning slips or purported
warning slips from the files of the following employees,
and deliver such slips to such employees: (1) the slip
naming Thomas Waugaman and dated June 29, 1979; (2)
the four slips naming David Clousing and respectively
dated June 28, July 2, and July 25, 1979; and (3) the slips
naming Eric Myers and respectively dated July 5 and
July 16, 1979.
(c) Upon request, recognize and bargain with the
Union as the exclusive representative of the employees in
the appropriate unit and embody in a signed agreement
any agreement reached.
(d) Post at its Whiting and Hammond, Indiana, facili-
ties copies of the attached notice marked "Appendix
B." 08 Copies of said notice in English and Spanish, on
forms provided by the Regional Director for Region 13,
after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof
and be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
'o In the event that Respondent's facility has moved since the close of
the hearing, the address set forth in the notice's unit description shall be
changed to set forth the facility's current address In the event that this
Order is enforced by a Judgment of a United States Court of Appeals,
the words in the notice reading "Posted by Order of the National Labor
Relations Board" shall read "Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX Al
Employees Undisputedly in Unit on June 28 and
July 12
Acosta, Anselmo
(GCX 6)
Adame, Juan (GCX 7)
Aguayo, Francisco
Aguilar, Ismael (GCX
9)
Almanza, Luis (GCX
10)
Altamirano, Orlando
(GCX I1)
Arredondo, Roberto
(GCX 14)
Ayala, Abel (GCX
15)
Ayala, Luciano (GCX
16)
Ayala, Modesto
(GCX 17)
Brakebill, John
Busch, William
Calvillo, Salvador
(GCX 18)
Camper, Raymond
Campos, Felix (GCX
21)
Caraballo, Norberto
Cardiel, Rafael (GCX
20)
Carillo, Lorenzo
(GCX 22)
Castaneda, Ismael
(GCX 23)
Chairez, Carlos (GCX
25)
Clousing, David
(GCX 26)
Del Castillo, Raul
Di Fatta, Anthony
Emery, Freddie
Fandl, James
Fletcher, Robert
Foster, Darrell
Garcia, Antonio
(GCX 31)
Hidrogo, Manuel (GCX 36)
Kovach, Karl
Krieger, Christopher
Kuzma, Bernard
Longoria, Perfecto (GCX
39)
Lopez, Gabriel (GCX 40)
Magana, Emilio (GCX 42)
Margarito, Aredondo
Martinez, Jose (GCX46)
Moreno, Carlos I (GCX 51)
Moreno, Carlos II (GCX
52)
Myers, Eric (GCX 54)
Nichols, Bruce
Ordaz, Ramiro (GCX 55)
Oritiz, Roy
Phillips, Owens
Przewoznik, Stanley
Ruiz, Juan
Ruiz, Ramiro
Samorron, Manuel (GCX
62)
Soto, Serafin
Tisnado, Rodolfo (GCX 64)
Torres, Benito
Vajda, Joseph
Vajda, Jose(GCX 65)
Welch, William
Zavala, Cirilo (GCX67)
Zavala, Javier (GCX 68)
APPENDIX A2
Employees Undisputedly in Unit on June 28 Only
Beauchamp, Kenneth
Byrum, Gary (card destroyed)
Fox, Patrick
Ignaszewski, Matthew (card destroyed)
Padilla, Santiago (GCX 57)
Hernandez, Jesus (GCX 34)
1088
JUSTAK BROTHERS AND COMPANY
APPENDIX A3
Employees in Unit on July 12 Only'
Franco, Antonio
Gamblin, Arthur
Magana, Roberto
Ordonez, Jose
Stearman, James
All employees except Arthur (iamblill were undisputedl in
the unit.
APPENDIX A4
Additional Employees in Unit on June 28 and July
12
Arredondo, Francisco
(GCX 12)
Calderon, John (GCX
19)
Carrillo, Raymond
Del Real, Rodrigo
(GCX 27)
Dominguez, Eustalio
Doss, Robert
Gonzalez,
Silverio(GCX 33)
Herrada, Sergio (GCX 35)
Miranda, Enrique (GCX 48)
Moreno, Pedro (GCX 53)
Ponce, Carlos (GCX 59)
Salaises, Manuel (GCX 61)
Sanchez, Jesus (GCX 63)
Unate, Heriberto
Waugaman, Thomas (GCX 66)
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual aid
or protection
To refrain from the exercise of any or all such
activities.
WE WIll. NOT threaten you with layoff, dis-
charge, or deportation because of activity on behalf
of Laborers Local Union No. 41, Laborers Interna-
tional Union of North America and State of Indiana
District Council, Laborers International Union of
North America, or any other union.
WE WIl.t. NOT threaten to shut down before a
union gets in.
WE WIL. NOT give you the impression of surveil-
lance over your union activity.
WE WILL NOT promise you higher wages and
medical insurance if you do not try to bring in a
union.
WE WILL NOT grant you wage increases to
induce you to reject Local 41 or any other union.
WE WILL NOT interrogate you about union activi-
ty in a manner constituting interference, restraint,
and coercion.
WE WILL NOT discharge, issue warning slips to.
insert purported warning slips in the personnel
folder of, or otherwise discriminate against any em-
ployee with regard to his hire or tenure of employ-
ment or any term or condition of employment to
discourage membership in Local 41 or any other
union.
WE WILL NOT refuse to recognize and bargain
collectively with Local 41 as the exclusive repre-
sentative of the following appropriate unit:
All laborers, truckdrivers, mechanics and me-
chanics' helpers employed by Justak Brothers and
Company, Inc., at our facility now located at
1701 129th Street, Whiting, Indiana; excluding
employees of J.B. Sanitation Service, Inc., office
clerical employees, guards and supervisors as de-
fined in the National Labor Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them under Section 7 of
the Act.
WE WILL offer Thomas Waugaman, David
Clousing, and Eric Myers reinstatement to their old
jobs or, if such jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority
or other rights and privileges previously enjoyed,
and make them whole, with interest, for any loss of
pay resulting from their discharge.
WE WILL remove from the personnel folders of
these three employees, and physically deliver to
them, the warnings which we unlawfully issued to
them or unlawfully inserted in their files.
WE WILL., on request, bargain with Local 41 as
the only representative of the employeees in the ap-
propriate unit, and embody in a signed agreement
any agreement reached.
JUSTAK BROTHERS AND COMPANY, INC.
1089