Kenny Construction Co. of Illinois

National Labor Relations Board - Board Decisions

Aug 7, 1963

143 N.L.R.B. 1260 (N.L.R.B. 1963)

1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This addendum shall not in any way be construed to diminish the description of the work covered by this agreement as set forth in any provision of this agreement. (b) Entering into, actively maintaining, giving effect to, or enforcing any other contract or agreement , express or implied, whereby the employers named in (a), above, or any other employers , cease or refrain, or agree to cease or refrain, from handling, using, selling, transporting , or otherwise dealing in any of the products of any other employer, or from doing business with any other person. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post in conspicuous places in the Union's business offices, meeting halls, and places where notices to members are customarily posted, copies of the attached notice marked "Appendix A." 19 Copies of said notice to be furnished by the Re- gional Director for the Thirteenth Region , shall, after being duly signed by an official representative of the Union, be posted by the Union immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken by the Union to insure that said notices are not altered , defaced, or covered by any other material. (b) Furnish to the Regional Director for the Thirteenth Region signed copies of the aforementioned notice for posting by Swift Plant, Swift Sales , Armour, and Wilson ; and, all other employers party to an agreement with the Union which in- cludes the provision set forth in 1(a ), above; and, Frozen Food Express, Belford Trucking Company, Inc., Refrigerated Transport Co., Inc., Trans-Cold Express, Inc., Watkins Motor Lines , Inc., and Zero Refrigerated Lines, if the Companies agree, in places where notices to employees are customarily posted. Copies of said notice to be furnished by the Regional Director shall, after being signed by the Union, as in- dicated , be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Thirteenth Region in writing , within 20 days from the date of this Intermediate Report of the action taken by the Union to comply therewith.20 I further recommend, that unless the Union shall, within 20 days from the date of this Intermediate Report, notify the said Regional Director in writing that it will comply with the foregoing recommendations , the National Labor Relations Board issue an order requiring the Union to take the action aforesaid. 30 In the event that this Recommended Order is adopted by the National Labor Relations Board, the notice shall be amended by substituting for the words "Pursuant to the Recommendations of a Trial Examiner " the words "Pursuant to a Decision and Order" If the Board's Order is enforced by a [decree of a United States Court of Appeals, the notice shall Abe amended by substituting for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 2' In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read • "Notify said Regional Director , in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." Kenny Construction Company of Illinois and George W. Shaeffer International Union of Operating Engineers , Local No. 181, AFL- CIO and George W. Shaeffer . Cases Nos. 9-CA-2771 and 9-CB- 1087. August 7, 1963 DECISION AND ORDER On May 31, 1963, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- 143 NLRB No. 114. KENNY CONSTRUCTION COMPANY OF ILLINOIS 1261 from and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter, both Respondents filed exceptions to the Intermediate Report and supporting briefs. The General Coun- sel filed a brief in support of the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, exceptions and briefs, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. CONSOLIDATED INTERMEDIATE REPORT On January 8, 1963 , George W. Shaeffer, Memphis, Tennessee , filed charges in Case No. 9-CA-2771 against Kenny Construction Company of Illinois, Skokie, Illinois, herein called the Company, and in Case No. 9-CB-1087 against Interna- tional Union of Operating Engineers , Local 181, AFL-CIO, Lexington, Kentucky, herein sometimes called the Union and sometimes called Local 181. On Febru- ary 15, 1963, the General Counsel 1 consolidated the cases and issued a consolidated complaint , alleging that on or about January 3, 1963, the Union attempted to cause and caused the Company to discharge Shaeffer because he was not a member of the Union , and that on the same date, at the Union's request , the Company discharged Shaeffer because of his nonmembership in the Union. It is alleged that the Com- pany's conduct violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136 ), herein called the Act, and that the Union's conduct violated Section 8(b)(1)(A) and (2) of the Act. Thereafter the Union filed an answer denying the material allegations of the consolidated complaint. Pursuant to notice , a consolidated hearing was held before Trial Examiner Sydney S. Asher, Jr., at Salyersville, Kentucky, on April 10 and 11, 1963. All parties were represented and participated fully in the hearing. At the hearing, the Company stated orally on the record its answer denying the material allegations of the con- solidated complaint . After the close of the hearing the General Counsel, the Com- pany, and the Union each filed a brief. All briefs have been duly considered. Upon the entire record in these cases , and from my observation of the witnesses,2 I make the following: FINDINGS OF FACT The parties stipulated , and it is found , that the Company is, and at all material times has been , engaged in commerce as defined in the Act, and its operations meet the Board 's jurisdictional standards ; 3 and that the Union is, and at all material times has been , a labor organization within the meaning of the Act. I The term "General Counsel" designates the General Counsel of the National Labor Relations Board and his representative at the bearing 2 All the witnesses were called by the General Counsel, some under rule 43(b) of the Federal Rules of Civil Procedure 3 ,The Company is an Illinois corporation, with Its principal office in Skokie, Illinois, where It Is engaged in the construction industry as a general contractor. During the 12 months prior to April 10, 1963, It received materials valued at more than $50,000 directly from sources outside the State of Illinois. 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Background events 1. The contract Sometime prior to September 19, 1961, the Company was awarded a contract to build a road near Salyersville, Kentucky. Before work on the project started Buryl Travis, chief business representative of the Lexington district office of the Union, conferred with William F. Pride, manager of the Company's Salyersville project. On September 19, 1961, Travis and Pride, on behalf of their respective principals, entered into a collective-bargaining contract covering operating engineers employed on the project. This contract was to run for 1 year and thereafter from year to year in the absence of 60 days' notice of termination. It remained in effect at all times material herein, and contained the following provision: The Employer shall give the Union twenty-four (24) hours' notice of its need for workmen, and within such twenty-four (24) hour period shall not hire persons not referred by the Union. If, however, the Union fails to refer work- ers within such twenty-four (24) hour period after having been notified to do so, the Employer shall have the right to hire persons not referred by the Union .... The Employer shall have the right to determine the competency and qualifications of men referred by the Union, and the right to hire or not hire accordingly. The selection of applicants for referral to jobs shall be on a non-discriminatory basis and shall not be based on, or in any way effected [sic] by union mem- bership, bylaws, rules, regulations, constitutional provisions or any other aspect or obligation of union membership, policies or requirements .4 2. The Charging Party George W. Shaeffer, a onetime resident of Grand Rapids, Michigan, had worked for the Company in that area. He is a member of Local 369 of the Operating Engineers, a different local of the union's parent organization. Late in August 1962 he learned that the Company had been awarded the Salyersville road contract. During the first week in September 1962, Shaeffer went to the Union's office in Lexington, Kentucky, exhibited his book as a member of Local 369, and asked Travis for referral to the Company's Salyersville road project. Travis replied that he had plenty of men to cover the job from Local 181, but if he needed Shaeffer, he would call him. Travis' secretary then wrote Shaeffer's name on a piece of paper 5 After that, Shaeffer was never called by the Union for any job referrals.6 B. Shaeffer's hire and layoff About October 15, 1962, the Company, having decided to put a night shift on the Salyersville project, notified the Union to refer 17 men to operate specified equip- ment, to begin work on a night shift on the evening of October 17, 1962. At the appointed time on October 17, 1962, 17 operating engineers referred by the Union reported to the project. Their social security number and other information was *The contract also states: "Master mechanic and mechanics must be members of Local 181 " At oral argument, the General Counsel described this as a "discriminatory clause." I decline to rule upon this issue because it was neither alleged in the complaint nor "fully litigated" at the hearing within the meaning of Monroe Feed Store, 112 NLRB 1336 at 1337. See Ford Radio & Mica Corporation, 115 NLRB 1046, at 1074 , remanded on another point 258 F 2d 457 (CA 2), Supplemental Decision 122 NLRB 34; Texas Natural Gaso- line Corporation, 116 NLRB 405, at 411, enforcement denied on another point 253 F. 2d 322 (CA. 5) ; and Mid-South Manufacturing Company, Inc, 120 NLRB 230, at 247 5 The findings of fact regarding this incident are based upon Shaeffer's undenied testimony. 9 At oral argument the General Counsel contended that the Union had failed to register Shaeffer on its out-of-work list although be requested that this be done. The General Counsel, while admitting that the matter "is not set up in the complaint," asked for a finding that this conduct constituted a violation of Section 8(h) (1) (A) of the Act, "if it's possible under the language of the complaint" In my opinion this issue was not "fully litigated" at the hearing, within the meaning of Monroe Feed Store, supra Indeed, I am convinced that this Incident was litigated at the hearing only incidentally in con- nection with the 8(a)(3) and 8(b)(2) Issues in the cases and not as a possible basis for an independent 8(b) (1) (A ) finding Under the doctrine of Crookston Times Printing Company, 125 NLRB 304, at 305, I therefore deem myself "precluded" from finding an additional independent violation of Section 8(b) (1) (A) of the Act. KENNY CONSTRUCTION COMPANY OF ILLINOIS 1263 obtained and their names were entered on the Company's records as employees. However, a crowd of from 100 to 200 people, probably residents of Salyersville and the surrounding area, stood or sat in front of and on the Company's equipment, effectively preventing its use. After a period of resultant confusion which may have lasted an hour or more, the Company's officials decided not to attempt to work that night, and notified the Union to have the men report again on the evening of October 22, 1962. However, in the confusion some of the 17 men may have al- ready left, and it is not clear from the record whether all of them knew they were expected to return on the evening of October 22, 1962. On the evening of October 22, 1962, 15 of the 17 operating engineers reported at the project and were put to work. When the other two failed to appear the Company filled their places on the spot. Without notice to the Union, the Company filled one of these two jobs-that of scraper operator-by hiring Shaeffer.? Within a few days, Travis learned that 2 of the 17 operating engineers referred to the Company by the Union had failed to report to the project for work on October 22, 1962. On November 2, 1962, the Company, through the Union, hired Les Johnson as an operating engineer on the day shift of the Salyersville road project. On the same day Travis appointed Johnson steward for the Union on the Salyersville job, in- cluding the day and night shifts .8 His duties included the obligation to see that all operating engineers hired on the project had referral slips from the Union. On about November 29, 1962, Johnson first met Shaeffer. Johnson asked Shaeffer his name and where he had been; Shaeffer gave his name and stated that he was on the night shift. On the next day Johnson asked John Davis, the Company's night superin- tendent on the project, about Shaeffer; Davis stated that Shaeffer had been working on the night shaft ever since the night shift had been operating. Johnson then asked Davis who had hired Shaeffer; Davis replied that he did not know.9 Johnson did not pursue the matter further at that time. On December 13, 1962, the night shift was discontinued. Some of the employees who had been working on the night shift were immediately transferred to the day shift. The others, including Shaeffer, were laid off and told that they would be recalled to work as jobs on the day shift became available. C. Shaeffer's recall and discharge On about December 18, 1962, Travis conferred with Pride and Ernest Lawson, field superintendent of the Company's Salyersville project, concerning the recall of the operating engineers who had been laid off from the night shift. Travis agreed that the Company could recall these men to work without clearing them through the Union.10 On January 2, 1963, without notice to the Union, the Company recalled Shaeffer to operate a particular TC-12 push dozer. Within an hour after Shaeffer began to work, this dozer broke down and Shaeffer spent the remainder of the day helping mechanics who, unsuccessfully, tried to fix it. During the day Johnson asked Shaeffer if he had a referral slip from the Union, and Shaeffer answered "No." Johnson then said that Shaeffer "would have to have one." Shaeffer responded that he did not need a referral slip because he had been transferred to the day shift from the night shift. Johnson said: "Well, you are going to have to have one or the men ain't going to work with you out here," to which Shaeffer retorted: "I don't have to get one and fuck the goddamn Union." 11 A little later, Johnson asked Pride and Lawson "if they knew they had an out-of-local man out there" and ' Shaeffer had been "hanging around" the project site in the hope of getting work. Pride saw him there and recognized him as a competent operator who had previously worked for the Company elsewhere 8 The Union had no steward on the project before November 2, 1962 Notice of Johnson's appointment was given promptly to the Company. 6 The findings of fact regarding the Johnson-Davis conversation are based upon John- son's underfed testimony Davis did not testify. 10 This finding of fact is based upon the testimony of Pride and Lawson. Travis testified that he limited this agreement to residents of the area. Travis impressed me as an evasive and unsatisfactory witness; I do not credit his testimony in this regard. Moreover, he further testified that Henry H Ison, another representative of the Union, was present during this conversation; yet the Respondent did not put Ison on the stand to contradict the testimony of Pride and Lawson or to corroborate that of Travis. 11 The findings of fact regarding this conversation are based upon a synthesis of the testi- mony of Shaeffer and Johnson. 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lawson replied: "Yes, Buryl [Travis] told me." Johnson suggested that Travis be contacted about the matter, but nothing was done that day. Some of the operating engineers suggested that "we ought to just shut down," but Johnson disagreed. On the morning of January 3, 1963, Shaeffer reported for work at the project site. Some of the operating engineers refused to work, explaining to Johnson and to Lawson, upon inquiry, that they were waiting for Shaeffer to obtain referral from the Union. Johnson suggested that they go back to work and "let Buryl handle it" but they did not do so. Johnson and Lawson then went to the project field office, where they conferred with Pride. Johnson told Pride that the Company had an out-of-local man, Shaeffer, on the job, that the men had refused to work with him, and that it would be necessary for the Company to terminate Shaeffer "in order to put the men back to work." Pride then telephoned to Travis and told him that some of the operating engineers had refused to work because they objected to Shaeffer, an out-of-local man, working there. Travis replied that the Company "shouldn't have this out-of-local man there anyway." Lawson then took the tele- phone and Travis told him that he thought it would be best for the Company to lay off Shaeffer. Johnson then took the telephone and spoke to Travis.12 Pride took the telephone again , and informed Travis that the Company would discharge Shaeffer "in order to get the job going again ," and would state on the separation slip that he was terminated at the Union's request. Travis answered that he was not too much worried about that. Pride asked Travis to send the Company another operating engineer to replace Shaeffer, and Travis agreed to do so.13 As soon as the tele- phone conversation ended, Johnson told Pride and Lawson that Travis "wouldn't go along with the out-of-local man" and that "that's the way it would have to be, Mr. Shaeffer would have to go in order to get the job going again." 14 Pride sent for Shaeffer and, in Johnson's presence, told Shaeffer: "Well, you will have to go, my friend, on account of 181. Your friend Buryl Travis said you will have to go." Shaeffer asked if Pride would put this reason on his separation slip and Pride an- swered, "Gladly." Shaeffer was then paid off and given a termination notice stat- ing that he had been laid off. It was signed by Pride and Shaeffer and bore the following explanation: 181 operators refused to work because this man was an out-of-local man. We had to lay this man off in order to get the job going again.15 Johnson then returned to the job and told the operating engineers that Shaeffer had been laid off. They immediately resumed working.16 On January 16, 1963, after Shaeffer had filed the instant charges, the Union's attor- ney wrote to Shaeffer stating, in part: "We have no objections to your being hired by any construction company, including the Kenny Construction Company, at any time." A copy of this letter was sent to the Company. On January 18, 1963, the Company sent a telegram to Shaeffer stating, in part: "YOUR JOB ON OUR PROJECT AT SALYERSVILLE KY IS AVAILABLE ... SHOULD YOU WISH TO RETURN." Shaeffer, however, did not thereafter resume working for the Company. D. Did the Union cause the Company to discharge Shaeffer? The consolidated complaint alleges, and the answers deny, that on January 3, 1963, the Union caused the Company to discharged Shaeffer. The Union denies that it caused the strike of the Company's operating engineers on January 3, 1963, maintaining that this was a spontaneous act of the men themselves for which the Union cannot be held responsible. Furthermore, the Union contends that in any event Johnson, as steward, had no authority to call a strike, and indeed had at- tempted to persuade the men not to engage in a work stoppage. I deem it un- necessary to determine whether the strike can be laid at the Union's doorstep. u What was said in this conversation between two representatives of the Union is, in my opinion, immaterial. is The findings of fact regarding this four-in-one telephone conversation are based upon the testimony of Pride, Lawson, and Johnson. To the extent that Travis' testimony differs from that of Pride, Lawson, and Johnson, It is not credited. 14 This finding of fact is based upon Pride's credited testimony. is This explanation was dictated by Pride. There is a conflict in the testimony as to whether Johnson was present during the dictation. I deem it unnecessary to resolve this conflict. 1e While the record is not entirely clear, it appears that the strike was originally con- fined to the particular group of machines to which Shaeffer had been assigned, but ulti- mately spread to all operating engineers working on the project. KENNY CONSTRUCTION COMPANY OF ILLINOIS 1265 For the purpose of this Consolidated Intermediate Report it will be assumed, with- out deciding, that the Union neither started nor later adopted the strike. Laying the strike aside, what conduct did the Union engage in which can be con- sidered as having caused Shaeffer's discharge? First, there was Johnson's statement to Pride preceding the telephone call of January 3, 1963, that it would be neces- sary for the Company to terminate Shaeffer "in order to put the men back to work." Next, there was Travis' statement to Pride during the telephone conversa- tion of January 3, 1963, that the Company "shouldn't have this out-of-local man there anyway." Also, there was Travis' statement to Lawson on the same day that he thought it would be best for the Company to lay off Shaeffer. Then, too, im- mediately after the telephone conversation ended, Johnson said that "Mr. Shaeffer would have to go in order to get the job going again." Finally, Johnson stood by silently without protest while Pride explained to Shaeffer that he was being dis- charged at Local 181's behest. It is clear, and I find, that this conduct was engaged in by Johnson and Travis as agents of the Union acting within the scope of their respective authorities.17 Moreover, in view of the timing of Shaeffer's discharge and the explanation given on his separation notice, I am convinced that the pressure which Johnson and Travis exerted against the Company led directly to the action which the Company took against Shaeffer. In brief, the Company, confronted by the Union's insistence, capitulated. It is accordingly concluded that on January 3, 1963, the Union caused the Company to discharge Shaeffer. E. The Union's reason for causing Shaefler's discharge Having determined that the Union caused Shaeffer's discharge, we next must de- termine why. The answer is not hard to discover; both Travis and Johnson com- plained that Shaeffer was "an out-of-local man." The conclusion is virtually in- escapable that the Union sought Shaeffer's discharge because Shaeffer was not a member of and lacked clearance or referral from Local 181.18 It is so found.19 F. The Respondents' defense 1. Regarding Shaeffer's original hire All parties agree that the 1961 contract between the Union and the Company established an exclusive first-opportunity hiring hall. From this the Respondents argue that, by hiring Shaeffer on October 22, 1962, without union clearance, the Company violated the contract. Specifically the Union contends that the 17 oper- ating engineers supplied at the Company's request reported at the jobsite on Octo- ber 17, 1962, and were hired-thus becoming employees-even though no work was given them. When two of these employees failed to report for work on October 22, 1962, the Union urges, the Company should have applied to the Union for new referrals to take their place; this it failed to do. It will be assumed, without deciding, that the Respondents are correct and that Shaeffer's original hiring on October 22, 1962, was in contravention of the Com- pany's contractual obligation to clear through the Union before filling a vacancy. Even so, it does not follow that the Union was free to insist on January 3, 1963, that Shaeffer be discharged. It must be recalled that on about November 30, 1962, the Company, through Davis, advised the Union, through Johnson, that Shaeffer was an operating engineer on the night shift, and had been so employed ever since the night shift had been operating.20 Despite this knowledge, the Union permitted 17 The consolidated complaint alleges, and the Union's answer admits, that Travis is, and at all material times has been, an agent of the Union acting in its behalf. 1s Although the Union had no objection to the Company's employment of certain other out-of-local men, these had all been cleared by Local 181, either at the time of their hire or later. 10 The General Counsel contends in his brief that "Johnson [had] reason to develop ani- mosity toward [Shaeffer] because [Shaeffer] spoke disparagingly of the Union " However, the record is barren of any probative evidence that Shaeffer's obscene remark about the Union angered any union official Moreover, it is questionable whether such an issue could be raised under the allegations of the consolidated complaint, or was "fully litigated" at the hearing. 20 Since September 1962 the Union had known of Shaeffer's desire to work for the Company and that he was a member of Local 369. And since about October 25, 1962, the Union had known that 2 of the 17 operating engineers scheduled to begin the night shift on October 22, 1962, had failed to report for work Of course,,the Union has always known that it had never cleared Shaeffer to work on the Salyersville road project 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shaeffer, without objection, to continue on the job until the night shift ended on December 13, 1962. If the Union had any rights, it slept on them. I conclude that by failing to protest Shaeffer's hiring promptly after about November 30, 1962, the Union condoned any contract breach which the Company might have committed on October 22, 1962. When it ultimately protested to the Company on Janu- ary 3, 1963, this therefore came too late; whatever rights the Umon might have had were waived by them. 2. Regarding Shaeffer's recall The Union further contends that, in any event, Shaeffer's recall to work by the Company on January 2, 1963, constituted a separate violation of the contract, be- cause it was a new hiring which required union clearance, and the necessary referral was not obtained. The fact that Shaeffer was told on December 13, 1962, that he would be recalled to work as jobs on the day shift opened up, plus his recall within 3 weeks, may well bespeak the recall of an employee on laid-off status rather than the rehire of a former employee who had been discharged. But in the view I take of the matter, this need not be decided. It is sufficient to find, as I do, that (1) Travis agreed on about December 18, 1962, that the operating engineers laid off from the night shift could be recalled to work on the day shift without union clearance; (2) he made this agreement as the Union's agent and within the scope of his authority; (3) this agreement constituted a valid and binding amendment of or addition to the 1961 contract; and (4) this agreement clearly covered Shaeffer's recall on January 2, 1963, whether that event be looked upon as the recall of a laid-off employee or as a new hire. Hence, by recalling Shaeffer on January 2, 1963, without notice to the Umon, the Company did not violate any contractual obligation. G. Conclusions It is concluded that the Company, at the Union's behest, discriminatorily dis- charged Shaeffer on January 3, 1963, and failed and refused to offer him reinstate- ment until January 18, 1963, because he lacked membership in or clearance from the Union, thereby encouraging membership in the Union. This violated Sec- tion 8(a)(1) and (3) of the Act. The Union, by insisting on January 3, 1963, that Shaeffer be discharged for this reason, caused the Company to violate Section 8(a) (3) of the Act, thereby itself violating Section 8(b)(1)(A) and (2) of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. Kenny Construction Company of Illinois is , and at all material times has been, an employer within the meaning of Section 2(2) of the Act. 2. International Union of Operating Engineers, Local No. 181, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating in regard to the tenure of employment of George W. Shaeffer, thereby encouraging membership in the Union named above, the above-named Com- pany has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. By the foregoing conduct, thereby interfering with , restraining , and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the above- named Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 5. By causing the above-named Company to discriminate against George W. Shaeffer in violation of Section 8(a)(3) of the Act, the Union named above has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(b) (2) of the Act. 6. By the foregoing conduct, thereby restraining and coercing employees of the above-named Company in the exercise of the rights guaranteed in Section 7 of the Act, the Union named above has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(b)(1)(A) of the Act. 7. The unfair labor practices described above tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce , and constitute unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. KENNY CONSTRUCTION COMPANY OF ILLINOIS 1267 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in these cases , I make the following: RECOMMENDED ORDER It will be recommended that the Respondents cease and desist from the unfair labor practices which they have committed , and any like or related conduct. Affirm- atively, it will be recommended that the Respondents , jointly and severally, make George W. Shaeffer whole for any loss of pay he may have suffered by reason of the discrimination against him , by paying to him a sum of money equal to that which he normally would have earned from January 3 , 1963, the date of his dis- charge, to January 18, 1963, the date he was offered reinstatement ,21 less his net earnings during the said period, plus interest thereon from January 18 , 1963, at the rate of 6 percent per year.22 It will further be recommended that the Company make available to the Board , upon request , all records needed to facilitate the calculation of the amount of backpay due hereunder . Finally, it will be recom- mended that the Respondents post appropriate notices: the Company at the project site, and the Union in its nearest district office. It is accordingly recommended that: A. Kenny Construction Company of Illinois , Skokie, Illinois, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Encouraging membership in International Union of Operating Engineers, Local No. 181 , AFL-CIO, by discriminating against its employees in regard to their hire or tenure of employment or any term or condition of their employment. (b) In any like or related manner interfering with, restraining , or coercing its employees in the execise of rights guaranteed in Section 7 of the Act , except to the extent that such rights may be affected by an agreement requiring union membership as a condition of employment , as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: ( a) Severally and jointly with the above-named Union, make whole George W. Shaeffer for any loss of pay suffered because of the discrimination against him. (b) Preserve and, upon request , make available to the Board or its agents , for ex- amination and copying , all payroll records, social security payment records , timecards, personnel records and reports, and all other records necessary to compute the amount of backnay due hereunder. (c) Post at its road project near Salyersville, Kentucky , copies of the attached no- tice marked "Appendix A " 23 Copies of this notice , to be furnished by the Regional Director for the Ninth Region , shall, after being signed by a representative of the Company, be posted immediately upon receipt thereof and be maintained for 60 con- secutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that these notices are not altered , defaced, or covered by any other material. (d) Additional copies of this notice , to be furnished by the said Regional Di- rector, shall , after being duly signed by a representative of the Company, be forth- with returned to the Regional Director for posting by the Union , as required below. (e) Post at the same places and under the same conditions as set forth above, as soon as forwarded by the Regional Director , copies of the attached notice marked "Appendix B." 2' The General Counsel does not contest the fact , and it is found, that the Company's telegram to Shaeffer on January 18 , 1963, constituted a bona fide unconditional offer of reinstatement . As such, it tolled the running of backpay, as the General Counsel concedes By rejecting the offer, Shaeffer forfeited his right to reinstatement The Ready-1171x Concrete Company of Lawrence, Kansas, 142 NLRB 502 , footnote 3 23 There is some testimony that the TC-12 push dozer which had broken down while Shaeffer was operating it on January 2, 1963 , was still inoperative on January 18, 1963 There is also evidence indicating that Shaeffer obtained employment elsewhere for 11, days on January 15 and 16, 1963 . To what extent these facts affect the amount of back- pay due Shaeffer are matters to be determined at the compliance stage of these proceedings 2' If this Recommended Order should be adopted by the Board , the words "A De' ision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice . If the Board 's Order should be enforced by a decree of a United States Court of Appeals , the words "A Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "A Decision and Order." 717-672-64-vol. 143-81 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (f) Notify the said Regional Director , in writing , within 20 days from the receipt of this Consolidated Intermediate Report , what steps have been taken to comply herewith.24 B. International Union of Operating Engineers , Local No. 181, AFL-CIO, Lex- ington, Kentucky, its officers , agents, representatives , successors, and assigns , shall: 1. Cease and desist from: (a) Causing or attempting to cause Kenny Construction Company of Illinois to discriminate against its employees in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees of the above-named Company in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring union membership as a condition of employment , as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Severally and jointly with the above-named Company, make whole George W. Shaeffer for any loss of pay suffered because of the discrimination against him. (b) Post at its district office in Lexington , Kentucky, copies of the attached notice marked "Appendix B." 25 Copies of this notice , to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by a repre- sentative of the Union, be posted immediately upon receipt thereof and be main- tained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to ensure that these notices are not altered , defaced , or cov- ered by any other material. (c) Additional copies of this notice, to be furnished by the said Regional Di- rector, shall, after being signed by a representative of the Union, be forthwith re- turned to the Regional Director for posting by the Company, as required above. (d) Post at the same places and under the same conditions as set forth above, as soon as they are forwarded by the Regional Director, copies of the attached notice marked "Appendix A." (e) Notify the said Regional Director , in writing , within 20 days from the receipt of this Consolidated Intermediate Report, what steps have been taken to comply herewith 26 2s If this Recommended Order should be adopted by the Board , this provision shall be modified to read* "Notify the said Regional Director, in writing , within 10 days from the date of this Order, what steps have been taken to comply herewith " 25 See footnote 23. 26 See footnote 24. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act , as amended , you are notified that: WE WILL NOT encourage membership in International Union of Operating Engineers , Local No. 181 , AFL-CIO, by discriminating against our employees in regard to their hire or tenure of employment or any of their working conditions. WE WILL NOT in any like or related manner interfere with , restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist unions, to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purposes of collective bar- gaining or other mutual aid or protection , or to refrain from such activities, except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment , as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended , as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, with the above-named Union, make whole George W. Shaeffer for any loss of pay suffered by him as a result of the discrimination against him. Our employees are free to become , remain, or refrain from becoming members of the above -named or any other union , except to the extent that such right may be affected by an agreement requiring union membership as a condition of employment, ELLIS AND WATTS PRODUCTS, INC. 1269 as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended, as modified by the Labor-Management Reporting and Disclosure Act of 1959. KENNY CONSTRUCTION COMPANY OF ILLINOIS, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Anyone having any question concerning this notice or compliance with its pro- visions may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati, Ohio, 45202, Telephone No. Dunbar 1-1420. APPENDIX B NOTICE TO ALL OUR OFFICERS, REPRESENTATIVES, AGENTS AND MEMBERS AND TO ALL EMPLOYEES OF KENNY CONSTRUCTION COMPANY OF ILLINOIS Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, you are notified that: WE WILL NOT cause or attempt to cause Kenny Construction Company of Illinois to discriminate against its employees in violation of Section 8 (a) (3) of the National Labor Relations Act. WE WILL NOT in any like or related manner restrain or coerce employees of the above-named Company in the exercise of their right to self-organization, to form, join, or assist unions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from such activities, except to the extent that such rights may be affected by an agreement requiring union membership as a condition of employment, as authorized by Section 8 (a) (3) of the National Labor Relations Act, as amended, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, with the above-named Company, make whole George W. Shaeffer for any loss of pay suffered by him as a result of the discrimination against him. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 181, AFL-CIO, Labor Organization. Dated------------------- By------ ----------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Anyone having any question concerning this notice or compliance with its pro- visions may communicate directly with the Board 's Regional Office, Transit Build- ing, Fourth and Vine Streets, Cincinnati, Ohio, 45202, Telephone No. Dunbar 1-1420. Ellis and Watts Products , Inc. and International Union , Allied Industrial Workers of America , AFL-CIO. Cases Nos. 9-CA- 2041 and 9-CA-2069. August 7, 1963 SUPPLEMENTAL DECISION AND ORDER On March 6, 1961, the Board issued its Decision and Order in these cases,' finding that the Respondent had violated Section 8 (a) (1) , (3), and (5) of the Act. With respect to the 8 (a) (3) violation, the Board found that on December 18, 1959, the Respondent had discriminatorily 1130 NLRB 1216. 143 NLRB No. 115.