Ledford Construction Co., Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1461 (N.L.R.B. 1980)

LEDFORD CONSTRUCTION COMPANY, INC. 1461
Ledford Construction Company, Inc. and Local 77,
International Union of Operating Engineers,
AFL-CIO and Metropolitan D.C. Paving,
Highway and Construction Materials Council.
Cases 5-CA-9102, 5-CA-9270, 5-CA-9628
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On December 31, 1979, Administrative Law
Judge Elbert D. Gadsden issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel and the Respondent filed exceptions, and
the Respondent filed a brief in support of its excep-
tions and in opposition to the General Counsel's ex-
ceptions.
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 brief
and has decided to affirm the rulings, findings,'
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry 14all Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951) We have
carefully examined the record and, on the facts and for the reasons here-
inafter set forth, find no basis for reversing his findings
The Administrative Law Judge did not credit the Respondent's presi-
dent, Reed. who denied that he promised ssembled employees a raise if
they would abandon the Union or that he stated that the Company could
not (otherwise) afford a raise The Administrative Law Judge likewise
discredited the corrobative testimony of employees King and Davis be-
cause of the obviously "pro-employer manner in which they testified "
We do not adopt his characterization of the testimony of King and
Davis. However, in view of the contrary testimony of other eye wit-
nesses whose plausible, logical accounts were credited and the obvious
antagonism toward the Union exhibited by King and Davis who willingly
assisted the Respondent in the latter's unlawful attempt to promote the
Union's decertification, we find no basis for overruling this resolution of
credibility by the Administrative Law Judge.
One additional credibility issue deserves comment Based on a compos-
ite of the credited testimony, the Administrative Law Judge concluded
that the Respondent violated Sec. 8 (aX1), (3), and (4) of the Act by sus-
pending employees Tinch, Hare, and Richardson for I day because they
had testified on behalf of the Union the day before, during the Board
hearing held herein. The Respondent acknowledged that the above-
named employees were not permitted to work on the day in question, but
asserted, as the reason therefore, the fact that under its "walk policy"
employees who fail to report for work on a given day, without advising
that they would be absent, are not permitted to work on the following
day if a paucity of jobs would result in the "bumping" of a less senior
employee who had worked the day before. This, the Respondent claims,
is what happened.
The Administrative Law Judge, on the other hand, found that the
claimed "walk policy," if indeed one did exist, was generally not en-
forced; that it had not been enforced in the past vis-a-vis employees Tinch
and Hare; that, contrary to the Respondent's assertion, there was no dim-
inution of work requirements during the day in question which would
have necessitated "walking" the employees involved; and that employees
Charles, King, Coates, and Davis, all having testified for the Respondent,
were permitted to work on the following day. Accordingly, the Adminis-
251 NLRB No. 193
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
The complaint herein alleges, inter alia, that:
At a collective-bargaining negotiation ses-
sion on February 28, 1978, in connection with
a proposed wage formula submitted by Re-
spondent, the [Union] requested that Respond-
ent furnish it with information so that it might
determine the actual wage rate to be paid to
employees under such proposed formula. [Em-
phasis supplied.]
The complaint further alleges that, by refusing to
supply the requested information, the Respondent
violated its statutory duty to bargain in good faith,
thereby violating Section 8(a)(5) and (1) of the Act.
At the hearing, the General Counsel elaborated
on the gravamen of the complaint by asserting that
the Respondent's proposal was "unintelligible" as
presented. And, upon consideration of the evidence
before him, the Administrative Law Judge con-
cluded that the Respondent:
. . . presented a complex wage proposal
which included a wage formula, without all of
the essential information necessary to compute
the formula as applicable to the employer-
union membership . . . even though the Union
requested Respondent to clarify the formula in
dollars and cents . . . [and that the] submission
of such a complex and incomplete wage pro-
posal to the Union, with Respondent's attend-
ant failure to clarify and explain the formula as
requested by the Union, cannot be interpreted
as .. . bargaining in good faith ....
The Respondent excepts to these conclusions of
the Administrative Law Judge. Specifically, the
trative Law Judge concluded that the Respondent's "so-called walk
policy was introduced as a mere pretext to camouflage its otherwise un-
lawful suspension of Tinch, Hare, and Richardsn " In addition to the
above, we note that William M Ledford, the Respondent's president.
was less than precise in describing the Company's purported walk policy.
which he characterized as a means of punishment, asserting that "they
[sic] were the foremen's policy, of which about all of those foremen had
the same type of policy." Yet, Foreman Melton testified he did not know
why Tinch and Hare did not work on the day they were suspended We
also note that the Respondent was aware that at least one of the suspend-
ed employees, Tinch, would be absent from work because he was sched-
uled to testify at the hearing herein on the day in question, and, further,
that at least one employee, Collins, was permitted to work on the day the
suspensions were carried out although he was not so employed the day
before
In these circumstances, we agree with the result herein, notwithstand-
ing that the Administrative Law Judge inadvertently credited the "ac-
count" of employee Richardson, who did not in fact testify as to these
matters, over that of Foreman Abell (see fn 6 of the Administrative Law
Judge's Decision) Indeed, no other reference to Richardson's "account"
on this issue is contained anywhere in the Administrative Law Judge's
Decision. It is thus clear that his findings of facts are not affected by this
inadvertence
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent contends that its proposal was neither
incomplete nor complex, that it was in fact under-
stood by the union negotiators, and that no addi-
tional information was available as an aid in evalu-
ating the aforesaid proposal. On the facts and for
the reasons set forth below, we find merit in the
Respondent's contentions.
The record shows and the Administrative Law
Judge found that, at the February 1978 bargaining
session, the Respondent presented to the Union, as
its wage proposal, a document which set forth a
formula to be used in calculating changes in em-
ployees' wage rates for the second and third year
of the contractual term, based on a cost-of-living
factor. The formula required a comparison of "the
'average hourly earnings' rate in Electrical Work
(SIC 173)"2 for a 3-month period in a base year
with that for the same period immediately preced-
ing the effective date of a cost-of-living wage ad-
justment. This comparison, expressed in terms of a
percentage "increase or decrease" (emphasis sup-
plied) would then be applied to the employees' ex-
isting wage rates, to determine their new rates
under the proposal.
It is clear from the Respondent's proposal that
much of the data upon which the formula relies
would, perforce, be obtained in futuro. That is, the
"hourly earnings," with which base-year informa-
tion would be compared, would not be available
until some time had passed following the effective
date of any new agreement reached, as the first
cost-of-living adjustment would not take place until
I year later.
During the presentation of this proposal, Delbert
Allen, chief spokesman for the Union, sought an
explanation of how the formula would be applied.
Charles Stover, business representative for Local
77, who also attended this meeting, himself testified
that the Respondent obliged with an example using
hypothetical wage rates and that he, Stover, under-
stood the explanation. It is now asserted that there
was a lack of understanding, largely on the part of
Allen, as to how this formula worked and, essen-
tially, that the Respondent violated its bargaining
duty by not providing actual "dollars and cents"
information at the time the proposal was made to
make it more comprehensible.
However, it is clear from the foregoing facts that
the "additional" information sought was impossible
to obtain at the time requested as the proposal, by
its very terms, was not to become operative until
the second and third year of the contractual
period. In these circumstances, we find that the
2 This reference is to industrial group 173 (electrical work) of the
Standard Industrial Classification guide issued by the U.S. Department of
Labor.
proposal was, on its face, complete and intelligible.
Indeed, the perceived inadequacy of the Respond-
ent's proposal would appear to be not that it lacks
clarity as much as in the fact that, at least theoreti-
cally, the cost-of-living feature could result in a
downward adjustment of employees' wage rates.
As Allen testified:
But when that was explained to me, I realized
that their wages could go up or down depend-
ing on-and, also what the SIC number was.
In sum, we find that since the Respondent pro-
vided a hypothetical example exlaining the formula
which at least was understood by Stover, it is ap-
parent that the Respondent provided the necessary
information. Any additional "information" as may
have been sought by the Union or have been found
wanting by the Administrative Law Judge amounts
to no more than assurances by the Respondent that
its proposal would not result in a decrease in em-
ployees' wage rates during the life of any agree-
ment reached. This, understandably, the Respond-
ent was unwilling to provide. In these circum-
stances, we find that the Respondent did not vio-
late Section 8(a)(5) of the Act by submitting an ui-
intelligible cost-of-living wage adjustment proposal
or by failing to furnish additional information con-
cerning the proposal.
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, as modi-
fied and set out in full below, and hereby orders
that the Respondent, Ledford Construction Com-
pany, Inc., Washington, D.C., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Promising employees an increase in wages
and other benefits if they withdraw from the Union
or any other labor organization.
(b) Encouraging, inducing, or involving itself in
the employees' decision or efforts to file a decertifi-
cation petition against their collective-bargaining
representative (the Union).
(c) Bypassing the Union or collective-bargaining
representative of the employees and negotiating di-
rectly with the employees concerning their wages
and other benefits of employment.
(d) Discouraging membership in, or activities on
behalf of, Local 77, International Union of Operat-
ing Engineers, AFL-CIO, and the Metropolitan
D.C. Paving, Highway and Construction Materials
Council, or any other labor organization, by sus-
pending or otherwise discriminating against them
LEDFORD CONSTRUCTION COMPANY. INC. 1463
in any manner in respect to their tenure of employ-
ment or any term or condition of employment, in
violation of Section 8(a)(3) and (1) of the Act.
(e) Suspending and prohibiting employees from
working because they testified unfavorably against
the Respondent in a Board proceeding while per-
mitting other employees to work who testified
more favorably towards the Respondent in the
same proceeding, in violation of Section 8(a)(1) and
(4) of the Act.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
and enjoyment of rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act, except
to the extent that such rights may be affected by
lawful agreements in accord with Section 8(a)(3) of
the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Make Willie Tinch, Johnnie Lee Hare, and
John Richardson whole for any loss of earnings
suffered by reason of the discrimination against
them, with interest, in the manner described in the
section of the Administrative Law Judge's Deci-
sion entitled "The Remedy."
(b) Upon request, recognize and bargain with
Local 77, International Union of Operating Engi-
neers, AFL-CIO, and the Metropolitan D.C.
Paving, Highway and Construction Materials
Council, as the exclusive representative of all the
employees in the bargaining unit described below,
and, upon request, if an understanding is reached,
embody such understanding in a signed agreement.
The bargaining unit is:
All employees employed by the Company ex-
cluding officials, clerical employees, guards,
and supervisors as defined in the National
Labor Relations Act.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at Respondent's plant and place of busi-
ness located in Washington, D.C., copies of the at-
tached notice marked "Appendix."3 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 5, after being duly signed by Re-
spondent's representative, shall be posted by it im-
' In the event that this Order is enforced by a Judgment of a United
States Court o Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
mediately upon receipt thereof, and be maintained
by Respondent for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
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 opportu-
nity 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 ordered us to post this notice.
WE WILL NOT restrain or coerce our em-
ployees in the exercise of their protected rights
by promising them increased wages or other
benefits if they withdraw from the Union, or
any other labor organization.
WE WILL NOT restrain or coerce our em-
ployees by encouraging, inducing, or involving
ourselves in their decisions or efforts to file a
petition to decertify the Union.
WE WIL. NOT refuse to bargain collectively
with Local 77, International Union of Operat-
ing Engineers, AFL-CIO, and the Metropoli-
tan D.C. Paving, Highway and Construction
Materials Council, as the exclusive bargaining
representative of our employees, by bypassing
the Union and negotiating directly with the
employees concerning their wages and other
benefits of employment.
WE WILL NOT discourage membership in or
support for Local 77, International Union of
Operating Engineers, AFL-CIO, and the Met-
ropolitan D.C. Paving, Highway and Con-
struction Materials Council, or any other labor
organization, by suspending employees because
they give testimony in a Board proceeding, or
otherwise discriminating against them in any
manner with respect to their tenure of employ-
ment, or conditions of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise and enjoyment of rights guaran-
teed them by Section 7 of the National Labor
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, except to the extent that such
rights may be affected by lawful agreements in
accord with Section 8(a)(3) of the Act.
WE WI.L make whole Willie Tinch, Johnnie
Lee Hare, and John Richardson for any loss of
pay suffered by reason of our discrimination
against them, with interest.
WE WILL, upon request, recognize and bar-
gain with Local 77, International Union of Op-
erating Engineers, AFL-CIO, and the Metro-
politan D.C. Paving, Highway and Construc-
tion Materials Council, as the exclusive repre-
sentative of all the employees in the bargaining
unit described below, and, upon request, if an
understanding is reached, embody such under-
standing in a signed agreement. The bargaining
unit is:
All employees employed by the Company
excluding officials, clerical employees,
guards, and supervisors as defined in the Na-
tional Labor Relations Act.
All employees are free to become or remain or
refrain from becoming or remaining members of
Local 77, International Union of Operating Engi-
neers, AFL-CIO, and the Metropolitan D.C.
Paving, Highway and Construction Materials
Council, or any other labor organization.
LEDFORD CONSTRUCTION COMPANY,
INC.
DECISION
STATEMENT OF THE CASE
EI.ERT D. GADSDEN, Administrative Law Judge:
Upon unfair labor practice charges filed in Case 5-CA-
9102, on January 3, 1978, by Local 77, International
Union of Operating Ergineers, AFL-CIO, herein called
the Operating Engineers or the Union, against Ledford
Construction Company, Inc., herein called Respondent,
and in Case 5-CA-9270 filed on March 2, 1978, and
Case 5-CA-9682 filed on July 21, 1978, respectively, by
Metropolitan D.C. Paving, Highway and Construction
Materials Council, herein along with Local 77, called the
Union or Charging Party, against Respondent, com-
plaints were issued by the Regional Director for Region
5 in the first case on February 24, 1978, and in the latter
cases on September 21, 1978.
An Order consolidating Cases 5-CA-9102 and 5-CA-
9270 was issued on April 14, 1978. Pursuant to a motion
filed by counsel for the General Counsel on September
15, 1978, an Order was issued on October 13, 1978, con-
solidating Case 5-CA-9682, with Cases 5-CA-9102 and
5-CA-9270.
In substance, the afore-described complaints alleged as
follows:
That Respondent unlawfully promised employees
an increase in wages and other benefits if they with-
drew from the Union, in violation of Section 8(a)(l)
of the Act;
That Respondent unlawfully involved itself in its
employees' decision and/or their actual filing of a
Decertification Petition, in violation of Section
8(a)(1) of the Act;
That by-passing the Union and negotiating directly
with employees concerniig their wages and other
benefits of employment, and by submitting a com-
plex wage proposal without any accompanying ex-
planatory information, following a number of nego-
tiating meetings, the Respondent violated Section
8(a)(5) of the Act; and,
That Respondent unlawfully discriminated against
three employees by suspending them for one day
because they testified in a Board proceeding on
behalf of the Union, in violation of Section 8(a)(1),
(3) and (4) of the Act.
Respondent filed answers to the complaints in the first
two cases on April 17, 1978, and an answer to the com-
plaint in the last case on September 21, 1978. The answer
admitted paragraphs 1, 2, 3, and 4 and denied paragraphs
5, 7, 8, and 9 of the consolidated complaint.
The hearing in the above matter was held before me in
Washington, D.C., on July 19, 20, and 24 and on No-
vember 29, 1978. Briefs have been received from counsel
for the General Counsel and counsel for Respondent, re-
spectively, which have been carefully considered.
Upon the entire record in this case, and from my ob-
servation of the witnesses, I hereby make the following:
FINDINGS OF FACT
i. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation duly organized under and existing
by virtue of the laws of the State of Maryland. Respond-
ent has a principle business office in Washington, D.C.,
and is engaged in the concrete construction of conduits
and manholes through which electrical wiring for do-
mestic and commercial uses are housed.
During the past 12 months, a representative period,
Respondent purchased and received, in interstate com-
merce, materials and supplies valued in excess of $50,000
from points located outside the District of Columbia.
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find
that Local 77, International Union of Operating Engi-
neers, AFL-CIO, herein called the Union, and the Met-
ropolitan D.C. Paving, Highway and Construction Mate-
rials Council are, and have been at all times material
herein, labor organizations within the meaning of Section
2(5) of the Act.
LEDFORD CONSTRUCTION COMPANY, INC. 1465
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
Respondent and the Union have enjoyed a longstand-
ing collective-bargaining relationship since 1964, when
the Union was certified the collective-bargaining repre-
sentative of Respondent employees. The parties entered
into a I-year contract which expired on January 31,
1977. Sometime thereafter, the parties entered into an
oral agreement which was to expire on January 31, 1978.
On October I I and November 17. 1977, the parties
met for the purpose of negotiating a new contract. In
1976, the employees consented to a 20-cent wage reduc-
tion at the behest of Respondent, in order to assure Re-
spondent's business competitive status and thereby assure
the retention of their jobs. Respondent promised to re-
store the 20-cent wage reduction to the salaries of the
employees at a later time. During the November 17
meeting, the Union requested Respondent to restore the
20-cent wage reduction. Respondent not only did not re-
spond to the Union's request but even intimated that it
was unaware that such a reduction had been made. The
Union, nevertheless, took and submitted Respondent's
contract offer of a 3-year contract with no increase the
first year, and a cost-of-living increase in the second and
third year, to the employees. However, negotiations con-
tinued and the matters in dispute which developed con-
stitute the subject of this proceeding.
In its answer, Respondent admitted that, at all times
material herein, the following named persons occupied
positions set opposite their respective names, and that
they have been, and are now, agents of Respondent,
acting on its behalf, and are supervisors within the mean-
ing of Section 2(11) of the Act: Stanley B. Ledford,
chairman, board of directors; Mitchell Ledford, II, presi-
dent and chief operations officer; Richard N. Reed, vice
president of operations and president; and Sam Mingo,
foreman.
It is well established, without dispute in the record,
that the following named persons occupied the positions
set opposite their respective names, as follows: Delbert
F. Allen, president of the Metropolitan D.C. Highway
and Construction Materials Council; Leroy Howard
Adams, president of the Laborers Union; and Charles
Stover, business representative, Local 77, Operating En-
gineers.
After the negotiating meetings on October 11 and No-
vember 17, 1977, the Teamsters representative, Williams,
met with the employees on November 22, 1977, at the
Ledford plant and explained Respondent's proposal to
the employees who did not accept the proposal. When
Respondent learned that the employees did not accept its
proposal, it felt that the proposal was not adequately ex-
plained to the employees and, consequently, Respondent
elected to meet with the employees on November 23, to
assure that the proposal was adequately explained to
them.
The collective-bargaining agreement provides that the
following constitutes the appropriate bargaining unit:
All the employees employed by the Company ex-
cluding office clerical employees, guards and super-
visors as defined in the National Labor Relations
Act.
The controversy in this proceeding raised the ques-
tions as to whether Respondent, in meeting with the em-
ployees, promised the employees an increase in wages or
other benefits if they withdrew from the Union;
Whether Respondent encouraged or involved itself in
the employees' signing and filing the decertification peti-
tion; and
Whether Respondent unlawfully refused to bargain in
good faith with the Union, by bypassing the Union and
negotiating directly with the employees concerning a
wage proposal, and/or by submitting a complex wage
proposal to the employees, without explanatory informa-
tion, which the employees could not understand.
The last question raised in the controversy herein, is
whether Respondent unlawfully discriminated against
three of its employees by suspending them for testifying
on behalf of the Union in a Board proceeding against the
Respondent.'
B. The Substance of Respondent's Utterances to
Employees During the Meeting 4i'th Employees on
November 23, 1977
According to the testimony of Richard N. Reed, vice
president of Respondent, he learned from certain em-
ployees that its proposal to the employees for a 3-year
contract with no increase the first year, and a cost-of-
living increase in the second and third years, was not ac-
cepted by the employees. He said company officials felt
the proposal was not properly explained to the employ-
ees by the Union in the November 22 meeting. Conse-
quently, he (Mr. Reed) called Mr. Allen, president of the
Union and asked him to be present at a meeting he was
calling with the employees the next morning, November
23, because he (Reed) would like to explain the proposal
to the enployees.
President Allen acknowledged that he received a call
from President Reed on the evening of November 22, re-
questing his presence at a meeting with the employees at
7 a.m. the next morning, November 23, for the Company
to present its explanation of the contract proposal to the
employees. He also stated that the Union had agreed to
present the proposal to the employees on November 22,
but before doing so, it had advised Respondent that it
would have to have the 20-cent wage reduction restored
to the employees' wages in order to sell the present offer
to the membership. Respondent did not respond to the
Union's request, but the Union nevertheless presented the
proposal to the membership.
It was established by the undisputed testimony of Re-
spondent President Reed, and President Allen, that the
former presented the Company's proposal to the employ-
ees during the meeting on November 23 and requested
them to reconsider it. The employees requested time to
reconsider the proposal, and the Company agreed to
meet again with the employees on Friday, November 25.
Mr. Allen acknowledged that Respondent (President
t 'he aho\e-dec.rlbcd facts are not disputed and are not in conflict in
the record
I
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reed) asked him if he would be present at that meeting
(November 25) and he responded in the affirmative.
President Reed further testified that during the No-
vember 23 meeting with employees, he told employees
the Company's proposal was a no-wage increase for the
first year, and a wage increase in the second and third
years, according to the Labor Department's cost-of-
living computation, under Standard Industrial Classifica-
tions (SIC). He made himself clear that the Company
was proposing a wage increase pursuant to the cost-of-
living's analysis. He denied he said anything about a 30-
cent raise, or shutting down the plant, and he said he did
not have anything to do with the 20-cent reduction in
wages which went into effect a few years ago.2
C. What Respondent Said to Employees During the
November 25 Meeting
President Reed testified that on the morning of No-
vember 25, he saw union officials outside the plant, and
Union President Allen testified that he reported to the
company yard on Friday morning, November 25, and
saw Howard Adams, business manager of Local 456 of
the Laborers, Charles Stover, business representative of
local 77, Operating Engineers, and Mr. Williams of the
Teamsters, all outside the garage at the plant. Allen fur-
ther stated that he saw President Reed and asked him
whether the Company was going to restore the 20-cent
reduction to the wages of the employees, and Mr. Reed
replied, "no way." President Reed denied that he had
such a conversation with Allen. Mr. Allen continued to
testify as follows:
A. I went back to the outside of the fence. The
employees were starting the trucks and whatever
they were going to do-talked to the other officials.
There were 20 cent, and I told them as far as I
knew, no. They said it is no use to have a meeting.
Q. What did you do?
A. We stayed around there and when I left, I
looked at my watch. It was 7:40 a.m., when I left to
go to my office.
Q. Did you have any conversations with Mr.
Reed at all that day, other than what you have al-
ready told us-after 7:40?
A. Not that I recall, sir.
President Reed's version of his conversation with
Union President Allen on the morning of November 25,
was that he told Mr. Allen the employees would assem-
ble in the garage as soon as he got them together, and he
said he did not tell union officials there would not be a
meeting on that day. He said after he got the employees
2There was considerable conflicting testimony as to whether or not
President Reed had a bull horn at the meetings on November 23 and 25,
respectively However, I credit the testimony of President Reed, which
in part, was corroborated by several other witnesses that he did have a
bull horn during the November 23 meeting, which he discarded because
it did not function properly. President Reed said he returned the bull
horn to the company from which Respondent rented it, and I credit his
testimony in this regard, because other testimony contending that he had
the bull horn on November 25, was highly conflicting and speculative.
Such conflict clearly indicated a confusion (perhaps honest) among the
witnesses with respect to the dates of the two meetings (November 23
and 25)
together, he noticed that Union President Allen and the
other union officials were not there. Thereupon, he went
inside the garage and told the employees the Union offi-
cials had left.3 Mr. Reed said he also told them, "It does
not seem like the Union had any regard for-as though
the Union gives a damn about you, your job or the Com-
pany, but they have gone." Mr. Reed said he also told
the employees there was nothing that he and the employ-
ees could do now and that they might as well go on to
work. He said he did not know where the union officials
went, but some of the employees told him they got into
their cars and left.
President Reed admitted that on November 25 he told
the employees in general that it was entirely up to them,
that they could do what they wanted to do with the
Union. He denied he told the employees they would get
a 30-cent wage increase if they got out of the Union, but
he did acknowledge that he possibly told some employ-
ees they would get a cost-of-living increase in the second
or third year. He continued to testify as follows:
Q. It is a fact, is it not, that you told them, or is
it your testimony I should say, that you told them
that whatever is going to the Union, they would get
30 cents in wages and they could do whatever they
want with the rest?
A. That is true, that is their money, they could
do what they wanted to.
Q. So you did tell them that they would get 30
cents, right?
A. I told them that they could do that. That is up
to them. I could not give it to them, it was already
theirs . . .
Q. Per person. You told them what you believe
was 66 cents, 30 cents of that would go to wages?
A. I told them that if they wanted to, they could
add 30 cents and we could take the other money
and buy them health and welfare with it, but it was
already their money. It was up to them to do what
they wanted to with it.
According to the testimony of James bF Glover, a
truckdriver for Respondent, approximately 45 to 50 em-
ployees were present at the November 25 meeting. Pres-
ent for management were: Mr. Ponton, Mr. Richard
Reed, and a Mr. Henry. Glover recalls Mr. Richard
(Dick) Reed saying to all of the employees that the
Company was not in a position to pay the cost-of-living
rates for 2 years because it was in a bind, just having
: I credit Union President Allen's testimony to the effect that on the
morning of November 25 he asked President Reed if the Company had
restored the 20-cent wage reduction to the employees' wages, and Mr
Reed replied: "No way." I was persuaded that President Allen was tell-
ing the truth not only by the straightforward, spontaneous and candid
manner in which he testified, but also because President Reed did not
categorically deny that Allen had requested the restoration of the 20
cents (as a selling factor) on that day or prior thereto Not only was I not
persuaded by the cautious and selective manner in which President Reed
testified in this regard, but Allen's version inferentially explains his pres-
ence and sudden departure from the plant on the morning of November
25. Under these circumstances, I was persuaded that Allen's explanatiln
is not only logical and truthful, but also consistent with all of the evi-
dence of record.
9
LEDFORD CONSTRUCTION COMPANY, INC. 1467
bought new machinery; that although it was up to the
membership, anybody who did not want the Union-(as
though the Union was not doing what it was supposed to
do for its membership) the Company would give them a
30-cent raise to whomever signs the petition to decertify
the Union; and Mr. Reed then asked. "Who wanted to vote
the Union out?," and he made reference to health and
welfare. In this regard, employee Willie Tinch testified
that Mr. Reed said he would pay the hospital bill, along
with a 30-cent raise.
James Glover continued to testify as follows:
Q. (By Mr. Cummings) Did he say no raise or
did he say you can have a 30-cent raise, or did he
say both?
A. No, what happened, he said within two years
period of time he wouldn't be able to pay anyone no
money for the cost of living and welfare, I think it was
something like that anyway and then he was saying
that the shop would have to close down and we would
be out of work so after that he say it is up to them to
vote the Union out. He say whoever want the Union to
be voted out to go along with it, we will get a 30 cent
raise increase.
On the same subject, employee John Richardson testi-
fied as follows:
Q. What if anything did Mr. Reed say at this
meeting and when you tell us what he said, who he
directed it to.
A. He told us that the only way we could get a
raise is to get out of the Union. That is the only way
we could get a raise.
Q. Did he tell you-what if anything did he say
about what the raise would be?
A. He said from 30 to 60 cents ...
Q. Do you remember under what circumstances
you took the 20 cent cut?
A. So they could get the PEPCO contract.
Q. How did you find out about it?
A. We was asked by the Company first to take
the 20 cents.
Q. Who asked you-which person?
A. Mr. Reed ....
Employee Glover said he read and signed the paper
(petition) since the Union was not securing proper bene-
fits. He said Mr. Ponton and a union steward also spoke
at the meeting, but he did not describe the contents of
their statements. After Mr. Reed spoke, Glover said one
of the employees circulated the petition for decertifica-
tion.
Richardson further testified that no union officials were
present at the November 25 meeting, but that Supervisor
Sam Mingo was present and said it would be better if the
employees would sign the Union out. He knew of three
people who signed the paper on that date, and he said he
was positive it was Mr. Reed who proposed the 20-cent
reduction in wages to the employees back in 1976.
Employee Johnnv Hare testified that during the No-
vember 25 meeting Mr. Richard Reed was present and
that it was he who said if the employees went nonunion
they would receive a 30-cent raise and a cost-of-living
increase for the next 2 years. Hare said he did not know
about the paper (petition for decertification) being circu-
lated. On the next working day (Novenber 28), Hare said
Foreman Paul Melton also told employees in his crew
about the 30-cent raise.4
D. Was Respondent a Part of the Decertification
Effort
Before the employees left the garage, after the Novem-
ber 25 meeting, President Reed said he saw employee
Joseph (Joe) Davis circulating a paper amongst the em-
ployees and heard him say, "We will get out of the
Union... . To hell with the Union." President Reed ac-
knowledged that 75 percent of Respondent's business is
with PEPCO.
Jesse King, a laborer employed by Respondent for 10
years, testified that there were about 70 people in the
garage during the November 25 meeting, and that after
the meeting he and some of the employees asked Presi-
dent Reed how would they go about getting out of the
Union. Mr. Reed said, "The only way he knows was to
get up a petition." King continued to testify as follows:
Q. What happened in the meeting then?
A. The meeting then, after we looked out and
seen all the Union representatives was gone, we de-
cided that we didn't need the union to represent us.
If they could not be there when we need them, we
didn't need them. So we decided that we would try
to get out of the union.
We asked Dick Reed how could we go about
getting out of the Union and he said the onliest way
that he know that we could get up a petition....
Q. Did Mr. Charles say anything to the meeting
that morning?
A. He did.
Q. What did he do and say?
A. We had a trailer in the garage, so he got up on
the trailer and he said, "Look, fellows. you know we
got to work because we got to eat." And that is when
everybody went to thinking about it, and everybody
I credit the testimonial versions of employee-wilnesses James Gloer.
Willard Tinch, John Richardson, and Johnny Lee Hare, to the effect that
Respondent (President Reed) told the employees on November 25 that
Respondent would not be able to give them a raise because it had just
purchased new machinery and the shop would have to close down, that
the only way Respondent could give employees a raise was if the em-
ployees got out of the Union; and that Respondent would give the em-
ployees a 30-cent raise if they would sign a petition to decertify the
Union President Reed denied he said anything to the employees on No-
sember 25, except that the Company could not have a meeting slth
them since the Union officials had left the premises and how such con-
duct (leaving the plant) by union official, indicated the Utilon .as not
interested in the well-being of its employee Jesse King His denial that he
said the Company could not afford a raise is supported solelc b the testi-
mony of employee Joe Davis I do not credit the testimony (of King or
D)asis. because of the obviously proemployer manner in which theN testi-
fied. Meanshile, I was persuaded by he straightforv ard, positive. and
nonselective manner in which the aforenamed emplosee-,lsitnesses testi-
fied, that they were testifying truthfull i Moreoer, their testimonial er-
sions coincide with the logical convistency of a composite of the credited
evidence of record
A
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
went up and started signing the pad, to come out of
the union.
Q. Did Charles say anything about the union that
morning when he got up on the trailer?
A. He did. He said--we don't need no union to
represent us if they ain't going to represent us when
we need them.
Q. Did anybody stand up and disagree with what
Charles was saying?
A. Nobody
Q. Did you get up and say anything that morn-
ing?
A. No more. The only thing I said-I just say,
me and Joe Davis got together. We talked. We said,
we might as well get up a petition and go out and
see can we gets the men to come out of the union.
And that is what we did.
King further testified that he and Joe Davis com-
menced circulating the petition (Resp. Exh. 1) in the
garage, while a foreman and President Reed were pres-
ent in the shop. He said it was Joe Davis who got the
pad on which he and other employees signed to get rid
of the Union. King's attorney, Manuel Davis, advised
them that the first petition was not any good because it
was circulated in the presence of a foreman and Presi-
dent Reed in the shop. Consequently he and Davis pre-
pared a new petition which they circulated amongst em-
ployees on the job site during the following weeks.
There were two documents (Resp. Exhs. I(b) and (c))
because one document got wet by rain and they pre-
pared and circulated the other one. Joseph (Joe) Davis
corroborated the testimony of King with respect to
fellow employee Richard Charles, who said they did not
need the Union because the Union did not do anything
for them, and that he, along with King, circulated the
petitions.
In this regard, Davis continued to testify as follows:
Q. (By Mr. Cummings) Did anyone say anything
about a wage increase?
A. No. We weren't saying anything about a raise.
We was debating if we did get out the union, we
would save the union dues, which we had to pay,
plus before they was only taking $5.00 out for union
dues-the union-our representatives said that we
had to take a 20 cents cut, but we would get the 20
cent cut in the period that next year, and we
wanted to know why. He said because the company
wasn't received no contract. That would be a bene-
fit to us because a non-contractor was taking all the
work. So, we accepted 20 cent cut, but when we
got the 20 cent back-I think it was 30 or 45 cents.
They went up again in our union dues.
Davis also acknowledged that he prepared the petition
in his own handwriting on his own volition and initia-
tive, on a yellow pad which he obtained from the time-
keeper in the garage. He said he did not see President
Reed in the garage at the November 25 meeting and that
he and King collected about 36 or 37 signatures on the
petition on their own time. King and Davis' testimony
regarding the petition was corroborated by fellow em-
ployees Richard Charles and John Coates.
Employee Willard Tinch, a laborer for Respondent for
8 years, testified that on November 25, Mr. Reed first
had the pad on which the petition was written and later
circulated by fellow employees King and Davis.
E. Was Respondent's Wage Proposal of February 1975
Comprehensible
Delbert E. Allen employed by Local 77, Operating En-
gineers, and serves as president of the Metropolitan
Paving Council. He testified that he had an understand-
ing with Respondent's former president, Mr. Donaldson,
that the Company would be bound by the last contract
(G.C. Exh. 7). In early October 1977, he contends he
called and asked for a meeting which was scheduled for
October 11. He and Charles Stover, for the Union, met
with Mr. Standley Ledford and Mr. Mitchell Ledford,
for the Company. Charles Stover testified that during that
meeting they talked about the job market and Respond-
ent proposed no increase in wages for that year, and a 6
percent increase the following 2 years.
At the February 1978 negotiation session, Stover said
the Company (Mr. Ledford, Sr.) presented the Union
with a piece of paper containing a SIC (acronyn for
Standard Industrial Classification) code and wage formu-
la, as the method for determining wage increases. He
said he looked over the formula and the code and Mr.
Allen asked could the Company document the code in
dollars and cents so that the Union representatives could
properly explain the formula (G.C. Exh. 4) to the mem-
bership. Mr. Ledford, Sr., said he had seen the formula
computed and implemented before, but he was not sure
that he could do it again. The latter also stated that this
proposal was the Company's final offer and that the
Union could take it or leave it.
Stover further testified that during this meeting, he
made a demand upon the Respondent to restore the 20-
cent decrease made in 1976 (during the term of the con-
tract) to the employees' wages. Mr. Allen, president of
the council, said he did not understand the formula and
needed the computations in dollars and cents. The other
representatives said they did not understand it and all of
them (union representatives) thought that management
was not in full agreement on the formula.
Union President Allen further testified that he told the
employees during the proposed reduction in wages in
1976 that he did not agree with the reduction during the
term of the contract. He said the contract did include an
arbitration and grievance clause and neither the Union
nor any employee pursued a grievance thereon. He said,
Mr. Ledford erroneously stated that the 20-cent decrease
had been repaid.
Mr. Ledford, Sr., president of Respondent, explained
the basis of the proposal as follows:
A. He explained that the open shop competition
had in fact gone to PEPCO and made this presenta-
tion to them and, based on that, they were required
to do the same thing.
LEDFORD CONSTRUCTION COMPANY, INC. 146'
Q. Did he say that was dictated to them by
PEPCO?
A. Yes, sir.
Before the session concluded, Union President Allen
said, Mr. Mitchell Ledford of Respondent told them he
would get back to the Union with a computation of the
SIC formula in dollars and cents on current or past
wages, but neither he nor anyone else from the Company
ever did so.
In reference to a reason for the proposed formula,
President Allen continued to testify as follows:
Frank Joy is a competitor of Ledford's in this
work. Is that correct?
A. Yes.
Q. They are non-union?
A. Yes, sir.
Q. Let's take General Counsel's Exhibit No. 4.
Would you read into the record paragraph 3?
A. "The adjustment for calculating any increase
or decrease shall be determined by averaging the
average hourly earnings and rates of fourth, fifth,
and sixth months preceding the effective date of the
proposed adjustment."
Q. Now, you have testified as I recall, this piece
of paper was presented as a proposal with respect
to an adjustment to occur at the end of a year after
the contract was in effect. Correct?
A. Yes, sir.
Q. When would the contract have gone into
effect if agreement had been reached?
A. The end of January was used as the anniversa-
ry date.
Q. Of what year?
A. 1978, 1979 and 1980. 1979-1980, 1981.
Q. The next contract would have gone into effect
the end of January, 1978. Correct?
A. Yes. No increase.
Q. Now, if the new contract had gone into effect,
January 1, 1978, when would the first adjustment
date have occurred under the proposal?
A. If the contract was dated January I-
Q. I am asking you, when did your old contract
run out?
A. I am asking to understand your question, Mr.
Cummings.
Q. When would your old contract have run out?
The oral one, the hand-shake one?
A. January 31, 1978.
Q. So the new contract that you were talking
about was a three year contract to begin February
1, 1978. Correct?
A. Yes, sir.
Q. When would the first adjustment date under
this proposal have occurred?
A. Not until 1979. There is no increase in the
first year.
Mr. Allen also said, during the February 27, 1978,
meeting, that Mr. Ledford did not explain in dollars and
cents how the formula worked out for past months for
which they had access to the number of hours worked.
He said he understood the formula but did not have the
hourly numbers at the time, although he knew where he
could get them. He said, on December 1, 1977, that he
called Union Representative Adams and asked him if he
would contact Respondent and request continuation with
negotiations.
In essence, President Allen's testimony corroborates
the testimony of prior witnesses with respect to the Feb-
ruary 27 meeting, and the union representative's failure
to understand the formula as proposed. Allen also stated
that he did not know what SIC stood for until Mr. Stan-
ley Ledford told them what it stood for, and that it was
referable to Electrical Workers 173. He said he sent to
the Department of Labor for the SIC information, but
thereafter he knew less than he did before. Finally, Mr.
Allen said, the Union did not ever serve notice on Re-
spondent that it desired to modify or terminate the expir-
ing contract.
Mr. Adams testified that he stayed around Respond-
ent's yard on the morning of November 25, until about
7:40 a.m., and he left. He said none of the union officials
spoke with company officials or saw any of them. He
corrected himself and said they did see Dick Reed. Presi-
dent Adams said Respondent did not get back to the
Union before March 13 with an explanation on the SIC
proposal, nor at any time thereafter.
William Mitchell (Mitch) Ledford, president of Led-
ford Construction Company, was employed by the Com-
pany since 1969. He testified that he attended the meet-
ing at the office of the Operating Engineers on February
27, 1978, and present for the Company were: himself, his
father, Stanley Ledford, Mr. Richard Reed, and Mr.
Jack Smith. Present for the union were: Delbert Allen,
President to the Council, Charles Stover, Leroy Adams,
and a Mr. Lattimore. Mr. Mitchell Ledford acknowl-
edged that Mr. Allen said he did not understand the for-
mula, but said, Mr. Stover said, he understood it and
would explain it to Mr. Allen at a later time. He further
testified that the Union did not request any information
on the formula at that meeting. However, he said he told
the Union, if they did not get the information to fully un-
derstand the formula, they (the Union) should get in
touch with Respondent. Nevertheless, at no time during
the meeting, did the Company decline to supply the
Union with any such information. In fact, he said Re-
spondent told the Union only past information would be
available. He denied that his father, Stanley Ledford,
said he could not compute the formula as referable to the
employees herein.
Mr. Mitchell Ledford further testified that the 20-cent
reduction from employee's wages in 1976 was restored in
the winter of 1976; that a 15-cent adjustment was added
to the 20 cents, for a total of 35 cents; and that the
Union gave the 15 cents to the Health and Welfare Pen-
sion Benefits. In response to several questions, he said
that the fact that the formula code was an electrical SIC
code, did not cause any problem in explaining its applica-
tion to the number of the laborers, because their con-
struction involves electrical lines and the work is per-
formed for PEPCO.
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Ledford continued to testify that the code was
simply the application of a percentage to a formula as
follows:
The question was brought up by Mr. Lattimore of
Local 456, Laborers' Union that, as it states here,
there could be a decrease. And I assured him to my
knowledge since 1938 that there had never been any
decrease in wage adjustment and that I am sure it
would not appear here.
There was some concern by Mr. Lattimore and Mr.
Adams that there could be a decrease and I assured
them that there would be no decrease and that I
knew of no decrease.
Mr. Ledford also stated that he did not have the SIC
formula at the time of the October and November nego-
tiation meetings, but that the Company did talk about an
adjustment that it would propose to remain competitive
and obtain work from PEPCO. He said Respondent has
not received any formal notice from the Union to negoti-
ate as it has in the past, and that he did not consider the
October 11 meeting or the November meeting as negoti-
ation meetings. Mr. Ledford continued to testify as fol-
lows:
Q. I said, in order to compute the adjustment,
cost of living adjustment, you need to have the
code, or work classification. You may be able to
educate me on it-for this SIC 173.
A. I can explain how you get it. I don't quite un-
derstand the question.
Q. You need some other document, right?
A. No, sir. All you need to do is to call the De-
partment of Labor and ask, or that you want to
obtain the average hourly earnings, under the SIC
173 for a particular month, and they give you that
wage.
Q. You are aware, are you not that the SIC code
for 173 that was in the hands of the Department of
Labor does not reflect the type of employees you
have working for Ledford, in terms of their work
classification. Are you aware of that?
A. I am not prepared to make that admission, no.
Q. The answer is just no, you don't know. Is that
right?
A. I don't know. I didn't say that either.
Q. What is your answer?
A. My answer is, under the SIC code where it
refers t'o installation of electrical lines, it could be
determined that this is a process of installation of elec-
trical lines. I don't know. I don't make those determi-
nations. That is how I would determine that it could
fall within the electrical code 173.
Q. You could make that argument, is that what
you are saying? You feel you could make that argu-
ment?
A. In the broad sense of the categories under 173,
yes, sir.
Q. Was that at all discussed in the February 27th
meeting?
A. No, sir. Because it wasn't questioned.
Q. You didn't talk about it, then?
A. No, sir. And the question was not raised. We
did state at our conclusion of that meeting if there
was any question at all, to please contact one of the
officials of the company.
Mr. Ledford admitted that Respondent does installa-
tion of electrical conduit manhole construction, which
consist of concrete and pipes. Respondent does not do
any of the electrical installation work which is per-
formed by an electrical company under a separate con-
tract. On this subject, Mr. Reed further testified as fol-
lows:
Q. Do you see anything in that code that covers
it?
A. Yes, sir.
Q. Would you read what you see?
A. It would be cable splicing, electrical; contrac-
tors, contractors in the sense that in order for them
to get to the cable splicing or electrical, or to that
phase, it is necessary that we first put in the pipe
for that cable to be installed.
In continuing his testimony, Mr. Ledford said, in Oc-
tober and November, Respondent did not know what
cost-of-living index formula would be used. In the Feb-
ruary 27 meeting, Mitchell Ledford said, he told the
Union that the formula (G.C. Exh. 4) was the formula
which was necessary to be applied in order for Respond-
ent to retain the PEPCO work, and by which the em-
ployees would be covered in getting raises in the second
and third years. He said the formula meant an amend-
ment to the contract if it were accepted.
On further examination, Mr. Mitchell Ledford said, he
considered the February meeting a negotiating meeting,
in one sense, but Respondent had not then received the
formal notice to negotiate. He acknowledged that he did
not contact the Labor Department to obtain the electri-
cal code average hourly wage before the February meet-
ing, because, he said, Respondent was not requested to do
so.
Mr. Ledford said, he could not recall whether he told
the Union, during the winter negotiation sessions of
1976, that the 35-cent wage increase included the return
of the 20-cent wage reduction several months before. He
said, Mr. Donaldson, former president of Respondent,
was the principle negotiator for Respondent during the
1976 session, which involved the 20-cent reduction. Fi-
nally, Mr. Ledford acknowledged that the type of work
performed by Respondent was not listed on code 174
(G.C. Exh. 12).5
5 The testimonial accounts of Respondent's witnesses; Reed, Mitchell.
Ledford, and Stanley Ledford, Sr., and union representative witnesses.
Allen, Stover, and Adams, with respect to a comprehensible presentation
of Respondent's wage proposal, are essentially not in conflict and are
credited.
LEDFORD CONSTRUCTION COMPANY, INC. 1471
F. Did Respondent Discriminatorily Lay Off
Employees Because They Testified in a Board
Proceeding the Day Before
The proceeding in the instant matter commenced on
July 19, 1978, and Respondent employees Willie Tinch.
Johnny Lee Hare, and John Richardson testified herein
on behalf of the Union. On the following day, July 20,
1978, Richardson, Hare, and Tinch all reported for work
at Respondent at their usual worktime, but Respondent
did not permit them to work and sent them home. More
specifically, Willie Tinch testified that he reported for
work on July 20, at 6:15 a.m., and Foreman Paul Melton
told him he could not work because the Company was
reducing the work force. Tinch said, another employee
went to work in his place and Foreman Abell put two
extra men to work that day, one of whose name was
Sam, but neither of whom were normally assigned to his
crew. Tinch continued to testify as follows:
Q. Directing your attention to the following day.
did you report to work that day?
A. Yes, sir. Back there at quarter past six the next
day.
Q. What if any conversation did you have with
Mr. Reed that day?
A. He told me to get on the truck. I went on to
the wagon to get a soda. Mr. Reed, he walked to-
wards me. He said, now I wouldn't have caused
you not working yesterday because I know you had
a summons to go to Court. I had one myself.
I said-somebody caused it. I didn't work ...
A. I said-two more fellows on the crew didn't
work with us. He said-I wasn't the cause of you
didn't work, because the strike was on.
Tinch also said, he has never missed a days work
except July 19, and that he did not know of a walk-
policy or had ever been disciplined, but rather, had been
commended for his work performance by Mr. Reed, Mr.
Melton and/or Mr. Ponton.
Employee Johnny Lee Hare, testified that he reported
to work at 6:50 a.m. on July 20, and was told by Fore-
man Melton that Mr. Dick Reed said only the men who
worked the day before (July 19) would be permitted to
work today (July 20). Hare said he has missed days at
work before and was permitted to go to work on the day
he returned, even though, on occasion, he had not called
in about his absence. He admitted he had seen nonregu-
lar men walk on July 20, as did he. Respondent admits
that it walked (laidoff Richardson, Hare, and Tinch) on
July 20, and had made its explanation for their walking
through its foreman. In this regard, Respondent's fore-
man, Paul Melton, testified that a Mr. Leroy Johnson of
PEPCO told him if Respondent did not find another
backhoe, PEPCO would not be able to use all of the
men on the following day (July 20). It is well established
in the record that PEPCO has authority to tell Respond-
ent how many men to use on the jobs, although Re-
spondent selects the men to perform the work. Melton
said that on July 19 John Coates was on his crew and so
were Hare and Tinch. He said he had a conversation
with General Foreman Ponton on July 19, during which
he asked Mr. Ponton if he had another backhoe availa-
ble, but he did not tell Mr. Ponton what Mr. Johnson
had told him about the number of men to work. When
Foreman Melton was asked, did he know why Tinch and
Hare did not work on July 19, he replied, "Not directly,
but by hearsay." Nevertheless, he said, they did not
work on July 20, because they did not work on July 19
and Respondent did not have work for all the men. If
Respondent had gotten another backhoe, he said, these
men would have worked.
Melton acknowledged that Tinch has worked for him
about 8 or 9 years, and had missed days from work with-
out prior notice to him, and was allowed to work the
first day he returned to work. He said the same is true of
Mr. Hare who has missed more days than Mr. Tinch, but
when they returned to work Respondent had a full ca-
pacity and enough equipment and machinery to work all
men. He acknowledged that he has known of employees
on his crew to miss a week's work and were not disci-
plined for it. He said, during the month of July he had at
least one backhoe operator a day throughout the strike.
He also said that the walking policy is, if a man did not
work on yesterday, and he has one man too many, he
walks that man who did not work the day before. He
also said, he had eight laborers and one compressor oper-
ator on July 19. On July 20, he said he had six laborers
and one compressor operator; and that he had three job-
sites on July 19, and only two jobsites on July 20.
Foreman John R. Abell testified that John Richardson
is on his crew, and he admitted that he denied Richard-
son an opportunity to work on July 20, because Mr.
Coup told him on July 20, to use the same amount of
personnel he had used on the previous day (July 19).
Abell said that Mr. Coup told him he had been so in-
structed by his (Mr. Coup's) foreman. Abell denied he
told Richardson he could not work on July 20, because
Mr. Reed told them not to work anybody who did not
work the day before (July 19).6
Respondent called a Mr. Charles Orrison, superintend-
ent of the conduit department of PEPCO. Mr. Orrison
testified that he worked with the Ledford Construction
Company pursuant to a sustaining contract over which
Mr. Cossey is general foreman over 11 sustaining con-
tracts, of which the Respondent is one. He said that Mr.
Harper, also of PEPCO, handles the Ledford work, and
he has four inspectors under his jurisdiction who inspect
the work in the field. One of his inspectors is Mr. Leroy
Johnson. As previously stated, PEPCO determines the
complement of workers on the job. On July 19, 1978,
Mr. Orrison said, he received a telephone call from Mr.
Dick Reed at about 7:39 a.m., advising him that Re-
spondent's equipment operators had gone on strike. He
thereafter discussed the strike situation with his superior,
Mr. Cossey, and they decided to use Ledford's work
crew as long as they could be used productively, and he
told Mr. Cossey to inform everybody of that fact.
6 I credit Richardson's account over that of Abell's not only because I
was persuaded by their demeanor that Richardson was telling the truth
and Abell was not. but also, because Richardson's version is consistent
with how other foreman (Melton) enforced the walking policy on July
20, in compliance with a directive from management
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Milton Harper, foreman of the sustaining contractors,
including Ledford, testified that he distributes the work
to the several contractors through his four inspectors and
Mr. Ponton. He said that on July 19 Mr. Cossey in-
formed him of the operator's strike, and he, in turn, in-
formed Respondent of the decision. He said different
people operated the equipment and there was virtually no
slowdown in production. Likewise, he said he noted no
change in the number of people working and he did not re-
quest less men. Other people were brought in from other
sources to operate the equipment during the strike and
he wanted to keep all regular employees working every
day during this period.
Robert Leroy Johnson, employed by PEPCO, testified
that there was never a need to reduce the size of the work
crew during July. The parties stipulated to the admission
of Respondent's Exhibits 3 and 4, which are the codes
described as follows:
L stands for Laborer
SL stands for Skilled Laborer
SSL stands for Semi-Skilled Laborer
AEQ stands for Acting Equipment Operator
ACO stands for Acting Compressor Operator
ATD stands for Acting Truckdriver
F stands for Foreman
The parties also stipulated that General Counsel's Ex-
hibit 17 represents the classification of work for July 17
through July 30, 1978.
William Mitchell Ledford testified that on the close of
the workday (July 20) Willie Tinch, Johnny Hare and
John Richardson were walked. When it was brought to
his attention that they were walked, he immediately in-
formed Respondent's attorney, Mr. Cummings. Mr.
Cummings told him that Mr. Wolf, counsel for the
Union (OP), had advised him that the Union was filing
charges against Respondent. Mr. Ledford said that Mr.
Cummings asked him why were the men walking and he
told him it was a foreman's policy to punish men for not
working the previous day. Mr. Cummings told him that
regardless of what happened, he (Respondent) did not
need another case filed against him, and to make sure
that the men who walked did not walk the next day, but
rather put them back to work. In this regard, Foreman
Paul Melton testified that Tinch and Hare worked on
July 21, because he was advised by a Mr. Ponton that
Mr. Cummings, attorney for Respondent, advised him to
put them back to work. Consequently, Hare, Tinch, and
Richardson were permitted to work on July 21, but they
have not been paid for the day (July 20) when they were
walked.
Analysis and Conclusions
Pursuant to the summary of the credited evidence
under Topics B and C, supra, I conclude and find that in
a meeting on November 25, Respondent (President
Reed) told employees that Respondent would not be able
to give them a raise because it had just purchased new
machinery and the shop would have to close down; and
that Respondent could give employees a raise only if
they would resign from the Union. I do not find that Mr.
Reed's remarks were merely responsive to questions by
employees because all of the witnesses, except King,
Charles, Davis, and Coates, clearly established that Mr.
Reed took some initiative to induce the employees to re-
nounce the Union. Moreover, I particularly observed the
proemployer manner in which King and Davis testified.
Their testimony to some extent contradicts the testimony
of President Reed, in that King testified that President
Reed only responded to employees' inquiries, while em-
ployees Charles and Coates testified that President Reed
was not even at the meeting. I do not credit their ver-
sions.
President Reed admitted that he was present at the
meeting (November 25) and even testified that he prom-
ised the employees a 30-cent wage increase plus health
and welfare benefits, and he acknowledged seeing the
employees circulate a paper (petition to decertify the
Union) amongst employees. On the contrary, I credit the
testimony of employee witnesses Tinch, Hare, Glover,
and Richardson for reasons herein before indicated. Ad-
ditionally, I credit the testimony of President Reed, who
acknowledged under persistent interrogation by counsel
for the General Counsel, that he did make such promises
and that he also castigated the Union for not attending
the meeting with the employees. Consequently, I further
conclude and find that such promises of benefits to em-
ployees to induce them to renounce the Union, in nature
and effect, constituted an interference with, a restraint
upon, and coercion against employees' protected Section
7 rights, in violation of Section 8(a)(l) of the Act.
N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409-
410 (1964); Medo Photo Supply Corporation v. N.L.R.B.,
321 U.S. 678 (1944). The cases hold that the promise by
the Employer need not be expressed or even fulfilled.
N.L.R.B. v. Drives, Incorporated, 440 F.2d 354 (7th Cir.
1971).
Finally, since Respondent met with its employees and
made the previously discussed promises to the employ-
ees, in the absence of the employees' union representa-
tive, Respondent violated its statutory obligation to deal
with the employees through the Union, and not with the
Union through the employees. General Electric Company,
150 NLRB 192 (1964), enfd. 418 F. 2d 736 (2d Cir. 1969)
appropriately cited by counsel for the General Counsel.
Based upon the summary of credited evidence under
section D, supra, I conclude and find that Respondent
(President Reed), by its own admission, in addition to of-
fering employees a raise and other benefits, severely
criticized the Union in a meeting with employees on No-
vember 25; that after promising employees a raise and
other benefits to induce them to renounce the Union, Re-
spondent advised the employees how to decertify the
Union; that the credited evidence of record, supra and
infra, established that it was Respondent President Reed
who initially suggested that employees abandon the
Union, so that they could eliminate the payment of dues
and help to occasion circumstances convenient for Re-
spondent to grant employees a wage raise; and that Re-
spondent (Mr. Reed and other supervisors) stood by and
permitted, or at least did not disapprove of, employees
Jesse King and Joe Davis circulating a petition to decer-
LEDFORD CONSTRUCTION COMPANY, INC. 1473
tify the Union. The circulation was carried on at Re-
spondent's jobsites during working time, for more than I
week, in the presence of President Reed and/or other su-
pervisors. In doing these things, Respondent afforded its
employees a reasonable basis for believing that the decer-
tification effort had the support or blessings of Respond-
ent; and that such conduct by Respondent, in totality,
constituted an interference with, restraint upon, and co-
ercion against employees in the exercise of their Section
7 protected rights, in violation of Section 8(a)(1) of the
Act. See: River Togs. Inc., 160 NLRB 58 (1966), and
Condon Transport, Inc., 211 NLRB 297 (1974).
Pursuant to the summary of credited evidence under
section E, supra, I conclude and find that during the
meeting Respondent held with the union representatives
in February 1978, Respondent presented a complex wage
proposal which included a wage formula, without all of
the essential information necessary to compute the for-
mula as applicable to the employee-union membership;
that during said meeting the proposal and the dialogue it
generated constituted a negotiation meeting even though
a formal notice for such had not been submitted by
either party; that the union representatives clearly mani-
fested that they did not understand the formula and Re-
spondent was fully aware of their lack of understanding
of the proposal and formula; that Respondent neverthe-
less did not offer or furnish any additional or explanatory
information on the formula subsequent to the February
meeting, even though the Union requested Respondent
to clarify the formula in dollars and cents, so that it
could explain the formula to its membership; that Re-
spondent's submission of such a complex and incomplete
wage proposal to the Union, with Respondent's attend-
ant failure to clarify and explain the formula as requested
by the Union, cannot be interpreted as a wage proposal
submitted to the Union in good faith, or bargaining in
good faith, as required under the Act. This conclusion is
particularly true when Respondent's proposal is consid-
ered in conjunction with its other unlawful conduct pre-
viously established herein. Gerald Hinkle d/b/a Akron
Novelty Manufacturing Company, 224 NLRB 998 (1976),
and The Kroger Company, 226 NLRB 215 (1976).
With respect to Respondent's supension of three of its
employees on July 20, I conclude and find upon the
credited evidence summarized under section F, that Re-
spondent suspended employees Willie Tinch, Johnny Lee
Hare, and John Richardson from working on July 20;
that said employees were suspended or forbidden to
work on that day because they had testified on behalf of
the Union in a Board proceeding on the previous day
(July 19); and that since Respondent suspended said em-
ployees because they testified in a Board proceeding on
the previous day, its suspension of them was discrimina-
tory and violative of Section 8(a)(3) and (1) of the Act.
Respondent contends that employees Tinch, Hare, and
Richardson were suspended because of lack of work oc-
casioned by the strike, and/or because of its enforcement
of a company policy known as a "walk policy" wherein
an employee is forbidden to work following a previous
day on which he did not work. This contention was not
substantiated by the evidence of record. In fact, the cred-
ited evidence of record clearly established that there was
no lack of work and that Respondent worked irregular
employees in the place of two of the suspended employ-
ees. The evidence further established that while Re-
spondent furnishes the workmen, the number of work-
men to work a job is determined by representatives of
PEPCO, who credibly testified that there was no lack of
demand for the regular complement of workers which
worked on July 19; and that PEPCO had already assured
Respondent that they would try to utilize the same
number of workers that worked prior to July 20.
The evidence also clearly established that Respondent
permitted other employees to work who testified more
favorably to Respondent in the Board proceeding. On
July 19 employees Charles, King, Coates, and Davis,
whose testimony was noticeably more favorable to Re-
spondent, were permitted to work. Thus, it is obvious
that Respondent was in fact penalizing employees Tinch,
Richardson, and Hare for their unfavorable testimony
against Respondent on July 19. This conclusion is further
supported by the fact that the "walk policy," which Re-
spondent contends that it has was, nonetheless, generally
not enforced by Respondent. More specifically, employ-
ees Tinch and Hare have been absent in the past with,
and without, prior approval by Respondent, and were
both permitted to work upon their return to work. Thus,
it is clear that even if Respondent had such a policy, it is
well established by the evidence that such policy was not
enforced, except for the convenience of Respondent on
July 20, against employees who testified against it on the
day prior thereto.
It is also obvious that Respondent's so-called "walk
policy" was introduced as a mere pretext to camouflage
its otherwise unlawful suspension of Tinch, Hare, and
Richardson. Moreover, since such suspensions were
based upon such manifested concerted or union activity
of said employees (testifying in a Board proceeding), it
was per se unlawful as the General Counsel argued, being
violative of Section 8(a)(1) and (4) of the Act. See dicta
in General Electric Co., 230 NLRB 683 (1977), cited by
counsel for the General Counsel.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in close connection with its operations
as described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act, we shall order that it cease and desist
therefrom and take certain affirmative action to effectu-
ate the policies of the Act.
It having been found that Respondent interfered with,
restrained, and coerced its employees in the exercise of
their Section 7 protected rights, by promising them an
increase in wages and other benefits if they withdrew
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Union; and by encouraging and involving itself
in the employees' decision and effort in filing a decertifi-
cation petition against the Union, in violation of Section
8(a)(1) of the Act. By discriminatorily suspending em-
ployees Willie Tinch, Johnnie Lee Hare, and John Rich-
ardson, because they testified unfavorably against Re-
spondent in a board proceeding, in violation of Section
8(a)(1), (3), and (4) of the Act, the recommended Order
will provide that Respondent make Willie Tinch, Johnnie
Lee Hare, and John Richardson whole for any loss of
earnings within the meaning and in accord with the
Board's decision in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 117
(1977),7 except as specifically modified by the wording
of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any other
manner interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by Section 7
of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532,
536 (4th Cir. 1941).
Upon the basis of the above findings of fact and upon
the entire record of this case, I make the following:
CONCLUSIONS OF LAW
1. Ledford Construction Company, Inc., is an Employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 77, International Union of Operating Engi-
neers, AFL-CIO, and the Metropolitan D.C. Paving,
7 See, generally, Isis Plumbing & Hearing Co., 138 NLRB 716 (1962)
Highway and Construction Materials Council, are, and
have been at all times material herein, labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By promising employees an increase in wages and
other benefits if they withdrew from the Union, Re-
spondent violated Section 8(a)(l) of the Act.
4. By inducing, encouraging, and involving itself in the
decision and efforts of the employees in filing a decertifi-
cation petition against the Union, Respondent violated
Section 8(a)(1) of the Act.
5. By by-passing the Union and negotiating directly
with the employees concerning wages and other benefits
of employment and by submitting an incomprehensible
wage proposal without sufficient and explanatory infor-
mation of the proposal, Respondent violated Section
8(a)(5) of the Act.
6. By discriminatorily suspending Willie Tinch, John-
nie Lee Hare, and John Richardson on July 20, 1978, be-
cause they gave testimony in a Board proceeding against
Respondent, violated Section 8(a)(3) and (1) of the Act.
7. By suspending and prohibiting employees Willie
Tinch, Johnnie Lee Hare, and John Richardson from
working on July 20, 1978, because said employees testi-
fied against Respondent in a Board proceeding on the
day before (July 19, 1978), while permitting other em-
ployees to work who testified more favorably to Re-
spondent in the Board proceeding, Respondent violated
Section 8(a)(1) and (4) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]