Oman Construction Co., Inc.

National Labor Relations Board - Board Decisions

May 10, 1962

137 N.L.R.B. 111 (N.L.R.B. 1962)

OMAN CONSTRUCTION CO., !NC. 111
3. The possibi l ity that the Union would not be certified for a unit
of guards under Section 9(b) (3) if the Union filed a representation
petition with this Board is addressed to the merits of such a petition
and not to whether the Board would assert jurisdiction over the Em-
ployer herein. Advisory opinions are rendered only on the jurisdic-
tional issue as presented by the facts submitted . This Board will not
presume to render an opinion on the merits of a case or whether the
subject matter of a dispute is governed by the Act. See Board 's State-
ments of Procedure , Section 101.40, and American Linen Supply Co.,
et al., 128 NLRB 639, at p. 641.
Accordingly , the parties are therefore advised, under Section 102.103
of the Board's Rules and Regulations , Series 8, as amended , that, on
the facts here present , this Board would assert jurisdiction over the
Employer's operations with respect to labor disputes cognizable under
Sections 8, 9, or 10 of the Act.
Oman Construction Co., Inc. and William H. Nelson . Case No.
26-CA-1141. May 10, 1962
DECISION AND ORDER
On March 22, 1962, Trial Examiner James T. Barker issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Re-
port attached hereto. Thereafter, the Respondent filed exceptions to
the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in this case, including the ex-
ceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
The Board adopts the Recommendations of the Trial Examiner:
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on September 18, 1961 , by William H . Nelson, an individual,
the Regional Director of the National Labor Relations Board for the Twenty-sixth
137 NLRB No. 14.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region, on November 22, 1961, issued a complaint against Oman Construction Co ,
Inc., herein referred to as Respondent, alleging violations of Section 8(a) (3) and (1)
of the National Labor Relations Act, herein called the Act. Thereafter on Decem-
ber 21, 1961, the Acting Regional Director for the Twenty-sixth Region issued an
amended complaint alleging Teamsters, Chauffeurs, Helpers and Taxicab Drivers,
Local Union No. 327, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Union,
to be a labor organization within the meaning of Section 2(5) of the Act. In its
duly filed answer Respondent, while admitting certain allegations in the complaint,
denies the commission of an unfair labor practice.
Pursuant to notice a hearing was held before James T. Barker, the duly designated
Trial Examiner, at Nashville, Tennessee, on January 16, 1962. All parties were
represented at hearing and were afforded full opportunity to be heard, to introduce
relevant evidence, to present oral argument, and to file briefs. Parties waived oral
argument and in lieu thereof filed briefs with me thereafter.
Upon consideration of the entire record and briefs of the parties, and upon my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Oman Construction Co., Inc., the Respondent herein, is a Tennessee corporation
with its principal office and place of business at Nashville, Tennessee, where it is
engaged in the building and construction industry. During the 12 months preceding
the issuance of the complaint herein, Respondent, at its Nashville, Tennessee, office
and place of business, purchased and received goods and materials directly from
suppliers located outside the State of Tennessee valued in excess of $50,000. I
accordingly find upon these admitted facts that Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
Teamsters , Chauffeurs , Helpers and Taxicab Drivers, Local Union No. 327,
affiliated with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , herein referred to as the Union, was stipulated by the
parties at the hearing to be a labor organization within the meaning of Section 2(5)
of the Act, and I so find.
III. THE ISSUE INVOLVED
The sole issue in this case is whether the Respondent was discriminatorily motivated
in laying off William H. Nelson on May 22, 1961, and thereafter failing and refusing
to recall him.'
IV. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background facts
Respondent engages primarily in grading construction work and carries on its
operations in the State of Tennessee, the South generally, and in other parts of the
world as well. Throughout its organization it employs approximately 1,000 em-
ployees and has contracts with several different labor organizations. Respondent
has five organizational divisions, separately supervised, comprising the shop, utility,
highway construction, local construction, and overseas divisions.
The shop is situated on the Nashville premises of Respondent and is housed in a
separate building where a complement of employees performs maintenance and
repair work on company machinery and equipment. Twenty to twenty-four indi-
viduals are employed at the shop with job classifications including mechanics, me-
chanics' helpers, and truckdrivers. During the periods material, there have been
assigned to the shop two regular and one temporary truckdrivers and five trucks of
different varieties. Until March 10, 1961, William H. Nelson, the Charging Party
and alleged discriminatee, was employed in the shop. While not occupied in driving
assignments, shop drivers perform various assigned maintenance and repair tasks.
The shop is under the supervision of J. O. Campbell, whose supervisory capacity is
stipulated.
1 The General Counsel was permitted to adduce background evidence relating to a previ-
ous layoff of Nelson on March 10, 1961, but this layoff is not alleged as a violation of
the Act.
OMAN CONSTRUCTION CO., INC. 113
Interdivisional transfers of employees is permitted, but Respondent has a policy-
not rigidly enforced-requiring mutual supervisory clearance as a prerequisite to
such transfers?
B. The advent of the Union
In January 1961, the Charging Party, William H. Nelson, became interested in
union representation for the shop employees, and sounded out coemployees con-
cerning their union desires. Thereafter, Nelson and fellow driver Clyde Weekly
contacted Union Representative George Broda and, subsequently, an organizational
meeting was held at Broda's home, attended by 14 or 15 employees Representation
cards were signed and on February 6, 1961, a demand for recognition was made by
letter to the Respondent. Thereafter on February 10, 1961, a representation petition
was filed and a Board-conducted election was held on April 27, 1961. A majority
of the employees in the unit cast ballots for the Union and on June 8, 1961, the
Union was certified by the Board.3 During the organizational campaign, Nelson
acted as the principal contact between the Union and shop employees, and in the
first week of March, Union Representatives Sloan and Broda (who had on many
prior occasions been at Respondent's office on union business relating to a separate
unit of dump-truck drivers which the Union represents) called at the shop premises
and asked Shop Superintendent Campbell's permission to speak to Nelson. Per-
mission was granted and there ensued a conversation between Nelson and the union
representatives lasting approximately 10 or 15 minutes. On another occasion
thereafter, Sloan and Broda again conferred at the shop with Nelson. On this
occasion Superintendent Campbell directed Sloan and Broda to Nelson's work station
where he and four or five employees were servicing an automobile. After per-
mitting Sloan and Broda to confer with Nelson and the employees approximately 5
minutes, Campbell asked Sloan and Broda to leave as they were interfering with
the work of the employees.4
C. Respondent's attitude toward the Union
The General Counsel was permitted to introduce evidence subsequently considered
of alleged antiunion motivation and knowledge of Nelson's union activities in con-
nection with events which transpired before March 18, 1961, the 6-month cutoff date
prescribed in Section 10(b) of the Act. This evidence was received solely for the
effect it might have in casting light upon, imparting meaning to, and assisting in the
evaluation of, conduct alleged in the complaint to be discriminatory and which
occurred within 6 months preceding the filing and service of the charge upon the
parties 5 Uncontradicted in the record is evidence of Shop Superintendent J. O.
Campbell's inquiry of and comments to shop employees concerning the Union 6
Thus it is established that during January and February 1961, Campbell asked several
of his shop employees whether they had signed union cards,7 sometimes prefacing
his remarks by a statement that he understood the employees were "trying to put
a union in the shop 8 or asking them if they had heard about the Union." 9 Each
of the witnesses testifying admitted to Campbell that they had signed a card. Credited
and undenied testimony establishes that Campbell responded to Weekly's admission
by saying, "Well, you're the third one that's told me the damn truth and I think a
lot more of you three telling me the truth than telling me a damn lie." To Hurd,
Campbell responded, "Well, I guess you know that you are making your bed hard,"
and further, to Hurd's answer that he would accept full responsibility for his actions,
Campbell stated, "Well, I don't want you to cry on my shoulder if things don't work
out to suit you." To Butler he observed that he thought the employees were taking
"the wrong road" and further stated that "Mr. Oman didn't want the Union there in
2 A composite of the undisputed testimony of Respondent Secretary Oman and William
Nelson.
3 Case No 26-RC-1575 (not published in NLRB volumes). These facts were agreed to
by the parties at the hearing
4 The undisputed and credited testimony of Sloan
5 See Southern Electronics Company, Inc, 131 NLRB 1411 ; cf. News Printing, Co, Inc,
116 NLRB 210
Shop Superintendent Campbell was not called as a witness , being engaged in jury
duty at the time of the hearing.
7 The credited, undisputed testimony of Weekly, Hurd , Butler, Snow, and Fly.
8 The credited testimony of Hurd and Fly.
8 The credited testimony of Snow.
649856-63-voL 137-9
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the shop." In response to Snow, Campbell cautioned that Snow had "better be
careful about signing the thing [card]." Finally to Fly, Campbell said, "You're the
first one that's told me the truth about it so far, I'm proud of you about that but I
think you're doing the wrong thing."
The evidence also establishes the occurrence of two incidents proximate to the
Board-conducted election, neither of which is alleged as violation of the Act.
Thus on the day of the election Campbell told a group of employees that they "had
voted for the Union" and that they "were going to have to stick it through" and he
didn't want to hear anything else about it around the shop.10 On April 28, the
day following the election, Campbell asked Weekly, who had served as union observer
at the election, to "call up there and withdraw" his vote.li
In addition to the foregoing, the credited and undisputed testimony of Nelson
shows that in early March, Shop Superintendent Campbell had a conversation with
Nelson wherein the following exchange occurred between them:
"Billy, I understand you boys are trying to get the Union out here," and I said
"Yes, sir; we are." He said "Have you been contacted by the Union" and I
said, "Yes, sir" and he said, "Have you signed one of those damn cards" and I
said, "Yes, sir" and he said, "Well, I hope you all know what you are doing"
and I said, "I think we do" and he said, "Well, if you make your bed hard, you
know you have got to sleep in it" and I said, "Yes, sir."
Thus, it is established without contradiction that Respondent both knew of Nelson's
union activity and looked with disfavor upon it.
D. The discrimination against William Nelson
1. Background-pre-10(b) occurrences
Nelson was in tially employed by Respondent in March 1953 and thereafter worked
as a trailer driver at the Nashville shop until sometime in 1959 when for personal
reasons he requested and was granted a transfer to a highway project in nearby
Cheatham County in a separate division of Respondent and under the direction of
Respondent's secretary, Stirton Oman, Jr. He remained on this job as an equipment
operator approximately 1 year and at his request was permitted to return to his
former shop driving assignment where he served as a truckdriver until March 10,
1961, assigned to a B-87 Mack truck with a triple axle trailer.12 On Friday, March
10, he was notified by Shop Superintendent Campbell that the B-87 Mack needed
overhauling, would be out of service for a week or 40 days and that he was laid
off pending completion of repairs.13 When Nelson asked to be assigned to one of
the other trucks Campbell replied that "the men were trying to make some changes"
and that the only thing he could do was to lay Nelson off and call him when his truck
was repaired. Thereupon Nelson contacted Union Representative A. C. Sloan, told
him of his layoff, and asked his opinion on whether a transfer to another job with
Respondent would adversely affect his shop "seniority." Some days later Nelson
again called Sloan and asked Sloan to assist him in obtaining his return to his shop
driving assignment by intervening with Respondent on his behalf.14
The following Monday, March 13, at 7 a in., Nelson reported back to Campbell
and asked if he had any work for him. When told that there was none and that he
would be laid off until repairs were completed on his truck, Nelson asked Campbell
for his layoff slip. Whereupon Campbell said that Nelson "didn't want" his layoff
slip as he would call Nelson when his truck was ready.
Nelson returned about noon on the same day and sought and received Campbell's
permission to work pending completion of repairs on the B-87 Mack truck on a sub-
division job being performed by Respondent. Campbell offered to clear the matter
with the divisional foreman involved. Nelson declined this offer, whereupon the
following morning, Tuesday, March 14, at 6 a.m., Nelson returned to the Company
to clear the matter with the subdivision foreman, Weilden. While on the premises
Nelson reported to Campbell at the shop to turn in his credit cards. He there ob-
1° The credited testimony of Fly
it The credited testimony of Weekly. Weekly also testified credibly concerning an occa-
sion when Union Representatives Sloan and Broda were on the company premises and
Campbell commented to him " those Whops don't have a union out here they belong
up on the hill."
11 Each driver was assigned a specific truck and trailer
13 The parties agree that repairs were performed on the truck and the evidence shows
that it was out of service for that purpose for approximately 2 weeks.
11 The credited testimony of Sloan and Nelson.
OMAN CONSTRUCTION CO., INC. 115
served one Joe Long who had been previously employed as a mechanic in the shop
but who had recently been on a leave of absence from Respondent for reasons of
health.15 Joe Long returned to work at the shop on Tuesday, March 14, and according
to Respondent Secretary Oman was thereafter assigned to the repaired B-87 Mack
truck when it was later returned to service, and held the assignment at the time of the
hearing.16 In the meantime, on the day in question, Tuesday, March 14, Nelson
was employed by Respondent on a subdivision job operating a piece of equipment
known as a dynahoe at a higher hourly rate of pay than Nelson had earned as a
driver.
Giving full credence to Respondent's assertion that foe Long was a superior all-
round shop employee to Nelson, that no additional shop employees have been hired
since Long, and that Nelson's hourly pay rate as an operator exceeded that as a shop
driver,17 I conclude and find that the layoff constitutes a suspicious background cir-
cumstance. This is evident when considered as to its timing in relation to Nelson's
known union activities, the essentially contemporaneous rehire of Joe Long, a former
employee junior to Nelson in point of service; Campbell's failure to recall Nelson
to his shop job despite his promise to do so; and the layoffs effective removal of a
leading union adherent from the shop unit in which a representation petition was
pending-an accomplishment from which Nelson's prompt rehire in a different
organizational unit did not derogate.
2. The alleged discriminatory layoff and refusal to recall
Nelson was not again returned to his former shop assignment and did not per-
sonally contact Respondent in order to regain his reinstatement, but Union Rep-
resentative Sloan did so on Nelson's behalf four or five times between Nelson's
layoff in March and the following September.18 Between his rehire on March 14
and May 22, 1961, when he was laid off, Nelson performed various nondriving tasks
in the employ of Respondent. On the day of his layoff, May 22, 1961, and im-
mediately prior thereto, Nelson had operated a roller on Respondent's Nashville
airport job. On May 22 he was told by Job Foreman Beatty that "he didn't have
anything else" for Nelson to do, and Nelson was paid for 2 hours' work. Neither the
project nor "the kind of work" that Nelson had been doing had been completed
when Nelson's layoff occurred.19
3. The Turbyfill conversations
Nelson was not again thereafter employed by Respondent, although approximately
a week later on the occasion of a chance meeting in downtown Nashville with
Respondent Foreman Turbyfill, he asked for work on Respondent's Vanderbilt
University project over which Turbyfill had supervision. Turbyfill told Nelson "to
report to Vanderbilt Monday morning" and he would get him "something to do."
Nelson reported on Monday morning to Turbyfill as suggested, whereupon Nelson
testified:
He [Turbyfill] told me he could not hire me, that I would have to see-go to
the main office and get straightened out because somebody was putting the
pressure on me.
4. The Oman-Nelson incident
Nelson then went to Respondent's office for the purpose of seeing Vice President
McLemore. McLemore was not in, but upon seeing Stirton Oman, Jr., secretary of
Respondent, under whom Nelson had worked in Cheatham County, Nelson asked
Oman if he could talk to him26 Nelson related the conversation as follows:
11 The credited testimony of Nelson. Nelson testified without contradiction that his em-
ployment with Respondent antedated that of Long.
10 Long had previously "broken in" the B-87 Mack truck when it was new and there-
after relinquished the truck to Nelson's predecessor in assignment
17 Nelson apparently preferred the shop driving job because of its assurance of greater
employment continuity.
18 Union Representative Sloan did not initially contact Respondent on Nelson' s behalf
until after Nelson had been given work as a dynahoe operator on March 14 and, thus,
Nelson's reemployment appears not to have been related to Sloan's Intervention. Sloan
credibly testified that when he first inquired of Campbell as to whether Nelson had "gotten
back to work yet" Campbell advised him that Nelson had "another job" and that he had
a man for the truck and that Nelson would not be needed on the truck.
19The undisputed, credited testimony of Nelson.
28 The foregoing is predicated on the undisputed , credited testimony of Nelson,
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said, "Stirton , I want to find out what's going on and I won 't lie to you if you
won't lie to me" and he said , "Alright, what do you want to know?" I told
him what had happened over at Turbyfills and he said that I had been tagged
as a ringleader of the union activities at the shop and had put a bad taste in
everybody 's mouth and there wasn't no job there for me and I would be better
off going somewhere else looking for work.
Secretary Oman denied the remarks attributed to him by Nelson . Oman asserts
that he told Nelson he knew Respondent "work[s] union all over," and further related
the conversation as follows:
We started talking and he asked me about a job and I said , "We don't have
anything right now and I think you would do better looking somewhere else and
get another job. Right now, we don 't have anything ." I have told a lot of
people that . If we don't have anything , they would do better working some-
where else.
Q. Did you have anything that Mr. Nelson could do at that time?
A. No, sir.21
The very narrow issue presented for resolution is whether Nelson 's layoff on
May 22 from the Nashville airport project and Respondent's subsequent refusal to
engage him thereafter on the Vanderbilt University project was shown by the pre-
ponderance of the evidence to have been discriminatory . No issue is here posed
that Nelson's earlier layoff from the shop on March 10, 1961, was in any way
violative of his rights under the Act 22
Adequately established by the General Counsel are the requisite elements of
Nelson 's union activity and Respondent's knowledge thereof and opposition thereto.
Constituting an additional factor probative of Respondent 's antiunion motivation is
the background evidence revealing Nelson's March 10 layoff under suspicious cir-
cumstances . In Superintendent Turbyfill 's advisory to Nelson to report to the
Vanderbilt University project and he would "get him something to do" I find the
clear suggestion of available work, which suggestion found countermand not in a
subsequent denial by Turbyfill that work was available but, rather , in form of a
suddenly invoked condition precedent that he go to the main office to "get [the
pressure on him] straightened out." Turbyfill was present at the hearing but was
not called upon to negate the inference that work was available at Vanderbilt for
which Nelson was qualified , or to deny or shed light on his reference to "pressures"
being applied in regards to Nelson . Accordingly , an inference is warranted, which
I make, that had he been called as a witness his testimony would not have been
favorable to Respondent 23
In this context and against this background , Respondent's discriminatory refusal
to employ Nelson at Vanderbilt is conclusively established by Nelson's credited ac-
count of his conversation with Secretary Oman . I conclude therefore , that Respond-
21 Of the two conflicting versions of this incident , I credit Nelson ' s, based , in part, upon
the comparative demeanor of the two witnesses as I observed it at the hearing Nelson
impressed me, on the whole, as the more reliable witness Over the course of his entire
testimony , as I observed it at the hearing, Nelson testified in a straightforward , believable
manner without the slightest discernible tendency to evade questions or to color his testi-
mony. Oman , on the other hand , was much less impressive in this regard and appeared
prone at important junctures to testify to matters of which he had no personal knowl-
edge, and demonstrated a tendency to bias, as illustrated by his willingness to ascribe to
Nelson a mechanical skill inferior to that possessed by Joe Long , while admitting that he
had never observed Nelson ' s work as a mechanic
"-z The pertinent allegations of the complaint are as follows
5
On or about May 22, 1961, the Respondent laid off William II Nelson, employee of
said Respondent at its Nashville, Tennessee, place of business
6.
The Respondent laid off and failed and refused, and continues to fail and refuse,
to recall the employee named in paragraph 5, above, because said employee joined or
assisted the Union or engaged in other Union activities or concerted activities for
the purpose of collective bargaining or other mutual aid or protection
Although not specifically alleged as a violation, the Vanderbilt University matter was
fully litigated, Respondent made no claim of surprise, and it is clearly encompassed within
the allegations of paragraph 6 of the complaint. See Coca - Cola Bottling Company of
Louisville, Inc., 108 NLRB 490.
"3 Interstate Circuit v. US., 306 U S 208, 225, 226.
OMAN CONSTRUCTION CO., INC. 117
ent discriminated against Nelson in failing and refusing to employ him on the
Vanderbilt University project on or about June 1 because of his past union activities.
I likewise conclude and find that in abruptly terminating Nelson on May 22,
Respondent was motivated not by unavailability of work but by antiunion considera-
tions. Implicit therein is my finding that Secretary Oman's statement to Nelson
on or about June 1 may be given retroactive effect and relates back approximately
1 week to reveal Respondent's discriminatory motive in abruptly laying Nelson off
on May 22. This is so because Nelson's status as a union advocate had become
fixed prior to May 22 and he had done nothing thereafter between his layoff on
May 22 and the conversation in question to alter his status, or to bring his previous
union activities more forcibly to the attention of Respondent. Pertinent here is
the observation of the Seventh Circuit in Angwell Curtain Company, Inc. v. N.L.R.B.,
192 F. 2d 899, 903, "Such statements, reflecting the attitude of the company toward
the union at a period closely following the date of her discharge, indicate what its
attitude undoubtedly was immediately preceding the event." 24
In addition to the above-found facts and conclusions which bear compellingly upon
Respondent's May 22 action, the General Counsel adduced sufficient evidence to
suggest that when he was laid off there remained work for Nelson to do at the airport
project which was not assigned to him because of discriminatory reasons. Respond-
ent failed adequately to rebut this by the mere assertion to the contrary by Secretary
Oman unsupported by other witnesses and pertinent company records. Oman's
testimony in this respect appeared grounded on hearsay for he was not shown to
have been personally involved in direction or supervision of the airport project, to
have had any direct role in Nelson's layoff therefrom, or to have been consulted in
regards thereto. Likewise, the record is virtually devoid of evidence showing the
degree of Oman's day-to-day participation in the managerial or supervisory affairs of
Respondent, and, specifically, the extent of his familiarity with the status of the air-
port work and the personnel requirements thereon as of May 22. Equally unavailing
as an explanation for its actions is Respondent's contention, not supported by the
record, that Nelson was possessed of a propensity to seek excessively frequent job
transfers to serve his own purposes. Further, in view of evidence revealing its
opposition to the unionization of its shop employees, I do not find persuasive Re-
spondent's effort to negate specific allegations of antiunion motivation in regards
Nelson's layoff by collateral references to extensive unionization of its other opera-
tional units.25
On the basis of the foregoing, I conclude and find that the General Counsel estab-
lished by the preponderance of the evidence that William H Nelson's activity on
behalf of the Union was the moving cause for his May 22 layoff. In laying him off
on May 22, 1961, and failing thereafter at any time to recall him, and specifically
failing to do so on the Vanderbilt University project as above found, the Respondent
discriminated in regards to the hire and tenure of employment of William H. Nelson,
and thereby discouraged membership in the Union and, by such conduct, also inter-
fered with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act 26
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation 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.
VI THE REMEDY
It has been found that Respondent by laying off and failing and refusing thereafter
to reinstate William H. Nelson, discriminated against him in respect to his tenure of
employment in violation of Section 8(a)(3) of the Act. I shall therefore recom-
mend that Respondent cease and desist therefrom and make him whole for any loss
21 See also N L R B. v Cambria Clay Products Company, 215 F 2d 48, 51 (C A. 6) ;
NLRB v C. W. Radcliffe and W W. Mancke d/ b/a Homedale Tractor & Equipment
Company, 211 F 2d 309, 314 (C.A 9) ; N L.R B v. Sam Wallick and Sam K Schwalm,
d/b/a Wallick and Schwalm Company, et al, 198 F. 2d 477, 481, 483 (CA 3) ; II Wig-
more on Evidence, sees 395, 396
25 See Todd Shipyards Corporation, Los Angeles Division, a corporation, 98 NLRB
814, 819
26 See California Lingerie Inc., 129 NLRB 912; Duval Engineering d Contracting Com-
pany, 132 NLRB 852.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay suffered because of the discrimination against him, by payment to him of the
sum of money equal to that which he normally would have been paid in Respondent's
employ from the date of his layoff to the date of Respondent's offer of reinstatement,
less his net earnings, if any, during said period. Loss of pay shall be computed upon
a quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289.
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. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. By discriminating in regard to the hire and tenure of employment of its em-
ployee, William H. Nelson, thereby discouraging membership in the Union, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) of the Act.
3. By the aforesaid layoff and failure and refusal to reinstate William H. Nelson,
the Respondent has interfered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, it is recom-
mended that the Respondent, Oman Construction Co., Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any other labor organization of
its employees, by laying off and thereafter failing and refusing to reinstate its employ-
ees, or by discriminating in any other manner in regard to their hire or tenure of
employment or any term or condition of employment.
(b) In any other manner interfering with, restraining, or coercing its employees
in the right to self-organization, to form labor organizations, to join or assist the
Union, or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from any or all
of such activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer William H. Nelson immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay suffered as a result of the
discrimination against him.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Recommended Order.
(c) Post at its Nashville, Tennessee, plant, copies of the notice attached hereto
marked "Appendix." 27 Copies of said notice, tobe furnished by the Regional Direc-
tor for the Twenty-sixth Region, shall, after being duly signed by a representative of
the Respondent, be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such notices are not altered, defaced,
or covered by any other material.
2 In the event that these recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted in the notice for the words "The Recommendations
of a Trial Examiner" In the further event that the Board's Order be enforced by a
United States Court of Appeals, the words "Pursuant to a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to
a Decision and Order."
INTERNATIONAL LONGSHOREMEN 'S, ETC. 119
(d) Notify the Regional Director for the Twenty-sixth Region , in writing , within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply herewith 28
It is recommended that unless on or before 20 days from the date of the receipt
of this Intermediate Report and Recommended Order, the Respondent notifies said
Regional Director, in writing, that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the Respondent to
take the action aforesaid.
21 In the event that these recommendations are adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps the Respondent has
taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Teamsters, Chauffeurs, Helpers and
Taxicab Drivers, Local Union No. 327, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, by laying off and thereafter failing and refusing
to reinstate our employees, or by discriminating in any other manner in regard
to their hire or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist the above-named Union, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, and
to engage in collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities.
WE WILL offer William H. Nelson immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and make him whole for any loss of pay he
may have suffered as a result of the discrimination against him.
OMAN CONSTRUCTION CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Employees may communicate directly with the Board's Regional Office, 714 Falls
Building, 22 North Front Street, Memphis, Tennessee, Telephone Number, Jackson
7-5451, if the employees have any question concerning this notice or compliance with
its provisions.
International Longshoremen 's and Warehousemen 's Local Union
No. 19, Independent and International Longshoremen's and
Warehousemen 's Union , Independent [Pacific Maritime Asso-
ciation ] and J. Duane Vance , Attorney. Cases Nos. 19-CC-146
and 19-CC-147. May 15, 1962
DECISION AND ORDER
On March 24, 1961, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondents had not engaged in the unfair labor practices alleged
137 NLRB No. 13.