Tom Johnson, Inc.

National Labor Relations Board - Board Decisions

Sep 20, 1965

154 N.L.R.B. 1352 (N.L.R.B. 1965)

1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership by any of our employees in Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, General Teamsters Local No 428, or in any other labor organization,
by discharging or otherwise discriminating against employees in regard to their
hire or tenure of employment or any other term or condition of employment.
WE WILL offer Richard Robinson immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority or
other rights and privileges previously enjoyed, and we will make him whole for
any loss of pay he may have suffered as a result of the discrimination against him.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form, join, or
assist any labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or
all such activity.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members of any labor organization.
DON SWART TRUCKING CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania, Telephone No.
644-2977.
Tom Johnson , Inc. and Will E. Hoskins
Tom Johnson, Inc. and Painters Union Local No. 567, Brother-
hood of Painters , Decorators and Paperhangers of America,
AFL-CIO. Cases Nos. 2O-CA-2663 and 2O-CA-2724-1-2. Sep-
tember 20, 1965
DECISION AND ORDER
On May 6, 1964, Trial Examiner David F. Doyle issued his decision
in the above-entitled proceeding, finding that respondent had engaged
in and was engaging in certain unfair labor practices and recommend-
ing that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that the Respondent had not engaged in
154 NLRB No. 109.
TOM JOHNSON, INC. 1353
certain other unfair labor practices. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision with a supporting brief.
The General Counsel filed cross-exceptions, a supporting brief, and
a brief in answer to Respondent's brief in support of is exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent they are con-
sistent herewith.
The Trial Examiner concluded, and we agree, that Respondent, by
General Manager and Superintendent Duane Johnson, violated Sec-
tion 8 (a) (1) and (5) of the Act by bargaining directly with certain
of its employees and by unilaterally changing their rates of overtime
pay without consulting with the Union at a time when the Union was
the representative of the employees in an appropriate bargaining unit,
and at the same time threatening employees with the loss of overtime
employment.
The Trial Examiner also found that the General Counsel failed to
establish, by a preponderance of the evidence, that employees Will E.
Hoskins and Niilo Utra had been discharged or laid off in violation
of Section 8(a) (3) and (1) of the Act. We do not agree.
The Trial Examiner's Decision in this regard hinged largely on
certain credibility resolutions which appear from all of the relevant
evidence to be clearly incorrect. We find, rather, the testimony of
Johnson and of Foremen Fred Shultz and Robert Cleveland as to the
discharges of Hoskins and Utra, which the Trial Examiner fully
credited, so grossly confusing, self-contradictory, equivocal, evasive,
and in part apparently false, as to render such credibility findings
wholly insupportable.'
Respondent is a painting and decorating contractor in Reno, Nevada.
The Respondent, with a work force of approximately 16 to 22 employ-
ees, was engaged in performing all the interior and exterior painting,
paperhanging, and most of the sheet rock taping for a new hotel, the
Wagon Wheel, then under construction in Stateline, Nevada.
'The Trial Examiner himself found that portions of Johnson 's testimony were "quite
implausible" and that certain circumstances militated against the "ready acceptance of
his testimony."
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Discharges of Hoskins 2 and Utra
On December 6, 1962, at a meeting of the paint crew and the two
foremen, Johnson proposed that those painters not drawing subsist-
ence pay agree to accept time-and-one-half for overtime work instead
of double time as called for in Respondent's contract with the Union.
Hoskins reported this action to the Union's agent, Gene Crumley, at
Rerio. A week later Crumley visited the project site and advised
Johnson that the contract's overtime pay schedules must be adhered
to. After Crumley left, Johnson called another meeting of the same
group. According to Hoskins, whose uncontradicted testimony was
corroborated by Utra and employee Davis, Johnson informed the
group that someone "had put Crumley on his back and that if he
found out who done it, he would fire them, not because he went to the
Union but he would find other reasons." As Johnson left, he pointed
to Hoskins and said, "I want you to remember that."
At the close of the following day, Hoskins Was discharged by Fore-
man Shultz, who testified that Johnson had given him Hoskins' check
and the checks for two other tapers. All three were laid off at that
time. Shultz could not recall his conversation with Hoskins other than
telling him he was laid off. Shultz testified : "I know the reason for it,
but I don't remember discussing it with Mr. Hoskins."
In his pretrial statement, as previously noted (see footnote 1),
Shultz gave as the reason for Hoskins' layoff his unsatisfactory taping
work but did not specify in what manner it was below grade. No-
where in Shultz' testimony at the hearing did he state that Hoskins'
taping or other work nvas unsatisfactory. Moreover, Hoskins testified,
without contradiction, that he had never been warned or criticized for
poor workmanship and was not in fact engaged in taping work at the
time of his discharge. Hoskins also testified, again without contra-
diction, that lie was told by Shultz at the time of his discharge that
everyone receiving subsistence pay was being laid off. (Respondent's
payroll records clearly establish that this was not true.) In these
circumstances, we cannot accept the Trial Examiner's appraisal of
Shultz as a creditable witness.
The discharge of Utra followed much the same pattern as that of
Hoskins. It was allegedly made either for poor workmanship or
because of a lack of work, depending upon whether Shultz' or John-
son's version is accepted. At any rate, the record clearly supports the
2 With respect to the events leading up to the discharge of Hoskins, infra, the Trial
Examiner credited the testimony of Foreman Fred Shultz . The record demonstrates, how-
ever , that Shultz did not testify concerning the reasons for Hoskins ' layoff, but furnished
such reasons in his pretrial statement to the Board ' s Investigator ( Respondent ' s Exhibit
No. 3). Inasmuch as the Trial Examiner had no opportunity to observe Shultz' demeanor
at the time of making his pretrial statement and because Shultz was not subject to cross-
examination after making it, we do not view the Trial Examiner's credibility resolution
as extending to Shultz ' pretrial statement . We shall, therefore , accord the statement only
its proper weight as a part of the entire record in this case.
TOM JOHNSON, INC. 1355
conclusion that his termination grew out of his running dispute with
Johnson concerning payment of accumulated subsistence pay. After
several months of haggling with Johnson over his entitlement to this
extra compensation, Utra presented his grievance to the Painters In-
ternational early in January 1963.3 As a result, Crumley intervened
in Utra's behalf and a heated discussion of the matter followed
between Johnson and Utra with Johnson off ering Utra a check in full
settlement on condition that Utra endorse it and return it to Johnson.
Utra refused, leading Johnson to exclaim, "You'd better start digging
your grave." Utra was fired the next day, January 25, 1963, because,
as Johnson said, "work had slowed clown," or "because of lack of work
in his particular field," which Johnson later described as outside
painting. About a month later Utra received a subsistence check for
$504 through Crumley, on the back of which Johnson had written
',paid under protest."
In contradiction of Johnson's statement that he had laid off Utra,
Shultz testified that it was he (Shultz) who had laid him off and that
the reason was Utra's poor enameling work. This work, however, had
been performed some weeks prior to Utra's layoff. Shultz admitted,
in fact, that he did not mention the enameling to him at the time of the
layoff on January 25, 1963. Indeed, Shultz stated that he did not
recall just what he had told Utra when he laid him off. As for John-
son's account of his dispute with Utra over subsistence pay, we agree
with the General Counsel that it was confused, incoherent, and self-
contradictory.
A careful analysis of the entire record, and particularly the testi-
mony of Johnson and Shultz regarding the discharges of Hoskins and
Utra, leads inescapably to the conclusion that the Trial Examiner
erred in relying upon such testimony in making his finding that the
General Counsel had failed to prove by a preponderance of the evi-
dence that Hoskins and Utra were discharged in violation of the Act.
It is our view, and we so find, that the record as a whole establishes
beyond question that these men were terminated for engaging in pro-
tected, concerted activities in violation of Section 8 (a) (3) and (1) of
the Act and that the reasons assigned by the Respondent for their dis-
charges were but naked pretexts.
3 Approximately 3 months prior to his discharge Utra had been permitted by the
Wagon Wheel timekeeper to examine the time records . Utra observed that Respondent
was charging Wagon Wheel $8 daily for his subsistence for which Respondent was re-
ceiving reimbursement as an operating expense , although Utra was, in fact , receiving no
subsistence pay. In addition , Utra discovered that Respondent was being reimbursed by
Wagon Wheel for his labor at the hourly rate of $4 25 and not the $4.10 he was being
paid. When Utra brought these discrepencies to Johnson's attention, the latter, accord-
ing to Utra , remarked, "you got me ." He thereupon agreed to pay Utra for subsistence
from the start of his employment on August 22, 1962, covering a period of 9 weeks.
Johnson directed Utra to make the computation The following day Utra gave Johnson
a statement claiming $504 due for unpaid subsistence and $54 for the difference between
the $4 10 hourly rate at which he had been paid the $4.25 rate to which he now claimed
entitlement.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent illegally discharged Will E. Hos-
kins and Niilo Utra, we shall order that each of them be made whole
for the loss of earnings and compensation he may have sustained from
the date of his respective discharge to April 1, 1963, the date upon
which Respondent's painting contract was substantially completed.
The relief provided for herein shall be computed in accordance with
the formula set forth in F. TV. Woolworth Company, 90 NLRB 289.
Interest at 6 percent per annum shall be paid, in accordance with the
principle of Isis Plumbing d° Heating Company, 138 NLRB 716, on
such earnings and compensation and on the overtime pay not received
by the employees as a result of the Respondent's unlawful, unilateral
change in overtime rates.
Because Respondent's work has been completed under its contract
with the Wagon Wheel, it would be unrealistic to require that Hos-
kins and Utra be reinstated. Rather, in view of the circumstances,
Respondent will be ordered to notify Hoskins and Utra by letters
addressed to their last known places of residence stating that, despite
their discharges at the Wagon Wheel project, they will be considered
eligible for preferential hiring at any of the Respondent's projects if
they should choose to apply for employment at any of them. In addi-
tion, the Respondent shall include in the letter to Hoskins and Utra
copies of the notice which is attached to the Board's Order. The
Respondent, further, will be required to mail copies of the attached
notice to all employees who were employed by the Respondent at the
Wagon Wheel project as painters, paperhangers, and apprentices
between the dates of December 1, 1962, and April 1, 1963.4
AMENDED CONCLusiONS OF LAW
The Trial Examiner's Conclusion of Law No. 5 is hereby amended
by striking out "(3)" appearing near the end of the paragraph.
Upon the basis of our findings of fact and upon the entire record in
the case, the Board makes the following conclusion of law in lieu of
the Trial Examiner's Conclusion No. 6:
"6. By discharging Will E. Hoskins and Niilo Utra, Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)
(3) and (1) 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
Respondent, Tom Johnson, Inc., Reno, Nevada, its officers, agents,
successors, and assigns, shall:
4 See: Bechtel Corporation , 141 NLRB 844, 856.
TOM JOHNSON, INC. 1357
1. Cease and desist from :
(a) Refusing to bargain with the representative of its employees in
the appropriate unit by unilaterally changing or attempting to change
the rates of overtime pay of employees and threatening employees with
loss of overtime work if they refuse to accept the aforesaid unilateral
change in overtime pay.
(b) Discouraging membership in the Union or any other labor
organization by discharging, threatening to discharge, or otherwise
discriminating in regard to the hire or tenure of employment of any
employee.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the
policies of the Act.
(a) Notify and bargain with the Union with respect to any changes
in the rates of overtime pay or with respect to any other changes in the
terms and conditions of employment of its employees.
(b) Make whole any of its employees employed at the Wagon
Wheel project between the dates of December 1, 1962, and April 1,
1963, for any loss of overtime pay which such employees have suffered
because of Respondent's discrimination against them, as set forth in
the section of the Trial Examiner's Decision entitled "The Remedy"
and with interest as provided in the section of the Board's Decision
entitled "The Remedy."
(c) Make whole Will E. Hoskins and Niilo Utra for the loss of earn-
ings they may have sustained by reason of their respective discharges
while employed at the Wagon Wheel project in the period beginning
with the date of discharge in each case, and ending April 1, 1963, in
the manner and to the extent set forth in the section of the Board's
Decision entitled "The Remedy."
(d) Notify Will E. Hoskins and Niilo Utra, in writing, at their
respective last known places of residence, that, despite their discharges
at the Wagon Wheel project, they will be considered eligible for pref-
erential hiring at any of its projects if they should choose to apply for
employment at any of them, and accompany with each such notice a
copy of the notice attached to this Order entitled "Appendix."
(e) Notify Will E. Hoskins and Niilo Utra if presently serving in
the Armed Forces of the United States of their right to preferential
rehiring upon application in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
(f) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to compute the amount of backpay due
under the terms of this Order.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Post at its offices in Reno, Nevada , and Bijou, California, and at
its jobsites within the territorial jurisdiction of Painters Union Local
No. 567 , copies of the atached notice marked "Appendix ." 5 Copies of
said notice , to be furnished by the Regional Director for Region 20,
shall, after being duly signed by the Company's representative, be
posted by the Company immediately upon receipt thereof, and be
maintained by the Company for 60 consecutive days thereafter , in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Company
to insure that said notices are not altered , defaced, or covered by any
other material.
(h) Mail copies of the attached notice, entitled "Appendix," to all
employees who were employed by the Company at the Wagon Wheel
project between the dates of December 1, 1962, and April 1, 1963, at
their respective last known places of residence , as specified in the sec-
tion hereof entitled "The Remedy."
(i) Notify the Regional Director for Region 20, in writing , within
10 days from the date of this Order , what steps the Company has
taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order".
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify you that :
WE WILL NOT refuse to bargain collectively with Painters Union
Local No. 567, Brotherhood of Painters, Decorators and Paper-
hangers of America, AFL-CIO, as the exclusive representative of
our employees in the appropriate unit described below, by uni-
laterally changing, or attemping to change, the rates of overtime
pay or by threatening our employees with loss of overtime work
if they refuse to accept the aforesaid unilateral change in rate of
overtime pay. The bargaining unit is:
All employees of member-employers of the Painting and
Decorating Contractors Association, Inc., of Reno, Nevada,
excluding office clerical employees, guards and/or watchmen,
and supervisors as defined in the Act.
WE WILL NOT discourage membership in Painters Union Local
No. 567, Brotherhood of Painters, Decorators and Paperhangers
of America, AFL-CIO, or any other labor organization, by dis-
charging, threatening to discharge, or otherwise discriminating in
regard to the hire or tenure of employment of any employee.
TOM JOHNSON, INC. 1359
WE WILL NOT in any other manner interfere with, restrain, or
coerce any employee in the exercise of his rights under Section 7
of the National Labor Relations Act, as amended.
WE WILL notify and bargain with the Union with respect to any
changes in the rates of overtime pay or with respect to any other
changes in the terms and conditions of employment of our
employees.
WE WILL make whole any of our employees employed at the
Wagon Wheel project between the dates of December 1, 1962, and
April 1, 1963, for any loss of overtime pay which such employees
have suffered because of our discrimination against them.
WE WILL make whole Will E. Hoskins and Niilo Utra for the
loss of earnings they may have sustained, by reason of their
respective discharges, in the period beginning with the date of dis-
charge in each case, and ending April 1, 1963.
Tolr JO7INSON, INC.,
Employer.
Dated---------- --------- By-------------------------------------------
(Representative ) ( Title)
NoTE.-WVe will notify any of the above-named employees presently
serving in the Armed Forces of the United States of their right to
preferential rehiring upon application in accordance with the Selective
Service Act and the Universal Military Training and Service Act of
1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional
Office, 450 Golden Gate Avenue, San Francisco, California, Telephone
No. 556-0335, if they have any question concerning this notice or coln-
pliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with the parties represented , was heard by Trial Examiner David
F. Doyle in Reno, Nevada, on October 2 and 3, 1963, on complaint of the General
Counsel and answer of the Respondent . The issues litigated were whether the
Respondent had violated Section 8(a) (1), (3), and (5) of the Act by certain conduct
more fully described hereinafter.'
1 In this report , Tom Johnson , Inc , is referred to as the Respondent or the Company ,
Painters Union Local No. 567, Brotherhood of Painters , Decorators and Paperhangers of
America, AFL-CIO, as the Union ; the National Labor Relations Board, as the Board ,
the General Counsel of the Board and his representative at the hearing , as the General
Counsel ; and the Labor-Management Relations Act, as amended , as the Act. The first
charge in this proceeding , Case No. 20-CA-2663, was filed by Will E. Hoskins on April 8,
1963; a second charge, Case No 20-CA-2724-1 and a third charge, Case No 20-CA-
2724-2 were filed by Joseph R. Grodin, attorney for the Union , on May 29 , 1963. The
instant complaint was issued by the Regional Director ( Region 20 ) on July 30, 1963.
It should be noted that all dates in this report are in the last 3 months of the year 1962
and the first 3 months of the year 1963 , except as specified otherwise.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, and from my observation of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF TOM JOHNSON, INC.
The Company concedes , and I find, that it is a Nevada corporation with its main
office and principal place of business at Reno, Nevada , where it is engaged in the
business of painting contractor . The Company is a member of the Reno Chapter,
Painting and Decorating Contractors of California and Nevada , Inc., herein called
the Association , which is a voluntary association of employers engaged in painting-
contractor work.
The Association exists for the purpose , among other things, of representing its
member-employers in collective bargaining . It participates in the negotiation, execu-
tion, and administration of collective -bargaining agreements on behalf of its member-
employers with various unions . During the past calendar year, the member -employers
of the Association , in the course and conduct of their business operations , purchased
and received goods and materials valued in excess of $50,000 from W. T. Fuller &
Co. and Reno Pabco Paint Mart , which are located in Reno, Nevada , and both of
which received said goods and materials directly from points located outside the
State of Nevada.
The Company concedes , and I find, that it is an employer engaged in operations
affecting commerce within the meaning of Section 2(2), (6), and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is not disputed , and I find, that the Union 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 in substance alleged that the Company : ( 1) on or about Decem-
ber 6, 1962, bargained directly and individually with employees concerning rates of
overtime pay; (2 ) unilaterally changed the contract rates of overtime pay; (3)
threatened employees with loss of overtime employment if the employees refused
to accept the aforesaid changes in overtime pay ; and (4 ) on or about Decem-
ber 14, 1962 , discriminatorily discharged employee Hoskins and on or about Janu-
ary 25, 1963, discriminatorily discharged employee Utra because these employees
had informed the Union of the Company 's conduct, as previously set forth.
The answer of the Company denied the material allegations of the complaint and
alleged the following affirmative defenses - ( 1) The agreement between the Company
and the Union provided for arbritration and that until this contractual remedy was
exhausted the Board was without jurisdiction in the premises , and (2 ) the proper
remedy , of the Union or the employees , for this conduct of the Company was an
action under Section 301 of the Act for breach of contract under either State or
Federal law, and that such an action could not be maintained because the contract
of the parties violated the Nevada right -to-work act , and was entirely unenforceable.
B. The legal background of the controversy
The Nevada right-to-work act was enacted by a vote of the citizens of the State in
an election in 1952. It is set forth in Nevada Revised Statutes , 613.230-613.300.
The pertinent provisions are as follows:
613.250 No person shall be denied the opportunity to obtain or retain
employment because of non-membership in a labor organization , nor shall the
state, or any subdivision of any kind enter into any agreement , written or oral,
which excludes any person from employment or continuation of employment
because of non-membership in a labor organization.
613 260 Any act or any provision in any agreement which is in violation of
NRS 613.230 to 613 300, inclusive , shall be illegal and void. Any strike or
picketing to force or induce any employer to make an agreement in writing
orally in violation of NRS 613 .230 to 613.300, inclusive , shall be for an illegal
purpose.
613.270 It shall be unlawful for any employee , labor organization , or officer,
agent or member thereof to compel or attempt to compel any person to join
TOM JOHNSON, INC. 1361
any labor organization or to strike against his will or to leave his employment
by any threatened or actual interference with his person, immediate family or
property.
The relationship of the Company and the Union is controled by a labor agree-
ment, conventional in form, which became effective on August 6, 1962, between the
Association and the Union. By its terms it is to expire on June 1, 1965. The perti-
nent provisions of this contract may be summarized. Article II sets up a joint
committee composed of three representatives from the Association and three from
the Union. Article III states that the purpose of this committee is to decide whether
a violation of, or a grievance under, the contract has occurred. The committee has
powers to investigate disputes or grievances and take certain steps for their solution.
In the event the committee is unable to resolve the grievance, the committee may refer
the grievance to arbitration.
Article X provides that the Union shall operate a nondiscriminatory hiring hall
with the registration of various classes of men in the craft. Article XX provides
that the Union may appoint shop stewards, and article XXII details procedures to
be followed in processing grievances.
The collective-bargaining agreement contains a separability clause, article XXXIV,
which states that if any of the provisions of the contract are illegal that the remainder
of the agreement will not be affected by the partial illegality.
Several of the provisions of the contract relating to rates of pay, overtime, and
subsistence are of importance to an understanding of the controversy as it arose.
These pertinent provisions are as follows:
Section 2-Overtime
a. New commercial work, first 4 hours during each week day-time and
one-Half.
After 4 hours of overtime each week day, double time dui ing week. Saturday,
Sunday and Holidays, double time except on subsistence jobs, Saturday to be
time and one-half. [Emphasis supplied.]
Section 4-Transportation, Show-up Time, Travel Time
Maintenance, Subsistence
* * * * * * *
Contractors who have established shops out of the Reno area shall pay trans-
portation from a twenty (20) mile radius of their shops.
* * * * * * *
d. Subsistence-Any employee working a job sufficiently removed from the
Reno-Sparks Area so that he is required to live at the job site area shall be paid
not less than the regular rates of pay plus Eight Dollars ($8 00) per day as
subsistence. Effective June 1, 1963, subsistence shall be Ten Dollars ($10.00)
per day.
1. Subsistence shall be paid for all days that the employee is stationed
at the job area, including Saturdays, Sundays, and holidays.
2. The only exception to the subsistence shall be when the employee has
established a residence in the subsistence area no less than six (6) weeks
prior to the starting date of the job.
e Established shops as described in this Article shall be as follows:
1. Permanent shops-with phones, office facilities, buildings, etc. of a
permanent nature.
2. Temporary shops shall not be considered as established shops.
It is apparent from all the evidence that there was considerable uncertainty as to
the meaning of the subsistence and overtime provisions of the contract. This led to
the first disagreements between some employees and the Company. The agreement
provided for both, time and one-half, and double time, for overtime work. Sub-
sistence jobs at Harvey's Wagon Wheel carried time and one-half for overtime;
otherwise double time on Saturdays, Sundays, and holidays. The Company con-
tended that employees hired at Lake Tahoe (the jobsite or its "established shop")
were not entitled to subsistence; that those referred from Reno, Nevada, by the
Union, were. Various employees and the Union had their interpretation of the
provisions.
206-446-66-vol. 15 4-8 7
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, it should be noted that the General Counsel stated that in this pro-
ceeding the General Counsel made no claim for any subsistence pay for any employee;
that evidence as to subsistence was presented only to show the complete picture of
what took place on the job, and as bearing on the credibility of witnesses.
C. The sequence of events
1. Undisputed facts; background
As noted previously, the Company is a Nevada corporation with its main office
and principal place of business at Reno, Nevada, where it engages in the business of
painting contractor. It is a member of the Association. On August 28, 1962, the
Union was certified as the collective-bargaining representative of the employees
employed by members of the Association, excluding supervisors, guards, and pro-
fessional employees. The Association and the Union are parties to the collective-
bargaining agreement previously mentioned.
In March 1961, long before the Union was certified or the contract executed the
Company entered upon the performance of a verbal contract with Harvey's Wagon
Wheel, Inc., herein called the Wagon Wheel, whereby the Company agreed to per-
form all the interior and exterior painting, paperhanging, and most of the sheet-rock
taping in a newly constructed 12-story hotel building located at Stateline, Nevada.
This contract was of the cost-plus-l0-percent type, by which the Wagon Wheel reim-
bursed the Company for all its costs, plus 10 percent The Wagon Wheel kept
records of the time spent by the employees of the Company on the hotel job. Once
each week, the Wagon Wheel remitted to the Company a single check covering the
cost of the Company's expenditures for labor and materials, plus 10 percent of these
costs The Wagon Wheel employed a timekeeper for the purpose of maintaining its
records, and the Company, for a period of time, had its own timekeeper After
January 1, 1963, the Company's records showed only the total number of hours
worked per week by each of the Company's employees, they did not show the number
of hours worked by each employee each day. The payroll period in each week
ended on Wednesday, and the Company paid its employees on Friday, after making
the necessary payroll deductions required by law and the collective bargaining
agreement.
On the Wagon Wheel job, the Company employed a force of approximately 16 to
22 employees. Among these were five employees who testified herein, named Will E.
Hoskins, Nulo Utra, Frank R. Silva, Albert J. Denzer, and James L. Davis. The
person in highest authority for the Company on the job was Duane Lynn Johnson,
who had the title of general manager-superintendent. He was assisted by two
foremen, Fred Schultz and Bob Cleveland. These three supervisors also testified in
this proceeding.
Apparently the relationship between management and the employees was unevent-
ful until July 1, 1962, when the Union engaged in a strike against the members of
the Association. The strike ended on August 5, 1962, and the contract, previously
referred to, effective August 6, 1962, was the result of the negotiations of the parties
at that time.
2. The dispute in regard to subsistence
Utra began working for the Company on August 22, 1962. He is a resident of
Palo Alto, California, a city distant from Statelme, Nevada, by over 200 miles It is
undisputed that the Company maintained a shop at Bijou, California. Bijou is a
small town approximately 2 miles from Statelme, California, which is contiguous
to Stateline, Nevada, where Harvey's Wagon Wheel was being constructed. Accord-
ing to General Manager Johnson, he hired Utra at the Bijou shop and Utra started
to work as a painter of outside balconies. It is undisputed that Utra was paid at the
rate of $4 10 per hour and that he was not paid subsistence. According to Utra on
receipt of his first pay he asked Foreman Schultz why he was not paid subsistence.
Schultz replied that Utra was hired locally and was not entitled to subsistence After
Utra had been at work approximately 2 months, he and Hoskins devised a strategem
by which they could examine the Wagon Wheel timekeeper's book. Utra noted that
he was listed as being an employee who was drawing subsistence at the rate of $8
per day. He also noticed that in the Wagon Wheel timekeeper's book that his listed
wage was $4.25 per hour. According to Utra, on the next day, he asked Johnson
about the subsistence, and Johnson answered, "You got me." Then Johnson told
Utra to figure the amount of subsistence and wages which the Company owed to
Utra. On the next day, Utra furnished Johnson with a calculation which showed
that he claimed $504 subsistence and $54 wages.
TOM JOHNSON, INC . 1363
On the next day Johnson came to Utra and told him that Utra was not entitled to
subsistence and that Johnson was going to give the subsistence money back to
Mr. Harvey of the Wagon Wheel because he had made a mistake and wanted to
correct it. Then Johnson asked Utra if he wanted to work all winter, and after
some discussion, Johnson instructed Utra to get a referral slip from the Union office
in Reno, explaining that if Utra did so, Johnson would then pay him subsistence from
that date on. Utra did as he was instructed and thereafter received subsistence pay,
but the unpaid subsistence continued to be an issue between Utra and Johnson.
Utra testified that when he received this referral slip from Crumley, business agent
of the Union in the latter part of October 1962, he asked Crumley to assist him in
obtaining the payment of the subsistence and wages due him.
It is undisputed that on January 7, 1963, Utra wrote the International of the Union
asking its assistance in the collection of these same sums. On January 9, 1963, the
International referred Utra's letter to Crumley, the business agent at Reno, for appro-
priate action. After some negotiations on February 23, 1963, Johnson delivered a
check for $504 to Crumley in payment of Utra's claim for subsistence. The check
was marked "paid under protest."
Employee Silva also testified that he had a disagreement with the Company about
his subsistence. He stated that he was hired by Johnson at the shop at Bijou, Cali-
fornia. He was not aware of his precise rate of pay or of his right to subsistence
until he had been on the payroll for some weeks. Then, he also managed to get a
look at the payroll records of Harvey's Wagon Wheel and discovered that Utra was
listed as being entitled to subsistence. Silva reached the conclusion immediately
that he was entitled to subsistence, if other men were getting it. Around December 1,
1962, Silva spoke about subsistence to Johnson. Johnson told Silva that he was
not entitled to it. Later, according to Silva he learned that Johnson was charging
Harvey's Wagon Wheel for subsistence for him. He spoke to Johnson about this.
Johnson stated that he was going to give the money received from Harvey for Silva's
subsistence back to Harvey. Johnson said he would raise Silva's wages to $4.40
per hour, if Silva would give up his claim to subsistence.
The General Counsel introduced into evidence a withholding statement for Silva.
This indicated that he received $512 subsistence. Silva said that he was not paid
this money.
In his testimony Johnson said that Silva requested Johnson to hold up payment
of his subsistence because Silva feared that he might gamble his money away at
the casinos at Tahoe. From time to time, Silva asked Johnson for pay advances and
Johnson accommodated Silva. Johnson testified that when Silva later asked for
his subsistence pay, he was already overdrawn in that regard.
Employee Hoskins also had a disagreement with the Company about his sub-
sistence. Hoskins testified that he was hired to do outside painting using a swing-
stage. While he was engaged in outside painting he was paid subsistence, but around
November 1, 1962, he was transferred to indoor work, and he was not paid subsistence
for some weeks. Later when he was terminated he spoke to Johnson about this
subsistence and Johnson and Hoskins compromised Hoskins' claim at $46. Johnson
paid Hoskins this sum.
3. The refusal to bargain
The disputes over subsistence appear to have developed at approximately the
time when the terms of the contract between the parties became generally known,
a few weeks after August 6, 1962. In December a new disagreement arose. Employ-
ees Utra, Hoskins, Silva, Davis, and Denzer testified that on December 6, 1962,
Johnson, the general manager-superintendent for the Company, conducted a meeting
of the employees on the subject of overtime. According to these witnesses, the
meeting was held in the paint shop at quitting time. All the employees, including
Foreman Schultz and Cleveland, were present. Johnson told the employees that he
had met with Harvey Gross, president of the Wagon Wheel, and that Gross refused
to pay double time for overtime work. Johnson then said that if the employees
wanted to work overtime at time and a half, they would be required to sign an
agreement to that effect. He explained that if they did not sign such an agreement
that he would hire more employees and there would be no overtime. Johnson then
circulated a paper among the employees.
Utra, Davis, Silva, and Denzer each testified that he signed the paper which was
also signed by other employees. Hoskins testified that he refused to sign the paper
and that Johnson then took the paper from Hoskins and said that he did not have
to sign it, because Hoskins was paid subsistence and received time and a half for
overtime in any event.
1364 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
Johnson and Foremen Cleveland and Schultz were called as witnesses for the
Company and they testified that at this meeting Johnson discussed job methods and
general operations. They denied that Johnson discussed either double time, or time
and a half, for overtime, and they denied that Johnson circulated any paper to be
signed by the employees.
In support of the testimony of the General Counsel's witnesses, the General Counsel
introduced into evidence an accountant's analysis of the Company's payroll records
for the period November 29, 1962, through April 10, 1963.= These records are a
computation of wages paid by Harvey's Wagon Wheel to the Company and the wages
paid by the Company to individual employees working on the Wagon Wheel job.
These records show widespread differences as to the various employees.
However, these records have only limited use in this proceeding for they appear
to be a comparison of the Wagon Wheel's and the Company's payrolls without refer-
ence to the wage terms of the collective-bargaining agreement. The records do not
show the certified public accountant's findings as to which men were legally entitled
to double time as not being on subsistence, and those legally entitled only to time
and a half, because they were drawing subsistence. Thus, these computations to be
meaningful here would necessarily involve an interpretation of the subsistence and
overtime provisions of the collective-bargaining agreement in the light of established
facts These records were received on the General Counsel's representation that
they would be of assistence in the resolution of the credibility question involving the
five employees on one side and Johnson and the two foremen on the other. The
probative value of these records, appears to be limited; they illustrate numerous
discrepancies between the payroll payments by the Wagon Wheel to the Company,
and the payments by the Company to the men, but that is as far as this evidence
goes. It appears that these discrepancies could not be clerical mistakes, but the
reasons or causes of the discrepancies are not established in this record.
4. The discharge of Hoskins
Hoskins began his employment with the Company in June 1962. His last day
of work was Friday, December 14, 1962. According to Hoskins' testimony, on
December 7, 1962, he informed Crumley, the business agent of the Union, by tele-
phone, that Johnson was requiring the employees to sign an agreement to work
overtime for time and a half instead of double time On Thursday, December 13,
1963, Hoskins saw Crumley talking to Johnson in the paint shop at the Wagon Wheel.
Hoskins testified that he heard Crumley tell Johnson that he could not make deals
with the men by having them sign agreements to work for time and a half instead
of double time. Johnson told Crumley that he was doing it.
Foreman Schultz testified that he was present at a meeting on December 13 of
Crumley and Johnson. At this meeting Crumley explained that the Company "would
have to pay wages according to the contract terms "
According to Hoskins, Johnson conducted another meeting of the men on Thuis-
day, December 13. Johnson told the group that "somebody had started a big line
of B S " and that someone had complained to Crumley, and if he found out who
the person was, he would fire him. According to Hoskins, when Johnson made this
statement he was looking directly at Hoskins. Later Johnson said to Hoskins, "I
want you to remember what I have said."
In his testimony, Johnson stated that at this meeting he told the employees that
Harvey Gross had said that if there was any more union trouble on the job, he
would have to close the job down. According to Johnson, he told the employees
that all he wanted was for them to do their day's work and not cause any trouble
with any of the unions. Foreman Schultz in his testimony said that Johnson told
the employees at this meeting that if they had grievances they should contact Johnson
or Crumley, the painter's business agent, and not cause unrest on the job by telling
other crafts about their grievances.
According to Hoskins, on Friday, December 14, Foreman Schultz discharged Hos-
kins, telling him that the Company was laying off everybody who was drawing
subsistence. This statement is at variance with the Wagon Wheel payroll records
which establish that after Hoskins' layoff, employees drawing subsistence continued
to be employed by the Company as late as April 17, 1963.
In his testimony, Foreman Schultz stated that Hoskins was hired to do exterior
painting on the swing-stage. That work was finished about the beginning of Novem-
ber. Then Hoskins was used inside on some work on the 11th floor. When that
was finished, there was some taping of sheetrock to be done, so Hoskins was tried
out on that job, as were two new men. None of the three were competent at taping,
so there was nothing for Hoskins to do, so he was laid off.
2 These documents are General Counsel ' s Exhibit Nos. 4, 5, 6, and 7.
TOM JOHNSON, INC. 1365
5. The discharge of Utra
Utra began working for the Company on August 22, 1962, and was hired to per-
form outside painting on the balconies of the hotel. This work came to an end in
the late fall and thereafter Utra was transferred to work inside the hotel.
According to Utra, on Thursday, January 24, 1963, Utra and Johnson had a con-
versation at the Wagon Wheel. Johnson said that he had heard that Utra, through
Business Agent Crumley, was pressing charges against him. The men walked out-
side to Johnson's truck. At that place, Johnson "cussed" Crumley and said that
Crumley would not press the charges regarding Utra's claim for subsistence. Then
Johnson said that he was willing to write a check for the full amount, it Utra would
endorse the check and give it back to him. (This has reference to Johnson's deter-
mination to repay the money to Harvey's Wagon Wheel.) Utra refused to do this.
According to Utra, Johnson then said, "You had better start digging a grave." On
the following day, January 25, 1963, at quitting time, Utra was discharged by John-
son, who gave as the reason for the discharge, that "work was getting low " On
February 23, 1963, Utia received a subsistence check for $504. On the back of
the check, Johnson had written the woids, "Paid under protest." This check was
ieceived by Utra through Crumley.
In his testimony Johnson said that after the painting of the balconies was finished
Utra was tried at some inside work, stipling, enameling, undercoating, and hanging
wallpaper. He was not competent at these jobs, so he was laid oft Foreman
Schultz testified that he had Utra do some enameling in the food department of the
hotel and that it was so unsatisfactory, that he had someone else do the job again.
Foreman Cleveland testified that Utra performed some paperhanging under his
supervision, but that Utra was not competent at that trade, and the paper had to be
stripped off and rehung. Cleveland also found Utra not competent at taping so he
recommended that Utra be laid off.
In rebuttal, Utra testified that some paper he hung had to be redone, because the
paste he used was not any good. The imperfections in the job Utra attributed to
the paste. Utra claimed that his enameling in the food department was performed
properly.
Concluding Findings
The testimony of the witnesses upon the issue of the Company's failure to bargain
with the Union presents a sharp conflict. Hence, some comment on the demeanor
and bearing of the witnesses is warranted. I am not inclined to accept Johnson's
testimony on this point, because portions of his testimony, such as Utra's and Silva's
alleged request, that Johnson "save" their subsistence pay for them, so they would
not gamble it away, sounds quite implausible. Furthermore, the discrepancies between
what Johnson charged the Wagon Wheel and paid to the employees do not recom-
mend the reliability of Johnson. Johnson appears to have been guilty of either sharp
dealing or unforgivable laxity in these matters. Either militates against the ready
acceptance of his testimony.
On the other hand, employees' Utra and Hoskins both testified volubly, but with
the truculence of disgruntled employees. Their display of vindictiveness toward
Johnson, called clearly for a close scrutiny of their testimony. Silva's testimony had
the same taint, but to a lesser degree. The antipathy of these witnesses to Johnson
may have been born of a righteous indignation but their attitude did not seem to
indicate that feeling. I deem the testimony of Johnson and the three named
employees, the principals, as unacceptable. However, the two foremen testified in a
forthright manner and Denzer and Davis of the employees testified with every indica-
tion of accuracy and fairness.
Upon an examination of all the testimony, I find that the General Counsel has
established by a preponderance of the evidence that on or about December 6, 1962,
the Company, by Johnson, told the employees that from that date forward they
would be paid at the rate of time and a half for all overtime, and that this action of
the Company was taken without consultation with the Union. I also find that on
the same date Johnson told the employees that if they did not accept his proposal
as to overtime pay he would hire more men and as a result they would receive no
more overtime work. By this conduct the Company violated Section 8(a)(5), (3),
and (1) of the Act.
Employee Utra claimed that his discharge was discriminatorily motivated because
of his difference with Johnson on the subject of subsistence and his enlistment of
the aid of the Union and the International in obtaining payment for the same. While
the disagreement between Johnson and Utra continued for a considerable length of
time, I am not persuaded that Utra's discharge was unlawfully motivated. Accoiding
to the testimony of Johnson, whose testimony as to the discharge I accept, Utra was
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired to do exterior painting on the balconies of the hotel When that work was
finished late in the fall, the Company gave Utra a chance to perform other types
of work in the interior of the hotel. Both Foreman Schultz and Cleveland testified
that Utra's work in paperhanging, and enameling were not satisfactory. In his
testimony, Utra testified that he told Foreman Cleveland, when he started paperhang-
ing, that he had not performed that type of work for over 10 years, but that he was
willing to try it. Utra blamed his failure at paperhanging on the quality of the
paste furnished by the Company. From this, I conclude there is no doubt that
Utra was not competent as a paperhanger. Schultz, who testified in a fair, frank,
and candid manner, said that Utra was not competent in other regards. From the
testimony of the foremen, I conclude that though Utra was at odds with Johnson
over his claim for subsistence, that he was employed until the work for which he
was hired was completed, then he was given a chance to do interior work. At the
latter tasks he was found to be incompetent and for that reason alone was discharged.
Hoskins is in much the same situation. Be was hired to do exterior work using
the swing-stage and because that was hazardous work he was paid a premium rate.
This work too was finished late in the fall and then Foreman Schultz transferred
Hoskins to taping sheetrock. According to the testimony of Schultz, Hoskins per-
formed this job in an incompetent manner and since there was no other work for
which the Company deemed Hoskins qualified he was discharged.
Therefore upon a consideration of this evidence of the foreman, which I credit,
I must find that the General Counsel has failed to prove by a preponderance of the
evidence that either Utra or Hoskins were discharged in violation of the Act.
In its answer and in its brief herein the Company contends that though it may
have breached the collective-bargaining agreement by not paying its employees the
overtime rate of pay set forth in the contract, this breach of contract does not con-
stitute an unfair labor practice and that the Board is not the proper forum to examine
its conduct. It is the contention of the Company that such conduct can only be
remedied in an action by the Union or the employees in the State or Federal courts
pursuant to Section 301 of the Act. This contention is not supported by the cases
of highest authority. The United States Supreme Court in Doyle Smith v. Evening
News Association, 371 U.S. 195; Local 174, Teamsters v Lucas Flour Co., 369 U.S
95 and Charles Dowd Box Co., Inc. v. John F. Courtney, 363 U.S. 502, held that
the authority of the Board to deal with an unfair labor practice, which also violated
a collective-bargaining agreement, was not limited or displaced by Section 301. The
Court in effect said, that where a breach of contract also constituted an unfair labor
practice that the courts and the Board, each had concurrent jurisdiction to hear the
facts, and fulfill its statutory duty in regard to them. The gravemen of this case is
that the Company's course of conduct bypassed the certified collective-bargaining
representative of the employees and undermined the entire statutory relationship
between the employees and their collective-bargaining representative While it is
true that the same conduct might constitute a breach of the collective-bargaining
agreement, it is not the breach of the agreement for which remedy is sought herein
The'purpose of this proceeding is to enforce the statutory mandate to bargain collec-
tively, and it is only incidental that part of the remedy will make whole employees
who have been deprived of wages by the Company's misconduct.
In Oilfield Maintenance Co., Inc., etc., 142 NLRB 401, the Board took jurisdiction
of a case similar to this and in its order required the Company to cease and desist
from the conduct and to reimburse its employees for all loss of earnings suffered as
a result of an unlawful unilateral wage change.
The Company also contends that since the collective-bargaining agreement pro-
vided for arbitration, which has not been sought by the Union, that the instant unfair
labor practice charges are premature This argument is likewise untenable Section
10(a) of the Act specifically states that the Board's power to prevent unfair labor
practices shall not be affected by any other means of adjustment or prevention
established by agreements, law, or otherwise. Therefore, the courts and the Board
have consistently held that the mere existence of a contractual arbitration remedy
does not oust the Board of its jurisdiction to remedy unfair labor practices.3
The third contention of the Company must also be rejected. In this, the Company
asserts that articles II, III, X, XX, and XXII of the collective-bargaining agreement
violate the Nevada right-to-work act, herein called the Nevada Act and conse-
quently that the entire collective-bargaining contract is unlawful and unenforceable.
A comparison of the Nevada act with the sections of the contract enumerated demon-
strates in my judgment, that these various sections do not violate the Nevada act.
3 N.L R B v. Wagner Iron Works , et al ., 220 F 2d 126 (C A. 7), cert denied 350 U S 981.
TOM JOHNSON, INC. 1367
Further, Section 613.260 of the Nevada act states that any provision of any agree-
ment which violates that act shall be illegal and void. The Nevada act does not
state that the entire agreement shall be illegal and void because of one illegal portion.
The collective -bargaining contract here in question also contains a separability clause,
article XXXIV , which states , that if any of its provisions are invalid , the remainder
of the agreement will not be affected thereby. In N.L .R.B. v. Rockaway Neivs Supply
Company, Inc., 345 U.S . 71, the United States Supreme Court held that an unlawful
provision of a labor contract will not render the entire contract illegal when the
contract contains such a separability clause.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Company set forth in section III, above , occurring in connec-
tion with the operations of the Association and the Company as 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 obstruct-
ing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Union is the representative of the employees of the Com-
pany in an appropriate unit and that the Company has refused to bargain collectively
with the representative of its employees , by unilaterally changing the rates of over-
time pay established by a collective -bargaining agreement between the Company and
the Union , I will recommend that the Company , upon request, bargain collectively
with the Union , as the representative of its employees, and cease and desist from
unilaterally changing the terms of the collective -bargaining agreement between the
parties. Having found that on December 6, 1962, the Company unilaterally changed
the rates of overtime pay of its employees in violation of Section 8(a)(1), (3), and
(5) of the Act , it will be recommended that the Company make whole any of its
employees who suffered loss of overtime pay by reason of this discrimination prac-
ticed against them .4
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Painters Union Local No. 567 , Brotherhood of Painters , Decorators and Paper-
hangers of America, AFL-CIO, is a labor organization within the meaning of
Section 2 ( 5) of the Act.
2. Tom Johnson, Inc ., and The Painting and Decorating Contractors Association,
Inc., of Reno , Nevada, are employers within the meaning of Section 2 ( 2) of the Act.
3. All employees of all employer-members of the above -named Association , exclud-
ing office and clerical employees , guards and /or watchmen , and supervisors as
defined in the Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. The Union at all times since August 28, 1962, up to and including July 30, 1963,
was the representative of the employees in the bargaining unit described above.
5. By unilaterally changing on December 6, 1962, the rates of overtime pay of its
employees and by threatening its employees with the loss of overtime work unless
they accepted said unilateral change of overtime pay , the Company has engaged in
unfair labor practices within the meaning of Section 8 ( a)(1), (3), and (5) of
the Act, as amended.
6. The General Counsel has failed to prove by a preponderance of the credible
evidence that employees Utra and Hoskins were discharged in violation of Section
8(a)(3) or ( 1) of the Act.
7. The unfair labor practices found above are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
[Recommended Order omitted from publication.]
4 The backpay period for each employee shall begin on December 6, 1962 , and continue
until the termination of each employee This provision refers to loss of wages due to
nonpayment of proper overtime rates only ; It does not extend to the collection of suns
for any other reason , such as subsistence payments , premium rates, etc.