Big Boy Rigging Service, Inc.

BIG BOY RIGGING SERVICE, INC. 69 Big Boy Rigging Service, Inc. and Construction, Building Mate- rial Drivers, Warehousemen & Helpers Local Union No. 311, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America. Case No. 5-CA-2531. July 31, 1964 DECISION AND ORDER On April 14, 1964, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending dismissal of the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the 'General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Brown]. 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 Ex- aminer's Decision, the General Counsel's exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The facts, which are virtually undisputed, show that the Union has been the contractual representative of the Respondent's riggers, drivers, and helpers for several years, but the Respondent, with the knowledge of its employees, had for some time paid wage rates lower than the union scale set forth in the contract. Early in July 1963, the Respondent hired an additional rigger, on a temporary basis, and paid him the contract rate. As a consequence, employees Oxendine, Ross, Taylor, and Smith arranged to meet at a street corner on Satur- day, July 13, a nonworking day, and go to the union hall to protest the fact that they were being paid less than the contract rates. They were intercepted at the street corner by the Respondent's president, Edward Farmer, and his son, Respondent's vice president, and in- vited to the president's home. There the employees explained that they wanted to be paid the contract rates. Farmer explained that the Respondent could not afford to pay those rates on a full-time basis, but offered to pay union scale and employ the men only when rigging work was available, or to continue the practice of employing them on a full-time basis, to do rigging and other types of work, at the lower `rates. Nothing was resolved at that meeting. 148 NLRB No. 12. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the employees reported for work on Monday, July 15, Vice President Farmer told all of them that the Respondent no longer had any rigging work, but that any employees who wanted to do so could go to work for Masson's Transfer 1 on the same terms and conditions as they previously had enjoyed. All but seven of the employees ac- cepted such transfers. The Respondent thereafter ceased checking off dues and contributing to the union welfare and pension funds, as it had been doing under the terms of the contract. The seven employees who refused the transfers, including the four who had met with the Farmers on Saturday, went to the union hall, where they complained to the business agent about not receiving union scale. Several days later, Vice President Farmer again told the em- ployees who had refused the transfers that the Respondent had no work for them, but they could go to work for Masson's, and offered to give them a raise and pay their union dues if they would do so. All the employees who had not already accepted transfers to Masson's agreed to do so on these terms except Oxendine, Smith, and Logan, the three complainants herein. They took the position, to which they adhered thereafter, that they, would transfer only if they were given the contract wage rates on a full-time basis. Neither Oxendine nor Logan has been employed by the Respondent or Masson's since these events; Smith was called in for only 1 day's work for Masson's, for which he was paid the union wage scale. At the beginning of August, the Union filed a grievance alleging violations of the contract wage provisions and demanding backpay covering the d i iference between the contract rates and the rates paid. Within a few days after the grievance meeting, President Farmer asked the employees to sign statements absolving the Respondent from any backpay obligation. All the employees then working signed such statements. On August 5, Farmer called in Oxendine, Smith, and Logan, said that he was sorry for what had happened, asked them to sign the backpay releases, and told them everything would be "all right" if they signed. All three refused to sign, whereupon Farmer walked out, saying, "Before I see you get a nickel, I'll see you dead in Hell." 1. It is apparent from the foregoing that, when the Respondent learned that its employees were going to protest to the Union about being paid less than the contract rates, the Respondent sought first to dissuade them from this course of action. When it did not succeed, it claimed to have no work for the elnnloyees, but offered to transfer them to Masson's, which it controlled and which was not covered by i We adopt the Trial Examiner's finding that the Respondent and Masson 's, which the Respondent had acquired about a year before the events here involved , constitute a single employer within the meaning of the Act. BIG BOY RIGGING SERVICE, INC. 71 any collective-bargaining agreement. Like the Trial Examiner, we find unpersuasive the Respondent's contention that it transferred its employees to Masson's for economic reasons. On the contrary, we are convinced, from our examination of the entire record, that the Re- spondent went through the bookkeeping transaction of transferring its employees to Masson's in an effort to avoid its obligations under the union contract. This is apparent from the Respondent's entire course of conduct, including its disregard of terms of the contract with the Union, its bargaining with individual employees, its offers. of various employment benefits to different employees, and the nature and timing of the transfers. We are convinced, therefore, that the Respondent was motivated throughout the events here in issue by a determination to forestall any attempt by the employees, directly or through the Union, to enforce the terms of the contract, and that, in the process of doing so, it resolved to get rid of its contract with the Union. As the Respondent required its employees to transfer to an- other of its operations in order to achieve this unlawful purpose, we find that the transfers were violative of Section 8(a) (3) and (1) of the Act 2 As noted above, all the Respondent's employees except the three complainants accepted the transfers to Masson's at the same or higher wages than they had been receiving. The three complainants, how- ever, refused to transfer, took the position that they would not work, whether for the Respondent or Masson's, except on the basis of full- time work at the contract wage rates, and have maintained this posi- tion ever since. It is thus apparent that they were withholding their services in an attempt to pressure the Respondent into granting their wage demands. The Trial Examiner found, and we agree, that this constituted a protected concerted activity. While the Respondent's unlawful transfers, which precipitated the events culminating in the cessation of employment of these employees, would otherwise warrant a reinstatement and make-whole order, we deem such an order inappropriate in view of the concerted withhold- ing by these employees of their services until their wage demands were met, on which they embarked almost simultaneously with the unlawful transfers. We shall, therefore, require the Respondent to remedy its unlawful conduct by reinstating the three complainants, upon application, but we shall not, under the circumstances of this case, issue a make-whole order. 2 The Great Atlantic & Pacific Tea Co., Inc., 141 NLRB 1. While there is evidence in the record indicating that the Respondent also violated see, tion 8 ( a) (5) of the Act by bargaining individually with its employees regarding the terms and conditions of their employment, in disregard of their established bargaining repre- sentative , we shall make no findings thereon as such violations were not alleged in the complaint or litigated by the parties. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .2. The Trial Examiner found that the Respondent did not, as al- leged in the complaint, promise benefits to its employees if they would refrain from engaging in union or concerted activities, in violation of Section 8 (a) (1) of the Act. We find merit in the General Counsel's exceptions to this finding. The Trial Examiner found that the Respondent's offers to certain employees to increase their wages and pay their union dues if they would transfer to Masson's were made to "assure the continuance of its business activity." We are convinced, however, that these promises of benefit were made, at least in part, in furtherance of the Respond- ent's unlawful purposes, as found herein above. We find, therefore, that the Respondent thereby interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act .3 THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connec- tion with its operations described in the Trial Examiner's Decision, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the Respondent discriminated with regard to the tenure and the terms and conditions of employment of its em- ployees in violation of the Act. We have found further, however, that all the employees so discriminated against except the three com- plainants accepted the transfers at the same or higher wage rates, and have been employed since then. As we have also found that the three complainants have, during the entire period in question, concertedly withheld their services until their wage demands were met, we shall require the Respondent, upon their application to return to work, to reinstate them to their former or substantially equivalent positions, and, in the event of a failure to reinstate them, upon application, to pay them backpay, from 5 days after such failure. In view of the nature of the Respondent's unfair labor practices found herein, we shall issue a broad cease-and-desist order.4 3 Kelly Brothers Nurseries, Inc., 145 NLRB 285. ' N L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4). BIG BOY RIGGING SERVICE, INC. 73 Upon the basis of the foregoing findings of fact, and on the record ds a whole, we make the following : CONCLUSIONS or LAW 1. Big Boy Rigging Service, Inc., is an employer within the mean- ing of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Construction, Building Material Drivers, Warehousemen & Help- ers Local Union No. 311, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. By discriminating with regard to the tenure and the terms and conditions of employment of its employees in order to avoid its obli- gations under a collective-bargaining agreement with the above- named Union, the Respondent has violated Section 8(a) (3) and (1) of the Act. 4. By promising benefits to its employees in furtherance of its un- lawful purposes, the Respondent has interfered with, restrained, and coerced its employees in, the exercise-of the rights guaranteed by Sec- tion 7 of the Act, in violation of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce 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, Big Boy Rigging Service, Inc., Baltimore, Maryland, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in, or activities on behalf of, Con- struction, Building Material Drivers, Warehousemen & Helpers Local Union No. 311, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organiza- tion, by discriminating against its employees in regard to hire or tenure of employment or any term or condition of employment, ex- cept as authorized in Section 8(a) (3) of the Act. (b) Promising economic benefits to induce its employees to refrain from engaging in union or concerted activities. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon application, offer James Oxendine, Wilson Smith, and Raymond Logan reinstatement to their former or substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole, in the event of a failure to reinstate them, for the period beginning 5 days after their application, in the manner set forth in the section above entitled "'The Remedy." (b) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment 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. (c) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to determine the rights of reinstatement and the backpay, if any, due under the terms of this Order. (d) Post at its plant in Baltimore, Maryland, copies of the at- tached notice marked "Appendix." e Copies of such notice, to be fur- nished by the Regional Director for Region 5, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 5In 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." BIG-BOY RIGGING SERVICE,,_INC. 75 .APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of,the National Labor Relations Board, and in order to effectuate the.policies of the National Labor Relations Act, as.' amended, we hereby notify' our employees that : WE WILL NOT discourage membership in, or activities on be- half of, Construction, Building Material Drivers, Warehousemen & Helpers Local Union No. 311, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by discriminating in regard to the hire or tenure of employment or.any terms or conditions of em= ployment of our employees; except as authorized in Section 8 (a) (3) of the Act. WE WILL NOT promise. economic benefits to induce our employ- ees to refrain from engaging in union or concerted activities. WE WILL, upon application, offer James Oxendine, Wilson Smith, and Raymond Logan reinstatement to their former or .substantially equivalent, positions, without prejudice to their seniority or other rights and privileges. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Sec- tion 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. All our employees are free to become, remain, or to -refrain from becoming or remaining members of the above-named or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act, as amended. BIG Boy RIGGING SERVICE, INC., Employer. Dated---------------- By-------------------------------- ------ (Representative ) ( Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Serv- ice Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Sixth Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460, Extension 2100, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on July 25; 1963, by Construction, Building Material Drivers, Warehousemen & Helpers Local Union No. 311, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, herein referred to as the Union or Charging Party, the Regional Director for Region 5 of the National Labor Relations Board , herein called the Board, issued a complaint on behalf of General Counsel of the Board against Big Boy Rigging Service, Inc., hereinafter referred to as the Respondent or the Company, on October 8, 1963, alleging violations of Sec- tion 8 (a)(1) and ( 3) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act . In its duly filed answer to the aforesaid complaint, Respondent, while admitting certain of the allegations thereof, denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Morton D . Friedman in Baltimore, Maryland, on December 2, 1963 . All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence , to pre- sent oral argument, and to file briefs. Oral argument was waived . Briefs were filed by the Respondent and counsel for the General Counsel. Upon consideration of the entire record in this case , including the briefs of the parties, and upon my observation of the demeanor of each of the witnesses testify- ing before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Respondent, at all times material herein, is and has been a Maryland corporation with its place of business in Baltimore , Maryland, where it is engaged in heavy haul- ing and rigging business . During the 12-month period immediately preceding the issuance of the complaint herein , a representative period, the Respondent performed services valued in excess of $50 ,000, for employers who received goods and materials valued in excess of $50,000, directly from places and points located outside the State of Maryland. It is admitted , and I find and conclude, that the Respondent is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ISSSUES 1. Whether the Respondent discharged employees Wilson Smith, James Oxendine, and Raymond Logan , either constructively or directly, and, if so, whether such dis- charge resulted from their membership in, or activities on behalf of , or adherence to, the Union. 2. Whether the Respondent, by promising and giving to its employees wage in- creases, and by paying the employees ' union dues, did so on condition that the em- ployees refrain from concerted or union activities or to induce them to refrain from such activities. BIG BOY RIGGING SERVICE, INC. 77 IV. THE UNFAIR LABOR PRACTICES A. Background As noted above, the Respondent is in the heavy hauling and rigging business in and about the city of Baltimore, Maryland. Its employees are, for the most part, riggers, drivers, and helpers. For a number of years before the date of the events herein, these employees had been members of the Union and the Respondent had had a bargaining agreement with the Union which, among other things, established wage rates for the several classifications of employees. It is undisputed, however, that during that period of time the Respondent did not pay wages at the contractual scale, but at rates lower than those prescribed by the bargaining agreement. There is no direct evidence that the Union had knowledge of this practice before July 13, 1963.1 However, most if not all of the employees knew that they were being paid at a rate under the union scale. Thus employees Charles E. Ross, Wilford Taylor, and James Alston each credibly testified, without contradiction, that he had known that he was being paid under the union scale and had so known since the date he was hired. Therefore, it must be assumed that as the employees were working at less than union scale for those years they must have done so upon their individual assents. This, at least, lends doubt to the Union's professed lack of knowledge.2 Sharing offices with the Respondent is a corporation known as Masson's Transfer, Inc., hereinafter referred to as Masson. Until March 1962, Masson was unincorpo- rated and was the sole proprietorship of John J. Dorsey. He conducted his business at premises separate and apart from the Respondent. Around March 1962, Dorsey found himself to be in financial difficulties and sold his business to the Respondent. With this went some of the equipment and machinery which had belonged to Masson, Masson's goodwill, and Masson's name. Thereafter Masson was incorporated and all of the stock issued to a Mr. Buckman who was a former office manager of the Respondent. Neither Dorsey nor Edward B. Farmer, Respondent's vice president, known as "Charlie" Farmer, could testify as to whether Farmer's father, the Re- spondent's president, or the Respondent, or Buckman, or any of them had financed the purchase of Masson and the setting up of the corporation. All that each could testify to was that all of the stock of Masson was issued to Buckman and has been held by him since the date of incorporation.3 Evidently, Masson remained rather dormant after being incorporated and was moved into the offices of the Respondent. Dorsey, who remained with Masson, occupied, and still occupies, a desk in the office of the Respondent. During most of the period from March 1962 until July 13, 1963, Dorsey worked, for the most part, for the Respondent and Masson had no em- ployees on its payroll with the exception of an office worker who also occupied space in the Respondent's office. Masson did have work from time to time at which times it hired employees on a day-by-day basis. However, as stated before, it was dormant for the most part. Thus matters stood, as heretofore outlined, on July 13, 1963, the day on which the events alleged to constitute the unfair labor practice herein began to unfold. B. The events A short time before July 13, 1963, the Respondent, at a busy period, hired an extra employee and paid him at the contract rate (union scale). The regular em- ployees heard about this and a group of them consisting of James Oxendine, Charles E. Ross, Wilford Taylor, and Wilson Smith agreed to meet at a street corner in the 1 Leo DaLesio, the only union representative to testify, was not asked about the Union's knowledge or lack thereof. Edward B Farmer, the Respondent's vice president, testified that he did not inform the Union of the practice and he did not know whether his father, who was Respondent's president, had informed the Union 2 Illustrative of the confusion as to whether the' Union had knowledge is the testimony of employee Charles E. Ross to the effect that in all the years he worked for the Respond- ent and held union membership, he had never seen the union delegate or business agent at the Respondent's premises. This was unrefuted by DeLesio, the union business agent, who testified as a rebuttal witness after Ross had testified Accordingly, and from my observation of him, I credit Ross. 3 Buckman is no longer connected with the Respondent and is now living away from the city of Baltimore. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD city on Saturday, July 13, and to proceed from there to the union hall to protest to the Union because, according to Oxendine's testimony, "We discovered we was being underpaid." The Farmers, father and son, heard of the discontent and of the proposed visit to the Union, intercepted the men on the street corner, and invited them to the senior Farmer's home where the matter was discussed. The employees explained to the Farmers that they wanted to be paid at the contract rates. The senior Farmer explained to the employees assembled that he would pay them ,the union scale but that they would only work when there was rigging work to be done. Otherwise they could work at the rates that they had been working at and work full time? Nothing further was accomplished at that meeting beyond mere discussion and the presentation of opposing views. At any rate the men, according to Oxendine, realized at the end of that meeting that they could not get union scale for full-time work. It is evident, and there is not much dispute, that the rigging business was rather sporadic. Thus, the Respondent had kept its crew busy throughout the year by giv- ing them work around the yard cleaning and keeping the premises in good order. This meant that the men were afforded a full week's work each week whereas had they just been engaged in their classification as riggers and had been paid at riggers rates they probably would have earned far less over any yearly period. On July 15, the Monday after the meeting in Farmer's home, the men reported to work at their usual time and a group consisting of the four individuals who attended the meeting at Farmer's home were met by Vice President Farmer, who told them that the Respondent had no work for them but that they could go to work for Masson on the same terms and conditions under which they had worked for the Respondent. All of the men reporting that day were told the same thing. Ulti- mately seven men left and went to the union hall. They were Ross, Taylor, Alston, Logan, Smith, Oxendine, and Hickman. At the union hall they complained to Lea DaLesio, the Union's business agent, about the fact that they were not receiving union scale and gave to DaLesio their check stubs so that he could attempt to collect for them the difference between the scale that they received and the union scale.5 Each day thereafter for a period of about a week Oxendine reported to the Re- spondent and each day he was told there was no work. At the end of the week, or the beginning of the next week, Charlie Farmer asked Oxendine, Smith, Ross, and Taylor to come in and talk to him. He told the men that the Respondent had no work but that the men could go to work for Masson and he would give them a raise. Farmer explained to the men that he could not pay the contractual wage rate but was willing to give them a raise and pay union dues for them if they would come back to work. This was not agreeable to Oxendine and the latter walked out of the meeting. Smith walked out with him. They insisted they wanted union scale and Farmer stated that there was,-no more to talk about. Ross and Taylor remained and the next workday they were put back to work, at a raise in rate.6 Although Raymond Logan did not attend that particular meeting, he also remained away from the Respondent's premises and has not returned to work. Also from about the time of the transfer of the men from the Respondent's payroll to Masson's payroll, a number of the men received wage increases and the Respondent, through Charlie Farmer, has paid their union dues for them. Before the transfer was made the dues were deducted .from their earnings pursuant to a checkoff clause of the agreement between the Respondent and the Union. How- ever, once the transfer was made to Masson, the Respondent ceased checking off dues and ceased making contributions to the welfare and pension fund of the Union in conflict with the provisions therefor in the collective-bargaining agreement be- tween the Respondent and the Union. 4From the credited testimony of Charlie.Farmer, Charles E . Ross, and Wilford Taylor as confirmed by the testimony of Oxendine and Wilson Smith. Because there Is no real conflict In the testimony as to what occurred at this meeting, I credit Farmer, Ross, and Taylor with their testimony with regard thereto. I also observed these Individuals and my conclusion upon my observation of them was that as to these matters they were com- pletely credible. 6From credited portions of the. testimony of, Oxendine and the admissions of Ross and Taylor. 6 From the testimony of Oxendine, Farmer, and Ross. None of this testimony is in con- flict and, accordingly , I credit the testimony of all of these three individuals insofar as this meeting is concerned. BIG BOY RIGGING SERVICE, INC. 79) With regard to the raises, Charlie Farmer admitted that as to those employees who did not protest the transfer to Masson and did not protest the fact that they were not receiving union scale, there were no raises and at the time of the hearing these employees were still being paid at the rates they received before the transfer of the payroll to Masson. With regard to the relationship between Masson and the Respondent, Charlie, Farmer admitted that they are, for all intents and purposes, a single employer- When rigging work comes into the Respondent it is turned over to Masson which does the work on a subcontract basis. However, Masson does exactly as the Re- spondent wants it to do. Moreover, the paychecks for Masson's employees are signed by Charlie Farmer. Additionally, all of Masson's secretarial and office work is provided by Respondent without recompense therefor. Although the real owner- ship of Masson is unresolved in the record which only shows that Buckman is the registered holder of all of Masson's stock, the evidence, including Farmer's admis- sions, above set forth, leads to the conclusion that the, Respondent and Masson constitute a single employer within the meaning of the Act and I so find. Around the first or second week in August 1963, President Farmer had a number of the employees sign releases which relieved the Respondent from liability for any differences in wages due to any of the employees by reason of the contract be- tween the Respondent and the Union. This was an attempt, evidently, to forestall any action by the Union on behalf of the employees to collect the differences between the rate paid by the Respondent and the rate called for by the bargaining agreement. On August 5, 1963, Oxendine went back to the office of the Respondent and spoke to the senior Farmer. With him were Wilson Smith and Raymond Logan. They went there at the request of the elder Farmer. Farmer stated that he was sorry about what had occurred and that he had a paper which he wanted them to read and sign. He told them that everything would be "all right" if they signed the papers. The three men refused to sign the paper. Evidently this paper was the release which other employees had signed. When the men refused to sign the release, Farmer walked out and on his way out stated, "Before I see you get a nickel, I'll see you dead in Hell." It should be noted that during that entire conversation nothing was stated by the elder Farmer making it a condition of employ- ment that the men sign releases. Moreover, Oxendine and Smith admitted on cross-examination that they did not care who they worked for so long as they received union scale. They stated that they would not work without being paid union scale and that it did not make any difference to them for whom they worked. Oxendine specifically admitted that because the Company could not or would not pay him the contractual scale he refused to work for Masson from July 13, 1963, to the time of the hearing.? With regard to the reasons why employees were changed from the Respondent's payroll to Masson's payroll, Charlie Farmer testified that he took over as vice presi- dent of the Respondent and as the active manager thereof early in 1963. After he took over and until April 1963, the business was prosperous. However, after the beginning of April 1963 business dropped off but the Respondent's expenses continued. Accordingly, Farmer had to look for ways to save money. One of the items which was called to his attention was the fact that the Company was pay- ing premiums for workman's compensation insurance at the very high rate set for riggers. This meant that when the payroll was audited for the purpose of determining the amount of workman's compensation to be paid, that rate was deter- mined at the percentage fixed for rigging work regardless of what was done by the employees. Upon consultation with his insurance adviser, Farmer was advised to transfer the rigging employees from the payroll of the Respondent to that, of Masson to save on compensation insurance premium rates. In this way the Re- spondent was able to have the compensation rates determined by the actual jobs the men did instead of at a single rate fixed at the high rigger rate. According to Farmer, this meant a saving of some $2,400 per year which, in the light of the fact that the Company was not making money, was a critical amount. Therefore, upon the advice of his insurance adviser, Farmer made the transfer and transferred the employees from the payroll of the Respondent to the payroll of Masson. According to Farmer, this was the sole reason for transferring the men. According to Farmer, the discontent of the men and the fact that some of them wanted to be paid at the scale fixed in the bargaining agreement with the 7 Most of the foregoing is from the credited testimony of General Counsel 's witnesses Oxendine and Smith. Logan, the third alleged discriminatee , did not testify. so DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union had nothing to do with the transfer. The sense of Farmer's testimony is that the transfer was no more than a book transfer which enabled him to effectuate the savings as outlined by his insurance adviser. However, some doubt is cast upon Farmer's claim that the sole reason for the transfer was as set forth above. Actually, as noted above, Farmer was willing to raise the pay of the employees in order to induce them to stay on and work under the same conditions in which they worked in previous years. In fact, he did give a number of the employees substantial wage rate increases. In addition, he assumed the payment of their union dues. The record does not show exactly how much this cost the Respondent. However, when questioned about this, Farmer stated that the payroll was now actually smaller because Oxendine, Smith, and Logan refused to return to the payroll and, moreover, two other employees have left the Respondent's employ for reasons of their own. However, this was not the case when the transfer was made. It is quite evident that Masson through Farmer was willing to take on all of the employees at a wage rate increase. It would seem, therefore, that under these circumstances, the total savings to the Respondent could not have been more than a few hundred dollars at the very most inasmuch as the wage rate increases would seem to have been sufficient to wipe out, or to more or less neutralize, any of the savings which were effectuated by the transfer of the men to Masson's payroll and the subsequent reduction of workman's compensation premiums. C. Analysis and concluding findings The General Counsel contends that employees Smith, Oxendine, and Logan were engaged in protected, concerted activity when they protested the wage scale being paid by the Respondent and sought to assert their rights under the collective- bargaining agreement between the Union and Respondent. I find merit in this contention and agree that the assertion of the claim under the bargaining agree- ment was a protected, concerted activity.8 The General Counsel further contends that because the above-named employees engaged in this protected activity, their employment was terminated by the Respond- ent and that this termination came about by the Respondent's ceasing operations under its own name solely to deprive employees of wages and employment rights gained through their bargaining agent. This, according to the General Counsel is evidenced by (1) the wage rate increase offers to the discontented employees and (2) the fact that Masson had no contract with the Union, and that after the transfer the Respondent ceased making contributions to the Union's welfare and retirement funds and, instead, began to pay the employees dues for them. I do not find merit in this contention of the General Counsel. As heretofore described, the condition under which the employees of the Re- spondent worked at less than the contractual wage scale existed for a period of a number of years. I have credited the testimony of Ross, Taylor, and Alston to the effect that the employees knew that they were being paid less than the contractual scale. I, accordingly, have concluded that the acceptance of less than the con- tractual scale was with the consent of the employees. Therefore, I conclude and find that the wage scale under which the employees worked, knowing that it was less than that required by the contract, was and remained a condition of employment which they accepted for a period of time up to the work period immediately preced- ing July 13, 1963. At that time, the fact that an extra employee who had been called in to help at a busy period was paid at the contract scale caused discontent among some of the employees who heretofore had been content to work at the rate paid by the Respondent. It was then and then only that the Union stepped into the picture upon the protests and complaints made to it by the discontented employees. Shortly thereafter, the Union made its demand upon the Respondent to pay back to the employees the difference between what they had earned and what the contract had called for. When the employees protested to the Farmers, they, were reminded by the Farmers that they could be paid at the union scale if they worked only when work was available, or they could continue to work at the rate which they had been paid and work full , time. ' And this was true both before and after the transfer of the employees from the Respondent's payroll to the payroll of Masson. Since this offer by the Respondent was no more than the continuation of the working con- 8 Merlyn -Bonney and Clarence Bunney, d/b/a Bunney Bros. Construction Company, 139 NLRB 1516, 1519. BIG BOY RIGGING SERVICE, INC. 81 ditions under which the employees had worked for a number of years and which they had accepted, and to which until only recently their Union had remained silent, I cannot find that, as contended by the General Counsel, there was any change in working conditions in the transfer of these, employees from the Respondent's payroll to the payroll of Masson. This is especially so since Masson admittedly is a part of the Respondent's business setup and the Respondent and Masson constitute, in both fact and legal effect, a single employer within the meaning of the Act. Al- though, it is true, that after the transfer of the employees from the Respondent's payroll to Masson's payroll, there was a period of time lasting a few days during which the protesting employees did not work, this did not result from any refusal of the Respondent or of Masson to give the employees work under the same con- ditions that the latter had been accustomed to receive in the past. Rather, any loss of work which ensued either to the protesting employees who later went back to work, or to the three alleged discriminatees who remained adamant, was the result of their own refusal to work in protest of the then prevailing conditions. Smith, Oxendine, and Logan could have worked and, as noted above, were offered work at an increase in salary which would have been an improvement over the working conditions under which they worked in the past. These three refused, contending that they would accept nothing less than full-time work at full contract rates. This the Respondent claimed it could not afford to do. But I do not find that this refusal of the Respondent to submit to the terms required and demanded by these employees constituted a discharge or a termination of the employees' employment. Rather, I find that it was a deliberate choice on the part of the employees taken with full knowledge of the consequences thereof. Moreover, the Respondent was not required to give the employees full-time work at full-time pay under the contract. In so concluding, I have not ignored nor failed to consider the rather thin ex- planation given by Charlie Farmer for the transfer of the employees from the Re- spondent to Masson. But, even if the transfer was made for the purpose of in some way extricating the Respondent from its obligations under the contract with the Union, and for the purpose of thwarting the attempts of the Union to collect backpay which the men thought was due them, there was, in fact, no termination of employment of any of the employees which was not voluntary on their part. Whether there were violations of other sections of the Act in the Respondent's actions which followed upon the receipt by it of the.protests of its employees, is not before me for determination as none were alleged or litigated except the alleged discriminatory discharge of Smith, Oxendine, and Logan, and the single alleged violation of the employees'. Section 7 rights, hereinafter discussed. I do not deem dispositive the case of Scott Manufacturing Company, et al., 133 NLRB 1012, cited by the General Counsel. In that case the employer, in defiance of a union contract, first discharged all its employees and then 30 days later re- opened its plant under a new name and sought to rehire some of its old employees at lower wages, out of seniority order and upon condition that there be no union or union contract in the plant. The Board and the court (302 F. 2d 280 (C.A. I)) found that the employer ceased operation and discharged its employees for the purpose of depriving the latter of wages and employment rights gained through their bargaining agent. Here there was no such deprivation. There was no dis- charge, no break in employment continuity (except voluntary), no reduction in seniority, no refusal to have the Union in the plant. In fact the Respondent en- couraged the men to maintain union' membership. In short there was no termina- tion of employment or employment rights or any changes in working conditions or conditions of employment .9 - Accordingly, I shall recommend that that portion of the complaint which alleges that the employment of Smith, Oxendine, and Logan was discriminatorily terminated be dismissed. There remains for consideration and disposal the allegation of the complaint which alleges that by offering the employees a.wage increase and offering to pay their union dues, the Respondent has unlawfully interfered with its employees' Section 7 rights in' that this offer was made in an attempt to induce them to cease their concerted protected activities. There is, perhaps, on the face of the record, some reason to believe-that this was the purpose of the Respondent's offering the raise and offering to pay the union dues for its employees. This is so because the employees were protesting the prevailing conditions and some of them did, 0 If there was a breach of contract I am neither asked nor empowered to remedy that under the Act unless it is also an unfair labor practice within the meaning of the Act. 760-577-65-vol. 147-7 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD indeed, refuse to go to work for Masson immediately upon the Farmers' offer of work with Masson on July 15. In a sense , then, the offer of the raise was made to cause the employees to end their refusal to work which refusal was based upon the protest to the Respondent's paying less than the contract scale. But, the employees could still have protested this condition and could still have collected their backpay, assum- ing the same was due, even if they had gone back to work for Masson . Therefore, I believe it is more consistent with the situation as it existed at the time the various offers of raises were made that the Respondent made these offers for the purpose of keeping the employees on the Masson payroll , which was actually the Respond- ent's payroll . Thus, the offer of the raise in pay in return for the employees' coming back to work was , I find, merely the means by which the Respondent sought to assure the continuance of its business activity. Accordingly, I shall recommend that that portion of the complaint which alleges that the Respondent offered raises to the employees to induce them to refrain from and abandon their concerted protected activity be dismissed. CONCLUSIONS OF LAW 1. The Respondent did not violate Section 8 (a)(3) of the Act as alleged in the complaint. 2. The Respondent did not violate Section 8 (a)(1) of the Act as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. American Metal Products Company and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, and Its Local 1198. Case No. d6-CA-1653. August 3, 1964 DECISION AND ORDER On May 22, 1964, Trial Examiner Thomas N. Kessel issued his Decision in the above-entitled proceeding finding that the Respond- ent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Respondent filed excep- tions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3 ('b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. 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 en- tire record in this case, including the Trial Examiner's Decision and the exceptions thereto, and hereby adopts the Trial Examiner's find- ings, conclusions, and recommendations. 148 NLRB No. 16.