AAA Electric, Inc.

AAA ELECTRIC, INC. 247 AAA Electric, Inc. and Simms Electric Co. and IBEW Local Union No. 835, affiliated with International Brotherhood of Electrical Workers, AFL-CIO. Case 26-CA-3553 May 4, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On June 2, 1970, Trial Examiner Bernard J. Seff issued his Decision in the above-entitled proceeding, finding that Respondent, AAA Electric, Inc., had en- gaged in and was engaging in certain unfair labor prac- tices, and recommending that it cease and desist there- from and take certain affirmative action as set forth in the attached Trial Examiner's Decision. He further found that Respondents had not engaged in other un- fair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. Thereafter the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a brief in support thereof; Re- spondents filed cross-exceptions and a supporting brief; and the General Counsel filed an answering brief to the Respondents' cross-exceptions.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-number panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, the cross-exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The complaint in essence alleged that Respondents violated Section 8(a)(5) by unilaterally withdrawing recognition of the Union and ceasing to operate in accordance with the terms of the collective-bargaining agreement on the Southwest job; violated Section 8(a)(1) and (3) by laying off employees on September 5, 1969;2 and Section 8(a)(1) and (3) by threatening employees that the job was going nonunion and condi- tioning future employment on the employees' giving up their union membership. The complaint further alleged ' In response to the General Counsel's answering brief, Respondents filed a request for leave to file a further brief in order to respond to one of the General Counsel's contentions which it considered "unfounded and unfair"; the General Counsel filed an opposition to the Respondents' request. The Board administratively granted Respondents' request and accepted the Re- spondents' request, which fully set forth their position, as said brief. ' Unless otherwise indicated, all dates are in 1969. 190 NLRB No. 23 that at all material times Respondents constituted a single-integrated enterprise. Wiley Simms (hereafter W. Simms) was and is the sole stockholder in AAA which he founded in 1960; he also founded Simms Electric approximately 3 years ago to perform electrical contracting work on jobs success- fully bid by AAA; thereafter at least 75 percent of Simms Electric's work was on AAA jobs. Prior to April 1969, when Walter Sears and John Simms became minority stockholders, W. Simms was sole stockholder of Simms Electric. On September 2 he sold his remaining majority interest in Simms Electric' to Sears and John Simms. Until September 2, Sears was president of AAA and vice president of Simms Electric. After that date Sears became president and treasurer of Simms Electric and John Simms became vice president. Both before and After September 2, 1969, AAA and Simms Electric have utilized the same offices; both use the same clerical employees. AAA was awarded the contract for the job involved herein by the Southwest Electric Co-Op Membership Corporation (hereinafter Southwest) on February 19, 1969. Although there was no written agreement, letter, or subcontract between AAA and Simms Electric, Simms Electric was to (and did until it was removed) provide the labor for the job.4 AAA supplied all the materials and equipment for the job and the name AAA was stamped thereon. The company warehouse for the job, in Jackson, Tennessee, was maintained by AAA and so identified by a sign. In fact, AAA's con- sulting engineer on the job, Ince, did not know that Simms Electric was on the job and testified that as far as he was concerned it was always AAA. When AAA took over the job in September it hired some of Simms Electric's employees including Randall Eden, the con- struction superintendent. Eden had been superintend- ent for AAA prior to the formation of Simms Electric; he then became Simms Electric's job superintendent; finally, when AAA also took over the labor portion of the Southwest job on September 5, Eden became AAA's job superintendent. Contrary to the Trial Examiner's somewhat ambigu- ous finding, W. Simms alone made the decision that AAA would take over the Southwest job; he told Sears to lay off the Simms Electric employees.' In this regard After September 2, Simms Electric became Simms -Sears Electric; it is referred to herein as Simms Electric both before and after September 2. Walter Sears testified that Simms Electric has obtained no new work since September 2, and that the only work it had was given to it verbally by W. Simms prior to September 2. Although AAA's contract with Southwest requires that before subcon- tracting any work AAA must obtain permission of both Southwest and the Rural Electrification Administration , AAA did not seek permission to sub- contract to Simms Electric . Nor did AAA notify its bonding company, as required by that company, of its intent to subcontract to Simms Electric. The Trial Examiner had found that "[Simms Electric] was informed, after meetings with representatives of AAA ... that its contract was being cancelled" and "[W. Simms] concedes that he asked that AAA Electric take (Cont.) 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we note that, although the Respondents claim W. Simms had no interest in Simms Electric at the time of the takeover by AAA (September 5), Sears testified that W. Simms told him to lay off the Simms Electric em- ployees after W. Simms had sold his majority interest in Simms Electric. After AAA took over the job, Sears, although he had just become president of Simms Electric and was pur- portedly no longer affiliated with AAA, remained in the employ of AAA on a full-time basis on the South- west job until 3 weeks before the hearing herein (March 31, 1970) for the purpose of coordinating matters to hold down costs.' Before the AAA takeover, by his own admission, he had visited the job only about once every 2 weeks and had little contact with the job.7 Prior to AAA's successful bid on the Southwest job, W. Simms and Sears voluntarily went to the office of IBEW, Local 835. Tilghman, an IBEW representative, told them he could supply employees and that they could choose to work under one of two collective-bar- gaining agreements . A week later they informed Tilgh- man that it was to their advantage to work under the Southeastern Line Constructors Agreement. Work be- gan on April 9 and members of Local 835 who had been employed on another job in the area (the Jackson Elec- tric job) by AAA switched over to the Southwest job. At Job Superintendent Eden's request, Tilghman sup- plied additional men in accordance with the Southeast- ern Line Constructors Agreement. In late June or early July, W. Simms became con- cerned because the job was "not moving." In the next 4 to 6 weeks he spent considerable time at the jobsite visiting the various sections of the job and checking to see if sufficient equipment and materials were available. He testified that he observed the employees and con- cluded that the men were just not working. W. Simms indicated he discussed the slow progress with Eden and told Eden that if he did not show some real progress something would have to be done. About August 1 personnel realignments were made among the foremen, but according to Eden this seemed to result over the work." W. Simms admitted he alone made the decision. Sears corroborated W. Simms on this point. 6 This in our opinion presents a rather anomalous situation , as Sears was employed full time on the job only after he had purportedly severed his connections with AAA and become president of Simms Electric which had been removed from the job. ' In their brief to the Trial Examiner, Respondents conceded the joint responsibility for unfair labor practices, if any, up to and including Septem- ber 5. (See first paragraph under the subheading entitled "Concluding Find- ings and Analysis" in section III, A, of Trial Examiner's Decision.) The Trial Examiner found that Simms Electric and AAA Electric (hereinafter AAA) constituted a single-integrated business enterprise on or until about Septem- ber 4, 1969. The General Counsel excepts, contending that AAA and Simms Electric have at all times (not only until September 4) been and are now an integrated business enterprise. We find merit in the General Counsel's ex- ceptions. In our opinion the facts clearly indicate that AAA and Simms Electric, both before and after September 2, were, in actuality, one single- integrated enterprise, and are, therefore, jointly and severally liable for any violations of the Act. only in the situation becoming worse instead of better. Finally W. Simms decided to hire a work force under AAA's own name and remove Simms Electric from the job. Eden was retained as job superintendent. All 29 of the Simms Electric employees referred from IBEW, Local 835, were terminated on September 5; the reason stated on their termination slips was "lack of work." AAA assembled a new crew and continued the-job but it refused to abide by the Southeastern Line Construc- tors Agreement. Numerous employee witnesses (Burkeen, Fitzgerald, Jordan, Hickman, Hornsby, Pitman, Tully, and Mor- ris) testified in essence that prior to the layoff Eden told them (some singly, some in groups) that if more progress were not made the job would be finished nonunion . Many of these same employees also testified in essence that Eden told them that if they wanted to work non-union he would be willing to hire them. Thus, employee Burkeen testified that Eden offered him a job on the day of the layoff stating "it would be pretty good pay ... and benefits and probably a bonus at the end of the job." Fitzgerald testified that on Sep- tember 2 Eden told him the job was definitely going nonunion but that he would like to have Fitzgerald stay on as an employee. Eden told Fitzgerald he would pay a lineman what a lineman was worth; there would be no set scale but there would be a bonus depending on how the company did during the year.' Fitzgerald also testified that Eden, on the day of the layoff, indicated that if any employees wanted to come back to work he would be available at his motel. Jordan, whom Eden also told 2 or 3 weeks before the layoff the job would go nonunion if performance did not improve, further testified he heard Eden say on the day of the layoff that anyone interested in a job should see him later. Cecil Hickman, whose testimony the Trial Examiner erroneously ascribed to employee Hornsby,I testified that a few days before the layoff Eden told him at the Jackson warehouse the job was going to have to go nonunion. Eden also asked Hick- man if he would like to stay on and work for him; Hickman said he would rather not give up his union card. Employee Morris was present 3 or 4 days prior to the layoff when Eden told a group of employees that if something was not done organized labor would not finish the job. Morris indicated that Eden was talking to the group and not to Morris personally. Morris fur- ther testified that on the morning of the layoff Eden told him if he wanted to stay on the job and work nonunion Eden would be happy to have him; Morris 6 The Trial Examiner indicated that "Fitzgerald asked Eden if Fitzgerald would lose his [union card]." This was error as the record shows Fitzgerald asked Eden if Eden would lose his union card. ' Hornsby testified Eden said the job "wouldn't be built under organized labor if things didn't pick up." Employees Pitman and Tully testified along parallel lines and to the same effect as Hornsby. AAA ELECTRIC, INC. declined as he did not want to jeopardize his union card. 10 The Trial Examiner found: ... Eden did not threaten any of the Union's members that if they did not relinquish their mem- bership in the said Union and give up their "tick- ets" they would be, fired." From the credible tes- timony on the record of all the witnesses I conclude and find that Eden did in fact tell the men, some singly and some in groups, that unless they performed the work required of them they would be replaced by men who were willing to do the work they were hired to do. The Trial Examiner did not treat the separate allega- tion of the complaint that the Respondents violated Section 8(a)(1) by threatening employees that the job was going nonunion. In this regard the Trial Ex- aminer's finding, made in connection with the other alleged 8(a)(1) and (3) conduct, that Eden said nothing about the job going nonunion, is without record sup- port. For in addition to the employee testimony at- tributing such statements to Eden, Eden himself admit- ted that he might have made such statements.12 We also note that the Respondents made the alleged threat a reality. Accordingly, we find that the Respondents, 10 After noting this testimony the Trial Examiner stated "During cross- examination Morris said that the only time Eden talked to him personally was on the 5th of September which was the day on which he received his layoff slip." As the General Counsel points out the Trial Examiner 's implica- tion is that Moms' statements on cross-examination contradicted his previ- ous testimony The record clearly demonstrates, however, that there was no contradiction involved For as Moms testified on one occasion Eden was talking to a group and not Morris personally, and on the other occasion Eden spoke to Morris on a personal basis " The Trial Examiner, in so finding , was technically correct In addition, however, he apparently discredited the employee witnesses on this point, and credited Eden In fact, Eden testified, "I told them should they go to work for us as AAA Electric the union would probably pull their tickets " Similarly, the employee witnesses did not testify that Eden conditioned their continued employment on giving up their union cards But, Eden did tell them the job would be nonunion As their testimony indicates, the employees obviously knew, as union members, that working on a nonunion job would subject them to the possible loss of their union cards (such a possibility is quite significant to craft union members in the construction industry) Thus, Eden's statement had, in fact, substantially the same effect as if he had conditioned their continued employment on their giving up their union cards We therefore reject the Respondent 's contention that Eden's statements would in no way constitute a threat to the employees However, based on the Trial Examiner 's apparent credibility resolutions, we are con- strained to find that Respondent did not threaten union members that if they did not relinquish their membership in the Union they would be fired Eden testified as follows Q. Mr Eden, you say you didn't tell any of these men it would be a nonunion job9 A. Now, I'm not denying that I might have told somebody that it was going to be a nonunion job I can't remember if I did. s a r r Q You knew that this talk was going around among the men, and you concede that you may even have said it yourself to some of them, is that correct9 A I said the talk was going around Possibly I said it I said I didn't remember saying it 249 through Eden, violated Section 8(a)(1) by threatening the employees of Simms Electric that the job was going nonunion. The Trial Examiner found that the termination of the employees was not violative of Section 8(a)(3) but that "Respondents discharged all employees who refused to work for perfectly valid economic reasons." Initially, we note that the reason given for the termina- tions ("lack of work") was not the actual reason. Rather, it appears that the job was lagging and progress was slow and there was too much work. it However, the reason for the lack of progress is not clear. The Re- spondents attributed the lack of progress to the em- ployees. The General Counsel contends that the prob- lem resulted from lack of organization, including lack of materials and equipment and poor supervision." W. Simms conceded that at one time he thought that the difficulty might be in supervision. Ince, the Re- spondents' consulting engineer, testified that the pace of the work force was very slow; he further testified that he often saw employees standing around waiting for materials and supplies. Ince said that in his opinion the job was not organized, and Eden could not get coopera- tion from the men. He testified that Southwest wanted Eden replaced because he could not organize the job, but that he (Ince) put Southwest off by asking them to wait awhile. In any event, no matter what the reason for the slow job progress, W. Simms decided to finish the job nonunion notwithstanding the obligation to bargain with the Union that he, himself, had assumed." 11 That progress was slow is clear Thus, Simms testified that, from the start of the contract to September 5, Simms Electric had completed 21 9 miles of the contract expending 873 hours per mile. From that date until March 13, 1970, AAA had completed 65 9 miles expending 549 hours per mile. " The testimony with respect to who had responsibility for the job was ambiguous and confusing W Simms controlled both corporations. He spent 6 weeks observing the job and frequently discussed the job progress with Eden Presumably Sears was under W Simms in Respondents' managerial hierarchy, yet W Simms testified that he had no idea what Sears' respon- sibilities and obligations were with respect to the Southwest job, although it was his understanding that Eden worked for Sears W Simms testified that he only knew that Sears coordinated all the labor for Simms Electric Sears, on the other hand, testified that prior to the layoff he had very little to do ("some but not very much contact") with the job He further testified that he had nothing to do with personnel matters which were handled by Eden and had no part in the decision to terminate the employees After September 5, Sears, although no longer affiliated with AAA (W Simms had "relieved" him as President), was employed full time on the Southwest job by AAA In this regard, we note that the Respondents must have been concerned about the setup and the supervision of the job. For, after AAA took over, Sears was employed on a full-time basis on the job to assure that materials and equipment were available, to note job progress, to consult with Eden on labor problems, and generally to advise on how to hold down costs " The Trial Examiner found that Respondents violated Section 8(a)(5) only to the extent that it refused to continue bargaining with the Union and ceased making payments into the Union's benefit fund The General Coun- sel excepts We agree with the General Counsel's contention that the Re- spondents further violated Section 8(a)(5) by unilaterally withdrawing recognition from the Union and by ceasing to accept employees by referral from the Union according to the provisions of the collective-bargaining agreement 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner's finding that the men were dis- charged for perfectly valid economic reasons hinges on the testimony of W. Simms, Eden, and Massengill. W. Simms testified that the men just were not working. Yet, although he had purportedly spent 4 to 6 weeks observing the job, his testimony was very general in nature and consisted primarily of conclusions;[, he was unable to furnish job locations, dates, or names. His most specific testimony was that on one occasion he saw 8 to 10 men standing around a pole doing nothing and on another occasion he saw a crew with its foreman sitting under a tree; he apparently did not attempt to learn the identity of the foreman or take any action. Eden testified that he could not get the job to move and that he did not know what happened. He further testified that he visited the jobsites daily and the men were not working. However, like W. Simms' testimony, his testimony comprised generalities and conclusions. He provided no details as to jobsites , dates, or names. Eden testified that although he had authority to termi- nate employees he did not do so, and that although many of the men referred by Tilghman were un- qualified he never rejected them or sent them back to Tilghman;" Eden further stated that Tilghman was unable to provide the number of employees needed by Respondents. 1B The Respondents next attempted to show that they had made no attempt to terminate unsatisfactory em- ployees because such attempts were futile. W. Simms testified (and the Trial Examiner apparently relied on this testimony) that it was his understanding that when men were fired the next morning Respondents had to put the men back to work because of union pressure; he added that Eden had told him that if an out-of-town man were fired nothing was said, but if a member of the Local were fired he had to be put back the next day.19 Yet, he was unable to point to any specific incident where this had occurred and on cross-examination ad- " The Trial Examiner stated: "[W.] Simms then paraphrased the tes- timony of the General Counsel's witness , Pitman, who had testified on the day before that he, Pitman, would find a crew going and a crew coming but he never did find one staying." The General Counsel excepts, contending the Trial Examiner had mistated the testimony of Pitman. Pitman in fact said: "I've been in this business 24 years, and there's about three crews. There's one a coming, one a going, and one a staying." More specifically, however, Pitman's statement was used entirely out of context since Pitman was not referring to the conditions on the Southwest job as the Trial Ex- aminer's statement implies . Rather, Pitman was describing the condition that exists on all jobs in the industry and specifically he was responding to a question as to how many employees had changed over from another of Respondents' jobs to the Southwest job. 11 The Southeastern Line Constructors Agreement under which Re- spondents chose to work provides that the employer shall have the right to reject any applicant for employment. " In this regard we note that the Southeastern Line Constructors Agree- ment provides that the Employer is free to secure applicants without using the referral system when the Union is unable to refer applicants within 3 days of the Employer's request. " Eden did not corroborate W. Simms' testimony in this regard. He did not testify that Respondents had any difficulty due to union pressure in firing any employee, members of the Local or otherwise. mitted that of his own knowledge he did not know that this was true. Massengill, a foreman on the job prior to the change- over who remained on the job when AAA took over, also testified that the men were just not working. After being cautioned by the Trial Examiner that generaliza- tions would not suffice, he related that on one occasion he found employees Carsley and Lessenberry lying un- der a tree and on another occasion it had taken two journeymen (Carsley and Hopkins) 9 hours to cut in a switch, a job which should normally take about 1 hour. On cross-examination, however, Massengill admitted that Carsley had been fired, Lessenberry had been asked to quit and did in fact quit, and Hopkins also quit. Thus, the employees mentioned in the only two specific instances Massengill was able to testify to were either terminated or quit. The Trial Examiner found: Massengill said he had authority to discharge the employees. He did discharge them but thereafter found that his discharges represented an exercise in futility because after the men were discharged the Union came to see him and, upon exerting some pressure on behalf of the dischargees, he put some of them back to work. Massengill was able to relate only one specific exam- ple in this connection, that involving George Burkeen; he testified that after Burkeen was terminated the Un- ion requested Massengill put him back to work and that he and Eden agreed to put Burkeen back after Bur- keen's case had been discussed for about an hour with the union steward.20 However, Eden apparently consid- ered Burkeen a good employee; he testified that he offered Burkeen a job with AAA when AAA took over and added that he considered Burkeen a competent employee. We also note that Simms' testimony that if a member of the Local were discharged he had to be put back the next day was contradicted by the testimony of Business Representative Tilghman who identified (from General Counsel's Exhibit 3) five employees who were fired for unsatisfactory work as members of Local 835 (Carsley, Goodman, Lee, Weatherford, and Wood). Tilghman further testified that he had not filed a grievance over the discharge of any of those men, and added that he had told Eden on several occasions that, if the men referred were not qualified, he could reject them under the collective-bargaining agreement.21 30 The General Counsel contends that the Trial Examiner did not fairly characterize Massengill's testimony as to Burkeen. We agree . For as the General Counsel points out Massengill made no mention of "exercise in futility" or that the Union exerted pressure . Rather, Massengill said that the Union requested it, we discussed it, and "we agreed that he could go back to work." " We also note that the Union made every effort to cooperate with the Respondents to improve job progress according to Eden's testimony. AAA ELECTRIC, INC. The record does not support a finding that the Re- spondents were unable to terminate unsatisfactory em- ployees because of union pressure. To the contrary, the record reveals that employees were terminated for un- satisfactory work. It further reveals that Respondents were authorized to reject or terminate unqualified em- ployees referred by the Union. And, of course, under the Act an employer is entitled to terminate any em- ployee for unsatisfactory work or " cause." Respond- ents for some unknown reason chose not to do so.22 We also find it improbable that Eden and Massengill who were on the job on a daily basis and W. Simms who purportedly spent 4 to 6 weeks observing the job were unable to testify on this point except in the most con- clusionary and generalized manner. In the only specific instances they testified to, the offending employees in- volved either were terminated or quit. As indicated above, numerous employees (Burkeen, Fitzgerald, Jordan, Hickman, and Morris) testified that both before and immediately after the September 5 termination Eden asked them to contact him if they wanted to work for AAA. Jordan testified he heard Eden, on the day of the layoff, say that anyone inter- ested in a job should see him later. Fitzgerald testified that on the day of the layoff Eden indicated that if anyone wanted to come back to work he would be available in his motel room. Eden, by his own admis- sion, asked some of the employees to work for AAA. In our opinion it would be anomalous to find that the employees were terminated for unsatisfactory perform- ance and then find they were offered reemployment. For to find that Respondents were willing to reemploy them refutes the contention that their work was un- satisfactory." Yet, this is in effect what the Trial Exam- iner did, since he found that "not only did AAA con- tinue in employment those men who were previously hired by [Simms Electric] but, in addition, when new employees were hired as replacements many of these were members of and carried `tickets' in the IBEW from various locals situated in different parts of the country." Eden admitted, however, that, while there were men from other locals on the job after AAA took over, no members of Local 835, except Massengill, a " Respondents in their brief to the Trial Examiner contend that all of the Simms Electric employees were engaged in unprotected activity After ad- mitting there was proof Eden stated the job would go nonunion if greater progress were not made, they assert that such statements were lawful state- ments of proper employer action if unprotected activity was not abandoned. We do not agree Proper employer action, to the contrary , would have been to ferret out and terminate any unsatisfactory or unqualified employee for the reason set forth in the Act as a defense to an alleged 8(a)(3) violation -namely, "cause " " In fact in their brief to the Trial Examiner the Respondents concede the point that the employees were offered continued employment. The Respondents state- In any event, no backpay should be awarded employees [T]he proof shows that Eden offered employees continued employment , either sin- gly, or in a group 251 foreman, had been hired. The conclusion is inescapable that Respondents were willing to hire union members so long as these union members were willing to work on a nonunion job. In our opinion, the record herein, considered in its entirety, reveals that the mass layoff of the Simms Elec- tric employees and the repudiation of the collective- bargaining agreement were simply an effort by the Re- spondents to avoid having to deal with the Union." Put differently, we are unable to adopt the principle that an employer can get rid of a union by the simple expedient of firing all its employees and hiring others to take their jobs. Accordingly, we find that Respondents' mass ter- mination of the employees of Simms Electric violated Section 8(a)(3) of the Act. CONCLUSIONS OF LAW 1. The Respondents, AAA and Simms Electric (or Simms-Sears Electric) are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization as defined in Section 2(5) of the Act. 3. By unlawfully threatening its employees, as found herein, Respondents engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. By unlawfully terminating its employees on Sep- tember 5, 1969, as found herein, Respondents engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. By unlawfully withdrawing recognition from the Union and ceasing to operate in accordance with the terms of the collective-bargaining agreement, as found herein, Respondents engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act.25 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondents did not violate the Act by any con- duct not found herein to constitute an unfair labor practice. " We are also of the opinion that the facts clearly support the inference that the sale by W Simms of his majority shareholdings in Simms Electric and the corporate reorganization of Simms Electric and AAA on September 2, just prior to the mass termination and takeover of the labor portion-of the Southwest job by AAA, were attempted justifications by W. Simms of his effort to free himself from his collective-bargaining obligations under the Southeastern Line Constructors Agreement " In adopting the Trial Examiner's conclusion that Respondents' repudiation of their bargaining agreement with Local 835 violated Section 8(a)(5), we note that, whatever the nature of the agreement initially, the Union clearly represented a majority of Respondents ' employees at the time of Respondents' repudiation . Respondents so concede in their brief when they state, "And with their [the employees'] termination went loss of majority status " 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondents engaged in cer- tain unfair labor practices we shall order the Respond- ents to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents discriminatorily ter- minated all 29 of the Simms Electric employees we shall order Respondents to offer those employees (since there is evidence that one or more employees were also terminated on or about September 5 for cause, our order is limited to the employees who were terminated for "lack of work") immediate and full reinstatement to their former jobs on the Southwest job, if that job has not been completed, and to make them whole for any loss of earnings they may have suffered as a result of such unlawful termination by payment to them of a sum of money equal to the amount they would have earned from the date of their terminations to the date of an offer of reinstatement or the date that the South- west job was completed less net earnings, if any, during such period to be computed on a quarterly basis in the manner established by the Board in F W. Woolworth Company, 90 NLRB 289, and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further, we shall order Respondents, in the event that Respondents have not completed the work re- quired of them under their contract with the Southwest Electric Co-op Membership Corporation, to recognize the Union, abide by the provisions of the Southeastern Line Constructors Agreement, and bargain collectively with IBEW Local Union No. 835 until the Southwest job is completed. We shall further order Respondents to pay into the Southeastern Line Constructors Em- ployees Benefit Board # 114 the payments which would have been paid into such fund but for Respond- ents' unilateral termination of such payments due to the unlawful termination of their employees, plus inter- est at 6 percent per annum. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, AAA Elec- tric, Inc. and Simms Electric Co., Nashville, Tennessee, their officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Unlawfully threatening their employees that the job will go nonunion if greater progress is not made. (b) Unlawfully terminating employees or otherwise unlawfully discriminating in regard to their hire, tenure of employment, or any term or condition of employ- ment. (c) Unlawfully failing or refusing to recognize or bargain with IBEW Local Union No. 835 as exclusive representative of the employees in the following appro- priate unit: All employees employed on the Southwest Elec- tric Co-Op job, excluding guards and supervisors as defined in the Act. (d) Unlawfully refusing to abide by the provisions of the Southeastern Line Constructors Agreement on the Southwest job. (e) In any other manner interfering with , restraining, or coercing their employees in the exercise of any right guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is found necessary to effectuate the policies of the Act: (a) Offer to the 29 employees terminated on Septem- ber 5, 1969, immediate and full reinstatement to their former jobs, if the Southwest job has not yet been com- pleted, and make each employee whole for any loss of pay he may have suffered as a result of his termination in the manner set forth in the section entitled "The Remedy." (b) Upon request, recognize and bargain collectively with IBEW Local Union No. 835 until Respondents complete the work required of them under the contract with the Southwest Electric Co-Op Membership Cor- poration of Brownsville , Tennessee. (c) Abide by the provisions of the Southeastern Line Constructors Agreement and pay into the Southeastern Line Constructors Employees Benefit Board # 114 the payments which they would have paid into such fund except for their unlawful termination of such pay- ments. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records , social security payment records, time- cards, personnel records and reports , and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at their Jackson, Tennessee, jobsite, or, if the Southwest job has been completed , at their Nashville, Tennessee, office, copies of the attached notice marked "Appendix."26 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by the Respondents' representatives, shall be posted by Respondents immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to in- " In the event that this Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD." AAA ELECTRIC, INC. 253 sure that said notices are not altered, defaced, or cov- ered by any other material. (f) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply here- with. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully discharge employees or otherwise discriminate against them because they are union members. WE WILL NOT unlawfully threaten our em- ployees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of their rights to self-organization, and to bar- gain collectively through representatives of their own choosing. WE WILL offer to unlawfully terminated em- ployees immediate and full reinstatement to their jobs on the Southwest Electric Co-Op job if that job has not been completed and make them whole for any loss of earnings suffered as a result of their unlawful terminations. WE WILL recognize and bargain collectively, upon request, with IBEW Local Union No. 835 as exclusive representative of the employees in the following appropriate unit: All employees employed on the Southwest Electric Co-Op job, excluding guards and supervisors as defined in the Act. WE WILL abide by the provisions of the South- eastern Line Constructors Agreement on the Southwest Electric Co-Op job. WE WILL pay into the Southeastern Line Con- structors Employees Benefit Board # 114 any pay- ments which we would have paid into said fund but for our unlawful termination of our employees on September 5, 1969. AAA ELECTRIC, INC. (Employer) Dated By (Representative) (Title) SIMMS ELECTRIC CO. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901- 534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BERNARD J. SEFF, Trial Examiner: Upon charges filed on December 22, 1969, by IBEW Local Union No. 835, affiliated with International Brotherhood of Electrical Workers, AFL- CIO, herein called Union, the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for Region 26 (Memphis, Tennessee) issued a complaint dated February 13, 1970, against AAA Electric, Inc. and Simms Electric Company, herein called the Respondents. With re- spect to the unfair labor practices the complaint alleges, and Respondents' duly filed answer denies, that Respondents (1) violated section 8(a)(5) of the Act by refusing to bargain with the Union, (2) violated Section 8(a)(3) of the Act by the discharge of a group of employees, and (3) violated Section 8(a)(1) of the Act by the foregoing conduct and by other specified statements and conduct of an admitted supervisor and agent. This case was tried before me at Jackson, Tennessee, on March 31 and April 1, 1970. All parties appeared and were given full opportunity to participate in said trial. Thereafter, the parties filed briefs which have been fully considered. For the reasons hereinafter indicated, I find that Respondent did not violate Section 8(a)(1) and (3) of the Act. Upon the entire record in the case' and from my observa- tion of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENTS (a) AAA Electric, Inc. is a corporation with its principal office and place of business located at Nashville, Tennessee, where it is engaged in the electrical contracting business. (b) Simms Electric is a corporation with its principal office and place of business located at Nashville, Tennessee, where it is engaged in the electrical contracting business. (c) During the past 12 months, AAA Electric, in the course and conduct of its business operations, purchased and re- ceived in Tennessee materials and supplies valued in excess of $50,000 directly from points located outside the State of Tennessee. ' Unless otherwise indicated, the factual findings herein are based on evidence concerning events which transpired in 1969 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) During the past 12 months, Simms Electric, in the course and conduct of its business operations , purchased and received in Tennessee materials and supplies valued in excess of $50,000 directly from points located outside the State of Tennessee. (e) During the past 12 months, Simms Electric furnished services valued in excess of $50,000 to the Southwest Electric Co-Op Membership Corporation of Brownsville , Tennessee, which is a public utility system providing electrical service in Tennessee, having annual gross revenues in excess of $250,- 000. AAA Electric is now, and has been at all times material herein, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. Simms Electric was, until on or about September 4, 1969, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Until on or about September 4, 1969, when Simms Electric ceased business, Simms Electric and AAA Electric were affi- liated concerns with common ownership and officers who formulated and administered a common labor relations policy affecting the employees of said companies, and said companies constituted a single integrated business enterprise. II. THE UNION The Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction: The Issues and the Alleged Unfair Labor Practices The Respondents admit that they are employers engaged in commerce within the meaning of the Act. Both companies in their answers deny knowledge concerning the volume of business done by each of them in the 12 months preceding the date of the issuance of the instant complaint. Both companies also deny that all of their employees employed on the South- west Electric Co-Op job, excluding guards and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining. Each of the Respondents ad- mits that all linemen, groundmen, and operators, including trainees, employed by the Southwest Electric Co-Op job might be considered by the Board to constitute an appropri- ate unit within the meaning of the Act. AAA admits that Wiley C. Simms is the owner of AAA and further that prior to September 2, 1969, he owned stock in Simms Electric Company. AAA further admits that prior to September 2, 1969, Walter Sears was president of AAA and vice president of Simms Electric, that Allene Simms was president of Simms Electric, and that Randell Eden was the job superintendent for Simms Electric and subsequently became the job superintendent for AAA. It further admits that at all times material Wiley Simms would be considered its agent and that prior to September 2, 1969, Walter Sears in like manner had been considered its agent. It denies that Allene Simms was its agent and that Randell Eden was, prior to September 8, 1969, its agent. On February 29, 1969, AAA Electric made a successful bid on a job for electrical contract work with the Southwest Electric Co-Op Membership Corpo- ration of Brownsville, Tennessee, to change out and build new power lines for surrounding counties. It is further admit- ted by AAA that it subcontracted the labor on the so-called Southwest.Co-Op job for Simms Eleotric Company but de- clares that the work began on or about April 9, 1969. AAA admits that it subcontracted the labor on the so-called South- west Co-Op for Simms Electric Company but states in its answer to the General Counsel's complaint that the work began on or about April 9, 1969. It is not denied that Simms Electric did obtain employees for the Southwest Co-Op job and for another job in Jackson, Tennessee, through the Union. This admission in Respondent AAA's answer does not concede that Simms Electric recog- nized the Union as the collective-bargaining agent for its employees but it does admit that Simms Electric did obtain employees for the Southwest Co-Op job and for another job in Jackson, Tennessee, through the Union. The General Counsel's complaint alleges that pursuant to the agreement of Simms Electric and the Union, such work was performed in compliance with the terms of the Southeastern Line Con- structors Agreement, which is a collective-bargaining agree- ment. Simms in its answer states that under its contract it was obligated to provide only the labor and supervision for the job and that the work under this contract began on or about April 9, 1969. Prior to the commencement of work on the Southwest Electric Co-Op job Simms alleges that it made arrangements with the Union to obtain employees through the Union for the job, that it dealt with a representative of the Union with respect to the terms and conditions of employment, and that it was generally agreed with the Union that the work would be performed in accordance with the provisions of the South- eastern Line Constructors Agreement. Simms further admits that in addition to obtaining employees through referral from the Union the parties generally complied with the terms of the aforesaid agreement and that it made payments as alleged to the benefit board. Simms states that progress on the aforesaid job was com- pletely unsatisfactory and that despite its best efforts it could not obtain desired production. In August, 1969, the situation became critical and did not improve, Simms was informed, after meetings with representatives of AAA Electric, Inc., that its contract was being cancelled. Accordingly, on or about September 5, 1969, it delivered final employee pay- checks to the foreman, with instructions that the employees were to be informed that its contract had been cancelled and that their services would no longer be required. Simms con- cedes that he asked that AAA Electric take over the work, and that it hired some of the former Simms' employees, in- cluding its job superintendent, Randell Eden. Simms denied that since on or about September 4, 1969, it has ceased to operate. It does admit however that thereafter AAA Electric has performed the work on the Southwestern Electric Co-Op job. The General Counsel contends that on or about September 4, 1969, AAA Electric unilaterally withdrew recognition from the Union and has, since that time, refused to recognize the Union as the collective-bargaining agent for the em- ployees in the unit set forth supra by the General Counsel. Furthermore on or about the same date, September 4, AAA Electric unilaterally stopped accepting employees by referral from the Union and stopped making payments for the South- eastern Line Constructors Employees Board No 114. The General Counsel alleges that on and after September 4, Re- spondent by its Job Superintendent Randell Eden, at the Respondent's warehouse in Jackson, Tennessee, offered em- ployee benefits and a bonus if the employees would continue working for him on a nonunion job. There are other allega- tions in the General Counsel's complaint to the effect that the same job superintendent Eden, at the jobsite near Beach Bluff, Tennessee, threatened an employee by telling him that the job was going nonunion if production did not increase. Similarly there are other allegations in the complaint to the general effect that Eden at various jobsites threatened employees that AAA ELECTRIC, INC. unless their work improved substantially the job would be completed by nonunion labor. Thus, it is the contention of the General Counsel that Eden threatened certain employees that unless their production improved markedly they would be fired and the job would be completed by nonunion employees. Respondents jointly deny the commission of unfair labor practices. Simms states that no threats or inducements were made by Eden designed to encourage the employees to relin- quish membership in the Union. Its contract with AAA was cancelled when the work was progressing badly, and finally on September 5 AAA paid off its complement of employees and stepped out of the picture. At this point Simms took over the operation of the job on its own and continued to function with Eden as the job superintendent. Respondent Simms ear- nestly argues that it was never its intention nor did its agents ever attempt to interfere with the membership of the men in the IBEW but that Eden insisted that the job, which had been proceeding very slowly and inefficiently, be immediately im- proved; otherwise he would be compelled to secure employees who would do the job as rapidly as it should be done. It was testified to by Eden that he himself had a "ticket" (member- ship card in the IBEW) for about 15 years and that the president of the Company, Sears, also has been a member of the Union for many years. When it became apparent that the employees did not intend to change their working habits or accelerate their efforts to complete the job, Eden approached members of the working force and told them that he had no objection to their continuing on the job if they would do the work required of them. However, in the event that they did not improve and did not much more rapidly complete their assigmmnents he would have no alternative except to dismiss them and hire people who would do the required work. It is not denied by either of the Respondents that they were parties to the so-called Southeastern Line Constructors Chapter- NECA Agreement with Local Union 270, 429, 474, 760, 835, 846, 934, and 1925 IBEW. This agreement which became effective August 1, 1968, was to remain in effect until September 1, 1970, unless other- wise cancelled according to its terms. Employee Burkeen testified that on the day he was laid off at the warehouse in Jackson, he had a conversation with Mr. Eden. No one was present except Eden and Burkeen. Eden offered Burkeen a job and said "It would be pretty good pay and pretty good benefits, and probably be a bonus at the end of the job." In response to this offer, Burkeen said "So, I just told him I couldn't drop my ticket. So that's as far as it went." Witness Fitzgerald testified that the first time he spoke to Eden, which was about 2 or 3 weeks before the layoff at Beech Bluff, Tennessee, while only Fitzgerald and Eden were present within earshot of each other, Eden told him that "Sears and Simms had decided that they did not seem to be getting enough done someway or another and that they were fixing to go nonunion and he [Eden] had talked them into staying union for a little while longer but there was a possibil- ity that the job was going to go nonunion." There were others working at the time this conversation took place but Eden and Fitzgerald were in a truck during this conversation and no one else heard them. Once again, about 3 days before the layoff, approximately the 2nd of September, Fitzgerald was over on the Law Road job about 15 miles northeast of town and once again only Fitzgerald and Eden were present. At this time, Fitzgerald testified that Eden told him it was defi- nitely going nonunion but he said he would like to have Fitzgerald stay on as an employee of AAA. Fitzgerald asked him about the pay and Eden said he would pay a lineman what a lineman was worth, there would be no set scale. He also said there would be a bonus but this would depend on 255 how well the Company did during the year. Eden said that he himself was going to stay on the job and Fitzgerald asked Eden if Fitzgerald would lose his ticket. Eden replied that he was prepared to give it up, that the Company had offered him a pretty good job. Wherever in the course of the testimony the word "ticket" is used this means a union card. Fitzgerald replied that he would think about the offer but that that was the extent of the conversation. Thereafter on the following Friday, September 5, Fitzgerald had another conversation with Eden. Fitzgerald testified that some boys were working for Eden that he knew. He went down to see some of them at a motel where they were all staying and Randall Eden was in the room. Fitzgerald said there were about 10 or 15 men sitting around talking, and Eden came in and had a conversa- tion with Fitzgerald. Fitzgerald testified that Eden said "his work was all right and that he'd like for him to come back to work." Fitzgerald told him he didn't think he would give up his ticket. Eden replied that there would be no hard feel- ings. The Trial Examiner inquired of Fitzgerald to find out whether or not Eden had called a meeting of the former employees at the time the 15 were gathered together in the motel. The purpose of the question was to ascertain whether or not the 15 were gathered there because they were sum- moned or invited, or had just heard about this meeting while on the job. Fitzgerald's answer was that the meeting in the motel was a drinking party. This drinking party took place after work. Fitzgerald said that in general Eden made the statement that if any employees wanted to come back to work he would be available at the hotel at his room and he gave his room number. Fitzgerald went on to say that in the conversations he had with Eden he asked Eden if the job superintendent had talked to other employees about the situation. Fitzgerald fur- ther testified that he asked Eden if he came back to work or had he offered jobs to the others and Eden replied that he had talked to several other men. The only name he mentioned was Billy Massengill. Eden thought that Billy Massengill would stay with the Company. Fitzgerald commented that he did not think that Massengill, who had an 18-year ticket with the Union, would give it up. Eden replied that he had talked to Massengill and it was his impression that Massengill would stay on the job. It was further brought out on cross-examina- tion that Fitzgerald had at one time been a foreman on the Southwest job. In addition to Fitzgerald, Massengill and Robert Jordan were also foremen on this job. Fitzgerald went on to say that all of the men whom he mentioned were mem- bers of Local 835 and had been referred to the AAA or to Simms by Union representative Tilghman or through the Union hall. Employee Hornsby testified along parallel lines and to the same effect as Fitzgerald. In the course of his testimony Hornsby said Eden told him the job was going to have to go nonunion and asked Hornsby if he wanted to stay on and work for Eden. Hornsby said he asked Eden if the job was going to be nonunion. When Eden replied in the affirmative Hornsby said that he did not want to give up his union card and therefore he would not consent to work for the new company under these conditions. In response to this remark Eden said, "Well, if you change your mind, let me know." And Horsnby said okay. Employee Jordan stated that he worked for AAA from May until September 5, 1969, at which time he was laid off, ostensibly due to lack of work. Jordan testified that he had been a line foreman on the Southwest job. Jordan testified to a conversation that he had with Eden in the course of which he asked Eden how the job was going and Eden replied that overall it was not going very well and he further stated that 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if things did not shape up better he was going to have to do something different. Jordan said he had used about 60 percent of his labor time and only had 20 percent of his work done and on this basis Eden said he would have to go nonunion if the performance on the job did not improve. In the course of cross-examination Jordan stated that there were three foremen, himself, Massengill, and Fitzgerald. Later on a Mr. Claude Ballard took the place of Fitzgerald and was later promoted to general foreman. The way it turned out Massengill stayed on but Jordan was the only foreman for the entire period of time. The rest of the em- ployees were elevated from the line job or whatever work it was that they were doing. Jordan testified that he heard Eden make a statement that if anybody was interested in continu- ing work they could see him later. Witness Lloyd Pitman testified, inter alia, that Eden spoke to a group of about 15 men while they were on the job and said, "If we worked, it look like the job is going to have to be-we weren't getting enough work done and the job was going to have to make a change. It would have to be finished non-union." Employee witness Morris testified that about 3 or 4 days before the layoff slips were distributed Eden was present talk- ing to a bunch of men. Eden made the statement that if something wasn't done about the working conditions that organized labor wouldn't finish the job. Morris also said that while he was getting his tools together and putting them in his car Eden said to him "I suppose you know by now the job is going non-union," and I said, "Yes, sir. By now I have realized that." Eden then said, "If you care to stay and work as non-union, I'll be glad to have you." I told Mr. Eden that I wouldn't jeopardize my union card and he said he did not blame me. I understand. If you ever need any work and I can put you to work I'll be glad to." During cross-examination Morris said that the only time Eden talked to him personally was on the 5th of September, which was the day on which he received his layoff slip. At this time an employee named Delmus Warren was with him when Mr. Eden came up and said the job was going nonunion . On redirect examination the General Counsel brought out the fact that Delmus Warren was now working for Local 84 in Atlanta, Georgia. Employee Jack Tulley testified that while he was working on Law Road and Beech Bluff, which was part of the South- west job, he received a layoff slip. The reason given for the layoff was lack of work. When asked if Morris heard Eden discuss the job progress with employees, he said on one occa- sion he did. This took place about 2 days before the layoff while he was out on Law Road and Eden was there together with a bunch of the men. There were about 12 or 15 men standing around at the time. Morris and an employee, Leon Bowman, who is an operator, had loaded some wire on the truck. "We heard Eden talking and he said something about the fact that he spent more money than he had had labor done and he said he was going to get the job done even if he had to go non-union." Wiley Simms, testifying on direct for the Respondent, was asked by the General Counsel if either Simms Electric or AAA Electric had ever tried to secure the consent of South- west or REA or any arrangement for Simms to supply the labor necessary to perform this contract. In answer to this question Simms said they did not. The next question asked by the General Counsel was whether the bonding company which provided the performance bond was notified of the arrangement between AAA and Simms Electric. To this question the answer was again "No." Simms also testified that he worked as an apprentice electrician for a period of about 10 years. He joined the IBEW as soon as he was eligi- ble. He said he founded AAA Electric about 1960. Simms has been the sole stockholder of AAA since its formation. At the time the contract was bid on by AAA Simms was Chairman of the Board of the Company and the contract referred to relates to the Southwest Co-Op contract. It was further tes- tified to by Simms that when Simms Electric Company was formed, and up until early September 1969, he, Wiley Simms, was the majority stockholder in the Company. Simms con- tinued by testifying that after his Company was awarded the labor part of the contract that was given to Simms Electric, he was given 120 days for the completion of the job. This was further explained to mean that the 120 days covered 120 working days-meaning 6 days a week. During inclement weather very little work was done. Simms explained that his main responsibility, after the execution of contract referred to supra, was to see that material was there, the equipment was adequate, and the job progress was kept up to date. It was further brought out that Simms had no difficulty furnishing sufficient equipment or obtaining the necessary materials for the completion of the job. However, despite these facts, the job was not moving. Sometime in June or early July, Simms started to spend quite a bit of time at Jackson personally observing the Jackson job. At this point in time it was being run as an on-the-site opera- tion under the supervision of Eden. Simms had many conver- sations with Eden. He also had numerous conversations with Sears. As explained by Simms he understood that Eden worked for Sears and that Sears relayed orders that needed to be given to Mr. Eden. During the period in June and July Simms spent from 4 to 6 weeks in Jackson, Tennessee, visiting the jobs, examining them, checking to see if there was ade- quate equipment available and also if the necessary material was on hand. Simms underscored that fact that he talked to Eden, went over the problem that the job was not moving, and said Eden could not get the job rolling. Simms told Eden that if he did not show real progress something would have to be done about it. In explaining what Simms saw when he went out on the job, he remarked that he would find 8 or 10 men around a pole. One would be up on the pole at work and the others would be standing around doing nothing. At another time he found the foreman and his crew under a shade tree while the foreman was sitting around whittling. In conclusion Simms testified the men just were not working. No attempt was being made to step the job up. Simms then paraphrased the testimony of the General Counsel's witness, Pitman, who had testified on the day before that he, Pitman, would find a crew going and a crew coming but he never did find one staying. Finding that progress was painfully slow, Eden said that Frank Fitzgerald, Claude Ballard and Bill Massengill were selected as the foremen on the job. Simms explained the on-the-job responsibility of a foreman in an electrical contract operation, such as the one at bar, by stating that the foreman's task is to lay out the work for his men and then see that it is completed. After Eden suggested the use of a general foreman, Bill Massengill was given this job. Claude Ballard was set up as the foreman to replace Massengill. These changes were made approximately during the first part of August. After they were made Simms testified that the personnel realignments not only did not improve things but in fact the job seemed to be getting worse. Under these cir- cumstances Simms says he advised Eden that he, Simms, was taking the job back and going to perform it himself. Simms asked Eden to come to work as his superintendent. Eden agreed to accept this responsibility and so far as Simms could recall the exact day upon which this assignment was made to Eden was August 29. On September 5, the AAA Company took back the job that was in progress and started to work on the job September 8. On September 5 the activity of Simms Electric terminated. AAA ELECTRIC, INC. From the start of the contract to September 5 Simms Elec- tric had completed 21.9 miles of the contract. They had ex- pended 873 hours per mile. From that date until March 13-when Simms brought his records up to date-AAA has built 65.9 miles and expended 459 hours per mile. Taking everything into consideration and the time during which Simms was performing the job, ideal weather conditions pre- vailed. That part of the job performed by AAA took place during a period of time when weather conditions were ad- verse. AAA was compelled to pull their equipment into posi- tion with a bulldozer. Simms was able to drive his into posi- tion. In Simms' opinion there was a general slowdown in effect until AAA took over. In describing the differences in terrain in the area in which Simms was operating and in which AAA had been operating, Simms said the terrain is identical. At the time Simms ter- minated the Simms Company labor portion of this contract, Simms stated that he had expended 110 days of the 120 allotted for the job under the terms of the contract. Simms instructed Eden to hire anybody that he could and that he, Simms, would assist by running ads in all the papers in the Southeast. It took Eden about 30 days to get a working crew together. Since that time they have been working constantly. While the witness Simms was being cross-examined by the General Counsel, he was asked a question as to why he con- cluded that the job just was not being properly done. His answer was that the more Mr. Eden tried to do to straighten the job out the worse it became. When he was further asked whether there might have been a supervisory problem in- volved, he said that he had thought that over but in his opinion there had been a general slowdown on the job. In order to further explain this conclusion Simms said "I just mean that none of the men were attempting to work." When- ever Simms discussed this with Eden, Eden would reply, "Oh, well, I've talked it over with the foremen and they say that the men just aren't doing the work." Furthermore, Simms testified that when Eden told him that he had talked to the Union representative Tilghman about the fact that the men were not doing the work they should have been doing, Tilgh- man personally came on the job two or three times and asked the men to speed the job up. Simms' conclusion about the fact that the job was going very badly did not come merely from written reports. It was based upon his (Simms') spending 4 to 6 weeks riding on the job, observing the men standing in a bunch, and catching them riding in the vehicles. It was clear to Simms that they just were not working. Simms said that he first became worried about the job in May when he was receiving reports as to the number of miles completed and the number of days consumed by the work being completed. The testimony of record on this point shows the following: Q. Now, Mr. Simms, in your opinion wasn't part of the reason for the work going slow simply because the men were having to abide by the working rules in this union contract? A. It was my opinion, had they abided by the work rules they would still be on the job, all of them. Q. Well, wasn't your changeover from Simms to AAA just an effort to free yourself from the obligations of these work rules? A. No. We are-I say, "we"-AAA is abiding by the work rules today. Q. You told us yesterday, I believe, that you hadn't complied with the terms of any labor agreement since AAA took over the job. A. There's a difference in work rules and labor agree- ments. 257 Q. I'm talking about the work rules contained in the Southeastern Line Constructors Agreement. A. We abide by those, or do better than that. Q. Well, now, how do you abide by that? A. There are set rules among all the linemen, whether they be union or nonunion. They are all the same nation- wide. Q. Well, now, you testified that you abide by the rules of this contract, and I want to know what they are? What rules are these you are speaking of that you are abiding by? A. I'm not abiding by any of the rules of the contract, but the working conditions. Q. Well now, isn't it a fact that one reason for the increased and progress of this job since AAA took it over is that they don't have to abide by the work rules and that contract? A. No. The work rules- Q. Did you tell your job superintendent to fire those men that weren't abiding by the rules? A. I told Mr. Sears about it, and it was my under- standing that some people were fired. It's also my under- standing that the next morning they would have to put the men back to work. Q. Now, isn't it a fact that you did fire some men on that job for not being qualified to do the work? A. I don't know. Mr. Simms was then shown GC exhibit No. 3 which is a list of employees furnished by Simms Electric covering the period from April 9, 1969, to September 5, 1969, listing the em- ployee, the date of employment, job classification, date of termination, and the reason for termination. The General Counsel then queried Mr. Simms to find out if it was not a fact that an employee named Ed Carsley and another em- ployee named Earl B. Goodman were terminated respectively on July 8 and September 9. To the question as to whether this information was accurate, Simms gave the following answer: Might I add this, that I do recall some of it now. Mr. Eden told me that if an out of town man was fired, there was nothing said about it, but if a local individual was fired, that he had to be put back to work the next day when the Union steward insisted on restoring local men to jobs they had been fired from. Simms was asked whether it was true that the work per- formed by Respondent Simms was more difficult than the jobs being handled by AAA. Simms said that a portion of the work was a bit harder and more complex but to balance the picture out in proper perspective much of the work done by the Simms Electric Company was quite a bit easier than some of the work done by the AAA Company In corroboration of the testimony offered by Simms, Re- spondents queried Massengill, and upon being asked whether he could make some explanation as to why the job was going slowly Massengill said it was difficult to give a precise exam- ple of what he meant but he could give some testimony about one job on 45 South. On this job there were two journeymen and ground men cutting in a pole top switch. One of the men was Ed Carsley and one was Grady Hopkins. These men were the two journeymen linemen. Massengill said it took them 9 hours to cut in the switch and it still was not finished. At present, putting in the same work, with the same type of switch and the same structure, the task takes about an hour. Massengill testified that he was having a lot of trouble getting the work done and since the time when he was set up as a general foreman things had become so bad that he just could not take it any longer. He testified: 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I went to the superintendent and I told him if this was union labor, I didn't want any part of it, to cut me back to my tools. He said, 'I can't cut you back to your tools. He was sent on the job as a foreman,' he then said, I'll cut you back as a foreman and I said `all right.' He took me back to foreman for either 2 or 3 days. Massengill went to Tilgh- man and asked him to be cut back to his tools and he said all right you go back to your tools Monday morning. Massengill explained that he made the request to go back to work with his tools because the work wasn't being done and he was responsible for getting it done and he just couldn't get the men to perform the work the way they should have done it. General Counsel on cross-examination brought out that Massengill had fired Carsley and an employee named Lessen- berry was asked to quit and that he did in fact quit. Further- more, the General Counsel called attention to the fact that Hopkins,. who was described by Massengill as being with Carsley and taking 9 hours to install a switch, also quit. As the testimony further developed the General Counsel asked Massengill if he did not have the authority as the general foreman to fire any employees that were not doing their jobs. Massengill's answer was as follows: I thought I did, sir, but we let them go, but they came back and told us we had to put them back to work. When pressed to give an example of the situation he had just described Massengill said that he fired Burkeen but the Union came back and requested that he be put back to work and as the result of this request having been made by the Union steward who talked to the business agent, Franklin Fitzgerald, Fitzgerald came back and he had me and Eden put the man back to work if he would go on and do his work. In further explanation of the way the men were laying down on the job Massengill ex- plained that the men would come off pole which they could get on their truck and drive to the next pole and sometimes it would take 30 to 40 minutes to drive from one pole to another and get the tools back that in order to go up on the pole. Massengill further testified that two-thirds of the men of the crew behaved in this fashion and took excessive time to go from one pole to another. Massengill said he had authority to discharge the em- ployees. He did discharge them but thereafter found that his discharges represented an excercise in futility, because after the men were discharged the Union came to see him and, upon being pressured on behalf of the dischargees, he put some of them back to work. Massengill was careful to diffe- rentiate his complaint about the fact that if the job was not being done that his previous testimony might have indicated it was not being done because union men were on the job. To explain this statement Massengill testified, "I don't say it was the Union, but I say it was the men that was on the job, and they were union men." It seems clear that despite further vigorous cross-examination by the General Counsel, Massen- gill, when he again reiterated that he had said, "If this is union work, I don't think I want any part of it" and he wanted to be put back to his tools, the comment that he made with relation to union work was in expression of his exaspera- tion with the fact that when some employee did not do his job properly and was fired, the firing simply did not work because shortly thereafter the union steward would come in and ask that the discharged employee be put back to work again. The Respondent called as its major witness job superinten- dent Randall Eden. Eden testified that he is a journeyman lineman, that he has been in that classification since 1955, and that he has been a member of the IBEW for many years. In his direct examination Eden stated that the Union representa- tive, Tilghman, furnished him employees under the South- eastern Line Agreement and he stated the following conclu- sions from his experience as job superintendent for both Simms Electric and AAA: I don't know, we just never could get the job to rolling. I'd say a big majority of the men, I felt, wasn't qualified to do the work, that he had sent, I said, "he." I mean Local 835. There was some good men that came out of the local. There were a few of the men that really tried, but the majority of the men, they didn't care about the job. It didn't make any difference to them if the work went on or if it stopped. They acted to me like they wanted to see if a 6 or 8 month's job lasted 2 or 3 years. In an effort to secure cooperation and speed up the job, Eden said that he talked to the job steward, the foreman, some of the linemen, some of the ground men, and some of the opera- tors. In response to his exhortations Eden testified that the men to whom he spoke agreed with him that the job was going too slowly. In addition to his own direct efforts to speed things up Eden spoke to Tilghman and on two occasions he knows that Tilghman spoke to the men. On one occasion Eden said he heard Tilghman got pretty rough with them. He told them that if they did their jobs Local 835 was going to cooperate and that would be fine. He then told them to go to work and get the job done. Tilghman was no more successful in galvanizing the men into doing their work than were Re- spondent's supervisors. In a word the men simply refused to do the work assigned to them. B. Concluding Findings and Analysis Whether or not AAA and Simms constituted a single inte- grated business enterprise, I concur with the position taken by the Respondents on the point that neither of the Respond- ents can escape legal liability under Section 8(a)(5) of the Act. Respondents in their jointly filed brief speak to this aspect of the case as follows: . it is apparent from the proof in this case that respon- sibility for unfair labor practices, if such there be, cannot be avoided on the sole basis that two separate and dis- tinct corporations are involved. Whether Simms be re- garded as the alter ago, or the agent, of AAA, at least up to and including September 5, or AAA, as successor to Simms, the employers realize that it would be futile to argue that AAA could avoid responsibility on the basis of its separate and distinct corporate status. I do not pass on nor concur with that portion of the above quotation from Respondents' brief which iterates and reiter- ates its argument that AAA and Simms are separate and distinct corporations. The facts of record make it abundantly clear that the work completed by AAA was the identical work previously performed by Simms. The materials and equipment employed were also the same. The job done by AAA was supervised by the same job superintendent. Some of the same employees remained on the job and certain of the rest were invited to continue their employment under the same wages as were paid by Simms. There was, however, one significant and undisputed differ- ence with respect to working conditions. It is admitted by the Respondents that when AAA supplanted Simms, to again quote from Respondents' brief, "Since taking over the South- west job, AAA has not abided by any collective bargaining agreement with any union." It is further admitted that AAA unilaterally terminated the oral agreement with the IBEW under which Simms was operating when it ceased to deal with the Union and ceased making payments to the Southeastern Line Constructors Employees Benefit Board # 114. It also ceased accepting employees through referral from the Union. AAA ELECTRIC, INC. To the extent that it refused to continue to bargain with the IBEW and ceased making payments to the Union's Benefit Fund, I find AAA violated Section 8(a)(5) of the Act. As to these admitted violations I will recomment that an appropri- ate remedial order be issued against AAA. I further find that job superintendent Eden did not threaten any of the Union's members that if they did not relinquish their membership in the said Union and give up their "tick- ets" they would be fired. From the credible testimony of the record of all the witnesses I conclude and find that Eden did in fact tell the men, some singly and some in groups, that unless they performed the work required of them they would be replaced by men who were willing to do the work they were hired to do. I also find and conclude that not only did AAA continue in employment those men who were previ- ously hired by Simms but, in addition, when new employees were hired as replacements many of these men were members of and carried "tickets" in the IBEW from various locals situated in different parts of the country. Eden not only did not discriminate against any men because of their member- ship in the charging Union but he expressed regret that the job would be completed on a nonunion basis. In fact Eden told many of the men that operating without the Union would probably cost him his "ticket" and he had been a loyal member of the IBEW for about 15 years. From the totality of the evidence adduced from Eden I found him to be an honest witness who told a straightforward story and who remained unshaken despite the General Counsel's vigorous and well conducted cross-examination. I find and conclude that neither of the Respondents was guilty of either independ- ent violations of Section 8(a)(1) or 8(a)(3) violations and I accordingly recommend that all such allegations in the com- plaint of 8(a)(1) and (3) violations be dismissed. Respondents discharged all employees who refused to work for perfectly valid economic reasons and I so find. Respondents argue in the joint brief that although they complied with the terms and conditions of the Agreement between Southeastern Line Constructors Chapter-NECA at least up to the time AAA supplanted Simms as the contractor on the Co-Op construction project-neither company was contractually bound to observe the terms of the Agreement because it was oral. There is no ment to this argument. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondent set forth above in Section III, occurring in connection with the opera- tions described in Section I, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY As it has been found that the Respondent AAA has en- gaged in certain unfair labor practices, it is recommended that the Board issue the Recommended Order set forth below requiring Respondent to cease and desist from said unfair labor practices and to take certain affirmative action which will effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. The Respondent AAA is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 259 2. The Union is a labor organization as defined in Section 2(5) of the Act. 3. By engaging in conduct found to be violative of the Act as set forth in Section III supra, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) of the Act. 4. Respondent did not discriminatorily either lay off or discharge any of its employees as alleged in the complaint. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, it is recom- mended that Respondent AAA, its officers, agents, succes- sors, and assigns , shall: 1. Cease and desist from: (a) Failing to pay into the Southeastern Line Constructors Employees Benefit Board # 114 the payments which it would have paid into said fund but for its unilateral termination of such payments. (b) Making up the payments customarily due and owing to the said Benefit Board # 114 which have remained unpaid from the date when it ceased making the payments. (c) Refusing to bargain collectively with IBEW Local Un- ion No. 835, Affiliated with International Brotherhood of Electrical Workers, AFL-CIO, for whatever period of time it takes to complete its Southwest Electric Co-Op Member- ship Corporation of Brownsville, Tennessee, in the following unit of AAA employees: All employees employed on the Southwest Electric Co- Op job, excluding guards and supervisors as defined in the Act. IT IS FURTHER RECOMMENDED that all other allegations of the complaint not found supra be dismissed. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Pay into the Southwestern Line Constructors Em- ployees Benefit Board # 114 the payments which it would have paid into the said fund but for its unilateral termination of such payments. (b) Make up to the said fund the payments which have not been paid starting from the date when it ceased making said payments. (c) Bargaining collectively with IBEW Local Union No. 835 during the time it will take until AAA completes the work required of it under its contract with the Southwest Electric Co-Op Membership Corporation of Brownsville, Tennessee, in the following bargaining unit: All employees employed on the Southwest Electric Co- Op job, excluding guards and supervisors as defined in the Act. (d) Post at its Jackson, Tennessee, jobsite a copy of the attached notice marked"Appendix."2 Copies of said notice, on forms provided by the Board's Regional Director for Re- 'In the event no exceptions are filed as provided by Sect 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Ap- peals, the words in the notice reading"Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gion 26, shall, after being duly signed by the Company au- thorized representative, be posted by the Company immedi- ately upon receipt thereof and maintained thereafter for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasona- ble steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 26, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply with the terms thereof.' ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL pay into the Southeastern Line Construc- tors Employees Benefit Board # 114 the payments which we would have paid into the said fund but for our unilateral termination of such payments. WE WILL make up to the said Board's fund the pay- ments which we have not paid starting from the date when we ceased making such payments. WE WILL bargain collectively with IBEW Local Un- ion No 835 during the time it will take for us to complete the work required to complete our contract with South- west Electric Co-Op Membership Corporation of Brownsville, Tennessee, in the following appropriate bargaining unit: All employees employed on the Southwest Electric Co-Op job, excluding guards and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act. AAA ELECTRIC, INC. Employer Dated By (Representative) (Title) This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103 Telephone 901-534-3161.