O'Connor, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 220 (N.L.R.B. 1970)

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O'Connor , Inc. and Raymond E. Miller and Melvin
E. Miller . Cases 25-CA-3449-1 and
25-CA-3449-2
June 30, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
On February 17, 1970, Trial Examiner William
F. Scharnikow issued his Decision in the above-en-
titled proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the Trial Examiner's Decision. Thereafter, the
Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision with support-
ing briefs and the Respondent filed an answering
brief to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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
Trial Examiner's Decision, the exceptions and sup-
porting briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the
additional remedial provisions described below.
Raymond E. Miller and Melvin E. Miller, in writing,
at their respective last known places of residence,
that, despite their discharges at the Howard John-
son Motel project in Michigan City, Indiana, each
of them will be considered eligible for preferential
hiring at any of Respondent's projects if he should
choose to apply for employment at any of them,"
and make the corresponding changes in the notice
by adding the quoted language at the end of the
second paragraph.
3. Insert the following as paragraphs 2(b) and
(c) of the Trial Examiner's Recommended Order,
and renumber the paragraphs presently designated
as 2(b), (c), and (d), as 2(e), (f), and (g), respec-
tively:
"(b) Notify Raymond E. Miller and Melvin E.
Miller if presently serving in the Armed Forces of
the United States of their right to preferential rehir-
ing upon application in accord with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
"(c) Accompany any letter written to Raymond
E. Miller and Melvin E. Miller in accord with the
provisions of paragraph 2(a) and (b) of this Order,
with a copy of the Appendix."
4. Insert the following language below the signa-
ture line of the notice:
"We will notify Raymond E. Miller and Melvin E
Miller if presently serving in the Armed Forces of
the United States of their right to preferential rehir-
ing upon application in accord with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, 0'-
Connor, Inc., Hammond, Indiana, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as herein modified.
1. Insert in the Recommended Order as para-
graph 1(b) the words "Interrogating employees
concerning their union activities." and renumber
1(b) as 1(c); make a corresponding insertion fol-
lowing the second indented paragraph of the
notice.
2. At the end of paragraph 2(a) of the Trial Ex-
aminer's Recommended Order change the period
to a comma and add the words "and notify
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: The
complaint alleges, but the answer of the Respond-
ent denies, that the Respondent. O'Connor, Inc.,
has engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1) and
(3) and 2(6) and (7) of the National Labor Rela-
tions Act, as amended, 61 Stat. 136, 73 Stat. 519
(herein called the Act), by interrogating its em-
ployees concerning their membership and activities
in Laborers International Union of North America,
Local Union No. 81 (herein called the Laborers),
and by discharging employees Melvin E. Miller and
Raymond E. Miller on February 17, 1969, because
they had joined and assisted the Laborers and en-
gaged in other union and concerted activities for
the purpose of collective bargaining and mutual aid
and protection.
184 NLRB No. 25
O'CONNOR , INC. 221
Pursuant to notice , a hearing was held in
Michigan City, Indiana, on November 18 and 19,
1969, before me. The General Counsel and the
Respondent appeared by counsel and the Charging
Parties appeared on their own behalf. All were af-
forded full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence
upon the issues. Counsel for the General Counsel
and for the Respondent have submitted briefs
which have been duly considered.
Upon the entire record in the case, and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, O'Connor, Inc., an Indiana cor-
poration with its principal office and place of busi-
ness in Hammond, Indiana, is engaged in the busi-
ness of plumbing and heating contracting and other
mechanical contracting. During the year preceding
the issuance of the complaint, the Respondent, in
the course and conduct of its business, purchased,
transferred, and delivered to its various jobsites in
Indiana, goods and materials valued in excess of
$50,000, which were transported to said jobsites
directly from States other than the State of Indiana.
During the same year, the Respondent performed
services valued in excess of $50,000 in States other
than the State of Indiana.
I find that the Respondent is engaged in com-
merce within the meaning of the Act and that it will
effectuate the policies of the Act to entertain ju-
risdiction of this case.
II. THE LABOR ORGANIZATION INVOLVED
Laborers International Union of North America,
Local Union No. 81, hereinafter sometimes
referred to as the Laborers or the Laborers Union,
is a labor organization within the meaning of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The General Facts and the Evidence Relating
to the Reasons for the Discharges of
Ray and Melvin Miller
Between August 1968 and September 1969, Di-
Com Corporation, a Chicago general contractor
with Joseph Spina serving as its job superintendent,
built a 108-room motel for Howard Johnson in
Michigan City, Indiana. All the work was let to
various subcontractors and none of the workers on
the project was employed by the general contrac-
tor. The Respondent, a Hammond, Indiana, con-
tractor, was the mechanical subcontractor and in-
stalled the plumbing, heating, and sheet metal
equipment. Raymond and Melvin Miller, the
Charging Parties in the present cases, are brothers
and members of Laborers Local No. 81, t who were
employed by the Respondent as laborers on the job
for several months until they were discharged on
February 17, 1969. The reason for the discharges is
the issue in these cases.
Much of the Respondent 's plumbing and heating
work on the Howard Johnson Motel was subsoil
work, requiring throughout almost the entire period
of construction the laying and completion of the
sewer , water, and underground drainage systems
(work normally performed by plumbers) and the
underground portion of the heating system (which
was extensive on this particular project and is nor-
mally work performed by pipefitters). For the per-
formance of this subsoil work and the work within
the building itself, the Respondent employed a
regular group of four or five plumbers , and at vari-
ous times , also one or two pipefitters and one or
two laborers (like the Millers) to assist the plumb-
ers and pipefitters by performing unskilled work,
principally by digging ditches.
Lawrence O'Meara was the Respondent' s general
superintendent in overall charge of its work and the
hire and discharge of its personnel. From the
beginning of its operations on the site in August or
September 1968, the Respondent employed Angelo
Pompilone as its general foreman and Robert Fritts,
as its "plumbing foreman" in charge of the plumb-
ers and the few pipefitters and laborers whom it
also employed from time to time. Later, in January
1969, the Respondent also hired Gordon Krachey,
a pipefitter as its "pipefitter foreman." General Su-
perintendent O'Meara was vice president of Local
433 of Gary, Indiana, a "plumbers"' local of which
Foreman Fritts and the Respondent's four or five
plumbers were also members. Krachey, the "pipe-
fitter foreman," was a member of Local 597 of
Chicago, a "pipefitters' local."
Raymond and Melvin Miller were hired as
laborers by Superintendent O'Meara on Plumbing
Foreman Fritts' recommendation in October and
early December 1968, respectively, and from the
times of their hire until their discharge on February
17, 1969, were the only laborers employed by the
Respondent on the plumbing and heating work then
in progress at the Howard Johnson Motel Before
the Millers' hire, Foreman Fritts with a crew of
plumbers and several earlier laborers had begun
laying the underground sewer, water main, and
drainage systems. The first pipefitter on the job was
hired to work on the heating system in December
1968, but worked for the Respondent for only
about a week. Thereafter, for about a month, Fritts
and the plumbing crew, with the Millers assisting
them as laborers under Fritts' supervision, con-
tinued to work not only on the plumbing but also
on the underground portion of the heating installa-
tion. But in January 1969, two representatives of
I Laborers International Union of North America, Local Union No 81
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 597 (the pipefitters ' local) visited the job,
objected to the plumbers' doing pipefitters' work,
and insisted that pipefitters be employed. As a
result , the Respondent hired Gordon Krachey, a
member of the pipefitters ' local, as a working
pipefitters ' foreman on January 14 , 1969. There-
after Krachey, and, for brief periods in February
1969, also another pipefitter , worked on the heating
installation.
Before Krachey 's coming to the job as pipefitting
foreman , the Millers worked under the supervision
of Plumbing Foreman Fritts and there was no dif-
ficulty in their work for , nor in their relationship
with, Fritts . But, after Krachey came as pipefitting
foreman , both the Millers were required to perform
labor , such as the digging, of ditches , for Krachey as
well, although Melvin d more of this work for
Krachey than did Raymond Miller. The Millers did
not get along with Krachey who annoyed them by
ming them relocate , lengthen , widen, or deepen
ditches after they had dug them in accordance with
what they understood to have been his original in-
structions . According to Krachey's testimony, this
was the result in different instances of the Millers'
"misunderstanding " of his instructions , of errors on
his part , or of the constant changes being made in
the blueprints with the respect to the elevation and
location of the pipelines. According to the Millers'
testimony , however , Krachey complained to them
without justification almost every time they dug a
ditch for him , and they could not satisfy him.
Right from the beginning of Krachey 's employ-
ment in January , both of the Millers told Plumbing
Foreman Fritts " many times," usually at cof-
feebreaks or lunchtime and sometimes in the
presence of the Respondent 's plumbers ( but never
in Krachey 's presence), that they did not like to
work for Krachey; that Krachey did not know what
he was doing; that Krachey complained to them
about everything they did for him ; that they did not
know " what the guy wants" and could not satisfy
him; and that they objected to his complaints and
the way he talked to them . Foreman Fritts thereu-
pon told the Millers that Melvin would generally do
Krachey's work and that , when necessary, Ray
would work for Krachey only upon particular as-
signments made by Fritts. At the same time, Fritts
told Melvin that he would be working for Krachey
and that , although Krachey was "hard to get along
with ... you will just have to get along with him.
That 's your job ." But, in spite of this arrangement,
with Ray working for Krachey only on Fritts' assig-
ning him , both of the Millers continued to complain
to Fritts about Krachey, and Fritts kept reporting
these complaints and the irritating situation to O'-
Meara, the Respondent's general superintendent.
Melvin Miller was sick and did not work on
Thursday or Friday, February 13 or 14. On
Thursday, Foreman Fritts told Ray Miller to dig a
ditch for Krachey and then to come back to work
for Fritts . Krachey, marked out the area to be dug,
Ray dug the ditch , and then , on Krachey 's request,
deepened it and laid a sand base . Krachey said he
was to stay there and fill in the trench after
Krachey had laid the pipe Ray told him he had a
small job to do for Fritts and did in fact leave and
start digging for Fritts at another spot . Later in the
afternoon , Krachey asked Ray Miller , " What the
hell are you digging there for?" and in spite of
Ray's explanation that he was digging the ditch for
Fritts, insisted that Ray immediately dig another
ditch for Krachey so that an expansion loop could
be laid and cement could be poured over it. By
quitting time at 4 . 30, Ray had dug the expansion
ditch at the place marked out by Krachey, cut the
wire mesh on which the concrete was to be poured,
and temporarily covered the ditch with plywood
and a layer of dirt . Although Krachey asked him to
work overtime , Ray said he had made other plans,
and Krachey said "Okay."
Krachey and another pipefitter , however , worked
late that Thursday evening and also an hour early
on Friday morning , the 14th , in order to be ready
for the pouring of the cement that morning. As he
himself testified , Krachey discovered he had made
a "mistake" in the length of the pipe and, in
recutting it, also an "error" on the line and width of
the ditch dug by Ray , since the ditch was too nar-
row for Krachey to stand in and work on the pipe.
As a result , Krachey and the other fitter redug the
ditch on Thursday evening.
When Ray Miller came to work at 8 a.m. on
Friday , February 14, he saw that the expansion
ditch had been redug , and that the plywood and
wire mesh were scattered . Krachey was standing
alongside the ditch and asked Miller to fill the ditch
over the pipe with sand and an upper layer of clay.
Miller asked Krachey what was wrong with the
ditch and why it did not please Krachey . Krachey
said it was not wide enough nor deep enough nor
long enough . Miller filled the ditch as directed but
later in the morning again spoke with Krachey.
Ray Miller's exchanges with Krachey on both oc-
casions were bitter and loud as is apparent not only
from the testimony of both men but from the
testimony of Foremen Fritts who was attracted to
the scene of the argument by what he said was
"yelling." Both Miller and Krachey apparently
colored their testimony as to the substance, lan-
guage, and course of the argument somewhat, but,
making allowance for this and adopting plausible
and not inconsistent elements from the testimony of
each of them, I make the following findings con-
cerning the argument . Miller asked Krachey,
"What's the matter , can't I do anything to please
you9 Can't we do anything to please you?
Everything we do is wrong."2 Krachey asked,
"What the hell are you talking about9" and told
' The quotation is taken from Krachey 's testimony but Miller testified to
the same effect
O'CONNOR , INC. 223
Miller that he had redug the expansion ditch
because he himself had made a "mistake" in
"cutting off the line."3 But Miller referred to earlier
incidents in which Krachey had made him and his
brother redig ditches, and said that Krachey
"treated us like dogs."4 Krachey called Miller a
"god damn liar," and Miller in turn called Krachey
a "sonofabitch," and although he did not swing at
Krachey, he admitted in his testimony he "was mad
enough to."
Krachey then left Miller as Foreman Fritts came
up to the two men. Miller told Fritts he "wasn't a
dog and ... didn't have to be treated like one and
[he] thought he would quit." Fritts said that it was
"up to [Miller] if [he] wanted to quit," but that
Miller was a good worker and Fritts did not want
him to quit and would speak to Krachey. Miller
further testified, and in absence of any denials by
Fritts, I find that Fritts also told him that Fritts had
spoken with Superintendent O'Meara about
Krachey's difficulties with the Millers and that O'-
Meara said "there was nothing he could do about
it, that we had to get along with [Krachey],"
because the pipefitters' local had insisted upon the
Respondent's hiring Krachey as a pipefitter. Finally,
according to Ray Miller's further uncontradicted
testimony which I credit, Fritts told him he had
authority from O'Meara to hire and fire and Miller
should not worry "as long as [he] thought he could
get along with [Krachey]."
After lunch that same day, Friday the 14th, Ray
Miller and Bill Aytes, one of the Respondent's
plumbers, saw a man operating a high lift and then
manually helping laborers carry mortar and brick
from the lift to bricklayers working for Larson-
Danielson, the block and brick subcontractor on
the job. Miller and Aytes, the plumber, decided to
check to see whether the man, apparently working
as an engineer , also had a Laborers ' book. Miller
accordingly went up to the man, asked to see his
union book, and the man showed him a Laborers'
book.
Joe Spina, the job superintendent for Di-Com,
the general contractor, had come to the project
after spending the earlier part of the day at Benton
Harbor , where his daughter was to be married the
next day, and noticed Ray Miller speaking to the
high lift operator in an area where Miller had no
work to do . Spina either saw and overheard Miller
checking the high lift operator's Laborers' card (as
Miller testified ) or Miller ( as Spina testified) told
him in answer to Spina's question, that he was
checking the man's union card because "the man
was doing two jobs." According to Spina's
testimony he was preoccupied with his daughter's
wedding preparations, and all he said to-Miller was
that, if the high lift operator was in fact doing two
jobs, "It's no concern of yours .... Don't start
nothing"; and "I don't want no problems on this
job." Furthermore, Spina denied having threatened
Miller with discharge. But Ray Miller testified, and
I credit his testimony and find, that Spina said to
him, "You are causing union trouble on my job";
that Miller replied that "This was a union job ....
The men working on it should be union members,
and ... I had. the right to check this man's union
book"; and that Spina said he "was going to see
that [Miller] was fired for causing union trouble."
There was no evidence that Spina spoke to any-
one connected with the Respondent about this in-
cident. Spina denied having done so, or having
asked or "advised" the Respondent to discharge
either of the Millers. O'Meara, the Respondent's
superintendent, and Foreman Fritts also denied that
either of them had any conversation with Spina
about discharging the Millers. But it does appear
from Ray Miller's uncontradicted testimony (and I
find) that, immediately after Spina had spoken with
him that Friday afternoon, Ray Miller himself told
Foreman Fritts about the incident and about
Spina's threats to have him discharged for having
checked the high lift operator's union book, but
that Fritts thereupon reassured him by saying that
he should not worry", that Spina was upset about his
daughter's marriage, that Fritts had been given
authority to hire and fire his man, and that Miller
"would be there until the job ended."5
Ray Miller finished his day's work on Friday,
February 14, with no warning that he and his
brother, Melvin, were actually to be discharged
during the morning of the next workday, Mon-
day, February 17. Superintendent O'Meara and
Foreman Fritts testified, however, that O'Meara
(who was "convalescing" at home from an illness)
had learned by telephone about 10 a.m. on Friday
from General Foreman Angelo Pompilone and
again from Foreman Fritts between 5 and 6 p.m
the same day, that "conditions hadn't improved one
bit between the Miller brothers and Gordon
Krachey" and that there had been "almost a fight
on the job" between Ray Miller and Krachey that
morning; and that, as O'Meara told Fritts in their
conversation, he had decided to discharge the Mil-
lers by having Fritts hand them their terminal
paychecks when he could get them to the job from
the Respondent's office in Hammond, Indiana, on
Monday morning, February 17.
According to O'Meara's testimony (but not
Fritts' testimony), O'Meara's decision to discharge
the Millers was at least supported by Fritts who told
O'Meara in their conversation that "he was tired of
listening to the problems [of the Millers with
Krachey] and the best thing ... to do was to get rid
of them ." From neither O 'Meara 's nor Fritts'
testimony does it appear that there was any men-
tion of the card-checking incident or of Spina's
threat to have Ray Miller discharged. Instead, it
would appear (if we accept O'Meara's and Fritts'
Krachey testified that he admitted his error in this particular instance
Miller's testimony
Although Fritts testified as a witness for the Respondent he was not
even questioned about this conversation with Ray Miller
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony ) that O 'Meara 's decision to discharge the
Millers was reached by O'Meara sometime during
the day on Friday, February 14, and was based, as
O'Meara testified , solely upon the intolerable "fric-
tion" between the Millers and Krachey which inter-
fered with the Respondent 's work , or (as Fritts
described it) upon the " tension " caused by the Mil-
lers on the job not only between them and Krachey
but also between " the fitters and the plumbers "
Despite Foreman Fritts ' assurances to Ray Miller
on Friday that he would not be discharged either
for his argument with Krachey or for the card-
checking incident , provided he could manage to get
along with Krachey ; Ray Miller and Melvin Miller
visited the Laborers ' dispatch office in Michigan
City before going to work on Monday morn-
ing, February 17. They told the Laborers' dis-
patcher that Ray had been threatened with dis-
charge on Friday for having checked a man's
union book and said that "we would like to have a
[Laborers '] representative come to the job that
morning to represent us." The dispatcher said he
would call the Laborers' main office in Gary that
morning and transmit their request to a business
agent
After leaving the Laborers ' dispatch office on
Monday, February 17, the Millers reported for
work at the jobsite at 8 a.m., the regular starting
time. Foreman Fritts said nothing to them about
their being discharged . On the contrary , according
to his testimony , he just told them what work they
were to do and they began working in the back part
of the building. Ray Miller testified that at 10 a.m.,
Fritts called him over and asked him whether he
had been to see his business agent; that when Ray
admitted he had, Fritts asked him why , that Ray
told Fritts that , because of Spina's threat to have
him discharged , he thought he "needed some
representation on the job"; and that Fritts said he
was speaking to Miller because he had been told by
Spina "There were two of [Miller 's] union
representatives out front."
There is no direct evidence that any representa-
tive or representatives of the Laborers' union had
actually come to the site that morning in response
to the Millers' request . If they did, their testimony
was not produced by the General Counsel and the
omission is unexplained. Fritts did not testify
whether he himself saw any representatives there,
and even Ray Miller as well as Spina testified that
they did not see them. But Fritts did not deny Ray
Miller's testimony about the conversation Miller
said they had at 10 o'clock , and Fritts ' failure to do
so supports Miller's testimony despite the lack of
any direct affirmative evidence from any of the wit-
nesses of the business agents' actual appearance on
the site . For it should be expected that Fritts at the
" Fritts testified merely that he gave the Millers their checks, and was not
asked , nor did he testify , whether there was any conversation at the time
The finding setting forth Ray Miller 's question and Fritts ' answer is based
upon Ray Miller 's uncontradicted testimony
'This element of the finding in the text is based upon Melvin Miller's
time of his testimony only 9 months later would
have remembered whether any such conversation
had taken place between him and Ray Miller just
before he handed the Millers their terminal
paychecks that morning , and that , if no such con-
versation had occurred , he would be able to deny
it, and would deny it in his testimony . Yet, with
respect to the possibility of such a conversation,
counsel for the Respondent asked Fritts merely
whether he recalled ' having any conversation with
either of the Miller brothers or both of them that
morning with respect to any business agent of the
Union " and Fritts replied merely : " No, I don't re-
member ." Accordingly , in the absence of a denial
by Fritts, I credit the substance of Ray Miller's
testimony that at 10 a.m. on Friday, February 17,
Fritts came to him while he was working, and told
him that Spina said two business agents of the
Laborers ' union were on the site , and that Miller, in
answer to Fritts' questions , said. that he had asked
the business agents to come to the site to protect
him against Spina's threats to have him discharged
because of the card-checking incident the preced-
ing Friday.
The Millers continued working until about 11
a.m. At that time, Ray had just begun digging a
ditch for Fritts and Melvin was about to break a
hole in a wall on Krachey's instructions . Fritts
called them from their work and handed each of
them two checks, one for the pay of the preceding
week and the other for 4 hours' time that day
although they had worked only 3 hours . Fritts had
just received these checks from General Superin-
tendent O'Meara who testified that he had gotten
them at the Respondent's Hammond office at 8
a.m. and had brought them to the site , and that
since he did not know exactly when he would get to
the site, he had the checks for that day cover 4
hours.
When Fritts handed each of the Millers these
checks, he said nothing except that he was "sorry,"
and gave no reason for his action . Ray Miller asked
Fritts if he knew " that this was going to happen"
and Fritts said, "No. 116 Understanding that they
were being discharged , the Millers left the jobsite.
At lunchtime the same day, the Millers met Fritts
at the Sumriata Tavern and there was a brief con-
versation between them in the presence of plum-
bers Bill Aytes and Art Jones. Only the Millers
testified concerning this conversation . Fritts was
not asked during his testimony about the conversa-
tion and therefore did not confirm or deny the Mil-
lers' version . Upon the Millers' testimony I find that
Ray Miller asked Fritts why the Millers were laid
off or fired , that Fritts replied , " Let's just say you
were laid off";7 and that, in answer to Ray 's further
questions , Fritts said there was still plenty of work
testimony rather than Ray Miller 's testimony that Fritts said, "Let's just say
you were laid off because of lack of work " Because of the doubt suggested
by this difference in the brothers' testimony , i have adopted Melvin Miller's
lesser version of Fritts ' remark in other respects , the substance of the
testimony of both brothers was the same
O'CONNOR, INC 225
for laborers to do on the motel job and that to get
the laborers it needed , the Respondent would have
to call the union hall
B. Conclusions
Relying upon the Millers' testimony and the cir-
cumstances of their discharges ( including their con-
versations with Foreman Fritts ), the General Coun-
sel contends that the Millers were discharged by the
Respondent on the morning of Monday , February
17, because on Friday , February 14, Ray Miller
"had checked an employee 's union book and
because [on the morning of February 17, the Mil-
lers] had called their Union representative out to
the project site to protect them ." (G.C. br., p. 8.)
Stressing the obvious interest of the Millers' as
parties in the present case , the Respondent attacks
the sufficiency and credibility of their testimony to
support the General Counsel 's contention by the
required preponderance of the evidence , especially
against Superintendent O'Meara 's and Foreman
Fritts' testimony (1) that O 'Meara ( without
knowledge of the card -checking incident and well
before Foreman Fritts knew the Laborers' union
would be called upon to protect the Millers), had
decided on Friday, February 14, to discharge the
Millers solely because of the "near fight " between
Ray Miller and Foreman Krachey which culminated
weeks of " friction" between the Millers and
Krachey and " tension " between " the plumbers and
fitters" that had interfered with the Respondent's
work on the project ; and (2 ) that , although O'-
Meara had made this decision while he was at home
on Friday, February 14, on the basis of a
telephoned report of the "near fight " from his
general foreman , he had reasonably decided to ef-
fect the discharges on the site on Monday , the earli-
est time he could conveniently procure the Millers'
terminal paychecks from the Respondent's Ham-
mond office and have Fritts give the checks to the
Millers on the jobsite
O'Meara's and Fritts' testimony would be persua-
sive if viewed solely against the admitted
background of the Millers' difficulties with Krachey
and the last eruption between Ray Miller and
Krachey on the morning of February 14. But, as the
General Counsel points out in his brief, there is
other evidence, including weak elements in 0'-
Meara's and Fritts' testimony itself , which is not
only inconsistent or incongruous with O 'Meara's
explanation of the reason for , and the timing of, the
discharges , but which in its combined effect also
furnishes strong affirmative support of the General
Counsel 's contention as to the actual reasons for
the discharges
It appears questionable even from O'Meara's and
Fritts' testimony that O 'Meara actually decided by
at least mid -day on Friday to discharge the Millers
on Monday because of the report received by him
from the general foreman of the "near fight"
between Ray Miller and Krachey . For, as the
General Counsel points out , he could easily have
arranged by telephone to have the Respondent's of-
Tice make out their terminal paychecks that after-
noon and have them delivered to the site and to the
Millers either the same afternoon or at the latest
before work began on Monday morning. Yet, not
only did he not take this course , but, as Fritts him-
self testified , when the Millers came to work on
Monday Fritts actually put them to work for 3
hours without saying a word to them or otherwise
indicating that he knew they were being discharged.
And, still according to Fritts' testimony , even when
he discharged them by giving them their checks at
1 1 a.m., he gave them no reason for their discharge
nor, for that matter, did he tell them whether they
were being discharged or merely laid off-a curious
omission if , as he testified , he had known since
Friday of O'Meara's decision to have him discharge
the men and the reasons for the discharge.
But the full strength of the evidence requiring a
finding that the Millers were discharged not
because of Ray's "near fight " with Krachey on
Friday morning but because of the card -checking
incident and their calling in their business agents to
represent them on Monday morning lies not merely
in the Respondent 's discharging them only late on
Monday morning, and in Fritts ' giving them no
reason for their discharges , but also in the damag-
ing and inescapable accompanying inferences to be
drawn from Fritts' failure while on the witness
stand to deny or explain his having made the state-
ments attributed to him by the Millers in conversa-
tions which occurred before , at the time of, and im-
mediately after he effected their discharges . Indeed,
in his testimony, Fritts did not even touch upon-
much less make any denial or explanation of-the
conversation with Ray Miller at 10 a.m . on Monday
nor the conversation with both of the Millers that
noon at the Sumriata Tavern.
As I have already found upon Ray Miller's un-
contradicted testimony , the first of these critical
conversations occurred on Friday morning when
Fritts assured Ray Miller that he had authority from
O'Meara to hire and fire and that in spite of Mil-
ler's "near fight" with Krachey, Miller should not
worry "as long as [ he] thought he could get along
with [Krachey ]." And yet ( in spite of Fritts' failure
to deny he had given Miller this assurance ), accord-
ing to both O 'Meara's and Fritts testimony, when
Fritts spoke by telephone with O 'Meara that even-
ing and O 'Meara said he had decided to discharge
both the Millers because of the "near fight ," Fritts
not only made no mention to O'Meara of his having
spoken to and reassured Ray that he would not be
discharged on this occasion, but, according to 0'-
Meara's testimony , agreed with O'Meara that "the
best thing . to do was to get rid of [the Millers]."
The second of the undenied critical conversa-
tions, which I have found Ray Miller had with
Fritts, occurred at 10 a.m . on Monday after both
the Millers had worked for 2 hours on assignments
given them by Fritts without any intimation from
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fritts that they were about to be discharged The
damaging significance of this conversation lies not
only in the fact, as I have found, that Fritts told Ray
he believed that two of the Laborers' representa-
tives were on the site and Ray admitted that he and
his brother had asked them to come to the site to
protect them against discharge because of the card-
checking incident, but also in Fritts' inexplicable
failure as a witness either to dey there was such a
conversation or, if there had been, to explain (or
even merely to assert) that it had no connection
with O'Meara's previously reached decision to
discharge both of the Millers because of the Ray
Miller-Krachey incident the preceding Friday.
The third critical conversation occurred when, 3
hours after Fritts had put the Millers to work that
morning and 1 hour after Fritts learned of the visit
of the Laborers' representatives in connection with
the card-checking incident, Fritts handed the Mil-
lers their terminal paychecks at 1 1 a.m. on Monday
without telling them whether they were discharged
or laid off and, whichever it was, without giving any
reason to them for the Respondent's action. Even
then, according to Ray Miller's credited testimony
which Fritts did not bother to deny, Fritts informed
Ray Miller that he did not know "this was going to
happen ," a statement squarely contradictory of his
testimony that he had known since Friday that O'-
Meara had decided to discharge the Millers and
that Fritts himself was to give them their terminal
paychecks on Monday.
The fourth and final conversation with Fritts oc-
curred about noon of the same day and as to this
conversation Fritts gave no testimony at all. At this
time, according to the Millers' credited testimony,
Fritts again avoided giving any reason for the
discharges when asked by the Millers, by saying
merely, "Let's just say you were laid off," although
when pressed by the Millers, he did eliminate lack
of work as the reason by admitting that there was
still plenty of work for laborers on the project and
that the Respondent would have to call on the
Laborers union to supply them.
In sum , upon my foregoing consideration of all
the evidence as to the events preceding the
discharges, and the failure of the Respondent
through the available testimony of Foreman Fritts
to deny the substance of, or otherwise avoid the
clear implications of, the Millers' testimony as to
their conversations with Fritts, I make the following
material and ultimate findings of fact:
(I) That, contrary to the testimony of Superin-
tendent O'Meara and Foreman Fritts, O'Meara did
not decide to discharge the Millers on Friday,
February 14, either because of their difficulties
with Krachey or for any other reasons.
(2) That, because no such decision had been
reached, Foreman Fritts put the Millers to work on
Monday, February 17
(3) That at 10 o'clock that morning, Foreman
Fritts questioned Ray Miller about the appearance
of two Laborers' business representatives on the
site and learned from Ray that the Millers had
asked for the protection of their union against Ray
Miller's possible discharge because of the Friday in-
cident in which, as he had told Fritts, he had
checked the union book of an employee of another
subcontractor on the site and had been threatened
with discharge by Joe Spina, the general contrac-
tor's job superintendent.
(4) That an hour after Fritts had received this
information, Fritts discharged both of the Millers
without giving them the reason or reasons for the
discharges, stating merely that he was "sorry" and
had not known in advance that "this was going to
happen."
(5) That, within an hour or so later at the Sum-
riata Tavern, Fritts still refused to give any reason
to the Millers for their terminations.
(6) That the actual reasons for the discharges
were Ray Miller's checking the union card of
another employee on the site and both the Millers'
asking to have their union, the Laborers' union, to
come to the site, to represent them, and to protect
them against discharge.
I conclude that, these being the actual reasons
shown by the evidence and the only reasonable in-
ferences therefrom, the Respondent discharged the
Millers because they engaged in, and enlisted their
union's support in, activities protected by Section 7
of the Act, and discriminated against the Millers in
their hire and tenure of employment, and thereby
discouraged membership in the Laborers' union in
violation of Section 8(a)(3) and (1) of the Act. I
further conclude that Foreman Fritts' interrogation
of Ray Miller as to whether Miller had asked the
Laborers' representatives to appear at the site and
why, was such an interference with Ray Miller's
right to engage in collective activities protected by
Section 7 of the Act, as to be an independent viola-
tion of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above , occurring in connection with the
operations of he Respondent described in section I,
above , have a close , intimate, and substantial rela-
tionship to trade, traffic, and commerce 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 the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act, I will recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
It has been found that the Respondent dis-
criminatorily discharged Raymond E. and Melvin
O'CONNOR, INC. 227
E. Miller on February 17, 1969. Since the Millers
were employed only for work on the Howard John-
son Motel in Michigan City, Indiana, and the pro-
ject was completed in September 1969, there is no
reason for an order that they be reinstated to their
jobs. However, I shall recommend that the Respon-
dent make them whole for any loss of earnings suf-
fered by them by reason of the discharges, by pay-
ment to each of them of a sum of money equal to
that which he would have earned from the
aforesaid date of his discharge until the Respon-
dent's completion of its work on the aforesaid
Howard Johnson Motel, less his net earnings during
said period. The backpay shall be computed in ac-
cordance with the formula stated in F. W. Wool-
worth Company, 90 NLRB 289. Furthermore, it will
be recommended that the Respondent pay interest
on the backpay due to each of these employees,
such interest to be computed at the rate of 6 per-
cent per annum and, using the Woolworth formula,
to accrue commencing with the last day of each
calendar quarter of the backpay period on the
amount due and owing for each quarterly period.
Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact,
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Laborers International Union of North Amer-
ica, Local Union No. 81, herein referred to as the
Laborers Union, is a labor organization within the
meaning of the Act.
2. Respondent, O'Connor, Inc., an Indiana cor-
poration, is an employer engaged in commerce
within the meaning of the Act.
3. On February 17, 1969, the Respondent inter-
rogated Raymond E. Miller as to whether he had
requested representatives of the Laborers Union, of
which he and Melvin E. Miller were members, to
appear on their behalf at the Howard Johnson
Motel jobsite in Michigan City where both Millers
were employed by the Respondent, and by thus in-
terfering with, restraining , and coercing the Millers
in the exercise of their rights as employees guaran-
teed by Section 7 of the Act, the Respondent com-
mitted an unfair labor practice within the meaning
of Section 8(a)(1) of the Act.
4. On February 17, 1969, the Respondent
discharged Raymond E. Miller and Melvin E. Miller
because Raymond E. Miller checked the union
book of another employee on the Howard Johnson
Motel project in Michigan City, Indiana , and both
Raymond E. Miller and Melvin E. Miller, fearing
discharge therefore, requested representation by
representatives of the Laborers Union of which
they were members.
5. In thus discharging Raymond E. Miller and
Melvin E. Miller, the Respondent interfered with,
restrained, and coerced the Millers in the exercise
of their rights as employees guaranteed by Section
7 of the Act, discriminated in regard to their hire
and tenure of employment in order to discourage
their membership in, and reliance upon representa-
tion by, the Laborers Union, and thereby com-
mitted unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act
6. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and upon the entire record
in the case, it is recommended that the Respondent,
O'Connor, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Laborers Inter-
national Union of North America, Local Union No.
81, or in any other labor organization of its em-
ployees, by discriminatorily discharging any of its
employees, or by discriminating in any other
manner in regard to their hire and tenure of em-
ployment or any term or condition of employment.
(b) In any other manner interfering with,
restraining, or coercing employees in the exercise
of the right to self-organization, to form or join
labor organizations, and to engage in any other
concerted activity for the purpose of collective bar-
gaining or other mutual aid and protection, or to
restrain from any or all such activities except to the
extent that such right may be affected by an agree-
ment requiring membership in a labor organization
as a condition of employment as authorized in Sec-
tion 8(a)(3) of the National Labor Relations Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Make Raymond E. Miller and Melvin E.
Miller whole for any loss of earnings suffered as a
result of their discharges on February 17, 1969, in
the manner set forth in the section entitled "The
Remedy. "
(b) Preserve and, upon request, make available
to the National Labor Relations Board or its agents,
for examination and copying, all records necessary
for the determination of the amount of backpay
due under the Order herein.
(c) Post at its place of business in Hammond, In-
diana, copies of the attached notice marked
"Appendix."s Copies of said notice, to be furnished
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, he
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
228 DECISIONS OF NATIONAL
by the Regional Director for Region 25, after being
duly signed by Respondent's representative, shall
be posted by it immediately upon receipt thereof,
and be maintained for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 25,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
" In the event that this Recommended Order is adopted by the Board,
this provision shall he modified to read "Notify the Regional Director for
Region 25, in writing, within 10 days from the date of this Order, what steps
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
We hereby notify our employees that:
WE WILL NOT discourage membership in
Laborers International Union of North Amer-
ica, Local Union No. 81, or any other labor or-
ganization, by discriminatorily discharging any
of our employees, or by discriminating in any
other manner in regard to their hire and tenure
of employment or any term or condition of em-
ployment.
LABOR RELATIONS BOARD
WE WILL make Raymond E. Miller and Mel-
vin E. Miller whole for any loss of earnings suf-
fered as a result of their discharges on Februa-
ry 17, 1969.
WE WILL NOT in any manner interfere with,
restrain, or coerce any of our employees in the
exercise of their right to self-organization, to
form labor organizations, to join, or assist the
aforementioned union, or any other labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to
engage in any other concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or
all such activities except to the extent that such
right may be affected by an agreement requir-
ing membership in a labor organization as a
condition of employment as authorized in Sec-
tion 8(a)(3) of the National Labor Relations
Act.
O'CONNOR, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.