The Rowand Co., Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1974

210 N.L.R.B. 95 (N.L.R.B. 1974)

THE ROWAND CO., INC. 95
The Rowand Company, Inc. and International Union
of Operating Engineers, Local 953, AFL-CIO.
Case 28-CA-2692
April 17, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On June 28, 1973, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, the General Counsel
filed cross-exceptions, a supporting brief, and an
answering brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions' of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that on
August 4, 1973, Respondent refused the Union's
demand for recognition as the exclusive bargaining
representative of Respondent's 26 heavy equipment
operators and laborers employed in the construction
of an earth-filled dam on the Mescalero Apache
Indian Reservation near Ruidoso, New Mexico.2 The
Union had presented 21 authorization cards to
Respondent with its demand for recognition. We
agree with the Administrative Law Judge that seven
of these cards were invalid since six of them were
signed by nonemployees and the seventh was signed
by an employee with impaired vision who did not
understand the card' s meaning and significance. The
Administrative Law Judge concluded that the Union
had the support of a majority of Respondent's
employees based on its possession of valid authoriza-
tion cards executed by 14 of the 26 employees.
Included in these 14 cards were those of Gary
Sherell, Jerry Sherrell, and Don Bretz who had been
1 In the absence of exceptions thereto, we adopt pro forma the
Administrative Law Judge's conclusions that Respondent violated Sec.
8(aXI) by threatening to clear the employee blockade at the entrance to the
Mescalero Apache Indian Reservation by use of force, and by offering Joel
Lathan a promotion as an inducement for abstaining from union or
concerted activities
2 We find that the following employees constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Sec. 9(b) of the
Act-
All heavy equipment operators and laborers employed by The Rowand
Company, Inc, at its Cienegita Dam and Reservoir project near
Ruidoso, New Mexico, excluding office clerical employees , guards,
210 NLRB No. 14
told by Union Solicitor Giles Luckett immediately
before signing that "if the job were organized by the
Union and the employees did not belong to the
Union they would not be permitted to work on the
project." The Administrative Law Judge character-
ized Luckett's statement as an accurate representa-
tion of the alternative consequences available to
employees in the construction industry who did not
chose to be affiliated with the organization designat-
ed as majority representative. We disagree. In our
view, Luckett's statement implied a threat to these
employees that their jobs would be in jeopardy if the
Union organized the project and they had not signed
the cards.3 Because of the coercive manner in which
these three cards were obtained, they cannot be
counted as part of the Union's showing of majority
support. Consequently, the Union did not possess a
card majority on August 4 when it made its demand
for recognition.4 Since the Union lacked majority
status, we find no basis upon which to predicate the
three 8(a)(5) violations found by the Administrative
Law Judge.
The Administrative Law Judge found that Respon-
dent committed an independent violation of Section
8(a)(1) by the conduct of its project engineer, John
Shaw, during a discussion with union adherent Joel
Lathan on August 31, 1972.5 Lathan had been
demoted from dozer operator to laborer after he had
immobilized and damaged a dozer. This discussion
centered on Lathan's complaints to Shaw about his
not being reassigned to the immobilized dozer upon
its reactivation. During the ensuing conversation
Shaw produced an antiunion petition which had
been circulated and signed by the employees, but
which Lathan had not signed. Shaw showed this
petition to Lathan and asked him if he had seen it.
Lathan studied the petition for several minutes and
made no response other than handing the petition
back to Shaw. The Administrative Law Judge
concluded that Shaw showed Lathan the petition
merely to get his reaction since he was a leader in the
organizational effort. The Administrative Law Judge
also concluded that this incident amounted to an
implied threat that Lathan would remain a laborer
and would not be reassigned as a dozer operator if he
did not sign the petition. Contrary to the Administra-
watchmen , and supervisors as defined in the Act.
3 Heck's Inc., 156 NLRB 760, enfd . in pertinent part 386 F.2d 317 (C.A.
4, 1967)
4 We likewise find that the Union did not possess valid cards from a
majority of unit employees when it made a second demand for recognition
on August 9
S The Administrative Law Judge made the following erroneous findings
which we hereby correct : The meeting between Shaw and Lathan occurred
on August 31 instead of August 21; the dozer Lathan had been operating
was reactivated by August 31 instead of September 21; and Lathan was
discharged on September 8 rather than September 9.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive Law Judge, we find this incident too ambiguous
to support the finding of an unlawful threat. Lathan
was in Shaw's office on business unrelated to the
Union, and we find insufficient basis for inferring a
threat on Shaw's mere showing of the petition and
his single , unpursued inquiry.
On three occasions during the 2-week period prior
to his demotion, Lathan immobilized the dozer he
was operating by miring it deeply in the mud. On
August 14, the last of these occasions, his dozer was
so deeply buried that the mud rose above the
floorboard to the top of the engine , necessitating
$1,778 in repairs. The day following this incident
Respondent demoted Lathan to laborer because of
his apparent inability to operate his dozer properly.
The Administrative Law Judge concluded that this
demotion was pretextual and discriminatorily moti-
vated in violation of Section 8(a)(3). Central to this
finding was the antiunion motivation found by the
Administrative Law Judge in connection with the
petition-showing incident. However, as noted above,
we find that the petition-showing incident did not
constitute a violation of Section 8(a)(1). Further-
more, while the record shows that other dozer
operators had stuck their equipment in the mud
during this period, there was no indication that these
incidents were as aggravated or had caused anything
like the substantial damage to Respondent's property
as had resulted from Lathan's negligence here. In
these circumstances, the evidence is not sufficient in
our view to establish that Lathan was discriminatori-
ly disciplined or that Respondent's reasons for
Lathan's demotion were pretextual. Consequently,
we find no violation of Section 8(a)(3) in Lathan's
demotion.
In a like manner, we find, contrary to the
Administrative Law Judge, that Respondent's dis-
charge of Lathan on September 8 was not violative of
Section 8(a)(3). The Administrative Law Judge's
finding that Lathan's discharge was discriminatorily
motivated does not withstand scrutiny. First, he
concluded that the alleged antiunion motivation,
which he inferred from the petition-showing incident,
had continued uninterrupted from Lathan's demo-
tion to his termination. However, as noted above, we
do not attach the same significance to the minor and
isolated petition-showing incident as did the Admin-
istrative Law Judge; nor have we found a violation in
Lathan's demotion. Second, the Administrative Law
Judge found pretextual the Respondent's assertion
that Lathan's absenteeism on September 6 and 7 was
e The Administrative Law Judge found that the work force at this time
l d reached "essentially skeleton proportions" due to inclement weather. In
reaching this conclusion , the Administrative Law Judge made a number of
erroneous findings as to the work force 's strength during this period which
are unsupported by the record . We correct these findings as follows'
the primary reason for his discharge. The Adminis-
trative Law Judge concluded that Respondent had
applied a different standard in discharging Lathan
for absenteeism and not handing out the same
punishment to others who were absent during the
same period. We do not think such a conclusion may
fairly be drawn from the record. While there were
three individuals who, like Lathan, had worked
during the week of August 28 but did not report for
work the week of September 4,6 the record is devoid
of any evidence that their absences were as clearly
inexcusable as Lathan's. Lathan was observed during
his absences continuously driving his car up and
down the road adjacent to the construction project,
and the night watchman had reported that Lathan
had been present without permission in the company
equipment yard at 4:30 on the morning of his
discharge. In the face of such evidence of the lack of
any legitimate excuse for Lathan's absenteeism, it
would take much clearer evidence of discriminatory
motivation than is here present to persuade us that
Respondent's reasons for discharging Lathan were
pretextual. Accordingly, we conclude that General
Counsel failed to establish, by a preponderance of
the evidence, that Lathan's termination was violative
of Section 8(a)(3).
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) when, after a charge
had been filed with the Board relating to Lathan's
discharge, Bernard Little told Lathan that he should
"drop everything" and suggested that he then could
probably get his job back. Little was held to have
acted as Respondent's agent because, in the Admin-
istrative Law Judge's view, Little was a low-echelon
supervisor as a result of his authority to recruit
employees. We disagree.
There is no evidence that Little, who was also a
tribal leader, possessed any indicia of supervisory
status. Thus, while he relayed routine instructions to
the laborers from the foreman, he appears to have
served as no more than a conduit in this regard, and
did not exercise his own judgment, nor did he have
authority to impose or to recommend the imposition
of disciplinary action upon employees for failure to
follow any such instructions, or otherwise. Addition-
ally, the record shows that Little received the same
pay and performed the same type of work as the
other laborers. The limited assistance given by Little,
a tribal leader, to Respondent's efforts to recruit
Indians on the project, appears to have been
rendered more in the interests of his tribe than as an
September 7 was a regular workday with 25 unit employees on the job,
instead of a skeletal crew of 8 employees; I I of 32 unit employees, rather
than 8 of 34 unit employees , reported to work on September 8; Joel Lathan
did not work on September 6; and there were 18, rather than 16, normal
workdays between August 15 and September 8
THE ROWAND CO., INC.
agent for Respondent, and were clearly not such as
to establish supervisory status.7 Consequently, we
find that Little was neither a supervisor nor an agent
of Respondent. There is thus no foundation for
attributing to Respondent his comment to Lathan,
and no basis for finding a violation of Section 8(a)(1)
arising therefrom.
Except as indicated, we adopt the Administrative
Law Judge's findings, conclusions, and recommenda-
tions.
CONCLUSIONS OF LAW
1. The Rowand Company, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local 953, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All heavy equipment operators and laborers
employed by Respondent at its Cienegita Dam and
Reservoir project near Ruidoso, New Mexico,
excluding office clerical employees, guards, watch-
men, and supervisors as defined in the National
Labor Relations Act, as amended, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By threatening to clear the employee blockade
of the entrance to the Mescalero Apache Indian
Reservation by use of force, the Respondent engaged
in conduct in violation of Section 8(a)(1).
5. By offering Joel Lathan a promotion as an
inducement for abstaining from union or concerted
activities, the Respondent engaged in conduct in
violation of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
The Rowand Company, Inc., Ruidoso, New Mexico,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) In a manner violative of Section 8(a)(1) of the
Act, threatening employees with physical violence in
order to discourage their involvement in protected
concerted or union activities.
(b) In a manner violative of Section 8(a)(1) of the
Act, offering inducements to employees in order to
7 See, e .g, Cart-A-Stone Products Company, 198 NLRB No 66
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
97
discourage their involvement in protected concerted
or union activities.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its Ruidoso, New Mexico, place of
business, and at appropriate places on the Cienegita
Dam and Reservoir Project near Ruidoso, New
Mexico, copies of the attached notice marked
"Appendix." 8 Copies of said notice, on forms
provided by the Regional Director for Region 28,
after being duly signed by Respondent's representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Forward a signed copy of the notice marked
"Appendix" to the tribal administration office at the
Mescalero Apache Indian Reservation near Ruidoso,
New Mexico, for posting, if the tribal administration
is willing.
(c) Notify the Regional Director for Region 28, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
MEMBER JENKINS, dissenting in part:
I cannot agree with my colleagues' reversal of the
Administrative Law Judge's finding that Respondent
violated Section 8(a)(1) of the Act by its conduct
during the August 31 conversation between Project
Engineer Shaw and employee Lathan.
The circumstances leading up to this meeting are as
follows. When Lathan noticed that another employee
had been assigned to his dozer, he asked Supervisor
Plumlee about it. Receiving an unsatisfactory an-
swer, he went in to see Shaw, accompanied by
Plumlee and another employee. Once in Shaw's
office Lathan protested the reassignment of his dozer
to someone else. In response to this protestation,
during the ensuing discussion, Shaw withdrew from
his desk the antiunion petition which another
employee had earlier circulated and which Lathan
had refused to sign. Shaw handed the petition to
Lathan. Lathan looked over the petition, said
nothing, and returned it to Shaw. Lathan then asked
if he would be given his dozer, with Shaw's eventual
reply being that he would decide later.
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Had Lathan's history with the dozer and his
inability to handle it been the sole cause for denying
him the position, there would have been no reason
for Shaw to show Lathan the petition. However,
Respondent chose to convert this routine discussion
concerning job assignment into one in which the
union sympathies of Lathan were to be a factor in
the decision.,Respondent was well aware of Lathan's
prounion sentiment and that he had not previously
signed the petition. Under these circumstances and
in the context and manner in which Lathan was
presented the petition, the clear implication was that
Shaw was conditioning the reassignment of the dozer
at least in part on Lathan's signing of the petition
with the concurrent threat that he would or might
not be reassigned it if he did not sign. There can be
no clearer violation of Section 8(a)(1) than to
confront an employee with a document relating to
his union sentiment while he is in the offices of his
employer inquiring about his working conditions.
In all other respects, I join the determinations
made by my colleagues.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with physical
violence in order to discourage their involvement
in protected concerted or union activities.
WE WILL NOT offer inducements to employees
in order to discourage their involvement in
protected concerted or union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the National Labor Relations Act, as amended.
THE ROWAND COMPANY,
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 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Patio Plaza Building, Upper Level,
5000 Marble Avenue, NE, Albuquerque, New
Mexico 87110, Telephone 505-766-2508.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER , Administrative Law Judge: This
matter was heard at Ruidoso , New Mexico , on January 17,
18, and 19 and February 27, 1973, pursuant to a complaint
and notice of hearing issued on November 21, 1972, by the
Regional Director of the National Labor Relations Board
for Region 28.1 The complaint arose from a charge filed on
August 9, by International Union of Operating Engineers,
Local 953, AFL-CIO, hereinafter called the Union, and a
first amended charge filed by the Union on September 27.
The complaint alleges violations of Section 8(a)(1), (3), and
(5) of the National Labor Relations Act, as amended,
hereinafter called the Act. On April 3, 1973, counsel for the
General Counsel and counsel for the Respondent timely
filed briefs with me.
Upon the entire record in this case,2 and upon my
observation of the witnesses and consideration of the briefs
of the parties, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Rowand Company, Inc., hereinafter called the
Company or Respondent, has been at all times material
herein a corporation duly organized under the laws of the
State of Arkansas. At all material times Respondent has
maintained its principal office and place of business in the
city of Little Rock , Arkansas, and has been continuously
engaged in the business of general building and construc-
tion at that location and other locations , including a
construction project for the Apache tribe of the Mescalero
Reservation on the Mescalero Apache Indian Reservation
near the community of Ruidoso, New Mexico.
During the calendar year immediately preceding the
issuance of the complaint herein , Respondent, in the
course and conduct of its business operations , provided
and performed services valued in excess of $50,000 in
connection with the construction project located near
,Ruidoso , New Mexico . During the same period of time,
Respondent, in the course and conduct of its business
operations , in connection with the construction project
near Ruidoso , New Mexico , purchased, transferred, and
had delivered to that jobsite in the State of New Mexico,
goods and materials valued in excess of $50 ,000, which
were transported to the jobsite in New Mexico directly
from states within the United States other than the State of
New Mexico.
Upon these admitted facts, I find that Respondent has
been at all times material herein an employer engaged in
i Unless indicated otherwise , all dates refer to the calendar year 1972.
2 Counsel for the General Counsel moved to correct the transcript of the
proceedings in several respects . This motion was not opposed and is
mentonous. The motion is granted and the transcript is corrected in the
particulars specified at Appendix A.
THE ROWAND CO., INC. 99
commerce within the meaning of Section 2(6) and (7) of
the Act.3
Gissel decision , of a character sufficient to justify a
bargaining order.4
II. THE LABOR ORGANIZATION INVOLVED
Respondent concedes and I find that International
Union of Operating Engineers , Local 953, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that in violation of Section 8(ax1)
of the Act Respondent, through supervision, threatened
employees with physical violence; offered inducements to
employees; unlawfully interrogated employees; and pro-
mulgated and circulated an antiunion petition, all for the
purpose of persuading employees to cease engaging in
union or concerted activities. The complaint further alleges
that, in violation of Section 8(a)(3) of the Act, Respondent
demoted Joel Lathan and subsequently terminated the
employment of Lathan and Giles Luckett because they had
engaged in union or concerted activities. Additionally, the
complaint alleges that commencing on August 4, Respon-
dent violated Section 8(aX5) of the Act by failing and
refusing to honor the Union's demand for recognition and
bargaining ; engaging in individual negotiations directly
with employees in a unit represented by the Union and
appropriate for the purposes of collective bargaining; and
unilaterally granting benefits , instituting and effectuating a
procedure whereby Respondent recognized a job steward
in derogation of the Union's status; and changing working
conditions after the Union had demanded recognition and
had proclaimed its majority status in the appropriate unit.
The Respondent contends that the evidence fails to
sustain the General Counsel. Moreover, Respondent
asserts that Lathan was demoted and like Luckett was
terminated for cause and not because of his alleged
involvement in the union organizing efforts. With respect
to the alleged violations of Section 8(a)(5) of the Act,
Respondent contends that the Union failed to obtain a
valid card majority; failed to demand recognition in an
appropriate bargaining unit; and demanded recognition
from representatives of the Company who lacked authority
to extend recognition to the Union. It is the further
contention of the Respondent that, assuming an obligation
did devolve upon Respondent to recognize and bargain
collectively with the Union, the nature of Respondent's
conduct otherwise was not, under the rationale of the
3 In admitting the foregoing facts and conceding that commercial
enterprises operating on Indian reservations are within the Board 's legal
jurisdiction , Respondent nonetheless contends that in the circumstances of
this case the Board should decline jurisdiction In support of this
contention , the Respondent points to evidence, which is not contested,
revealing that ( I) the construction project in question is wholly within the
boundaries and confines of the Mescalero Apache Reservation , (2) when
the project is accomplished with the completion of the earth -filled dam,
ownership of the entire facility will be vested exclusively in members of the
Mescalero Apache tribe , and (3 ) the agreement under which the construc-
tion is being carried forward requires the Company to make a good-faith
effort to employ 80 percent of its work force from members of the
Mescalero Apache tube Because of these considerations , and because these
B. Pertinent Facts
1. Background facts
Respondent is engaged in the construction of an earth-
filled dam in Cienegita Canyon, within the confines of the
Mescalero Apache Reservation near Ruidoso, New Mexi-
co. The Mescalero Apache tribe owns the land and the site
at which the construction project is being carried out.
Upon the completion of the dam and the resultant
reservoir and related facilities, the tribe will own the
project. The project is being partially funded by the
Economic Development Administration and the Respon-
dent is performing services pursuant to a contract with the
tribe. Under the terms of the contract, the Respondent is
required to exercise good faith in carrying out the
contract's provision that 80 percent of the work force be
comprised of residents of the reservation ; and Davis-
Bacon Act wage minimums prevail.
The tribal council of the Mescalero Apache Indian tribe
is the legislative and executive governing body of the tribe.
It possesses oversight authority with respect to the
construction project. Fred Heckman and Richard Ward-
law serve as administrative assistants to the tribal council
and assist the executive branch of the tribe. Max Williams
is the project representative for the engineering firm
serving as consultants to the tribe on the project.
Richard Rowand is president of Respondent. His
principal office and place of residence is in Little Rock,
Arkansas. Respondent was organized in January 1971 and
has several construction projects in Arkansas . The con-
struction project on the Mescalero Apache Reservation is
the only construction job in which the Company was
engaging outside the State of Arkansas at the time of the
hearing.
The project in question commenced in July 1972 under
the general supervision of John Shaw, project engineer.
Shaw is in charge of the day-to-day operations of the
project but ultimate control resides with Richard Rowand
who establishes company policy and takes direct charge of
the Mescalero project when he is physically present at the
situs . Shaw's authority over the project is not superseded
by any representative of the Company stationed in the
State of New Mexico, but Shaw recognizes Richard
Rowand and two other officials of the Company as
possessing greater authority than he with respect to
ultimate decisions affecting the project. Shaw confers
frequently and on a recurring basis with Richard Rowand
special circumstances were assertedly recognized by the Union as attending
this particular organizing effort, the Respondent contends that the Board
should decline to assert jurisdiction on the basis that the dispute lacks a
substantial impact on commerce and the purposes and policies of the Act
would not be effectuated by the assertion of jurisdiction.
As the volume of interstate commerce is concededly sufficient to bring
the Respondent within both the legal and discretionary jurisdictional
standards of the Board ; and because the alleged conduct of the Respondent
is of a character and variety which if substantiated will have adversely
affected rights guaranteed by the Act to both Indian and non-Indian
employees involved in work on the construction project , I conclude that the
purposes of the Act will be served by asserting jurisdiction herein.
4 N LR.B. v. Gissel Packing Co., 395 U.S. 575 (1%9).
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning matters relating to the Mescalero construction
job.
At pertinent times Guy Plumlee served as dirt superin-
tendent on the project and Gary Bridges and Eugene
Mitchel served as structures superintendent and dirt
foreman, respectively.5
2. The employee complement
The parties stipulated that on August 4, Respondent
employed 27 individuals at the project. On August 9, 28
employees comprised the work complements Employed at
the project by Respondent both on August 4 and August 9
were : Jewel Jones , Samuel Powell, Michael Oden, Rex
Commanche, Angel Saiza, Sebastian Mendez, Tom Treat,
Gary Sherrell, Jerry Sherrell , Lyle Walker, Bernard Little,
Samuel Cooper, Milford Yuzos, Isadore Mendez, Ted
Thoma, Joel Lathan, Cisco Bob, Don Bretz, Sam Plumlee,
Sam Harrell, and J. C. Campbell. On the other hand,
Clifford Gaines, L. J. Andrews, Jr., Justin Mendez, Dennis
Russell, Dennis Dunleavy, and Joe Frye, who were in the
employ of Respondent on August 4, were no longer
employed on August 9. However, by August 9, seven
individuals had been newly employed, including: George
LaPaz, Edgar Tones, John Balatche, Leroy Bigrope,
Coony Starr, Vernon Simmons , and Clifford Chee.
The parties further stipulated that if Giles P. Luckett is
found herein to have been unlawfully terminated, he would
have retained his status as an employee on August 4 and 9.
Moreover, it is the General Counsel's contention that the
appropriate unit does not include Sam Harrell and J. C.
Campbell who assertedly were supervisors within the
meaning of the Act.
The ,parties also stipulated that on August 4, the
following job classifications were being manned: laborer,
pipelayer and air tool, backhoe, dozer operator, roller
operator, scraper operator, crane operator, motor grader
operator, oiler, oiler helper, and water truck. Except for the
classification "pipelayer," these same job classifications
were also being manned on August 9. However, on August
9, one laborer was being utilized interchangeably in the
concrete finisher and carpenter classifications.
3. The organizing effort
a. Background
In early July, John Morce met in Ruidoso with John
Shaw . A representative of the Building Trades Council was
present as were representatives of several locals . Work at
the project had just commenced and inquiry was made
relating to the nature of the Company's participation in the
project, and whether the Company intended to perform the
work with union or or nonunion employees. Shaw was
noncommittal and the union representatives were informed
that Richard Rowand would subsequently be coming to
Ruidoso.
5 The foregoing is based primarily upon the testimony of Fred Heckman,
John Shaw, and Guy Plumlee, and documentary evidence of record
5 Excluded by the stipulation were individuals employed at the project in
the capacity of guards, watchmen , office clerical, and/or supervisors, as
defined in the Act.
7 The foregoing is based upon the credited testimony of John Morce,
Thereafter, Morce spoke to Rowand at the project site.
Morce communicated to Rowand that he would "be
interested in working with him" in manning the Compa-
ny's work on the project. Rowand noted that the Company
had to fulfill an 80-percent requirement governing the use
of Indian personnel, but that if he could not get "qualified
people" he would call on the Union. Rowand was in the
company of other individuals and the conversation was a
brief one.
Morce had been on the site and had driven through the
continguous area on several previous occasions.7
b. The card-signing activities
As a consequence of the termination of several Indian
employees, a small group of individuals, including Joel
Lathan, Bernard Little, and Sammy Cooper, met together
in late July to consider means of forestalling their own
terminations. Little and Cooper are Mescaleros. Joel
Lathan is not a tribal member but is married to a
Mescalero Apache .8 Thereafter, on August 1, Lathan
contacted the Union and made arrangements to meet with
a representative on August 2. The meeting transpired on
the evening of August 2 when John Morce and Bosco
Powers spoke with Lathan in Morce's automobile in front
of Lathan's residence. During the course of this discussion,
Lathan asserted that Indian employees were being termi-
nated from their employment on the project and replaced
by non-Indian employees from the State of Arkansas.
Lathan stated that the employees were interested in
obtaining union representation. In substance, Morce
informed Lathan that the Union could assist the employees
by filing a petition for representation or by seeking to
achieve recognition from the Company through the use of
signed authorization cards. Morce explained that if the
latter course were followed, it would be necessary to obtain
authorization cards from a majority of the employees.
Lathan signed an authorization card in the presence of
Morce and Powers on the evening in question.9
From Lathan's home Morce and Powers, accompanied
by Lathan, went to the home of Sammy Cooper. They
discussed with Cooper the necessity of joining the Union
and Cooper asserted that something had to be done
because the Indian employees were continuing to be
terminated for no reason. Cooper assured Morce and
Powers of his cooperation and signed an authorization
card in Morce's automobile.
From Cooper's home, Lathan, Morce, and Powers went
to the home of Edgar Tones. Morce presented Torres with
an authorization card and explained the card to him.
Torres did not read the card but he executed the card in
Morce's presence.
Later the same evening, Lathan, Morce, and Powers
went to Lyle Walker's home where they spoke with
Walker, Giles Luckett, and Ted Thoma. Luckett asserted
that he, Walker, and Thoma had been endeavoring to
considered in light of the testimony of John Shaw which is not inconsistent
with the foregoing
9 The testimony of Joel Lathan and Sammy Cooper supports the
foregoing
9 The testimony of John Morce and Joel Lathan support the foregoing.
THE ROWAND CO., INC. 101
contact Morce to obtain his assistance in connection with
the work project. Luckett described to Morce certain
alleged deficiencies which he had noted on the job,
including the lack of sufficient drinking water and the
absence of adequate supervisory direction. Morce recog-
nized Luckett as a member of the Union and presented
him with blank authorization cards, requesting that
Luckett endeavor to have employees sign them. Luckett
signed an authorization card that evening as did Walker
and Thoma. 10
Morce, Powers, and Lathan also visited the home of
Clifford Chee on the night of August 2. Chee signed an
authorization card in the presence of Lathan, Morce, and
Powers. The nature of the card was explained to Chee who
had belonged to the Union previously.
Gifford Gaines signed an authorization card in Lathan's
presence on August 2 or 3. Lathan observed Gaines sign
the card.11
The following morning, August 3, Morce and Powers
drove to the project by automobile and observed the type
and quantity of equipment being used on the job. An effort
was also made to identify any members of the Umon
employed thereon.
In the meantime, on August 2, Lathan had spoken to
George LaPaz concerning the efforts to unionize and
asserted that if LaPaz would go along with the Union, he
might receive assistance in reinstatement to his job.12
LaPaz did not take an authorization card at the time of this
conversation and Lathan agreed to meet with him that
evening. Lathan endeavored to do so and was unsuccess-
ful. He delivered the blank authorization card to LaPaz'
father. Just prior to the noon hour on August 3, LaPaz
endeavored to present a completed authorization card to
Lathan. The card bore what purported to be LaPaz'
signature. Lathan informed LaPaz that he did not wish to
receive the card during work time and instructed him to
bring the card to him during the noon hour. LaPaz did so
and Lathan fixed his own signature to the back of the
card.13
On the afternoon of August 3, just prior to quitting time,
Morce and Powers parked alongside the road between the
jobsite and the exit to Mescalero to await the departing
Indian employees. Lathan joined them. As employees
approached in their automobiles they were signaled to
stop. Lathan, Morce, and Powers spoke to several of them.
10 The authenticity of the signatures contained on the respective cards of
Walker, Luckett, and Thoma are not in issue.
11 Lathan was unable to testify with certitude whether the card was
signed by Gaines on August 2 or on August 3.
12 LaPaz is a tribal member and had been removed from hisjob on the
project
13 The foregoing is based upon the credited testimony of Joel Lathan.
George LaPaz did not testify. Lathan's signature was dated August 1.
Lathan credibly testified that at the time of the question , he was not aware
of the significance of the date and erroneously thought that the date in
question was August I and not August 3. While the record is not clear, it
appears that LaPaz had not been recalled to work by August 3, but was in
Respondent's employ on August 9.
14 The foregoing is based primarily upon the testimony of Justin
Mendez , considered in light of the testimony of John Morce and Joel
Lathan . Mendez testified credibly that he could not recall the details of the
explanation which Morce gave concerning the role of the Union and the
purposes of the authorization cards He was deficient in his recollection of
the source and precise nature of comments made concerning the necessity
Bernard Little executed an authorization card bearing the
date of August 3. His card was witnessed by John Morce.
Little testified on cross-examination that he signed the card
"with the understanding" that he didn't have to join the
Union . He denied "wanting the union to come in."
Justin Mendez also signed an authorization card on the
afternoon of August 3. The card was presented to him by
Morce and Powers . On the occasion in question , Mendez
was departing from work in the company of Bernard Little.
He was hailed down and he stopped by the side of the road
and spoke with Morce and Powers. A group of employees
had gathered and were signing authorization cards. Morce
explained the Union to the employees . Mendez heard
conversation to the effect that the employees would lose
their jobs if they did not sign cards.14
Cisco Bob signed an authorization card on the afternoon
of August 3. The card was presented to him by Lathan.
Prior to signing the card, Bob heard Lathan discuss the
termination of Indian employees and the protection which
the Union could accord employees. Bob knew that other
employees had signed cards and that others had asserted
they would do so. Lathan did not say anything to Bob
about the number or identity of card signers. Bob had been
a member of a union and assumed that if he did not sign
up with the Union, he would be "left out." Bob did not
read the card before signing it. Bob testified that nothing
was said to him about the purpose of the card.
At the end of the workday on August 3, Milford Yuzos
signed an authorization card which had been presented to
him by Lathan. Lathan urged Yuzos to sign the card and
explained that the employees were doing so "to join the
union." Yuzos asked why he should seek to join the Union
and Lathan asserted that the employees would be better
off. Lathan added that a majority of the employees had
signed authorization cards and stated that Yuzos was the
last to sign. Lathan added that if the job went Union and
Yuzos was not a union member, he would be unable to
work on the job. Because of impaired vision making the
printing on the card illegible to him, Yuzos signed the card
without reading it. In his own hand, but with Lathan's
assistance , Yuzos affixed his signature and filled in the
address blanks. He did not date the card.15
John Balatche executed an authorization card on or
before August 4.16 Previously, on the evening of August 2,
Lathan, Morce , and Powers had visited Balatche at his
that employees execute cards in order to retain their jobs.
15 The foregoing is based upon the credited testimony of Milford Yuzos.
I do not credit the testimony of Joel Lathan to the effect that Yuzos signed
the authorization card on the morning of August 4. Lathan appeared to lack
certitude with respect to the details and timing of the card -signing activities
of many employees and I am not convinced that his recollection with
respect to Yuzos was as clear and unfettered as his testimony would suggest.
As I consider Yuzos' version of the conversation relating to the
authorization card to be more reliable than that of Lathan 's, I find no basis
for rejecting Yuzos ' testimony with respect to the time sequence involved.
On the other hand , I am not convinced that Lathan asserted categorically,
as Yuzos testified he did , that if Yuzos failed to sign an authorization card,
he would no longer work on the project The testimony of Yuzos reveals
that he could not recall the precise words that were used by Lathan in this
vein I am convinced his testimony reflects his subjective appraisal of the
meaning of Lathan's words and not the words themselves . Thus , upon the
record as a whole, I find that Lathan's statement to Yuzos on this score was
as found above.
16 Balatche's card is undated , but it bears the August 2 verifying
(Continued)
Im DECISIONS OF NATIONAL LABOR RELATIONS BOARD
home . Balatche is a Mescalero Indian . Morce explained to
Balatche that if he joined the Union, he, Morce, would
seek to get matters straightened out on the project. Morce
also asserted that the Union would endeavor to enforce the
80-percent provision of the project work agreement.
Lester Andrews, Dennis Dunleavy, Gary Sherrell, Jerry
Sherrell, Don Bretz, and Donald Blake signed authoriza-
tion cards on August 4.
Lester Andrews signed his card on the picket line near the
cattle guard entrance to the reservation . He presented his
card to Joel Lathan.17 Similarly, Dennis Dunleavy executed
a card at the picket line. The card bears the date August 4
and the authenticating signature of Joel Lathan, who
testified that on the morning of August 4 during the
picketing , Dunleavy, who was friendly with Lathan,
informed him that he, Dunleavy, had signed a card.18
Don Bretz, Gary Sherrell, and Jerry Sherrell signed
authorization cards during the course of the picketing after
speaking with Luckett. Initially, Luckett outlined the
benefits to be derived from belonging to a union. Luckett
then informed the employees that to work on a union job it
was necessary to be a member of the Union. In explana-
tion, Luckett further stated that if the job were organized
by the Union and the employees did not belong to the
Union, they would not be permitted to work on the
project.19 Luckett had spoken to these employees on
August 3 and had inquired if they were interested in
signing up with the Union. They had responded affirma-
tively.20
Isadore Mendez also signed an authorization card at the
cattle guard entrance on the morning of August 4. Mendez
had not worked the previous day and on August 4 he rode
to work in an automobile with Bernard Little. Upon
reaching the cattle guard entrance, Mendez joined a group
in the process of signing authorization cards. Mendez
formed the impression that other employees had signed
cards on the previous afternoon and that most of the group
he had "worked" with were also signing. He executed the
card without reading it.21
4. The unit placement issue
a. J. C Campbell
On August 4, J. C. Campbell was working in the capacity
of a dozer operator under the supervision of Gene
Mitchell . Campbell was an experienced operator and in the
course of his duties he instructed less experienced opera-
tors in the use of their equipment . There is some evidence
that Campbell directed other employees where to perform
their machine operating work and chastised employees for
improper use of their equipment. Campbell spent "most"
of his work time operating the equipment to which he was
assigned. Campbell had worked as a scraper operator for
the Company in Arkansas and was initially employed by
the Company in late 1971.
On or about August 13, Campbell was promoted to
grade foreman to replace Gene Mitchell. Thereafter,
Campbell spent only 5 or 10 percent of his time operating
the equipment and the balance of his workday was spent in
checking grades . This included directing employees to
perform the grading work necessary to obtain the desired
cuts , fills, and slopes.
b. Sam Harrell
At pertinent times Sam Harrell was employed in the
capacity of a mechanic. He was the only mechanic on the
project, although he was assisted for 2 days in the
performance of mechanic's duties by Giles Luckett, as
hereinafter more fully discussed . In his capacity as a
mechanic , Harrell had the responsibility for maintaining
the equipment used on the project and for detecting
needed repairs. He had authority to instruct operators in
the proper use of the equipment so as to avoid unnecessary
wear and tear on the equipment or the abuse thereof.
Harrell 's authority in the aforesaid particulars also includ-
ed the authority to require operators to cease operating
equipment, which in his judgment needed repairing or
which was being used , in a manner detrimental to the
longevity of the equipment . In the performance of his
duties on and before August 9 Harrell instructed the
employees in the work to be performed and assigned them
work tasks.22
signature of Joel Lathan. Lathan concedes a certain disorientation as to
dates but he testified convincingly that Balatche executed the card on the
day of the strike or prior thereto.
17 The parties stipulated that Andrews' signature was authentic. The
card was undated and the date on the back of the card accompanying
Lathan's signature appears to have been modified . The validity of this card
was not challenged.
18 The parties stipulated to the authenticity of Dunleavy' s signature.
is Luckett made the same statement to Donald Blake, who signed an
authorization card during the picketing on the morning of August 4.
20 The foregoing is based upon a consideration of the testimony of Giles
Luckett. I have also considered the testimony of Don Bretz, Gary Sherrell,
and John Morce. In light of all of the pertinent testimony , I am convinced
that, contrary to the testimony of Bretz and Sherrell , Luckett and not Morce
spoke to them concerning authorization cards. Moreover , in consideration
of the aforesaid testimony, I am further convinced that the interpretation
given Luckett's remarks by Bretz and Sherrell was inaccurate and that
Luckett's comments concerning the effect of signing or fading to sign
authorization cards were as found above. Luckett is a long-time union
member who has worked in the building trades for a substantial period of
time . He also impressed me as given to a precise use of terms and the
English language I am convinced that his testimony accurately recounts the
explanation given to Bretz and Gary and Jerry Sherrell, as well as the
statement made to Blake on the occasion in question I am further
convinced that the recall of Bretz and Sherrell was inaccurate and tempered
by their subjective interpretation of the meaning and import of Luckett's
statement.
21 The foregoing is based upon the testimony of Isadore Mendez.
Mendez further testified that he heard no explanation of the card's purpose
and did not understand its function at the time he signed it.
22 The foregoing findings with respect to the duties of J. C Campbell are
based upon a consideration of the testimony of Campbell, Joel Lathan, Guy
Plumlee, and Giles Luckett. The findings with respect to the duties of Sam
Harrell are based upon the testimony of Joel Lathan, John Shaw, and
documents of record. The finding to the effect that Harrell exercised
THE ROWAND CO., INC.
5. The events of August 4
a. The picketing
During the evening of August 3, Morce informed Lathan
and other employees to whom he had spoken concerning
authorization cards, that they should assemble at the
Carrizo Canyon cattle guard entrance prior to the 7 a.m.
starting time on August 4. Morce asserted he would make a
card-based demand for recognition upon the Company.
Consistent with this plan Morce and Powers arrived
substantially in advance of the 7 a.m. hour and they were
joined by Lathan and Luckett.
Prior to 7 a.m., employees from both on and off the
reservation arrived at points proximate to the cattle guard.
As found, card-signing activities were conducted by
Lathan and Luckett at the cattle guard but outside the
reservation. They were assisted in this regard by Morce
and Powers. In the main, the Indian employees assembled
and remained on the reservation side of the cattle guard
entrance . During the course of the morning as events
unfolded, they convened at the entrance itself on the
reservation side so as to prevent the ingress of vehicular
traffic. In the meantime, according to the credited
testimony of Sammy Cooper, the six Indian employees
who remained from an initial complement of approximate-
ly 18 had decided prior to the morning of August 4 to meet
at the cattle guard and prevent the Company from entering
the reservation. This was intended to serve as a show of
protest against the treatment and termination of Indian
employees.
b. The demand
Guy Plumlee arrived at the cattle guard at approximately
6:45 a.m. He drove there in his pickup in the company of
Sam Plumlee and J. C. Campbell. He was the first member
of supervision to appear at the picket line. Plumlee drove
his vehicle to within approximately 50 feet of the cattle
guard and was approached by John Morce who presented
a group of signed authorization cards to Plumlee for his'
authority to assign employees work tasks and direct them in the
performance of their work is based upon the testimony of Joel Lathan
viewed in light of evidence hereinafter considered relating to the grievances
lodged by Indian employees against Harrell and the corrective action taken
by the Company to insulate Harrell from direct contact with employees and
to place severe limitations upon his authority vis-a-vis employees. While I
do not discredit the testimony of John Shaw to the effect that Harrell had
no specific investiture of authority to direct or assign employees, the record
evidence convinces me that , without countermanding action on the part of
Guy Plumlee , under whom Harrell worked, Harrell actually directed the
work of employees and made work assignments . Guy Plumlee did not
testify to the contrary.
23 Included were the cards of Edgar Torres and Giles P. Luckett, who
had been terminated . Plumlee also singled out the card of an employee who
had been demoted for allegedly being intoxicated on the job.
24 The foregoing is based primarily upon the credited testimony of John
Morce and Guy Plumlee . I credit Guy Plumlee to the effect that a
discussion transpired concerning the employment status of several of the
card signers . This testimony gains inferential support from that of John
Morce who testified that Plumlee commented to him that some of the
103
perusal. In so doing , Morce stated that he was a
representative of the Operating Engineers . He further told
Plumlee that the Union represented a majority of the
employees "working for him." He stated that he would like
to have Plumlee check the signatures on the authorization
cards . Plumlee looked at each card and after doing so
extracted three from the group and stated that there was no
point in discussing those three cards .23 A discussion
followed concerning the assertedly union -related reason
for the termination of Luckett and the fact that certain of
the other card signers no longer were employed on the
project . Morce asked if Plumlee would recognize the
Union and Plumlee declined . Plumlee left without actually
making a numerical computation of the number of cards
presented to him and without alighting from his vehicle.24
From the cattle guard entrance , Plumlee drove to the
Ruidoso office of the Company where he spoke with John
Shaw . He informed Shaw that the picketing had com-
menced and that the job was shut down . They contacted
Richard Rowand by long distance telephone and transmit-
ted the information to him. Rowand specifically informed
Plumlee and Shaw that only he, Rowand, had the authority
to grant recognition to the Union. Shaw was instructed to
"find" out what was "going on" and to convey the
information to him. Rowand told Shaw to contact legal
counsel and he asserted that he would undertake travel
from his Arkansas office to the jobsite. Rowand did not
reach Ruidoso until August 6.25
From his office, John Shaw called Richard Wardlaw, an
administrative assistant to the president of the Mescalero
tribal council who had previously requested Shaw to keep
him informed concerning matters affecting the job. Shaw
informed Wardlaw of the work stoppage. He then went to
the jobsite. Shaw drove to the cattle guard from inside the
reservation. When Shaw arrived at the cattle guard, a truck
was stopped awaiting entrance to the jobsite. Shaw
approached Morce and asked if he would permit the truck
to enter the reservation and Morce answered that it was
not up to him but that this was a matter for the Indians to
determine . Shaw did not seek permission from the Indians
but instructed the driver to circle around the reservation
signators were no longer employed. The testimony of Guy Plumlee and J. C.
'Campbell establishes to my satisfaction that Plumlee was accompanied by
Campbell and his son on the occasion in question and testimony to the
contrary is not credited . Moreover, I credit the testimony of Plumlee to the
effect that he did not leave the vehicle during his initial visit to the cattle
guard entrance . The testimony of Joel Lathan to the effect that he got out of
the automobile and made acrimonious comments is not credited. The
testimony of John Morce concerning the nature of the recognition request is
the principal basis for the findings concerning the substance of the demand.
Guy Plumlee testified he did not recall all of the details of the conversation
but in salient aspects his testimony supports that of Morce regarding the
demand for recognition.
25 Undisputed testimony of Guy Plumlee and John Shaw , viewed in light
of the affidavit of Richard Rowand received in evidence by stipulation,
establishes the foregoing. I do not credit the testimony of Guy Plumlee that,
in speaking to John Morce at the cattle guard entrance , he advanced his
lack of authority as the reason for refusing to grant recognition to the
Union. This absence of authority may have motivated Plumlee 's declination
but, consistent with the credited testimony of John Mora , I find that this
was not articulated as the basis for the refusal to grant recognition.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and enter from the other entrance . There was no request
for recognition made by Morce to Shaw and no discussion
of the Union ensued.26
Later, during the morning while the picketing continued,
Plumlee returned to the cattle guard entrance. He was
accompanied by Gary Bridges and Plumlee spoke with
Morce . Plumlee asked Morce if he could copy the names
appearing on the authorization cards . Morce declined but
held the cards in his hand and turned each one over for
Plumlee to observe . Morce asked Plumlee if he would
recognize the Union and Plumlee said no 27
c. The alleged dozer threat
While Plumlee and Bridges were at the picket line on this
occasion, Bridges took a union picket sign which had been
placed in the cattle guard and threw it into a ditch. Morce
retrieved the sign from the ditch . At this point in time
Plumlee stated in a loud voice that he would get a D-8 and
clear the area out . He made this statement in response to
an inquiry of an employee to whom he was speaking.28
d. The afternoon meeting
In the interim, Richard Wardlaw had informed Fred
Heckman that picketing had commenced at the cattle
guard . Heckman went to the jobsite and observed the
picketing . He spoke with Sammy Cooper and Clifford
Chee , as well as other tribal members . He spoke also with
John Morce and Bosco Powers . From these conversations
he learned the nature of the difficulty . He thereupon
returned to Ruidoso and spoke with Wardlaw. They
together spoke by long distance telephone to the tribal
president . As a consequence of the consultation and in an
effort to diffuse the potentially explosive situation, Heck-
man undertook precautionary measures , including consul-
tation with John Shaw and with the Indian employees. A
meeting was scheduled for 1 p .m. at the tribal administra-
tion facility . Shaw, Morce, Powers , and the Indian
employees were informed of the meeting. The meeting
transpired as scheduled.
The meeting was attended by Heckman , Wardlaw, and
Max Williams, project engineer , representing the tribal
administration ; Shaw, Plumlee , and Bridges , representing
the Company; Morce and Powers , representing the Union;
and a large number of Mescalero Indians, including
Cooper and Chee.29 Joel Lathan attended the meeting and
at least three other non-Indian employees were present.
Heckman opened the meeting, stating, in substance, that
to enlighten the tribal government and staff he wanted the
Indian employees to explain the nature of the employee
grievances and the background events which had led to the
picketing and blockading of the cattle guard entrance to
2e The foregoing is based upon the testimony of John Shaw as supported
by that of John Morce.
27 The credited testimony of John Morce and Guy Plumlee supports the
foregoing.
2e The record testimony amply supports the foregoing findings. Guy
Plumlee testified , in substance , that he made a comment of the variety
above found during the stress of the activities that were taking place and, in
effect, conceded that he spoke in a loud and irritated fashion. Upon a
consideration of the testimony of John Morce , Giles Lockett, and Joel
Lathan , however, I am unable to credit Plumlee 's version of the substance
of his comments concerning the use of the D-8.
the reservation. Heckman stated further that he desired to
have the Company respond to the statement of position
offered by the Indian employees. Heckman stated that he
then wished to hear a definition of the Union's role in the
matter, including a restatement of the representations
which had been made by union representatives to the
employees concerning the benefits and costs to the men
should they join the Union.
In initial response, Sammy Cooper arose and asked Shaw
if he had come to bargain and if he were "ready to
bargain." Shaw responded that he had no authority to
negotiate and that this authority resided with Richard
Rowand. Cooper stated, in substance, that if Shaw were
not there to bargain there was no benefit in continuing
with the meeting. At the entreaty of Heckman, the Indian
employees commenced to articulate their grievances. These
related to alleged absence of safety and sanitation facilities,
deficiencies and improprieties in supervision, and discrimi-
nation against Indian employees in favor of non-Indian
workers. In addition, it was asserted that there was not a
sufficient supply of drinking water and that intoxicating
beverages were permitted on the project. Individual
Indians voiced complaints. In response to certain of the
alleged grievances, Shaw stated that he had not been aware
of what had been going on out on the project and asserted
that the employees should have consulted the Company
concerning the matters.
During the course of the meeting, Morce asked Shaw if
he would concede that the Union represented a majority of
the employees. Shaw answered in the affirmative.30 In
open meeting while company representatives were present,
Morce and Powers stated that if the employees wanted the
Union to represent them, the Union would do so but if the
employees desired otherwise the Union would be willing to
leave the employees to their own devices. Twice during the
meeting Morce cautioned Shaw that for him to discuss
employee grievances was unlawful. Shaw disclaimed
knowledge of the legal niceties and offered to abstain if he
were proceeding improperly. Morce did not seek to
foreclose discussion of the grievances in the presence of the
company representatives.
As the meeting progressed, the Indian employees stated
their determination to deny access to the reservation until
their grievances were satisfied by the Company. Heckman
and Wardlaw, on behalf of the tribal administration,
suggested an airing of the matters before the tribal council.
As a quorum of the council could not immediately be
convened due to the out-of-town absence of several
members thereof, Heckman and Wardlaw explored possi-
bilities of an interim termination of picketing and a
temporary return to work pending action of the tribal
council. This led to a discussion of relationships between
29 John Shaw had sought to have the meeting deferred until Richard
Rowand arrived in Ruidoso but he was unsuccessful in this effort. In the
meantime , at Rowand 's direction, Shaw made efforts to contact legal
counsel
30 John Shaw testified, in substance , that he had never seen the
authorization cards upon which the Union based its claim of recognition
and that his assumption as to the majority status of the Union was
predicated upon the account given to him by Guy Plumlee of Morce's
picket line demand as well as upon the number of individuals whom
Plumlee had stated were at the situs of the picketing on the morning of
August 4.
THE ROWAND CO., INC. 105
the individual employees and the Union which Morce
preferred to have discussed outside the presence of the
company representatives. Accordingly, the representatives
of the Company departed as did employees Jerry Sherrell,
Gary Sherrell, and Don Bretz.
Following the departure of the company officials, the
Union described the benefits accorded employees by
membership and it was decided to defer further discussion
until the tribal council convened . It remained for the
Indian employees to determine whether or not to return to
work. This matter was unresolved when Heckman,
Wardlaw , and Williams left the meeting . Some Indian
employees remained.
Following the meeting, the Indian employees removed
the barricades from the reservation side of the cattle guard
entrance . They returned to work on Monday morning,
August 7.31
6. The August 5 discussions
On August 5, Sammy Cooper contacted John Shaw and
requested a meeting with him. It was agreed that the
meeting would be held at the Villa Inn in Ruidoso. Cooper
conveyed to Joel Lathan his intention to meet with Shaw,
and Lathan made arrangements to meet Cooper at
Cooper's residence and to proceed to the Villa Inn
together. When Lathan went to Cooper's home, he found
Cooper indisposed. Lathan proceeded to the Villa Inn
accompanied by his wife. He entered the Villa cocktail
lounge alone , and Shaw and Guy Plumlee were sitting
together at the bar. When Lathan entered, at the
suggestion of Shaw and Plumlee that they talk together,
they moved to a table in the lounge. After approximately
10 minutes , they were joined at the table by Clifford Chee.
Ellen Lathan, Joel Lathan's wife who had remained in the
Lathan automobile, also joined the group.
At the outset of the meeting, Joel Lathan stated that he
wanted to see if the problems between the employees and
the Company could be worked out so that the employees
could go back to work. Lathan added that the Indian
employees did not need the Union if these matters could be
resolved. He produced an envelope on which penciled
notations had been entered . These notations served as a
basis for discussions which transpired between Shaw and
Plumlee , on the one hand, and Lathan and Chee, on the
other. The discussions related primarily to grievances or
issues that had been raised at the meeting held at the tribal
31 The foregoing is based primarily upon the credited testimony of Fred
Heckman . I have also considered the testimony of various witnesses relating
to this meeting and credit it only to the extent it is consistent with the
foregoing findings. Specifically , I credit the testimony of John Morce and
Joel Lathan, which gained support from the testimony of Fred Heckman, to
the effect that John Shaw stated that the Company was not aware of the
existence of many of the conditions and shortcomings which had been
described to him by employees during the course of the meeting; and the
further comment of Shaw to the effect that the employees should have
apprised the Company. In finding that the Union , in effect, agreed to
continue or abstain from representing the employees, conditioned upon
their wishes, I have considered the testimony of John Morce, Boscoe
Powers , Joel Lathan , Fred Heckman , and John Shaw . On the other hand, I
do not credit the testimony of Morce and Lathan to the effect that a show of
hands vote was taken at the meeting whereby the Indian employees revealed
support of the Union Fred Heckman was unable to recall such a vote and
Heckman impressed me as a thoroughly objective witness who endeavored
administration facility on the previous afternoon. As the
discussion developed , Shaw made notations on yellow,
lined note paper and at the end of the discussion Shaw and
Plumlee each affixed their respective signatures at the
bottom of the sheet of paper. Lathan took custody of it.
The paper contained notations on 10 different subjects,
one of which was included at the initiative of Shaw and
Plumlee .32 The other nine were evolved from the discus-
sion of topics which Lathan and Chee introduced as
grievances or irritants to the Indian employees.
During the discussion , Lathan suggested the appoint-
ment of a steward . From this discussion evolved an entry
which was listed as item 6 on the 10-item list . In substance,
this entry reflects company agreement to permit a steward
elected by the employees to act and to be consulted in
advance of any personnel action against him. Additionally,
this item calls for a form of third-party arbitration to
resolve disagreements between the Company and the
steward concerning the propriety of proposed company
action.
During the meeting, the antagonism felt by the Indian
employees toward Eugene Mitchell , then serving as grade
foreman, was expressed and discussed . Shaw and Plumlee
noted that Mitchell was a qualified and capable individual
and would have to be replaced by someone with similar
capabilities . Plumlee inquired if Lathan were satisfied in
his present position and whether he felt he was qualified to
serve in the position of grade foreman . Lathan disavowed
any interest in benefiting personally from the Company's
resolution of the grievances under discussion, but Shaw
stated that if there were an Indian employee qualified to
replace Mitchell, he would make the change.
After completing the substantive discussions at the
lounge of the Villa Inn , the group went to another lounge
in Ruidoso . The events of the evening which commenced
at approximately 6:30 p.m. ended at approximately 1:30
a.m. on August 6 .33
The following morning, Lathan gave Cooper the paper
containing the notations of Shaw and the respective
signatures of Shaw and Plumlee . Thereafter, Cooper took
the notations to the office of Richard Wardlaw where the
notations were prepared in typewritten form.34
7. The August 6 meeting
On Sunday, August 6, Sammy Cooper contacted John
Shaw and thereafter Richard Rowand, Shaw, Guy Plum-
to the best of his capacity to recount the occurrences and details of the
meeting in question. Sammy Cooper was convincing in his denial that any
such vote was taken at the meeting.
32 This related to intoxication or consumption of alcoholic beverages on
the project and specified it as grounds for termination. This matter had
received a general airing at the meeting the prior afternoon.
33 The foregoing findings with respect to the August 5 discussion and
social gathering is based upon a consideration of the testimony of John
Shaw, Joel Lathan , and Ellen Lathan . I do not credit the testimony of Joel
and Ellen Lathan to the extent that it infers that in specific terms Shaw
and/or Plumlee offered to designate Joel Lathan as grade foreman if he
would assist the Company in getting rid of the Union . I credit John Shaw in
finding that no specific offer or suggestion of this type was made.
34 In this latter regard, I credit the unequivocal testimony of Sammy
Cooper and reject the surmise of Joel Lathan that the typewritten document
was prepared at the offices of the Company.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lee, and Gardy Bridges met with Cooper and his wife at the
Chaparral Motel. Cooper brought to the meeting the paper
containing the notations of the discussions between
Lathan, Shaw, and Plumlee and spoke to Rowand about
the grievances which the employees had. He informed
Rowand that the Indian employees did not fully under-
stand the union question and did not want the Union if the
Company could guarantee that the employee grievances
would be corrected. Rowand left Ruidoso on Sunday
knowing that the work stoppage would not be resumed and
that the employees would return to work on Monday.35
8. The August 9 tribal council meeting
At approximately mid-day on August 9, Cooper went to
the tribal offices and met with Heckman who had been
endeavoring to arrange a meeting of the tribal council.
Cooper informed Heckman that the men had gone back to
work and discounted the likelihood of any violence or
exigency which would render necessary an immediate
meeting of the tribal council. Cooper further informed
Heckman that the problems appeared to have been solved
and that the Indian employees did not desire to have the
Union represent them. However, Cooper expressed con-
cern to Heckman regarding the means to be employed in
declaring the desire of the Indian employees to be freed of
any commitment to the Union.36 Heckman made unsuc-
cessful efforts to obtain legal advice and concluded that
the Union would have to be informed of the decision of the
Indian employees. No immediate action was taken,
however.
A quorum of the tribal council met on the afternoon of
August 9. Sammy Cooper was present as were John Shaw
and Guy Plumlee .37 Shaw had received an invitation in
memorandum form inviting him to attend the meeting. A
similar invitation was addressed to Sammy Cooper and to
Max Williams, the project engineer.
The meeting was presided over by Samson Miller, tribal
vice president. The question of union representation was
raised by Wardlaw and Cooper asserted that the union
employees did not want the Union and were back to work.
The typewritten reproduction of the notations made during
the August 5 discussion between Lathan, Shaw, and
Plumlee was brought to the meeting by Cooper. With
Samson Miller leading the discussion and Shaw participat-
ing in the explanation, the 10 items contained on the
typewritten "grievance list" were individually and sepa-
rately discussed. As a consequence of the discussion of the
grievance item relating to the designation of a steward, the
impression was received that the Company and the Indian
employees had opened a channel of communication.
Following the council meeting, the tribal president
caused to be prepared a memorandum, dated August 9,
containing the following:
35 The foregoing is based upon a consideration of the testimony of
Sammy Cooper, John Shaw, and the affidavit of Richard Rowand received
in evidence by stipulation of the parties.
36 Kenneth Heckman credibly described the custom-based mental
process which impels the Mescalero Indians desiring to revoke any written
commitment mto which they had entered to do so in wasting . Heckman
testified credibly that Cooper suggested the necessity of a written
cancellation of the signed authorizations given the Union.
ar Fred Heckman credibly testified that Cooper's past leadership
Today the Tribal Council met with your representative,
Mr. Samuel Cooper, and management of The Rowand
Company.
Difficulties occurring during the past several weeks
were reviewed and their respective solutions discussed.
We are pleased that communications have been opened
and that problems are being freely discussed now.
We are glad to learn that construction is back under
way at the project . You should all be commended on
your gentlemanly behavior during the dispute. It
appears that Rowand has recognized the problem and
taken steps to correct problem areas.
Please keep in mind that your Tribal Council and
Tribal President will work in your behalf. Should future
problems arise that cannot be resolved on the job, we
would appreciate being immediately informed by either
party so that we might have an opportunity to assist in
the solution of the problem.
The memorandum was distributed on the job at the order
of the tribal president.
During the week that followed, the Company undertook
to remedy the grievances specified on the "grievance list."
Specifically , seat belts were installed, fresh water was
supplied, Eugene Mitchell was terminated from his
position as grade foreman , and Sam Harrell was ordered to
cease giving work instructions to employees , thus effective-
ly endowing Plumlee and Bridges with exclusive authority
to instruct employees.
9. The designation of a "steward"
Prior to the commencement of work on the morning of
August 21, John Shaw approached Bernard Little and
asked Little to assemble the Indian employees. When the
group had assembled, John Shaw noted that there had
been a request that the employees be permitted to select
their own steward. Shaw suggested that they proceed to do
so by means of an election. One of the Indian employees
suggested that Bernard Little be designated and he was
selected. Richard Rowand was approximately 25 feet away
and other non-Indian employees had gathered nearby. The
election took place on the work project. One or two non-
Indian employees may have participated in the election.
After the election of Little, Richard Rowand inquired
into the status of Sammy Cooper as spokesman for the
employees. One of the Indian employees, Justin Mendez,
asserted that Cooper had been self-appointed. Cooper was
not present during the election of Bernard Little.38
positions in the tribe and current conversations with tribal members and
Cooper had led him to believe he was the acknowledged spokesman for the
Indian group.
38 The foregoing is based principally upon the credited testimony of
Bernard Little and John Shaw. I do not credit the testimony of little to the
extent that it may infer that Rowand's inquiry into the status of Sammy
Cooper transpired prior to the election. Shaw credibly testified that Rowand
made no comment to the assembled group of employees until after the
election had transpired.
THE ROWAND CO., INC. 107
10. The August 22 petition
As a first order of business , and pursuant to inquiries
from Indian employees , Little caused to be prepared and
circulated a petition declaring the desire of signatory
Indian employees not to be represented by the Union.
Little prepared the petition and had it typed in the office of
Richard Wardlaw. Little circulated the petition which was
signed on August 21 and 22 by 20 individuals.39 The
original copy of the petition was forwarded by mail to the
Company. John Shaw retained the original in his office.90
Joel Lathan testified that Little approached him with the
petition and requested him to sign it. Lathan testified
further that Little made this request at a time when the
petition bore approximately five signatures . Lathan ques-
tioned the wisdom of Little's action and asked Little what
he was endeavoring to do . Little responded, "Well, we're
all going along with this; and if you don't sign the paper,
you're probably going to be fired." Little was not in a
supervisory capacity with the Company 41
At the time of his selection as spokesman for the Indian
employees, Bernard Little was approximately 62 years of
age and had previously served 8 or 9 years as a tribal judge.
Additionally , he had served in the position of tribal
secretary for approximately 2 years, and had served as
treasurer and as president of the cattle growers association.
He is an incumbent of the board of the cattle growers and
had also been a member of the tribal counci142
11. The termination of Giles Luckett
a. His employment
Giles Luckett was employed by Respondent on Monday,
July 31. He was terminated on Thursday, August 3. He
worked as a mechanic on July 31 and August 1. On August
2, he was assigned to operate a dozer and returned to that
assignment on August 3 prior to being terminated at
approximately 8 a.m.
Before his hire , Luckett had made telephonic contact
with both John Shaw and Guy Plumlee. In speaking with
Plumlee, Luckett had stated that he was a "union man"
presently working on a "non -union job" and he asserted
that it was not requisite for him to work solely on union
projects . Plumlee stated that this made no difference
because union wages and benefits were paid by the
Company . Plumlee inquired as to Luckett's skills and was
informed that he could operate a dozer, blade, scrapper
and serve as a mechanic. Luckett had had 15 years of
experience as a dozer operator and had had successful
employment experience with several construction firms. He
was not immediately hired by Plumlee . However, Luckett
39 Eight of the signators had executed union authorization cards.
40 The foregoing is based upon the testimony of Bernard Little, John
Shaw, and documents of record.
41 This testimony of Joel Lathan was not refuted in the record . Lathan
also testified that following Little's designation as "steward," Little began
"acting as a boss" and had "been in charge" of employees working on the
brush pile, receiving directives from Plunilee as to orders to be transmitted
by little to the employees . Lathan further testified that Little began "nding
around" instead of doing rank-and-file work . On the other hand, the
testimony of Little and Guy Plumlee is to the effect that Little served only
in a rank-and-file capacity during the period of time in question . However,
ltudes further testified that , in Little's role as spokesman for the Indian
had occasion to refer Ted Thoma to the Company. Thoma
was employed as a dozer operator and through Thoma,
Plumlee informed Luckett that he would soon be contact-
ed. Plumlee did contact Luckett soon thereafter and
Luckett was employed as a bulldozer operator .43 Thoma
remained in Respondent's employ at the time of the
hearing.
Luckett was not initially used by Plumlee as a dozer
operator because Plumlee had more immediate needs for
someone with mechanic skills . Plumlee observed Luckett's
work as a mechanic and found him lacking in optimum
speed and productivity. On August 2, Plumlee needed a
dozer operator and, as found , assigned Luckett to a dozer.
b. The discharge effectuated
On August 2, Luckett worked at assigned tasks operating
a dozer . The morning hours were spent in dirt loading
operations. In the afternoon Luckett operated the dozer in
various dirt removal capacities. During the course of the
day he had occasion to speak to Eugene Mitchell three
separate times in an effort to obtain instructions or
permission to perform designated tasks . On the initial
occasion when Luckett sought instructions from Mitchell,
Mitchell asserted that he was "tired of trying to teach a
new crew every week how to do [the ] work." J. C.
Campbell credibly testified he observed Luckett improper-
ly piling rocks and brush on August 2 and was assigned to
remedy the condition created.
On August 3, Luckett again operated the dozer. He
worked approximately an hour in stripping an embank-
ment and at approximately 8 a.m. was informed by
Plumlee that he was being terminated . Earlier in the
morning Plumlee had observed Luckett's work and had
returned to the situs of Luckett's return , Luckett had
parked his dozer and Plumlee observed Mitchell in the
vicinity. Plumlee and Luckett spoke together and Plumlee
informed Luckett that he was unable to use Luckett
because Luckett could not do what Luckett had stated he
could do. Nothing further was said and Luckett's termina-
tion was effectuated.
Luckett testified that on the morning of August 3, he was
working on a steep embankment which had necessitated
positioning the dozer on an angle to the hill. He further
testified that he had 15 years' experience as a dozer
operator and had never been terminated from employment
for any reason relating to work capabilities.44
On the other hand, Plumlee testified that he observed
Luckett's work during the workday of August 2 and for a
period of time on the morning of August 3. He further
testified that, in the meantime, Mitchell had given him an
employees, Little was used as a contact for securing Indian laborers to work
on the job. Additionally , Plumlee and Little consulted together on problems
in the nature of grievances which arose.
42 The foregoing is based upon the undisputed testimony of Bernard
Little.
43 The foregoing is based upon a composite of the credited testimony of
Giles Luckett and Guy Plumlee. I credit the testimony of Luckett
concerning the range of skills which he specified to Plumlee he possessed.
44 Giles Luckett credibly testified that following his termination on
August 3 he became employed in the capacity of a mechanic and was
subsequently promoted to master mechanic and offered the position of
equipment superintendent.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adverse evaluation of Luckett's productivity and he had
received a complaint from Ted Thoma to the effect that it
had been necessary for him to "straighten out" Luckett's
dozing work.
Plumlee further testified that when he returned to the
situs of Luckett's work on the morning of August 3 after
having observed Luckett perform work that morning, he
had already reached a determination to terminate Luck-
ett's employment. He further testified that before he spoke
to Luckett, Mitchell had gone in search of Luckett's
replacement, employee Lyle Walker. Plumlee further
testified that he and Mitchell had discussed Luckett's
termination the previous day, but that he had not
specifically instructed Mitchell on the morning of August 3
to search out Luckett's replacement. Plumlee conceded
that the hill on which Luckett had been working on the
morning of August 3 was a steep one, but he asserted that
three other operators had successfully worked on the hill.
Moreover, he testified that on the previous day, August 2,
he had observed Luckett work with the dozer and found
that he was not operating it efficiently.
Following Luckett's termination, Plumlee had occasion
to speak to Joel Lathan. Lathan requested Plumlee to
reassign him to the dozer and asserted that Luckett could
not run a dozer as well as he could. Lathan added that
Luckett had tried to organize the employees. Plumlee
declined Lathan's request, saying, in substance, that
Lathan lacked sufficient skill to operate a dozer as well as
Plumlee desired and that he would remain on the roller. He
observed, further, that Luckett had already been terminat-
ed and his involvement in unionization efforts was of no
concern.45
Plumlee testified that he terminated Luckett because of
his deficiencies as a dozer operator and added that he was
not a fully productive mechanic. Plumlee conceded that at
the time of Luckett's termination the Company had need
for a competent dozer operator.
At the time of Luckett's termination, no reference was
made by Plumlee or Luckett to Luckett's union activities.
The following morning, August 4, on the picket line, as
found above, Morce charged that Plumlee had terminated
Luckett for union activity. Luckett denied this, asserting
that the termination had been accomplished because
45 The latter findings are based upon the credited testimony of Guy
Plumlee I do not credit the testimony of Joel Lathan to the effect that soon
after Luckett's termination Plumlee informed him that he had run Luckett
off the job because he had tried to bring a union in.
The record as a whole reveals that Lathan was ambivalent in his affinity
to the cause of the Union and, in the showdown, revealed a willingness to
abandon the Union in order to achieve more immediate employee
objectives It is entirely consistent with Lathan's nature and personal
objectives , I am convinced, for Lathan to have spoken to Plumlee in the
manner above found , seeking in the process to obtain his own immediate
objective of being assigned to a dozer in Luckett's stead and to seek also at
the same time to place the onus for bringing in the Union on Luckett whom
Lathan knew to be a principal advocate Lathan's tendency toward fleeting
loyalty to the union cause renders totally unpredictable his future course of
action , had Plumlee acceded to his request to be assigned to a dozer. Had
Lathan achieved this objective, it is entirely foreseeable that he would have
avoided any card-signing activities at the picket line on August 4, and that
he would have striven to keep his leadership role in the union effort a secret.
It was the shielding of his role as a leading advocate of the Union that was
crucial as a protective device against possible employer retribution, for
Lathan well appreciated that the fact of the organizational effort would
Luckett could not operate the dozer in the manner he had
represented.
12. The termination of Joel Lathan
a. Lathan's work assignments
Joel Lathan commenced his employment with the
Company on or about July 8. He was initially employed in
the capacity of a scraper operator. Subsequently, he was
assigned to operate a dozer but was taken off the dozer on
August 2 when Giles Luckett was assigned to it. Lathan, in
turn, was assigned to work as a laborer. However, on
August 3, following Luckett's termination , Lyle Walker
was transferred from the roller to the dozer which had been
operated by Luckett and Lathan was reassigned to the
roller. Greater skill is required to operate a dozer than is
required for operation of a roller. Soon after August 3,
however, Lathan was again assigned to operate a dozer and
remained as a dozer operator until August 15 when he was
demoted to the laborer classification.
On August 3, the dozer to which Lathan had been
assigned became incapacitated through being immersed in
mud. Similar episodes occurred on August 9 and 14. On
the latter occasion, Lathan's dozer became so deeply
buried in the mud that the fan and floor boards were
covered and the mud rose to the top of the engine of the
dozer. A crane was used to extract the dozer from the mud.
It was necessary to repair the dozer after it had been
freed.46
On August 15, Lathan's job classification was changed to
that of laborer. Thereafter, on or about August 21, Lathan
observed another employee operating the dozer which he
had been operating on August 14. Lathan asked Plumlee
why the other employee was operating his dozer.47 Plumlee
answered that Lathan had taken a year's life off the dozer
when he had immobilized it in the mud. Lathan contested
this and questioned Plumlee 's action in reassigning the
dozer to another employee. He requested permission to
speak with Shaw. He did so. Shaw, Plumlee, and employee
Chee participated in the discussion.
In speaking with Shaw, Lathan protested Plumlee's
assignment of his dozer to another employee. Plumlee
intervened during the course of the statement and asserted,
soon be disclosed to the Company , and he had reason to believe on August
3 that the authorization cards would be used to gain recognition from the
Company It is pertinent to note that while Lathan willingly signed an
authorization card, he sought to avoid having cards signed by others
returned to him on the job. Considering this, and upon the record as a
whole, I find a logical basis for Lathan 's willingness to disclose to Plumlee
the emergence of organizing efforts and Luckett 's involvement therein.
Moreover , in finding that Plumlee spoke to Lathan in the manner above
found, I reject the testimony of Lathan to the effect that on August 2
Plumlee spoke in flattering terms concerning Luckett's capacity as a dozer
operator Lathan's account of what Plundee purportedly said was to an
extent garbled , and Lathan clearly lacked certitude with respect to what
Plumlee supposedly did say . Lathan's marked tendency to rationalize parts
of his testimony , and the absence of separate evidence revealing any high
degree of skill vested in Luckett as a dozer operator requires rejection of this
facet of Lathan's testimony.
46 The foregoing is based upon the credited testimony of Guy Plumlee. I
credit the testimony of Joel Lathan only to the extent that it is consistent
with the foregoing.
17 The record suggests that Lathan had been under the impression that
his dozer was undergoing repairs.
THE ROWAND CO., INC. 109
in substance, that the transfer had been effectuated
because Lathan had caused the dozer to become stuck in
the mud . In the course of the discussion which followed,
Shaw withdrew from his desk the petition which had been
circulated by Bernard Little among the employees on the
project 48 Lathan studied the petition and handed it back
to Shaw . He asked Shaw if he were going to get his dozer
back. This led to a discussion between Shaw and Plumlee
regarding Lathan's competency as a dozer operator. Shaw
informed Lathan that he would render a decision later.49
Lathan testified that in an effort to obtain reassignment
to his dozer, he asked Bernard Little in his capacity as
steward to intervene on his behalf. Lathan credibly
testified that Little refused to do so , asserting , in substance,
that the fault for immobilizing the dozer resided with
Lathan. Lathan disputed this point with Little, contending
that Little had directed Lathan to perform the work which
had resulted in the dozer becoming stuck.
Lathan testified independently that on August 14
Bernard Little had directed him to perform the work which
had resulted in the immobilization of the dozer and that
during the period in question other machinery operated by
other employees had become immersed and immobilized
due to mud conditions.
After August 15 when Lathan' s classification was
changed to that of laborer, he worked a total of 7 days in
the capacity of a laborer . On September 8, his name was
removed from the payroll records of the Company.
b. The termination of Lathan effectuated
On September 8, Plumlee reached the decision to
terminate Lathan. However, because Lathan did not work
on September 8, Plumlee did not effectuate Lathan's
termination until September 9. Lathan had not reported to
work on September 7 or 8 but he had worked on
September 6. September 7 was a cloudy day and eight
employees reported to work. However, work ceased at 2:30
p.m. on September 7 because of rain. The following day
was a wet day but eight employees worked from a payroll
complement of 34. In the period from August 15 through
September 8, there were 16 normal workdays. On five of
these days, excluding September 7 and 8, the project was
closed down because of inclement weather.
Lathan was informed of his termination on September 9
+8 As previously found, the petition stated the desire of the signatory
employees not to have the Union represent them.
+a The foregoing is based upon a composite of the credited testimony of
Joel Lathan and John Shaw. I credit their respective versions of this meeting
only to the extent that the testimony is consistent with the above findings.
Specifically, I do not credit the testimony of Joel Lathan to the extent that it
infers that when Shaw handed him the petition, he asked Lathan in specific
terms whether Lathan was going to sign the petition. On the other hand,
however, I do not credit the testimony of John Shaw to the effect that the
petition was not shown Lathan until Plumlee and Chee had departed from
his office and the discussion of the dozer assignment had been terminated. I
credit Shaw's testimony that he showed Lathan the petition knowing that
Lathan was a leader in the organizational effort and desiring, therefore, to
obtain Lathan's reaction to the petition
50 The foregoing findings are based upon a consideration of the
testimony of Guy Plumlee, Joel Lathan, and J. C. Campbell. I credit the
testimony of Plumlee and Campbell to the effect that Campbell was present
during the incident in question and overheard the conversation between
Plumlee and Lathan. Campbell testified persuasively with respect to his
presence and Plumlee credibly explained why counsel for Respondent
by Plumlee when Lathan entered the trailer office of John
Shaw to obtain his paycheck. Shaw was not present in the
office but Plumlee and J. C. Campbell were. Plumlee asked
Lathan for his hard hat and informed Lathan that he was
being terminated because he had not shown up for work
"enough." Lathan asserted that he had had rain for 2 days
but Plumlee answered that "other people" had reported.
Lathan asserted that if the Company were going to operate
in the State of New Mexico, it would have to do so under
union conditions. Plumlee did not reply directly but
handed Lathan the business card of the attorney whom the
Company had retained. He suggested that Lathan contact
the attorney if Lathan desired to pursue the matter. As
found, the initial charge in the instant proceeding had been
filed on August 9 .50
Guy Plumlee testified that on the morning of September
8 he reached the decision to terminate Lathan. He testified
that he did so because Lathan had failed to report to work
on the 2 previous days, and he had observed Lathan on
two or three occasions during the prior 48-hour period
driving up and down the road near the work project in his
automobile. Additionally, at approximately 7 a.m. on the
morning of September 8, he had received a report to the
effect that Lathan had been observed by the night
watchman in the company equipment yard. This observa-
tion allegedly had transpired at approximately 4:30 a.m. on
September 8. In deciding to terminate Lathan, Plumlee had
given weight to these two considerations and was motivat-
ed also by the fact that Lathan had caused his dozer to be
buried "in the creek"; Lathan's asserted inability to
operate a dozer; his alleged failure on the last day of his
employment to endeavor to do any "productive work,"
occasioned, in part, by his alleged continual interruption of
other employees; and his asserted three separate 1-hour
visits to the office to discuss the reasons for his removal as
a dozer operator; his asserted refusal to work as a roller
operator or a laborer; and the alleged refusal of Indian
employees to work with Lathan as a laborer because of
Lathan's reported attitude and alleged dangerous use of a
chain saw while working with other laborers. Plumlee
denied that Lathan was terminated for union activities.
Plumlee testified that at the time of the last dozer
burying incident he had Lathan's explanation of the
circumstances surrounding the burying of his dozer in the
mud. As found, Lathan, in substance, explained that he
belatedly learned that Campbell witnessed the termination of Lathan. A
careful analysis of Campbell's testimony convinces me that , contrary to the
contention made by General Counsel in his brief, Campbell was not an
evasive witness. Rather I conclude that he testified truthfully concerning the
incidents which he observed and refused to be drawn into speculation
concerning possible occurrences which were beyond his actual recall.
I do not credit Lathan's testimony to the effect that in informing him of
his termination Plumlee gave as the reason the fact that Lathan had not
signed the petition circulated by Bernard Little stating the desire of
employees not to be represented by the Union Plumlee's denial of this
statement attributed to him by Lathan is believable and consistent with
Respondent 's general claim that Lathan was terminated for cause Indeed,
in light of Plumlee 's testimonial assertion that he had a variety of reasons
for terminating Lathan, it would be anomalous, in my view, for Plumlee
during his interview with Lathan to have rested his decision on the ground
claimed by Lathan and to have avoided, as Lathan 's testimony infers,
advancing any work-related basis in justification for the termination. I am
convinced , despite Lathan 's apparent certitude to the contrary, that Lathan
rationalized this aspect of his testimony.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was following directives of individuals with authority over
him. Plumlee further contacted Little and Yuzos, who, in
substance, gave Lathan 's explanation no support .51 Nei-
ther through Plumlee nor otherwise did Respondent
develop evidence to support Plumlee 's assertion that
Lathan did no productive work on the last day of his
employment and/or refused to do work for which he was
qualified . In further delineation of the grounds for
terminating Lathan , Plumlee explained that it was merely
the failure of Lathan to work productively that was
weighed by him in deciding to terminate Lathan. Plumlee
denied that the fact that Lathan visited the office on three
separate times on his last day of employment to protest his
removal from his dozer led to Lathan's termination.
Further, the evidence of record reveals that the Company
was the recipient of a written request, circulated by
Bernard Little, and signed by Indian employees, that the
Company remove Lathan from his job as a laborer.
c. The aftermath of Lathan's termination
On September 8, after Lathan had received his check, he
was approached by the individual who had served as night
watchman during the morning hours of September 8 and
who had reported Lathan's presence in the equipment
yard. Lathan was told by that individual that if he did not
stay out of the equipment yard, he would be killed.
Respondent did not undertake an investigation of Lathan's
alleged presence in the equipment yard on the occasion in
question . However, a letter dated September 8, treating
with the subject, was prepared and dispatched to the tribal
president . Lathan denies being present in the equipment
yard and testified that he was at home during times
pertinent to that incident.52 Lathan testified , in substance,
that the night watchman who had implicated him had a
propensity for physical violence. The record reveals that at
the time of the hearing the night watchman was in jail.53
A week or two after his termination, Lathan had
occasion to speak with Bernard Little . Little urged Lathan
to speak with Richard Rowand about reinstatement,
suggesting that Lathan "drop everything because [he was]
not going to get any place that way anyway" 54
Conclusions
1. The Union's majority
In agreement with the General Counsel, I find that the
Union commanded a numerical majority in an appropriate
bargaining unit when on August 4 demand was made on
Plumlee for recognition . I find that on August 4 the unit
51 Bernard little testified that he had stated that Lathan had "no
business" taking his dozer into the area where it became stuck.
52 I reach no determination concerning the accuracy of the report of
Lathan's presence but I find , based upon the testimony of Guy Plumlee and
Joel Lathan , and considering the record as a whole, that prior to terminating
Lathan , Plumlee had received reports concerning Lathan's unauthorized
actions . I find no basis for determining that the letter dated September 8
was incorrectly dated to give plausibility to Plumlee 's actions in terminating
Lathan; and I find affirmative support for Plumlee 's testimony that he was
a recipient of reports implicating Lathan from Lathan's own testimony
inferring that as of September 8 he was being accused by the night
watchman of intrusion into the equipment yard.
was comprised of 26 employees and the Union possesses 14
valid authorization cards.
Basic to this finding is the conclusion , subsequently
delineated, that Giles Luckett had been terminated on
August 3 for cause, and that Sam Harrell was at pertinent
times until August 4 a supervisor within the meaning of the
Act. These two exclusions from the complement of 27
individuals are offset by the inclusion of J. C. Campbell in
the unit.
Abstaining for present purposes from a discussion of the
Luckett termination, it is appropriate , nonetheless, to here
specifically find that the exclusion of Harrell is based upon
convincing record evidence establishing that on and before
August 4, and until after August 9, Harrell possessed
authority to assign work tasks to unit employees and to
direct them in the performance of their work . His authority
to use independent judgment in making work assignments
rendered him more than a "straw boss." I find that until
after August 9 Harrell was a supervisor within the meaning
of the Act.
On the other hand, the record reveals that J. C. Campbell
possessed no authority of the type and character sufficient
to render him a supervisor , as that term is applied under
the Act. His inclusion in the unit perforce follows.
Eight cards in possession of the Union on August 4 when
the initial demand was made upon the Company are not in
issue .55 Additionally, however, contrary to Respondent, I
find that the Union possessed six other valid cards at the
time of the initial demand which must be included in the
computation of majority. These are the cards of Cisco Bob,
Justin Mendez, Isadore Mendez, Gary Sherrell, Jerry
Sherrell, and Don Bretz.56
The evidence establishes to my satisfaction that Cisco
Bob and Justin Mendez executed their respective authori-
zation cards in context of discussions suggesting that the
Union could serve as a viable force in protecting the
interests of employees; and the cards were signed with
knowledge that other employees had seen fit to designate
the Union to represent them . These manifestations by Bob
and Mendez revealing an intent to join in concerted action
for job protection and betterment through the Union are
not negated by rumors, known to them , or assumptions,
indulged by them-neither shown to have emanated from
union misrepresentation or threats-to the effect that job
tenure would be jeopardized by their failing to join in the
card-signing activities.
In a similar vein the card of Isadore Mendez must be
found to represent a manifestation of his intention to
authorize the Union to act on his behalf. This is so because
he voluntarily affixed his signature to an authorization
card after having observed other employees in the process
53 The night watchman did not testify but Bernard Little testified that
the watchman had told him that he had observed two individuals in the
equipment yard during the early hours of the morning of September 8.
54 This testimony is unrefuted . The record reflects that on September 27
an amended charge was filed alleging, inter Wig; that Lathan had been
terminated because of his union activities.
55 These are the cards of Lathan , Cooper, Walker, Thoma , Gaines,
Little, Andrews, and Dunleavy.
58 The latter three cards were signed very close in time to the initial
demand upon Plumlee , but no argument is made that those cards won not
in Morce's possession at the time he made demand upon Plumlee.
THE ROWAND CO., INC.
of signing cards. By his own testimony, he did this knowing
that he was associating himself with the actions of the
group with which he "worked." His act of affixing his
signature to an instrument which designated the Union as
his bargaining representative cannot be overcome by his
after-the-fact declaration that he had received no explana-
tion of the card's purposes and did not understand its
functions.
I further find insufficient basis for invalidating the cards
executed by Don Bretz, Gary Sherrell, and Jerry Sherrell.
The record reveals that prior to affixing their signatures to
their respective authorization cards, each of the three
individuals aforesaid had been informed of the asserted
advantages of belonging to a union . But equally signifi-
cant, contrary to Respondent, there is no threat or
misrepresentation inferable from the legally factual and
accurate representation made to them by Luckett concern-
ing the application of a union-shop provision to building
trades employees who might choose not to affiliate with the
labor organization ultimately designated by the majority of
employees as their bargaining representative. Finally, there
is no showing that these three employees failed to read
their authorization cards before signing them, and the
inference is justified that in affixing their signatures to the
cards they knew the nature of their act and possessed the
capacity to understand that by signing they were furthering
the cards' purpose.57
While the matter is not free from doubt, I conclude,
nonetheless, that the authorization card of Melford Yuzos
does not qualify as a valid designation to be included in the
computation of the Union's majority. Thus, while Yuzos
had been instructed by Lathan that the lot of employees
generally would be improved by joining the Union, Lathan
supplemented this representation by the statement that
Yuzos was the last employee to sign a card and if Yuzos
was not a union member he would be unable to work on
the project. Because of impaired vision Yuzos did not have
the opportunity to read the card which he signed, and he
was not sufficiently instructed by Lathan as to the meaning
and implications of his act of signing . Thus , Yuzos'
signature may not be properly interpreted as signifying an
informed and unfettered declaration of desire or intent to
designate the Union as his bargaining representative.
I similarly conclude that the Union possessed 14 valid
authorization cards in a unit of 27 employees on August
9.58 The August 4 demand for recognition, a valid and
continuing one, as discussed below, was sufficient to give
rise to an obligation on the part of Respondent, on August
9, to recognize and bargain with the Union. But, in any
event, the Union reiterated its demand and when it did it
possessed majority status in an appropriate unit. In so
finding, I include in the computation the authorization
sr See N L R B v. Gissel Packing Co, 395 U.S. 575, 606-607 (1969); Levi
Strauss & Co, 172 NLRB 732, 733. Cf Heck's, Inc, 156 NLRB 760 enfd. in
pertinent part, 386 F 2d 317 (C.A. 4, 1967), which is inapposite because the
threat to job security was stated as an absolute , unlike here where
alternative consequences of signing or refusing to sign an authorization card
were factually postulated
58 A fair inference is that by August 9, as employee grievances had not
been remedied in Coto, and, indeed , corrective action had just begun,
Campbell had not been installed as a supervisor.
as Although these employees were not on the company payroll during
the week ending August 4, the week in which they executed their respective
III
cards of Clifford Chee , John Balatche , and Edgar Torres
which the Respondent does not challenge .59 I include also
the authorization card of George LaPaz . I do so upon an
evaluation of the record evidence which sufficiently
establishes that LaPaz and Lathan had spoken together
concerning unionization efforts and possible resort to
union assistance in securing LaPaz ' reinstatement to his
former position of employment ; and upon my conviction
that the chain of custody of the authorization card
purporting to bear George LaPaz ' signature was estab-
lished with sufficient particularity to warrant the conclu-
sion that the signature contained on the card which LaPaz
himself delivered to Lathan contained LaPaz' authentic
signature . Indeed, at the hearing Respondent made no
effort to cast doubt upon the authenticity of what
purported to be LaPaz ' signature by presenting for
comparison payroll or related social security forms bearing
a signature verified to be that of LaPaz.
2. The demand
I find no basis for concluding, as Respondent avers, that
the Union in demanding recognition failed to define the
bargaining unit with particularity sufficient to apprise the
Company of the employee group in which the Union was
seeking recognition and bargaining rights. As this record
reveals, the initial demand was in a unit of all employees
working for the Company and was based upon cards
signed by employees allegedly working on the Cienegita
Canyon project. The Company had no other employees in
the State of New Mexico or any adjoining state. Plumlee
inspected the cards and knew that the Union demanding
recognition was a building trades union, the Operating
Engineers. In the circumstances, it is doubtful that Plumlee
was misled on August 4 into believing the request related
to employees other than those on the project on which he
was presently serving in a supervisory capacity. Moreover,
any ambiguity that may initially have risen was short lived
because the events of the day revealed clearly to the
Company that the Union was seeking recognition in an
employee group under supervision of Plumlee and Shaw,
and it became apparent that, in Shaw's view, the tribe had
essential say in the matter. While the record is silent
regarding the number of employees on projects associated
with the Company in Arkansas at the time in question, it
strains matters to assume that, given the foregoing
circumstances, Respondent was misled into believing that
the Union was seeking recognition in a companywide
bargaining unit. I reject such a notion as bordering on the
frivolous 60
Similarly, as the nonsupervisory employees working on
the project on August 4 were employed in operator and
authorization cards, the parties tacitly treated Chee, Balatche, and Tones as
employees with reasonable expectation of being employed, as indeed they
were during the payroll period ending August 9.
00 "No particular form of words is necessary to apprise the employer of
the Union's demand." N.LR B v. Albuquerque Phoenix Express, 368 F.2d
451 (C.A. 10, 1966). It is sufficient that the words used conveyed that a
demand for recognition is being made and defined the unit with sufficient
clarity to put the employer on notice. Joy Silk Mills v. N LR B, 175 F.2d
732, 741 (C.A.D.C.); Furrs, Inc., 157 NLRB 387, 397, enfg. 381 F.2d 562
(C.A. 10, 1967). In any event, the August 9 charge clearly and unambiguous-
ly defined the unit. See National Welders Supply Co., Inc, 145 NLRB 948.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laborer classifications, and as Respondent's agents-in-
cluding Rowand-were aware of the identity of the union
seeking recognition, the Company could not reasonably
have been misled as to the classifications encompassed
within the demand. The project was, of course, a
construction job and there was no significant complement
of clerical or support personnel. The record does reveal,
however, that there was a substantial integration and
interrelationship of construction-related job classifications
and functions on the project at the time of the August 4
demand. Accordingly, the fact that two employees at that
point in time may have been working essentially as drivers
of the water truck is too insubstantial a deviation to
warrant adoption of the Respondent's contention that the
unit was not properly identified as defined. The unit,
limited to a single construction project, is presumptively
appropriate.61
3. The alleged violations of Section 8(a)(1) and (5)
I find upon the record evidence that Respondent
engaged in conduct which violated Section 8(a)(1) and (5)
of the Act, but I find that, because of the peculiar and
mitigating circumstances which attend this case, and in
light of the context in which these transgressions occurred,
a Gissel-type bargaining order is not appropriate.62
The quest for union representation had its genesis
essentially in the search by Indian employees for protec-
tion and redress of asserted past abuses and predicted
future mistreatment and discrimination in job assignment
and tenure. Cooper, an Indian with past leadership
credentials, and Lathan, a white married to a Mescalero
Apache, took the initiative in contacting the Union
following ad hoc meetings and discussions by the residual
work complement of Indian employees who anticipated,
but sought to foreclose, the fate that had befallen their
fellow Mescaleros who had been separated from employ-
ment on the project in favor of whites "from Arkansas." It
was against this background that the Union entered the
picture.
But after entering upon the scene, the Union found that
this particular organizing effort involved more than the
normal triumvirate of employer, employees, and union, for
the employee group was dichotomized because the objec-
tives which motivated the Indian constituency were, at
once, broader gauged, but, nonetheless, more ethnically
oriented, than were those that attracted the segment of
white employees-less than a majority-who joins : the
Indians in seeking union guidance. Indians and whites
shared in their desire for improved working conditions, but
the Indian employees were seeking, first and foremost, job
protection and a sense of recognition and dignity
Sympathetic to the Indians, and committed legally and
philosophically to betterment of the plight of the Mescale-
rd Apache group, was the tribal administration, in reality a
fourth force, neither hostile nor dedicated to the concept of
uvuonization as the course of best interest for the Indian
employees.
Considering the principal factions embodied with vital
irterest in the organizing effort, the thread that runs
through this record is the interest of the Union and the
Company, respectively, in protecting their normal and
traditional interests; the preoccupation of the tribal
administration with unimpeded progress in the develop-
ment of the dam and recreational complex, consistent with
tribal interests; and the opportunistic character of the
Indians' interest in collective representation. Pragmatism
was the hallmark of the Indians' involvement. Illustrative
of the intermixture of atypical influences-represented by
the Indian constituency and the tribal administration-in-
to an otherwise typical organizing context, is the record
evidence revealing the immediate, mediatory efforts
undertaken by the tribal administration on the very
afternoon of the initial day of picketing; and the unseemly
willingness, reflected in the record, of Cooper and Lathan
to seek out and meet with representatives of the Company
on the very heels of the Union's demand for recognition
and its assertion of bargaining rights on behalf of all
employees. The instant record contains no basis for
assuming an ulterior company-oriented motivation on the
part of the tribal administration in convening the meeting
on the afternoon of August 4. There is no significant
record support for a finding that Cooper merely fronted for
the Company in securing the presence of Lathan and Chee
at a meeting with company representatives on the night of
August 5.63 At both the August 4 and 5 meetings the
Company addressed itself to a resolution of employee
grievances. The forums were not of the Company's choice,
but company representatives were willing participants,
although enmeshed in a very real sense by the ardor with
which a resolution of grievances, ultra vires the Union, was
pursued by the employee participants in the meeting. And
much that transpired must be viewed in context of the
union avowal, in open meeting on August 4, that its
continued presence as a representative force on behalf of
the employees was wholly conditional upon the will and
desire of the employees themselves.
As I view the record, the Company at this point in
time-August 4 or 5-was not free to deal with employees,
individually or as a group, except through the Union. The
Company was, of course, free to insist upon a Board
election to resolve the question concerning representation
raised by the Union's August 4 claim for recognition. As
above delineated, this claim was supported by a valid card-
based majority, and the request for recognition was, in all
material respects, a valid one. Thus, even though the
request had not been lodged with an official of the
Company empowered to grant recognition, it had been
factually conveyed to that official through Shaw and
Plumlee, authoritative conduits. Being thus apprised of the
Union's claim to bargaining rights, the Company was
obligated to treat only with the Union if, during the period
prior to the election which it was the Company's right to
61 Furrs, Inc., supra, Farmer-Bocken Co, 181 NLRB 410,414; Welsh Co., 63 Skepticism is not the equivalent of certitude and a mere suspicion that
146 NLRB 713. See also Benson Wholesale Company, Inc, 164 NLRB 536, Cooper was acting with duplicity in setting up the meeting is not a sufficient
545 basis for a finding that this was the fact62 N.L.R.B v Gissel Packing Co., 395 U.S. 575 (1969)
THE ROWAND CO., INC. 113
demand, any change or alteration in employee benefits or
conditions of employment were to be effectuated.64
The willingness of the Company at the August 4 meeting
to enter into a dialogue through Shaw concerning employ-
ee grievances was not a serious or substantial transgression
of employee rights, considering the circumstances of the
occurrence, including the limited nature of Shaw's partici-
pation and the relatively innocuous nature of Shaw's
comments. Standing alone Shaw's conduct would hardly
justify a remedial order. This is so even though Morce's
protests of Shaw's actions were ignored by Shaw in favor
of limited, essentially passive, participation in a considera-
tion and enumeration of employee grievances.
Shaw's conduct on the afternoon of August 4 assumes no
more a critical dimension when considered against the
earlier threat uttered by Plumlee on the picket line to the
effect that he would clear the blockaded entrance to the
project by the use of a "D-8." To be certain, this was a
threat by a supervisor and is an utterance of the type not
countenanced by Section 8(axl) of the Act. But the threat
occurred at the outset of the picketing, after a truncated
organizing effort, and was uttered in the confusion and
"animal exuberance" of the picket line. This being so, it
seems apparent that Plumlee acted impetuously through
emotion , and his threat may not reasonably be construed
as a portent of militant and calculated hostility on the part
of the Company toward the Union.
Of more crucial significance, however, was the participa-
tion of Shaw and Plumlee in the August 5 meeting with
Lathan and Chee. Here the Company clearly disclosed its
willingness to do more than ride with the wave of employee
ambivalence. Although not the prime movers in the salient
events of the evening of August 5, the Company's
supervisors, Shaw and Plumlee, deftly exploited the
occasion prompted by Lathan's telling disclosure to the
effect that the Union was dispensable if the employees
could look to the Company for corrective action. The
Company was in clear violation of the Act in participating
with Lathan and Chee in a compilation of a list of
employee grievances to be resolved by the Company.
While I find no basis for concluding that Shaw and
Plumlee promised in heat verba to correct the grievances
enumerated on the list compiled, the act of signing the
sheet containing the list carried an attribution and inferred
an obvious commitment. The quid pro quo, although
implied, was apparent.
But if the participation of Shaw and Plumlee and their
validating of the grievance list during the course of the
August 5 meeting was unlawful-and I find that it was
violative of Section 8(a)(5) and (1) of the Act-it is to be
remembered that much of the initiative in listing the
grievances came from Lathan. Notably, the concept of a
steward and the replacement of the dirt foreman emanated
from Lathan and only one item-basically an item which
met employer interests-was included upon recommenda-
tion of the company representatives. Contrary to the
General Counsel, I do not find that Lathan was offered a
promotion to foreman as an inducement for his coopera-
tion in convincing employees to abandon the Union. A
conditional hint, tentative enough in character, was
broached to the effect that Lathan would be given
favorable consideration , but no promise , as such, was
articulated. Moreover, there was much in Lathan's person-
ality and relationship to the tribe that made him a logical
choice as a bridge between supervision and the employees,
and it was not unnatural that, in response to Lathan's
demand that the incumbent dirt foreman be removed,
Shaw should inquire if Lathan were interested in the job. I
find that Shaw violated the Act in holding out the
prospects , even in veiled terms, that Lathan might benefit
from changes to be wrought in supervision as a conse-
quence of the discussions that had transpired during the
course of the evening. As in previous situations , supervi-
sion seized opportunities propitious to achieving a weaken-
ing of the Union's following. This opportunity was not of
the Company's making but the tactic was knowingly
pursued.
Finally , consistent with Shaw's adroitness in exploiting
opportunities accorded him, the hospitality which he and
Plumlee displayed to Lathan and his wife and the Chees on
the night of August 5 sufficiently implies the willingness of
the Company to foster the apparent disposition of the
Indian group to abandon the Union. By lending its
encouragement in the manner described , Respondent must
be found to have violated Section 8(a)(1) and (5) of the
Act.
That the Company, through Richard Rowand and
through Shaw and Plumlee, willingly participated in the
August 6 meeting with Cooper is further established. Here,
again, Cooper made the arrangements and nothing of
substance would support a finding that the meeting arose
from any company initiative. It is clear, however, that the
meeting treated with matters relating directly to the
concerted activities of the employee group that had signed
union authorization cards. The meeting terminated with
Rowand knowing that the strike and blockade of the
entrance to the jobsite by Indian employees would not be
continued. Cooper had conveyed to Rowand the willing-
ness of the Indians to forego representation if employee
grievances could be satisfactorily resolved . It is, therefore,
readily discernible that in this instant, as in previous
meetings featuring direct dealings with unit employees
concerning terms and conditions of employment, the
Company violated Section 8(a)(1) and (5) of the Act 85
In contradistinction to the foregoing, however, I am
unable to discern a violation of the Act flowing from
Shaw's mere attendance, through invitation of the tribal
council, at the August 9 meeting. Shaw's role, beyond his
attendance, was passive and he undertook no initiative
designed to influence the discussions , decisions, or sub-
stantive aspects of the meetings. The course of the meeting
revealed that the events previously set in motion voluntari-
ly by Lathan and Cooper seeking immediate satisfaction of
employee grievances without the Union, had resulted in
64 f find unsupportable the Respondent's contention that "wages , hours, 65 Because the Company engaged in grievance discussions and dialogue
and terms and conditions of employment " were not involved in the with unit employees prior to the time the employees voluntarily withdrew
discussion of August 4 and subsequent meetings The topics related in the support for the Union, thereby encouraging their defection , N.LRB. v
most immediate manner to conditions of employment . Reeder Motor Co., 202 F.2d 802 (C.A. 6), and cases of similar thrust, cited
by Respondent , are not deemed apposite.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
achievement of a crystalized consensus among the Indian
group, albeit, by company encouragement and strategy. As
of August 9, however, matters which had engrossed the
interests of all factions now were to be finally and
conclusively resolved by the essentially unilateral action of
the Indian group and their tribal and administrative
advisers and servants. This was manifested and given form
through the circulation of the petition by which the
signatory members of the Indian group signaled their
desire to withdraw from any commitment to the Union. I
find that the evidence is not sufficiently compelling to
warrant a conclusion that the Company assisted in the
actual preparation or circulation of the petition. Little's
prediction to Lathan concerning the adverse results to be
visited upon him by his refusal to add his name to those
that had been upon the petition is not attributable to the
Company, and this is so even if it were to be found that
Little had some borderline supervisory authority at the
time.
The Company must be found, however, to have violated
the Act by agreeing to the selection of a steward, which
action eventualized directly from the events of the August
5 meeting in which Shaw and Plumlee participated in the
compilation of a grievance list. There is no basis, however,
for concluding that the employee choice of Bernard Little
to serve in the capacity of steward was in any way
influenced by the Company,66 but, in any event, the
remedy applicable to this incident would not be materially
different by virtue of a finding to the contrary.67 And, in
the absence of concrete evidence showing a nexus to the
Company, as distinct from the tribal administration, I am
not willing to presume that the decision to circulate the
petition disavowing further employee interest in union
representation was anything but a voluntary act agreed
upon by the Indian group through consultation with tribal
advisers.
However, in agreement with the General Counsel, I find
that Respondent violated Section 8(a)(1) when, on or about
August 21, Shaw confronted Lathan with the petition
during the course of a meeting and conversation relating to
Lathan's protest against being denied assignment as a
dozer operator.
4. The termination of Giles Luckett
I am unable to conclude that the General Counsel
proved by the preponderance of the credible evidence that
Respondent terminated Giles Luckett because of his
involvement in concerted or union activities. Initially, there
is no direct evidence to refute Guy Plumlee's belir"able
testimony that he first became apprised of union activities
generally, and Luckett's role therein, specifically, following
Luckett's termination. The organizing effort was a brief
one and there is no evidence to suggest that the question of
union representation had received anything but the most
covert consideration by the employees on the project.
Detection of employee card-signing activity and union-
related conversation was rendered complex because of the
66 Cf. Swift Produce, Inc, 203 NLRB No. 60, wherein the Board found
that the mere presence of an employer agent during the selection of an
election observer to represent employees in a Board election was a salient
consideration in finding a violation of Section 8(axl) of the Act.
dispersal of jobs and manpower over the large geographic
area of the project. Thus, upon the record developed by the
General Counsel, only suspicion would support a finding
that, prior to terminating Luckett, Plumlee or Mitchell, the
dirt superintendent, knew that Luckett had signed a union
authorization card and/or had played a leading role in
attempting to organize employees.
Nonetheless, the General Counsel earnestly contends
that Respondent's defense of good cause termination is
rendered suspect by Luckett's own capacity as a qualified
dozer operator and the need which existed at the time of
Luckett's termination for capable personnel to serve on the
project. Such evidence as supports the General Counsel's
evaluation of Luckett's capacity as an operator springs
essentially from Luckett's own accounting of his years of
experience. However, by his own appraisal his greatest skill
appears to have been as a mechanic. Moreover, his own
personal evaluation of his capacity to operate a bulldozer
with a high degree of skill gains support only from his
apparent record of successful employment by other
employers and under different supervision. But, on the
other hand, the General Counsel called no witness to cast
doubt upon Plumlee's appraisal of Luckett's limited skill,
as displayed during his short employment stint with the
Company; nor did the General Counsel successfully
challenge the testimony revealing that fellow employees
were enlisted to redo some of Luckett's work. While there
is little doubt upon the record as a whole that Respondent
had need for competent operators, the record evidence
does disclose that there had been a high degree of turnover
on the project and there is much to suggest that Mitchell,
the dirt foreman, had not been easily pleased by Luckett's
predecessors and was not greatly impressed by Luckett's
work performance. Indeed, the record warrants the
inference that Mitchell shared Plumlee's dim view of
Luckett's capacity and this was a contributing force in
persuading Plumlee to terminate Luckett.
The foregoing must also be evaluated against the record
evidence revealing that Luckett was hired by Plumlee in
full knowledge of Luckett's prior union membership, that
employee Ted Thoma, whom Luckett himself had referred
to Plumlee, was retained in Respondent's employ although
he had signed a union authorization card; that Lyle
Walker, who replaced Luckett, had similarly signed one;
and upon the consideration, also, of evidence revealing a
high degree of turnover at the project. When the evidence
of record is thus evaluated, I conclude and find that the
sole factor of the timing of Luckett's termination in
relation to his union and concerted activities, which were
limited and covert in nature, is not sufficient to support a
finding of a Section 8(a)(3) and (1) violation.
5. The termination of Joel Lathan
On the other hand, I find that the evidence preponder-
ates in favor of a finding that Respondent demoted Lathan
effective on or about August 21, and subsequently
67 1 subsequently find that certain conduct of Bernard Little was
attributable to Respondent but this became so by virtue of Little's functions
and role after he became steward.
THE ROWAND CO., INC.
terminated him on September 9 because he had engaged in
union activities.
It is axiomatic that if an employer is motivated, even in
part, by union considerations in adversely affecting the job
assignment or tenure of an employee, he engages in unfair
labor practices in violation of Section 8(a)(3) and (1) of the
Act. I am convinced that the record supports the finding
that Respondent's demotion and subsequent termination
of Lathan was pretextual.
Respondent's knowledge of Lathan' s initial involvement
in promoting the Union is established. Lathan's willingness
subsequently to contribute to the defeat of the union effort,
in exchange for immediate rectification of employee
grievances , has been described. Lathan's refusal, still later,
to join in the employee effort to withdraw their authoriza-
tions to the Union or to disclaim further interest in the
Union, is a matter of record. It is of no moment here to
define the basis for Lathan's ambivalence. It may well have
come from his realization that his efforts to circumvent the
Union in search of a resolution of employee grievances had
not rendered the Company sufficiently beholden to him to
perpetuate him in his dozer assignment . On the other hand,
he may have determined that his attempt to ride with
Cooper's star had been frustrated by employee selection of
Little as their steward or conduit to the Company rather
than Lathan's compatriot, Cooper. Suffice to find Lathan
decided after August 5 to again cast his lot with the Union
and to disassociate himself from employee efforts by
petition to bring about the Union's final demise. This, of
course , came to the attention of supervision and was
graphically revealed when Shaw confronted Lathan with
the petition on August 21.
I reject Respondent's contention that Shaw was only
toying with Lathan. Shaw's action had a more significant
meaning and it was intended to convey to Lathan the
notion that his aspirations of being a dozer operator were
tied to his willingness to join in the effort to finally and
conclusively dislodge the Union. It begs the question to
contend that Lathan had accorded Respondent with valid
reasons for taking his dozer assignment away. The decision
to assign another employee, other than Lathan, to the
dozer , once it was reactivated, as it was by September 21, is
inseparable in realistic terms from the decision to base
futu. ' assignments on Lathan's willingness to recant from
his renewed affinity to the Union. If future assignments
were obtainable through the act of signing, it is reasonably
inferable that the present assignment was being foreclosed
because of Lathan's failure to sign. Obviously, skill as a
dozer operator was not the sole determinant. Neither was
past "proclivity" for immobilizing the dozer. I am
convinced and find that these were rationalizations and
were used as pretexts to cloak a discriminatory assignment
decision springing, at least in part, from Lathan's unwill-
ingness to sign the petition which was being circulated.
From the point in time of Lathan 's refusal , his ultimate
fate as an employee became sealed. The pending unfair
labor practice charge and prevailing circumstances made
the moment impropitious for direct action against Lathan.
Respondent bided its time and acted when Lathan's
115
absence from work accorded a reasonable opportunity for
disguising true intent. The union-based motivation that
had influenced the dozer assignment had continued
unbroken for the several days between Lathan's unlawful
demotion and his termination. That Respondent was not
precluded from terminating Lathan for cause, even
following his unlawful demotion , is not disputed . But the
pretextual nature of the reasons advanced to camouflage
the unlawful character of Lathan's eventual termination
are disclosed by the disparate standard applied to Lathan's
absences during inclement weather , as compared to similar
absences by other employees during the same period of
time .68 Moreover, it is noteworthy that in terminating
Lathan, Plumlee specified only his absence as the reason.
No reference was made to other asserted bases for the
action . Clearly , the investigation into Lathan's alleged
unauthorized presence in the equipment area during the
early morning hours of his termination had not proceeded
sufficiently far to have warranted immediate action.
Lathan appears not to have been warned about his alleged
neglect of his work on September 6 when he assertedly
protested his work assignment . There is nothing to suggest
that Lathan had been subordinate by refusing work given
to him prior to his termination. No corrective action or
cautionary efforts were undertaken to cause Lathan to
correct his assertedly careless use of a chain saw. No
verification of significance was undertaken to support the
existence of any "improper" attitude on the part of Lathan
toward other employees in the labor classification.
While there is bases in the record for concluding that,
given a different context, any or all of the explanations
advanced at the hearing by Respondent for deciding to
terminate Lathan would have justified the action taken.
But Lathan's termination cannot be separated from the
threat that preceded Lathan' s demotion and the demotion
itself. Respondent had done nothing to eradicate the
effects of Shaw's August 21 implied threat relating to the
petition. The entire record points toward a continuation of
Respondent's desire to avoid treating with the Union.
Respondent advanced only Lathan's failure to report to
work as the basis for his termination when, on September
9, he was informed of his separation. It would, therefore,
strain matters to conclude that Shaw's unretracted threat
to Lathan had no motivating influence upon the September
9 action. I find that it did, that it was a moving
consideration in the termination, and that the termination
was unlawful within the meaning of Section 8(aX3) of the
Act.
Finally, in agreement with the General Counsel, I find
that in late September or early October, when Bernard
Little urged Lathan to "drop everything," Little acted as an
agent of Respondent, and possessed a sufficient investiture
of authority to recruit and effectively recommend the
employment of employees to constitute him a low-echelon
supervisor. I find that his request, because of its timing,
constituted a request for Lathan to bring his influence to
bear in an endeavor to cause the Union to drop the charges
which had been filed relating to Lathan's termination. The
statement violated Section 8(axl) of the Act.
68 The work force reached essentially skeleton proportions on September
7 and 8 , and the weather had admittedly been inclement dung the previous
several days.
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
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.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent unlawfully demoted Joel
Lathan, and thereafter unlawfully terminated his employ-
ment, in violation of Section 8(a)(3) and (1) of the Act, I
shall order that Respondent offer Joel Lathan immediate
and full reinstatement to his former or substantially
equivalent position of employment as an operator without
prejudice to his semonty or other rights and privileges and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him.
Backpay shall be computed in the manner prescribed in F.
W. Woolworth Company, 90 NLRB 289, together with
interest in accordance with the policy of the Board as set
forth in Isis Plumbing & Heating Co., 138 NLRB 716. The
foregoing recommendation leaves Respondent free in a
nondiscriminatory and objective manner to assign Joel
Lathan either to a position of roller operator or dozer
operator, or a substantially equivalent position, consistent
with the interchangeable use made of his work skills prior
to on or about August 21, 1973, when he was unlawfully
demoted. Nothing in this order shall be construed as
condoning or recommending Lathan's present or subse-
quent discriminatory assignment to a work task in the
laborer classification.
Having found that the Union commanded a card-based
ixiajority on August 4 and 9, when it made valid demands
upon the Respondent for recognition and bargaining; and
having further found that in the period between those
dates, and thereafter, the Respondent engaged in conduct
in violation of Section 8(a)(1), (3), and (5) of the Act, there
remains the question whether the Respondent should be
required, upon demand, to bargain collectively with the
Union. I conclude that a bargaining order would not be
appropriate because it would serve to impose upon the
employees of Respondent in the unit herein found
appropriate a bargaining agent from whose selection they
recanted, at least partially as a result of their own
initiatives, and which may not be of their present desire
and choosing. The ill-defined nature of the employees'
resort to and reliance upon the Union as an entity to
further employee demands is exemplified, in part, by the
clear distinction drawn on August 4 by the Indian
employee group between its own efforts, through a
blockade of the cattle guard entrance, to deny the
Company access to the construction site on the reserva-
tion ; and their abstinence from the simultaneous picketing
conducted by select representatives of the Union. It is
further illustrated by the ready willingness of the Indian
group , including signators to union authorization cards, as
first exemplified at the initial August 4 group meetings, to
circumvent the Union, to relegate it to a totally auxiliary
role and to treat it essentially as a redundancy in terms of
their own efforts . While the evidence is sufficient to find
that the Union possessed a card majority and thus to
warrant Section 8(aX5) and ( 1) findings, there are
substantial undertones in the record that the Indian
constituency was acting without full appreciation and
insight into the ramifications of union representation. Also,
Respondent's conduct, while violative of the Act, was
mitigated by other factors and eventualities detailed in the
body of this Decision.
The Court in N.L.R.B. v. Gissel Packing Company, 395
U.S. 575(1969), made clear the fact that a bargaining order
should be imposed or withheld in keeping with the
particular circumstances of each case , and that no per se
approach should be pursued by the Board in determining
whether or not to order an employer to bargain with a
union without an election . It is believed that the interests of
the employees, and the public purposes protected by the
Act, would best be served herein by ordering Respondent,
(a) to cease and desist from the practices herein found
violative of the Act; (b) to post appropriate notices; and (c)
through an authorized agent or representative of the
Company at the level of project engineer, or higher, at a
meeting of employees called by Respondent, to read aloud
the verbatim contents of the notice attached hereto as
Appendix B. [Omitted from publication]. It is further
recommended that Respondent be ordered to take reason-
able steps through immediate proper posting of notices,
and/or by direct mail, if necessary, to immediately notify
all individuals in its employ during the payroll period
ending August 4, 1972, and August 9, 1972, in job
classifications included in the appropriate unit herein
described, and all such individuals presently in its employ,
of the time, place, and purpose of the meeting at which the
contents of Appendix B shall be read aloud in verbatim
fashion. Simultaneously or in essentially contemporaneous
manner with the notification mail signed copies of
Appendix B to each employee aforesaid. The meeting to be
held in expeditious fashion as soon as reasonably practica-
ble following the date of the issuance of this decision, and
in any event within 30 days thereafter, shall be convened at
the tribal administration facilities , the tribal administration
willing, or at some other appropriate place in the environs
of the Mescalero Apache Indian Reservation near Ruido-
so, New Mexico; and it shall be open to a designated
representative of the Union, the Union willing, and a
representative of the General Counsel. It is believed that
the suggested remedial steps will eradicate the effects of
Respondent's unlawful conduct sufficiently to permit the
employees to achieve collective representation through a
union of their choice, or to refrain from such a course of
action free from coercive influences 69
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
THE ROWAND CO., INC. 117
CONCLUSIONS OF LAW
1. The Rowand Company, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. International Union of Operating Engineers, Local
953, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All heavy equipment operators and laborers em-'
ployed by Respondent at its Cienegita Dam and Reservoir
project near Ruidoso, New Mexico, excluding office
clerical employees, guards, watchmen, and supervisors as
defined in the National Labor Relations Act, as amended,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
4. On August 4, 1972, and on August 9, 1972, and in
the period between those dates, the Union represented a
majority of employees in the aforesaid appropriate unit
and made legally valid demands for recognition and
bargaining upon the Respondent.
5. By refusing to recognize and bargain collectively
with the Union on and after August 4, 1972, with respect to
employees in the above-described appropriate unit, the
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) of the
Act.
6. By bypassing the Union and negotiating directly
with unit employees concerning wages, hours, and terms
and conditions of employment of employees included in
the above-described appropriate unit, the Respondent
engaged in unfair labor practices in violation of Section
8(a)(5) of the Act.
7. By virtue of direct dealings and negotiations with
unit employees, conducted without consultation and
bargaining with the Union, resulting in resolutions of
employee grievances and in the effectuation of changes in
the terms and conditions of employment of unit employ-
ees, the Respondent engaged in conduct violative of
Section 8(a)(5) and (1) of the Act.
8. By threatening to clear the employee blockade of the
entrance to the Mescalero Apache Indian Reservation by
use of force; by offering Joel Lathan a promotion as an
inducement for abstaining from union or concerted
activities; by participating in the formulation of an
agreement whereby unit employees would be accorded
representation through a steward of their choice and
assisting employees in the effectuation of that agreement
achieved as a consequence of direct and unlawful dealings
with unit employees at a time they were represented by the
Union; by confronting Lathan with a petition revealing
that he had failed to join others in withdrawing support of
the Union; and by urging Joel Lathan to withdraw unfair
labor practice charges filed with the National Labor
Relations Board, the Respondent engaged in conduct in
violation of Section 8(a)(l) of the Act.
9. By demoting Joel Lathan from his job as an operator
on August 21 and assigning him to the lesser job
classification of laborer; and by terminating Joel Lathan
on September 9, both because Lathan had engaged in
union and protected concerted activities, the Respondent
engaged in conduct in violation of Section 8(a)(3) and (1)
of the Act.
10. 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 omitted from publication.]
69 It is not recommended that the modifications made in working beyond that implicit in the cease and desist order herein to modify the
conditions be rescinded , nor that the Company take any affirmative action status of the steward selected by the employees.