The Rowand Co., Inc.

THE ROWAND CO., INC. 95 The Rowand Company, Inc. and International Union of Operating Engineers, Local 953, AFL-CIO. Case 28-CA-2692 April 17, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 28, 1973, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, the General Counsel filed cross-exceptions, a supporting brief, and an answering brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that on August 4, 1973, Respondent refused the Union's demand for recognition as the exclusive bargaining representative of Respondent's 26 heavy equipment operators and laborers employed in the construction of an earth-filled dam on the Mescalero Apache Indian Reservation near Ruidoso, New Mexico.2 The Union had presented 21 authorization cards to Respondent with its demand for recognition. We agree with the Administrative Law Judge that seven of these cards were invalid since six of them were signed by nonemployees and the seventh was signed by an employee with impaired vision who did not understand the card's meaning and significance. The Administrative Law Judge concluded that the Union had the support of a majority of Respondent's employees based on its possession of valid authoriza- tion cards executed by 14 of the 26 employees. Included in these 14 cards were those of Gary Sherell, Jerry Sherrell, and Don Bretz who had been 1 In the absence of exceptions thereto, we adopt pro forma the Administrative Law Judge's conclusions that Respondent violated Sec. 8(aXI) by threatening to clear the employee blockade at the entrance to the Mescalero Apache Indian Reservation by use of force, and by offering Joel Lathan a promotion as an inducement for abstaining from union or concerted activities 2 We find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act- All heavy equipment operators and laborers employed by The Rowand Company, Inc, at its Cienegita Dam and Reservoir project near Ruidoso, New Mexico, excluding office clerical employees , guards, 210 NLRB No. 14 told by Union Solicitor Giles Luckett immediately before signing that "if the job were organized by the Union and the employees did not belong to the Union they would not be permitted to work on the project." The Administrative Law Judge character- ized Luckett's statement as an accurate representa- tion of the alternative consequences available to employees in the construction industry who did not chose to be affiliated with the organization designat- ed as majority representative. We disagree. In our view, Luckett's statement implied a threat to these employees that their jobs would be in jeopardy if the Union organized the project and they had not signed the cards.3 Because of the coercive manner in which these three cards were obtained, they cannot be counted as part of the Union's showing of majority support. Consequently, the Union did not possess a card majority on August 4 when it made its demand for recognition.4 Since the Union lacked majority status, we find no basis upon which to predicate the three 8(a)(5) violations found by the Administrative Law Judge. The Administrative Law Judge found that Respon- dent committed an independent violation of Section 8(a)(1) by the conduct of its project engineer, John Shaw, during a discussion with union adherent Joel Lathan on August 31, 1972.5 Lathan had been demoted from dozer operator to laborer after he had immobilized and damaged a dozer. This discussion centered on Lathan's complaints to Shaw about his not being reassigned to the immobilized dozer upon its reactivation. During the ensuing conversation Shaw produced an antiunion petition which had been circulated and signed by the employees, but which Lathan had not signed. Shaw showed this petition to Lathan and asked him if he had seen it. Lathan studied the petition for several minutes and made no response other than handing the petition back to Shaw. The Administrative Law Judge concluded that Shaw showed Lathan the petition merely to get his reaction since he was a leader in the organizational effort. The Administrative Law Judge also concluded that this incident amounted to an implied threat that Lathan would remain a laborer and would not be reassigned as a dozer operator if he did not sign the petition. Contrary to the Administra- watchmen, and supervisors as defined in the Act. 3 Heck's Inc., 156 NLRB 760, enfd. in pertinent part 386 F.2d 317 (C.A. 4, 1967) 4 We likewise find that the Union did not possess valid cards from a majority of unit employees when it made a second demand for recognition on August 9 S The Administrative Law Judge made the following erroneous findings which we hereby correct : The meeting between Shaw and Lathan occurred on August 31 instead of August 21; the dozer Lathan had been operating was reactivated by August 31 instead of September 21; and Lathan was discharged on September 8 rather than September 9. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive Law Judge, we find this incident too ambiguous to support the finding of an unlawful threat. Lathan was in Shaw's office on business unrelated to the Union, and we find insufficient basis for inferring a threat on Shaw's mere showing of the petition and his single, unpursued inquiry. On three occasions during the 2-week period prior to his demotion, Lathan immobilized the dozer he was operating by miring it deeply in the mud. On August 14, the last of these occasions, his dozer was so deeply buried that the mud rose above the floorboard to the top of the engine, necessitating $1,778 in repairs. The day following this incident Respondent demoted Lathan to laborer because of his apparent inability to operate his dozer properly. The Administrative Law Judge concluded that this demotion was pretextual and discriminatorily moti- vated in violation of Section 8(a)(3). Central to this finding was the antiunion motivation found by the Administrative Law Judge in connection with the petition-showing incident. However, as noted above, we find that the petition-showing incident did not constitute a violation of Section 8(a)(1). Further- more, while the record shows that other dozer operators had stuck their equipment in the mud during this period, there was no indication that these incidents were as aggravated or had caused anything like the substantial damage to Respondent's property as had resulted from Lathan's negligence here. In these circumstances, the evidence is not sufficient in our view to establish that Lathan was discriminatori- ly disciplined or that Respondent's reasons for Lathan's demotion were pretextual. Consequently, we find no violation of Section 8(a)(3) in Lathan's demotion. In a like manner, we find, contrary to the Administrative Law Judge, that Respondent's dis- charge of Lathan on September 8 was not violative of Section 8(a)(3). The Administrative Law Judge's finding that Lathan's discharge was discriminatorily motivated does not withstand scrutiny. First, he concluded that the alleged antiunion motivation, which he inferred from the petition-showing incident, had continued uninterrupted from Lathan's demo- tion to his termination. However, as noted above, we do not attach the same significance to the minor and isolated petition-showing incident as did the Admin- istrative Law Judge; nor have we found a violation in Lathan's demotion. Second, the Administrative Law Judge found pretextual the Respondent's assertion that Lathan's absenteeism on September 6 and 7 was e The Administrative Law Judge found that the work force at this time l d reached "essentially skeleton proportions" due to inclement weather. In reaching this conclusion, the Administrative Law Judge made a number of erroneous findings as to the work force 's strength during this period which are unsupported by the record. We correct these findings as follows' the primary reason for his discharge. The Adminis- trative Law Judge concluded that Respondent had applied a different standard in discharging Lathan for absenteeism and not handing out the same punishment to others who were absent during the same period. We do not think such a conclusion may fairly be drawn from the record. While there were three individuals who, like Lathan, had worked during the week of August 28 but did not report for work the week of September 4,6 the record is devoid of any evidence that their absences were as clearly inexcusable as Lathan's. Lathan was observed during his absences continuously driving his car up and down the road adjacent to the construction project, and the night watchman had reported that Lathan had been present without permission in the company equipment yard at 4:30 on the morning of his discharge. In the face of such evidence of the lack of any legitimate excuse for Lathan's absenteeism, it would take much clearer evidence of discriminatory motivation than is here present to persuade us that Respondent's reasons for discharging Lathan were pretextual. Accordingly, we conclude that General Counsel failed to establish, by a preponderance of the evidence, that Lathan's termination was violative of Section 8(a)(3). The Administrative Law Judge found that Respon- dent violated Section 8(a)(1) when, after a charge had been filed with the Board relating to Lathan's discharge, Bernard Little told Lathan that he should "drop everything" and suggested that he then could probably get his job back. Little was held to have acted as Respondent's agent because, in the Admin- istrative Law Judge's view, Little was a low-echelon supervisor as a result of his authority to recruit employees. We disagree. There is no evidence that Little, who was also a tribal leader, possessed any indicia of supervisory status. Thus, while he relayed routine instructions to the laborers from the foreman, he appears to have served as no more than a conduit in this regard, and did not exercise his own judgment, nor did he have authority to impose or to recommend the imposition of disciplinary action upon employees for failure to follow any such instructions, or otherwise. Addition- ally, the record shows that Little received the same pay and performed the same type of work as the other laborers. The limited assistance given by Little, a tribal leader, to Respondent's efforts to recruit Indians on the project, appears to have been rendered more in the interests of his tribe than as an September 7 was a regular workday with 25 unit employees on the job, instead of a skeletal crew of 8 employees; I I of 32 unit employees, rather than 8 of 34 unit employees, reported to work on September 8; Joel Lathan did not work on September 6; and there were 18, rather than 16, normal workdays between August 15 and September 8 THE ROWAND CO., INC. agent for Respondent, and were clearly not such as to establish supervisory status.7 Consequently, we find that Little was neither a supervisor nor an agent of Respondent. There is thus no foundation for attributing to Respondent his comment to Lathan, and no basis for finding a violation of Section 8(a)(1) arising therefrom. Except as indicated, we adopt the Administrative Law Judge's findings, conclusions, and recommenda- tions. CONCLUSIONS OF LAW 1. The Rowand Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 953, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All heavy equipment operators and laborers employed by Respondent at its Cienegita Dam and Reservoir project near Ruidoso, New Mexico, excluding office clerical employees, guards, watch- men, and supervisors as defined in the National Labor Relations Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. By threatening to clear the employee blockade of the entrance to the Mescalero Apache Indian Reservation by use of force, the Respondent engaged in conduct in violation of Section 8(a)(1). 5. By offering Joel Lathan a promotion as an inducement for abstaining from union or concerted activities, the Respondent engaged in conduct in violation of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, The Rowand Company, Inc., Ruidoso, New Mexico, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) In a manner violative of Section 8(a)(1) of the Act, threatening employees with physical violence in order to discourage their involvement in protected concerted or union activities. (b) In a manner violative of Section 8(a)(1) of the Act, offering inducements to employees in order to 7 See, e.g, Cart-A-Stone Products Company, 198 NLRB No 66 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order 97 discourage their involvement in protected concerted or union activities. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its Ruidoso, New Mexico, place of business, and at appropriate places on the Cienegita Dam and Reservoir Project near Ruidoso, New Mexico, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Forward a signed copy of the notice marked "Appendix" to the tribal administration office at the Mescalero Apache Indian Reservation near Ruidoso, New Mexico, for posting, if the tribal administration is willing. (c) Notify the Regional Director for Region 28, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER JENKINS, dissenting in part: I cannot agree with my colleagues' reversal of the Administrative Law Judge's finding that Respondent violated Section 8(a)(1) of the Act by its conduct during the August 31 conversation between Project Engineer Shaw and employee Lathan. The circumstances leading up to this meeting are as follows. When Lathan noticed that another employee had been assigned to his dozer, he asked Supervisor Plumlee about it. Receiving an unsatisfactory an- swer, he went in to see Shaw, accompanied by Plumlee and another employee. Once in Shaw's office Lathan protested the reassignment of his dozer to someone else. In response to this protestation, during the ensuing discussion, Shaw withdrew from his desk the antiunion petition which another employee had earlier circulated and which Lathan had refused to sign. Shaw handed the petition to Lathan. Lathan looked over the petition, said nothing, and returned it to Shaw. Lathan then asked if he would be given his dozer, with Shaw's eventual reply being that he would decide later. of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Had Lathan's history with the dozer and his inability to handle it been the sole cause for denying him the position, there would have been no reason for Shaw to show Lathan the petition. However, Respondent chose to convert this routine discussion concerning job assignment into one in which the union sympathies of Lathan were to be a factor in the decision.,Respondent was well aware of Lathan's prounion sentiment and that he had not previously signed the petition. Under these circumstances and in the context and manner in which Lathan was presented the petition, the clear implication was that Shaw was conditioning the reassignment of the dozer at least in part on Lathan's signing of the petition with the concurrent threat that he would or might not be reassigned it if he did not sign. There can be no clearer violation of Section 8(a)(1) than to confront an employee with a document relating to his union sentiment while he is in the offices of his employer inquiring about his working conditions. In all other respects, I join the determinations made by my colleagues. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees with physical violence in order to discourage their involvement in protected concerted or union activities. WE WILL NOT offer inducements to employees in order to discourage their involvement in protected concerted or union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended. THE ROWAND COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Patio Plaza Building, Upper Level, 5000 Marble Avenue, NE, Albuquerque, New Mexico 87110, Telephone 505-766-2508. DECISION STATEMENT OF THE CASE JAMES T. BARKER, Administrative Law Judge: This matter was heard at Ruidoso, New Mexico, on January 17, 18, and 19 and February 27, 1973, pursuant to a complaint and notice of hearing issued on November 21, 1972, by the Regional Director of the National Labor Relations Board for Region 28.1 The complaint arose from a charge filed on August 9, by International Union of Operating Engineers, Local 953, AFL-CIO, hereinafter called the Union, and a first amended charge filed by the Union on September 27. The complaint alleges violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, hereinafter called the Act. On April 3, 1973, counsel for the General Counsel and counsel for the Respondent timely filed briefs with me. Upon the entire record in this case,2 and upon my observation of the witnesses and consideration of the briefs of the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Rowand Company, Inc., hereinafter called the Company or Respondent, has been at all times material herein a corporation duly organized under the laws of the State of Arkansas. At all material times Respondent has maintained its principal office and place of business in the city of Little Rock, Arkansas, and has been continuously engaged in the business of general building and construc- tion at that location and other locations , including a construction project for the Apache tribe of the Mescalero Reservation on the Mescalero Apache Indian Reservation near the community of Ruidoso, New Mexico. During the calendar year immediately preceding the issuance of the complaint herein, Respondent, in the course and conduct of its business operations, provided and performed services valued in excess of $50,000 in connection with the construction project located near ,Ruidoso, New Mexico. During the same period of time, Respondent, in the course and conduct of its business operations, in connection with the construction project near Ruidoso, New Mexico, purchased, transferred, and had delivered to that jobsite in the State of New Mexico, goods and materials valued in excess of $50 ,000, which were transported to the jobsite in New Mexico directly from states within the United States other than the State of New Mexico. Upon these admitted facts, I find that Respondent has been at all times material herein an employer engaged in i Unless indicated otherwise, all dates refer to the calendar year 1972. 2 Counsel for the General Counsel moved to correct the transcript of the proceedings in several respects . This motion was not opposed and is mentonous. The motion is granted and the transcript is corrected in the particulars specified at Appendix A. THE ROWAND CO., INC. 99 commerce within the meaning of Section 2(6) and (7) of the Act.3 Gissel decision, of a character sufficient to justify a bargaining order.4 II. THE LABOR ORGANIZATION INVOLVED Respondent concedes and I find that International Union of Operating Engineers, Local 953, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that in violation of Section 8(ax1) of the Act Respondent, through supervision, threatened employees with physical violence; offered inducements to employees; unlawfully interrogated employees; and pro- mulgated and circulated an antiunion petition, all for the purpose of persuading employees to cease engaging in union or concerted activities. The complaint further alleges that, in violation of Section 8(a)(3) of the Act, Respondent demoted Joel Lathan and subsequently terminated the employment of Lathan and Giles Luckett because they had engaged in union or concerted activities. Additionally, the complaint alleges that commencing on August 4, Respon- dent violated Section 8(aX5) of the Act by failing and refusing to honor the Union's demand for recognition and bargaining; engaging in individual negotiations directly with employees in a unit represented by the Union and appropriate for the purposes of collective bargaining; and unilaterally granting benefits, instituting and effectuating a procedure whereby Respondent recognized a job steward in derogation of the Union's status; and changing working conditions after the Union had demanded recognition and had proclaimed its majority status in the appropriate unit. The Respondent contends that the evidence fails to sustain the General Counsel. Moreover, Respondent asserts that Lathan was demoted and like Luckett was terminated for cause and not because of his alleged involvement in the union organizing efforts. With respect to the alleged violations of Section 8(a)(5) of the Act, Respondent contends that the Union failed to obtain a valid card majority; failed to demand recognition in an appropriate bargaining unit; and demanded recognition from representatives of the Company who lacked authority to extend recognition to the Union. It is the further contention of the Respondent that, assuming an obligation did devolve upon Respondent to recognize and bargain collectively with the Union, the nature of Respondent's conduct otherwise was not, under the rationale of the 3 In admitting the foregoing facts and conceding that commercial enterprises operating on Indian reservations are within the Board 's legal jurisdiction, Respondent nonetheless contends that in the circumstances of this case the Board should decline jurisdiction In support of this contention, the Respondent points to evidence, which is not contested, revealing that ( I) the construction project in question is wholly within the boundaries and confines of the Mescalero Apache Reservation , (2) when the project is accomplished with the completion of the earth-filled dam, ownership of the entire facility will be vested exclusively in members of the Mescalero Apache tribe , and (3) the agreement under which the construc- tion is being carried forward requires the Company to make a good-faith effort to employ 80 percent of its work force from members of the Mescalero Apache tube Because of these considerations, and because these B. Pertinent Facts 1. Background facts Respondent is engaged in the construction of an earth- filled dam in Cienegita Canyon, within the confines of the Mescalero Apache Reservation near Ruidoso, New Mexi- co. The Mescalero Apache tribe owns the land and the site at which the construction project is being carried out. Upon the completion of the dam and the resultant reservoir and related facilities, the tribe will own the project. The project is being partially funded by the Economic Development Administration and the Respon- dent is performing services pursuant to a contract with the tribe. Under the terms of the contract, the Respondent is required to exercise good faith in carrying out the contract's provision that 80 percent of the work force be comprised of residents of the reservation ; and Davis- Bacon Act wage minimums prevail. The tribal council of the Mescalero Apache Indian tribe is the legislative and executive governing body of the tribe. It possesses oversight authority with respect to the construction project. Fred Heckman and Richard Ward- law serve as administrative assistants to the tribal council and assist the executive branch of the tribe. Max Williams is the project representative for the engineering firm serving as consultants to the tribe on the project. Richard Rowand is president of Respondent. His principal office and place of residence is in Little Rock, Arkansas. Respondent was organized in January 1971 and has several construction projects in Arkansas. The con- struction project on the Mescalero Apache Reservation is the only construction job in which the Company was engaging outside the State of Arkansas at the time of the hearing. The project in question commenced in July 1972 under the general supervision of John Shaw, project engineer. Shaw is in charge of the day-to-day operations of the project but ultimate control resides with Richard Rowand who establishes company policy and takes direct charge of the Mescalero project when he is physically present at the situs. Shaw's authority over the project is not superseded by any representative of the Company stationed in the State of New Mexico, but Shaw recognizes Richard Rowand and two other officials of the Company as possessing greater authority than he with respect to ultimate decisions affecting the project. Shaw confers frequently and on a recurring basis with Richard Rowand special circumstances were assertedly recognized by the Union as attending this particular organizing effort, the Respondent contends that the Board should decline to assert jurisdiction on the basis that the dispute lacks a substantial impact on commerce and the purposes and policies of the Act would not be effectuated by the assertion of jurisdiction. As the volume of interstate commerce is concededly sufficient to bring the Respondent within both the legal and discretionary jurisdictional standards of the Board ; and because the alleged conduct of the Respondent is of a character and variety which if substantiated will have adversely affected rights guaranteed by the Act to both Indian and non-Indian employees involved in work on the construction project , I conclude that the purposes of the Act will be served by asserting jurisdiction herein. 4 N LR.B. v. Gissel Packing Co., 395 U.S. 575 (1%9). 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning matters relating to the Mescalero construction job. At pertinent times Guy Plumlee served as dirt superin- tendent on the project and Gary Bridges and Eugene Mitchel served as structures superintendent and dirt foreman, respectively.5 2. The employee complement The parties stipulated that on August 4, Respondent employed 27 individuals at the project. On August 9, 28 employees comprised the work complements Employed at the project by Respondent both on August 4 and August 9 were: Jewel Jones, Samuel Powell, Michael Oden, Rex Commanche, Angel Saiza, Sebastian Mendez, Tom Treat, Gary Sherrell, Jerry Sherrell, Lyle Walker, Bernard Little, Samuel Cooper, Milford Yuzos, Isadore Mendez, Ted Thoma, Joel Lathan, Cisco Bob, Don Bretz, Sam Plumlee, Sam Harrell, and J. C. Campbell. On the other hand, Clifford Gaines, L. J. Andrews, Jr., Justin Mendez, Dennis Russell, Dennis Dunleavy, and Joe Frye, who were in the employ of Respondent on August 4, were no longer employed on August 9. However, by August 9, seven individuals had been newly employed, including: George LaPaz, Edgar Tones, John Balatche, Leroy Bigrope, Coony Starr, Vernon Simmons, and Clifford Chee. The parties further stipulated that if Giles P. Luckett is found herein to have been unlawfully terminated, he would have retained his status as an employee on August 4 and 9. Moreover, it is the General Counsel's contention that the appropriate unit does not include Sam Harrell and J. C. Campbell who assertedly were supervisors within the meaning of the Act. The ,parties also stipulated that on August 4, the following job classifications were being manned: laborer, pipelayer and air tool, backhoe, dozer operator, roller operator, scraper operator, crane operator, motor grader operator, oiler, oiler helper, and water truck. Except for the classification "pipelayer," these same job classifications were also being manned on August 9. However, on August 9, one laborer was being utilized interchangeably in the concrete finisher and carpenter classifications. 3. The organizing effort a. Background In early July, John Morce met in Ruidoso with John Shaw. A representative of the Building Trades Council was present as were representatives of several locals . Work at the project had just commenced and inquiry was made relating to the nature of the Company's participation in the project, and whether the Company intended to perform the work with union or or nonunion employees. Shaw was noncommittal and the union representatives were informed that Richard Rowand would subsequently be coming to Ruidoso. 5 The foregoing is based primarily upon the testimony of Fred Heckman, John Shaw, and Guy Plumlee, and documentary evidence of record 5 Excluded by the stipulation were individuals employed at the project in the capacity of guards, watchmen , office clerical, and/or supervisors, as defined in the Act. 7 The foregoing is based upon the credited testimony of John Morce, Thereafter, Morce spoke to Rowand at the project site. Morce communicated to Rowand that he would "be interested in working with him" in manning the Compa- ny's work on the project. Rowand noted that the Company had to fulfill an 80-percent requirement governing the use of Indian personnel, but that if he could not get "qualified people" he would call on the Union. Rowand was in the company of other individuals and the conversation was a brief one. Morce had been on the site and had driven through the continguous area on several previous occasions.7 b. The card-signing activities As a consequence of the termination of several Indian employees, a small group of individuals, including Joel Lathan, Bernard Little, and Sammy Cooper, met together in late July to consider means of forestalling their own terminations. Little and Cooper are Mescaleros. Joel Lathan is not a tribal member but is married to a Mescalero Apache .8 Thereafter, on August 1, Lathan contacted the Union and made arrangements to meet with a representative on August 2. The meeting transpired on the evening of August 2 when John Morce and Bosco Powers spoke with Lathan in Morce's automobile in front of Lathan's residence. During the course of this discussion, Lathan asserted that Indian employees were being termi- nated from their employment on the project and replaced by non-Indian employees from the State of Arkansas. Lathan stated that the employees were interested in obtaining union representation. In substance, Morce informed Lathan that the Union could assist the employees by filing a petition for representation or by seeking to achieve recognition from the Company through the use of signed authorization cards. Morce explained that if the latter course were followed, it would be necessary to obtain authorization cards from a majority of the employees. Lathan signed an authorization card in the presence of Morce and Powers on the evening in question.9 From Lathan's home Morce and Powers, accompanied by Lathan, went to the home of Sammy Cooper. They discussed with Cooper the necessity of joining the Union and Cooper asserted that something had to be done because the Indian employees were continuing to be terminated for no reason. Cooper assured Morce and Powers of his cooperation and signed an authorization card in Morce's automobile. From Cooper's home, Lathan, Morce, and Powers went to the home of Edgar Tones. Morce presented Torres with an authorization card and explained the card to him. Torres did not read the card but he executed the card in Morce's presence. Later the same evening, Lathan, Morce, and Powers went to Lyle Walker's home where they spoke with Walker, Giles Luckett, and Ted Thoma. Luckett asserted that he, Walker, and Thoma had been endeavoring to considered in light of the testimony of John Shaw which is not inconsistent with the foregoing 9 The testimony of Joel Lathan and Sammy Cooper supports the foregoing 9 The testimony of John Morce and Joel Lathan support the foregoing. THE ROWAND CO., INC. 101 contact Morce to obtain his assistance in connection with the work project. Luckett described to Morce certain alleged deficiencies which he had noted on the job, including the lack of sufficient drinking water and the absence of adequate supervisory direction. Morce recog- nized Luckett as a member of the Union and presented him with blank authorization cards, requesting that Luckett endeavor to have employees sign them. Luckett signed an authorization card that evening as did Walker and Thoma. 10 Morce, Powers, and Lathan also visited the home of Clifford Chee on the night of August 2. Chee signed an authorization card in the presence of Lathan, Morce, and Powers. The nature of the card was explained to Chee who had belonged to the Union previously. Gifford Gaines signed an authorization card in Lathan's presence on August 2 or 3. Lathan observed Gaines sign the card.11 The following morning, August 3, Morce and Powers drove to the project by automobile and observed the type and quantity of equipment being used on the job. An effort was also made to identify any members of the Umon employed thereon. In the meantime, on August 2, Lathan had spoken to George LaPaz concerning the efforts to unionize and asserted that if LaPaz would go along with the Union, he might receive assistance in reinstatement to his job.12 LaPaz did not take an authorization card at the time of this conversation and Lathan agreed to meet with him that evening. Lathan endeavored to do so and was unsuccess- ful. He delivered the blank authorization card to LaPaz' father. Just prior to the noon hour on August 3, LaPaz endeavored to present a completed authorization card to Lathan. The card bore what purported to be LaPaz' signature. Lathan informed LaPaz that he did not wish to receive the card during work time and instructed him to bring the card to him during the noon hour. LaPaz did so and Lathan fixed his own signature to the back of the card.13 On the afternoon of August 3, just prior to quitting time, Morce and Powers parked alongside the road between the jobsite and the exit to Mescalero to await the departing Indian employees. Lathan joined them. As employees approached in their automobiles they were signaled to stop. Lathan, Morce, and Powers spoke to several of them. 10 The authenticity of the signatures contained on the respective cards of Walker, Luckett, and Thoma are not in issue. 11 Lathan was unable to testify with certitude whether the card was signed by Gaines on August 2 or on August 3. 12 LaPaz is a tribal member and had been removed from hisjob on the project 13 The foregoing is based upon the credited testimony of Joel Lathan. George LaPaz did not testify. Lathan's signature was dated August 1. Lathan credibly testified that at the time of the question , he was not aware of the significance of the date and erroneously thought that the date in question was August I and not August 3. While the record is not clear, it appears that LaPaz had not been recalled to work by August 3, but was in Respondent's employ on August 9. 14 The foregoing is based primarily upon the testimony of Justin Mendez, considered in light of the testimony of John Morce and Joel Lathan. Mendez testified credibly that he could not recall the details of the explanation which Morce gave concerning the role of the Union and the purposes of the authorization cards He was deficient in his recollection of the source and precise nature of comments made concerning the necessity Bernard Little executed an authorization card bearing the date of August 3. His card was witnessed by John Morce. Little testified on cross-examination that he signed the card "with the understanding" that he didn't have to join the Union. He denied "wanting the union to come in." Justin Mendez also signed an authorization card on the afternoon of August 3. The card was presented to him by Morce and Powers. On the occasion in question, Mendez was departing from work in the company of Bernard Little. He was hailed down and he stopped by the side of the road and spoke with Morce and Powers. A group of employees had gathered and were signing authorization cards. Morce explained the Union to the employees . Mendez heard conversation to the effect that the employees would lose their jobs if they did not sign cards.14 Cisco Bob signed an authorization card on the afternoon of August 3. The card was presented to him by Lathan. Prior to signing the card, Bob heard Lathan discuss the termination of Indian employees and the protection which the Union could accord employees. Bob knew that other employees had signed cards and that others had asserted they would do so. Lathan did not say anything to Bob about the number or identity of card signers. Bob had been a member of a union and assumed that if he did not sign up with the Union, he would be "left out." Bob did not read the card before signing it. Bob testified that nothing was said to him about the purpose of the card. At the end of the workday on August 3, Milford Yuzos signed an authorization card which had been presented to him by Lathan. Lathan urged Yuzos to sign the card and explained that the employees were doing so "to join the union." Yuzos asked why he should seek to join the Union and Lathan asserted that the employees would be better off. Lathan added that a majority of the employees had signed authorization cards and stated that Yuzos was the last to sign. Lathan added that if the job went Union and Yuzos was not a union member, he would be unable to work on the job. Because of impaired vision making the printing on the card illegible to him, Yuzos signed the card without reading it. In his own hand, but with Lathan's assistance, Yuzos affixed his signature and filled in the address blanks. He did not date the card.15 John Balatche executed an authorization card on or before August 4.16 Previously, on the evening of August 2, Lathan, Morce, and Powers had visited Balatche at his that employees execute cards in order to retain their jobs. 15 The foregoing is based upon the credited testimony of Milford Yuzos. I do not credit the testimony of Joel Lathan to the effect that Yuzos signed the authorization card on the morning of August 4. Lathan appeared to lack certitude with respect to the details and timing of the card-signing activities of many employees and I am not convinced that his recollection with respect to Yuzos was as clear and unfettered as his testimony would suggest. As I consider Yuzos' version of the conversation relating to the authorization card to be more reliable than that of Lathan's, I find no basis for rejecting Yuzos' testimony with respect to the time sequence involved. On the other hand, I am not convinced that Lathan asserted categorically, as Yuzos testified he did, that if Yuzos failed to sign an authorization card, he would no longer work on the project The testimony of Yuzos reveals that he could not recall the precise words that were used by Lathan in this vein I am convinced his testimony reflects his subjective appraisal of the meaning of Lathan's words and not the words themselves . Thus, upon the record as a whole, I find that Lathan's statement to Yuzos on this score was as found above. 16 Balatche's card is undated, but it bears the August 2 verifying (Continued) Im DECISIONS OF NATIONAL LABOR RELATIONS BOARD home. Balatche is a Mescalero Indian. Morce explained to Balatche that if he joined the Union, he, Morce, would seek to get matters straightened out on the project. Morce also asserted that the Union would endeavor to enforce the 80-percent provision of the project work agreement. Lester Andrews, Dennis Dunleavy, Gary Sherrell, Jerry Sherrell, Don Bretz, and Donald Blake signed authoriza- tion cards on August 4. Lester Andrews signed his card on the picket line near the cattle guard entrance to the reservation . He presented his card to Joel Lathan.17 Similarly, Dennis Dunleavy executed a card at the picket line. The card bears the date August 4 and the authenticating signature of Joel Lathan, who testified that on the morning of August 4 during the picketing, Dunleavy, who was friendly with Lathan, informed him that he, Dunleavy, had signed a card.18 Don Bretz, Gary Sherrell, and Jerry Sherrell signed authorization cards during the course of the picketing after speaking with Luckett. Initially, Luckett outlined the benefits to be derived from belonging to a union. Luckett then informed the employees that to work on a union job it was necessary to be a member of the Union. In explana- tion, Luckett further stated that if the job were organized by the Union and the employees did not belong to the Union, they would not be permitted to work on the project.19 Luckett had spoken to these employees on August 3 and had inquired if they were interested in signing up with the Union. They had responded affirma- tively.20 Isadore Mendez also signed an authorization card at the cattle guard entrance on the morning of August 4. Mendez had not worked the previous day and on August 4 he rode to work in an automobile with Bernard Little. Upon reaching the cattle guard entrance, Mendez joined a group in the process of signing authorization cards. Mendez formed the impression that other employees had signed cards on the previous afternoon and that most of the group he had "worked" with were also signing. He executed the card without reading it.21 4. The unit placement issue a. J. C Campbell On August 4, J. C. Campbell was working in the capacity of a dozer operator under the supervision of Gene Mitchell. Campbell was an experienced operator and in the course of his duties he instructed less experienced opera- tors in the use of their equipment . There is some evidence that Campbell directed other employees where to perform their machine operating work and chastised employees for improper use of their equipment. Campbell spent "most" of his work time operating the equipment to which he was assigned. Campbell had worked as a scraper operator for the Company in Arkansas and was initially employed by the Company in late 1971. On or about August 13, Campbell was promoted to grade foreman to replace Gene Mitchell. Thereafter, Campbell spent only 5 or 10 percent of his time operating the equipment and the balance of his workday was spent in checking grades. This included directing employees to perform the grading work necessary to obtain the desired cuts, fills, and slopes. b. Sam Harrell At pertinent times Sam Harrell was employed in the capacity of a mechanic. He was the only mechanic on the project, although he was assisted for 2 days in the performance of mechanic's duties by Giles Luckett, as hereinafter more fully discussed. In his capacity as a mechanic, Harrell had the responsibility for maintaining the equipment used on the project and for detecting needed repairs. He had authority to instruct operators in the proper use of the equipment so as to avoid unnecessary wear and tear on the equipment or the abuse thereof. Harrell's authority in the aforesaid particulars also includ- ed the authority to require operators to cease operating equipment, which in his judgment needed repairing or which was being used , in a manner detrimental to the longevity of the equipment. In the performance of his duties on and before August 9 Harrell instructed the employees in the work to be performed and assigned them work tasks.22 signature of Joel Lathan. Lathan concedes a certain disorientation as to dates but he testified convincingly that Balatche executed the card on the day of the strike or prior thereto. 17 The parties stipulated that Andrews' signature was authentic. The card was undated and the date on the back of the card accompanying Lathan's signature appears to have been modified. The validity of this card was not challenged. 18 The parties stipulated to the authenticity of Dunleavy's signature. is Luckett made the same statement to Donald Blake, who signed an authorization card during the picketing on the morning of August 4. 20 The foregoing is based upon a consideration of the testimony of Giles Luckett. I have also considered the testimony of Don Bretz, Gary Sherrell, and John Morce. In light of all of the pertinent testimony, I am convinced that, contrary to the testimony of Bretz and Sherrell, Luckett and not Morce spoke to them concerning authorization cards. Moreover, in consideration of the aforesaid testimony, I am further convinced that the interpretation given Luckett's remarks by Bretz and Sherrell was inaccurate and that Luckett's comments concerning the effect of signing or fading to sign authorization cards were as found above. Luckett is a long-time union member who has worked in the building trades for a substantial period of time. He also impressed me as given to a precise use of terms and the English language I am convinced that his testimony accurately recounts the explanation given to Bretz and Gary and Jerry Sherrell, as well as the statement made to Blake on the occasion in question I am further convinced that the recall of Bretz and Sherrell was inaccurate and tempered by their subjective interpretation of the meaning and import of Luckett's statement. 21 The foregoing is based upon the testimony of Isadore Mendez. Mendez further testified that he heard no explanation of the card's purpose and did not understand its function at the time he signed it. 22 The foregoing findings with respect to the duties of J. C Campbell are based upon a consideration of the testimony of Campbell, Joel Lathan, Guy Plumlee, and Giles Luckett. The findings with respect to the duties of Sam Harrell are based upon the testimony of Joel Lathan, John Shaw, and documents of record. The finding to the effect that Harrell exercised THE ROWAND CO., INC. 5. The events of August 4 a. The picketing During the evening of August 3, Morce informed Lathan and other employees to whom he had spoken concerning authorization cards, that they should assemble at the Carrizo Canyon cattle guard entrance prior to the 7 a.m. starting time on August 4. Morce asserted he would make a card-based demand for recognition upon the Company. Consistent with this plan Morce and Powers arrived substantially in advance of the 7 a.m. hour and they were joined by Lathan and Luckett. Prior to 7 a.m., employees from both on and off the reservation arrived at points proximate to the cattle guard. As found, card-signing activities were conducted by Lathan and Luckett at the cattle guard but outside the reservation. They were assisted in this regard by Morce and Powers. In the main, the Indian employees assembled and remained on the reservation side of the cattle guard entrance. During the course of the morning as events unfolded, they convened at the entrance itself on the reservation side so as to prevent the ingress of vehicular traffic. In the meantime, according to the credited testimony of Sammy Cooper, the six Indian employees who remained from an initial complement of approximate- ly 18 had decided prior to the morning of August 4 to meet at the cattle guard and prevent the Company from entering the reservation. This was intended to serve as a show of protest against the treatment and termination of Indian employees. b. The demand Guy Plumlee arrived at the cattle guard at approximately 6:45 a.m. He drove there in his pickup in the company of Sam Plumlee and J. C. Campbell. He was the first member of supervision to appear at the picket line. Plumlee drove his vehicle to within approximately 50 feet of the cattle guard and was approached by John Morce who presented a group of signed authorization cards to Plumlee for his' authority to assign employees work tasks and direct them in the performance of their work is based upon the testimony of Joel Lathan viewed in light of evidence hereinafter considered relating to the grievances lodged by Indian employees against Harrell and the corrective action taken by the Company to insulate Harrell from direct contact with employees and to place severe limitations upon his authority vis-a-vis employees. While I do not discredit the testimony of John Shaw to the effect that Harrell had no specific investiture of authority to direct or assign employees, the record evidence convinces me that , without countermanding action on the part of Guy Plumlee, under whom Harrell worked, Harrell actually directed the work of employees and made work assignments. Guy Plumlee did not testify to the contrary. 23 Included were the cards of Edgar Torres and Giles P. Luckett, who had been terminated. Plumlee also singled out the card of an employee who had been demoted for allegedly being intoxicated on the job. 24 The foregoing is based primarily upon the credited testimony of John Morce and Guy Plumlee. I credit Guy Plumlee to the effect that a discussion transpired concerning the employment status of several of the card signers. This testimony gains inferential support from that of John Morce who testified that Plumlee commented to him that some of the 103 perusal. In so doing, Morce stated that he was a representative of the Operating Engineers . He further told Plumlee that the Union represented a majority of the employees "working for him." He stated that he would like to have Plumlee check the signatures on the authorization cards. Plumlee looked at each card and after doing so extracted three from the group and stated that there was no point in discussing those three cards .23 A discussion followed concerning the assertedly union -related reason for the termination of Luckett and the fact that certain of the other card signers no longer were employed on the project. Morce asked if Plumlee would recognize the Union and Plumlee declined. Plumlee left without actually making a numerical computation of the number of cards presented to him and without alighting from his vehicle.24 From the cattle guard entrance, Plumlee drove to the Ruidoso office of the Company where he spoke with John Shaw. He informed Shaw that the picketing had com- menced and that the job was shut down. They contacted Richard Rowand by long distance telephone and transmit- ted the information to him. Rowand specifically informed Plumlee and Shaw that only he, Rowand, had the authority to grant recognition to the Union. Shaw was instructed to "find" out what was "going on" and to convey the information to him. Rowand told Shaw to contact legal counsel and he asserted that he would undertake travel from his Arkansas office to the jobsite. Rowand did not reach Ruidoso until August 6.25 From his office, John Shaw called Richard Wardlaw, an administrative assistant to the president of the Mescalero tribal council who had previously requested Shaw to keep him informed concerning matters affecting the job. Shaw informed Wardlaw of the work stoppage. He then went to the jobsite. Shaw drove to the cattle guard from inside the reservation. When Shaw arrived at the cattle guard, a truck was stopped awaiting entrance to the jobsite. Shaw approached Morce and asked if he would permit the truck to enter the reservation and Morce answered that it was not up to him but that this was a matter for the Indians to determine . Shaw did not seek permission from the Indians but instructed the driver to circle around the reservation signators were no longer employed. The testimony of Guy Plumlee and J. C. 'Campbell establishes to my satisfaction that Plumlee was accompanied by Campbell and his son on the occasion in question and testimony to the contrary is not credited. Moreover, I credit the testimony of Plumlee to the effect that he did not leave the vehicle during his initial visit to the cattle guard entrance . The testimony of Joel Lathan to the effect that he got out of the automobile and made acrimonious comments is not credited. The testimony of John Morce concerning the nature of the recognition request is the principal basis for the findings concerning the substance of the demand. Guy Plumlee testified he did not recall all of the details of the conversation but in salient aspects his testimony supports that of Morce regarding the demand for recognition. 25 Undisputed testimony of Guy Plumlee and John Shaw, viewed in light of the affidavit of Richard Rowand received in evidence by stipulation, establishes the foregoing. I do not credit the testimony of Guy Plumlee that, in speaking to John Morce at the cattle guard entrance, he advanced his lack of authority as the reason for refusing to grant recognition to the Union. This absence of authority may have motivated Plumlee 's declination but, consistent with the credited testimony of John Mora , I find that this was not articulated as the basis for the refusal to grant recognition. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and enter from the other entrance. There was no request for recognition made by Morce to Shaw and no discussion of the Union ensued.26 Later, during the morning while the picketing continued, Plumlee returned to the cattle guard entrance. He was accompanied by Gary Bridges and Plumlee spoke with Morce. Plumlee asked Morce if he could copy the names appearing on the authorization cards. Morce declined but held the cards in his hand and turned each one over for Plumlee to observe. Morce asked Plumlee if he would recognize the Union and Plumlee said no 27 c. The alleged dozer threat While Plumlee and Bridges were at the picket line on this occasion, Bridges took a union picket sign which had been placed in the cattle guard and threw it into a ditch. Morce retrieved the sign from the ditch . At this point in time Plumlee stated in a loud voice that he would get a D-8 and clear the area out. He made this statement in response to an inquiry of an employee to whom he was speaking.28 d. The afternoon meeting In the interim, Richard Wardlaw had informed Fred Heckman that picketing had commenced at the cattle guard. Heckman went to the jobsite and observed the picketing. He spoke with Sammy Cooper and Clifford Chee, as well as other tribal members . He spoke also with John Morce and Bosco Powers . From these conversations he learned the nature of the difficulty . He thereupon returned to Ruidoso and spoke with Wardlaw. They together spoke by long distance telephone to the tribal president. As a consequence of the consultation and in an effort to diffuse the potentially explosive situation, Heck- man undertook precautionary measures , including consul- tation with John Shaw and with the Indian employees. A meeting was scheduled for 1 p.m. at the tribal administra- tion facility. Shaw, Morce, Powers, and the Indian employees were informed of the meeting. The meeting transpired as scheduled. The meeting was attended by Heckman , Wardlaw, and Max Williams, project engineer , representing the tribal administration ; Shaw, Plumlee, and Bridges, representing the Company; Morce and Powers, representing the Union; and a large number of Mescalero Indians, including Cooper and Chee.29 Joel Lathan attended the meeting and at least three other non-Indian employees were present. Heckman opened the meeting, stating, in substance, that to enlighten the tribal government and staff he wanted the Indian employees to explain the nature of the employee grievances and the background events which had led to the picketing and blockading of the cattle guard entrance to 2e The foregoing is based upon the testimony of John Shaw as supported by that of John Morce. 27 The credited testimony of John Morce and Guy Plumlee supports the foregoing. 2e The record testimony amply supports the foregoing findings. Guy Plumlee testified, in substance, that he made a comment of the variety above found during the stress of the activities that were taking place and, in effect, conceded that he spoke in a loud and irritated fashion. Upon a consideration of the testimony of John Morce , Giles Lockett, and Joel Lathan, however, I am unable to credit Plumlee's version of the substance of his comments concerning the use of the D-8. the reservation. Heckman stated further that he desired to have the Company respond to the statement of position offered by the Indian employees. Heckman stated that he then wished to hear a definition of the Union's role in the matter, including a restatement of the representations which had been made by union representatives to the employees concerning the benefits and costs to the men should they join the Union. In initial response, Sammy Cooper arose and asked Shaw if he had come to bargain and if he were "ready to bargain." Shaw responded that he had no authority to negotiate and that this authority resided with Richard Rowand. Cooper stated, in substance, that if Shaw were not there to bargain there was no benefit in continuing with the meeting. At the entreaty of Heckman, the Indian employees commenced to articulate their grievances. These related to alleged absence of safety and sanitation facilities, deficiencies and improprieties in supervision, and discrimi- nation against Indian employees in favor of non-Indian workers. In addition, it was asserted that there was not a sufficient supply of drinking water and that intoxicating beverages were permitted on the project. Individual Indians voiced complaints. In response to certain of the alleged grievances, Shaw stated that he had not been aware of what had been going on out on the project and asserted that the employees should have consulted the Company concerning the matters. During the course of the meeting, Morce asked Shaw if he would concede that the Union represented a majority of the employees. Shaw answered in the affirmative.30 In open meeting while company representatives were present, Morce and Powers stated that if the employees wanted the Union to represent them, the Union would do so but if the employees desired otherwise the Union would be willing to leave the employees to their own devices. Twice during the meeting Morce cautioned Shaw that for him to discuss employee grievances was unlawful. Shaw disclaimed knowledge of the legal niceties and offered to abstain if he were proceeding improperly. Morce did not seek to foreclose discussion of the grievances in the presence of the company representatives. As the meeting progressed, the Indian employees stated their determination to deny access to the reservation until their grievances were satisfied by the Company. Heckman and Wardlaw, on behalf of the tribal administration, suggested an airing of the matters before the tribal council. As a quorum of the council could not immediately be convened due to the out-of-town absence of several members thereof, Heckman and Wardlaw explored possi- bilities of an interim termination of picketing and a temporary return to work pending action of the tribal council. This led to a discussion of relationships between 29 John Shaw had sought to have the meeting deferred until Richard Rowand arrived in Ruidoso but he was unsuccessful in this effort. In the meantime, at Rowand's direction, Shaw made efforts to contact legal counsel 30 John Shaw testified, in substance, that he had never seen the authorization cards upon which the Union based its claim of recognition and that his assumption as to the majority status of the Union was predicated upon the account given to him by Guy Plumlee of Morce's picket line demand as well as upon the number of individuals whom Plumlee had stated were at the situs of the picketing on the morning of August 4. THE ROWAND CO., INC. 105 the individual employees and the Union which Morce preferred to have discussed outside the presence of the company representatives. Accordingly, the representatives of the Company departed as did employees Jerry Sherrell, Gary Sherrell, and Don Bretz. Following the departure of the company officials, the Union described the benefits accorded employees by membership and it was decided to defer further discussion until the tribal council convened . It remained for the Indian employees to determine whether or not to return to work. This matter was unresolved when Heckman, Wardlaw, and Williams left the meeting . Some Indian employees remained. Following the meeting, the Indian employees removed the barricades from the reservation side of the cattle guard entrance. They returned to work on Monday morning, August 7.31 6. The August 5 discussions On August 5, Sammy Cooper contacted John Shaw and requested a meeting with him. It was agreed that the meeting would be held at the Villa Inn in Ruidoso. Cooper conveyed to Joel Lathan his intention to meet with Shaw, and Lathan made arrangements to meet Cooper at Cooper's residence and to proceed to the Villa Inn together. When Lathan went to Cooper's home, he found Cooper indisposed. Lathan proceeded to the Villa Inn accompanied by his wife. He entered the Villa cocktail lounge alone, and Shaw and Guy Plumlee were sitting together at the bar. When Lathan entered, at the suggestion of Shaw and Plumlee that they talk together, they moved to a table in the lounge. After approximately 10 minutes, they were joined at the table by Clifford Chee. Ellen Lathan, Joel Lathan's wife who had remained in the Lathan automobile, also joined the group. At the outset of the meeting, Joel Lathan stated that he wanted to see if the problems between the employees and the Company could be worked out so that the employees could go back to work. Lathan added that the Indian employees did not need the Union if these matters could be resolved. He produced an envelope on which penciled notations had been entered. These notations served as a basis for discussions which transpired between Shaw and Plumlee, on the one hand, and Lathan and Chee, on the other. The discussions related primarily to grievances or issues that had been raised at the meeting held at the tribal 31 The foregoing is based primarily upon the credited testimony of Fred Heckman . I have also considered the testimony of various witnesses relating to this meeting and credit it only to the extent it is consistent with the foregoing findings. Specifically, I credit the testimony of John Morce and Joel Lathan, which gained support from the testimony of Fred Heckman, to the effect that John Shaw stated that the Company was not aware of the existence of many of the conditions and shortcomings which had been described to him by employees during the course of the meeting; and the further comment of Shaw to the effect that the employees should have apprised the Company. In finding that the Union , in effect, agreed to continue or abstain from representing the employees, conditioned upon their wishes, I have considered the testimony of John Morce, Boscoe Powers, Joel Lathan, Fred Heckman, and John Shaw. On the other hand, I do not credit the testimony of Morce and Lathan to the effect that a show of hands vote was taken at the meeting whereby the Indian employees revealed support of the Union Fred Heckman was unable to recall such a vote and Heckman impressed me as a thoroughly objective witness who endeavored administration facility on the previous afternoon. As the discussion developed, Shaw made notations on yellow, lined note paper and at the end of the discussion Shaw and Plumlee each affixed their respective signatures at the bottom of the sheet of paper. Lathan took custody of it. The paper contained notations on 10 different subjects, one of which was included at the initiative of Shaw and Plumlee.32 The other nine were evolved from the discus- sion of topics which Lathan and Chee introduced as grievances or irritants to the Indian employees. During the discussion, Lathan suggested the appoint- ment of a steward. From this discussion evolved an entry which was listed as item 6 on the 10-item list . In substance, this entry reflects company agreement to permit a steward elected by the employees to act and to be consulted in advance of any personnel action against him. Additionally, this item calls for a form of third-party arbitration to resolve disagreements between the Company and the steward concerning the propriety of proposed company action. During the meeting, the antagonism felt by the Indian employees toward Eugene Mitchell , then serving as grade foreman, was expressed and discussed . Shaw and Plumlee noted that Mitchell was a qualified and capable individual and would have to be replaced by someone with similar capabilities. Plumlee inquired if Lathan were satisfied in his present position and whether he felt he was qualified to serve in the position of grade foreman. Lathan disavowed any interest in benefiting personally from the Company's resolution of the grievances under discussion, but Shaw stated that if there were an Indian employee qualified to replace Mitchell, he would make the change. After completing the substantive discussions at the lounge of the Villa Inn, the group went to another lounge in Ruidoso. The events of the evening which commenced at approximately 6:30 p.m. ended at approximately 1:30 a.m. on August 6.33 The following morning, Lathan gave Cooper the paper containing the notations of Shaw and the respective signatures of Shaw and Plumlee. Thereafter, Cooper took the notations to the office of Richard Wardlaw where the notations were prepared in typewritten form.34 7. The August 6 meeting On Sunday, August 6, Sammy Cooper contacted John Shaw and thereafter Richard Rowand, Shaw, Guy Plum- to the best of his capacity to recount the occurrences and details of the meeting in question. Sammy Cooper was convincing in his denial that any such vote was taken at the meeting. 32 This related to intoxication or consumption of alcoholic beverages on the project and specified it as grounds for termination. This matter had received a general airing at the meeting the prior afternoon. 33 The foregoing findings with respect to the August 5 discussion and social gathering is based upon a consideration of the testimony of John Shaw, Joel Lathan , and Ellen Lathan . I do not credit the testimony of Joel and Ellen Lathan to the extent that it infers that in specific terms Shaw and/or Plumlee offered to designate Joel Lathan as grade foreman if he would assist the Company in getting rid of the Union. I credit John Shaw in finding that no specific offer or suggestion of this type was made. 34 In this latter regard, I credit the unequivocal testimony of Sammy Cooper and reject the surmise of Joel Lathan that the typewritten document was prepared at the offices of the Company. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lee, and Gardy Bridges met with Cooper and his wife at the Chaparral Motel. Cooper brought to the meeting the paper containing the notations of the discussions between Lathan, Shaw, and Plumlee and spoke to Rowand about the grievances which the employees had. He informed Rowand that the Indian employees did not fully under- stand the union question and did not want the Union if the Company could guarantee that the employee grievances would be corrected. Rowand left Ruidoso on Sunday knowing that the work stoppage would not be resumed and that the employees would return to work on Monday.35 8. The August 9 tribal council meeting At approximately mid-day on August 9, Cooper went to the tribal offices and met with Heckman who had been endeavoring to arrange a meeting of the tribal council. Cooper informed Heckman that the men had gone back to work and discounted the likelihood of any violence or exigency which would render necessary an immediate meeting of the tribal council. Cooper further informed Heckman that the problems appeared to have been solved and that the Indian employees did not desire to have the Union represent them. However, Cooper expressed con- cern to Heckman regarding the means to be employed in declaring the desire of the Indian employees to be freed of any commitment to the Union.36 Heckman made unsuc- cessful efforts to obtain legal advice and concluded that the Union would have to be informed of the decision of the Indian employees. No immediate action was taken, however. A quorum of the tribal council met on the afternoon of August 9. Sammy Cooper was present as were John Shaw and Guy Plumlee.37 Shaw had received an invitation in memorandum form inviting him to attend the meeting. A similar invitation was addressed to Sammy Cooper and to Max Williams, the project engineer. The meeting was presided over by Samson Miller, tribal vice president. The question of union representation was raised by Wardlaw and Cooper asserted that the union employees did not want the Union and were back to work. The typewritten reproduction of the notations made during the August 5 discussion between Lathan, Shaw, and Plumlee was brought to the meeting by Cooper. With Samson Miller leading the discussion and Shaw participat- ing in the explanation, the 10 items contained on the typewritten "grievance list" were individually and sepa- rately discussed. As a consequence of the discussion of the grievance item relating to the designation of a steward, the impression was received that the Company and the Indian employees had opened a channel of communication. Following the council meeting, the tribal president caused to be prepared a memorandum, dated August 9, containing the following: 35 The foregoing is based upon a consideration of the testimony of Sammy Cooper, John Shaw, and the affidavit of Richard Rowand received in evidence by stipulation of the parties. 36 Kenneth Heckman credibly described the custom-based mental process which impels the Mescalero Indians desiring to revoke any written commitment mto which they had entered to do so in wasting . Heckman testified credibly that Cooper suggested the necessity of a written cancellation of the signed authorizations given the Union. ar Fred Heckman credibly testified that Cooper's past leadership Today the Tribal Council met with your representative, Mr. Samuel Cooper, and management of The Rowand Company. Difficulties occurring during the past several weeks were reviewed and their respective solutions discussed. We are pleased that communications have been opened and that problems are being freely discussed now. We are glad to learn that construction is back under way at the project. You should all be commended on your gentlemanly behavior during the dispute. It appears that Rowand has recognized the problem and taken steps to correct problem areas. Please keep in mind that your Tribal Council and Tribal President will work in your behalf. Should future problems arise that cannot be resolved on the job, we would appreciate being immediately informed by either party so that we might have an opportunity to assist in the solution of the problem. The memorandum was distributed on the job at the order of the tribal president. During the week that followed, the Company undertook to remedy the grievances specified on the "grievance list." Specifically, seat belts were installed, fresh water was supplied, Eugene Mitchell was terminated from his position as grade foreman, and Sam Harrell was ordered to cease giving work instructions to employees , thus effective- ly endowing Plumlee and Bridges with exclusive authority to instruct employees. 9. The designation of a "steward" Prior to the commencement of work on the morning of August 21, John Shaw approached Bernard Little and asked Little to assemble the Indian employees. When the group had assembled, John Shaw noted that there had been a request that the employees be permitted to select their own steward. Shaw suggested that they proceed to do so by means of an election. One of the Indian employees suggested that Bernard Little be designated and he was selected. Richard Rowand was approximately 25 feet away and other non-Indian employees had gathered nearby. The election took place on the work project. One or two non- Indian employees may have participated in the election. After the election of Little, Richard Rowand inquired into the status of Sammy Cooper as spokesman for the employees. One of the Indian employees, Justin Mendez, asserted that Cooper had been self-appointed. Cooper was not present during the election of Bernard Little.38 positions in the tribe and current conversations with tribal members and Cooper had led him to believe he was the acknowledged spokesman for the Indian group. 38 The foregoing is based principally upon the credited testimony of Bernard Little and John Shaw. I do not credit the testimony of little to the extent that it may infer that Rowand's inquiry into the status of Sammy Cooper transpired prior to the election. Shaw credibly testified that Rowand made no comment to the assembled group of employees until after the election had transpired. THE ROWAND CO., INC. 107 10. The August 22 petition As a first order of business, and pursuant to inquiries from Indian employees, Little caused to be prepared and circulated a petition declaring the desire of signatory Indian employees not to be represented by the Union. Little prepared the petition and had it typed in the office of Richard Wardlaw. Little circulated the petition which was signed on August 21 and 22 by 20 individuals.39 The original copy of the petition was forwarded by mail to the Company. John Shaw retained the original in his office.90 Joel Lathan testified that Little approached him with the petition and requested him to sign it. Lathan testified further that Little made this request at a time when the petition bore approximately five signatures . Lathan ques- tioned the wisdom of Little's action and asked Little what he was endeavoring to do. Little responded, "Well, we're all going along with this; and if you don't sign the paper, you're probably going to be fired." Little was not in a supervisory capacity with the Company 41 At the time of his selection as spokesman for the Indian employees, Bernard Little was approximately 62 years of age and had previously served 8 or 9 years as a tribal judge. Additionally, he had served in the position of tribal secretary for approximately 2 years, and had served as treasurer and as president of the cattle growers association. He is an incumbent of the board of the cattle growers and had also been a member of the tribal counci142 11. The termination of Giles Luckett a. His employment Giles Luckett was employed by Respondent on Monday, July 31. He was terminated on Thursday, August 3. He worked as a mechanic on July 31 and August 1. On August 2, he was assigned to operate a dozer and returned to that assignment on August 3 prior to being terminated at approximately 8 a.m. Before his hire, Luckett had made telephonic contact with both John Shaw and Guy Plumlee. In speaking with Plumlee, Luckett had stated that he was a "union man" presently working on a "non-union job" and he asserted that it was not requisite for him to work solely on union projects. Plumlee stated that this made no difference because union wages and benefits were paid by the Company. Plumlee inquired as to Luckett's skills and was informed that he could operate a dozer, blade, scrapper and serve as a mechanic. Luckett had had 15 years of experience as a dozer operator and had had successful employment experience with several construction firms. He was not immediately hired by Plumlee. However, Luckett 39 Eight of the signators had executed union authorization cards. 40 The foregoing is based upon the testimony of Bernard Little, John Shaw, and documents of record. 41 This testimony of Joel Lathan was not refuted in the record . Lathan also testified that following Little's designation as "steward," Little began "acting as a boss" and had "been in charge" of employees working on the brush pile, receiving directives from Plunilee as to orders to be transmitted by little to the employees . Lathan further testified that Little began "nding around" instead of doing rank-and-file work. On the other hand, the testimony of Little and Guy Plumlee is to the effect that Little served only in a rank-and-file capacity during the period of time in question . However, ltudes further testified that, in Little's role as spokesman for the Indian had occasion to refer Ted Thoma to the Company. Thoma was employed as a dozer operator and through Thoma, Plumlee informed Luckett that he would soon be contact- ed. Plumlee did contact Luckett soon thereafter and Luckett was employed as a bulldozer operator .43 Thoma remained in Respondent's employ at the time of the hearing. Luckett was not initially used by Plumlee as a dozer operator because Plumlee had more immediate needs for someone with mechanic skills. Plumlee observed Luckett's work as a mechanic and found him lacking in optimum speed and productivity. On August 2, Plumlee needed a dozer operator and, as found, assigned Luckett to a dozer. b. The discharge effectuated On August 2, Luckett worked at assigned tasks operating a dozer. The morning hours were spent in dirt loading operations. In the afternoon Luckett operated the dozer in various dirt removal capacities. During the course of the day he had occasion to speak to Eugene Mitchell three separate times in an effort to obtain instructions or permission to perform designated tasks. On the initial occasion when Luckett sought instructions from Mitchell, Mitchell asserted that he was "tired of trying to teach a new crew every week how to do [the ] work." J. C. Campbell credibly testified he observed Luckett improper- ly piling rocks and brush on August 2 and was assigned to remedy the condition created. On August 3, Luckett again operated the dozer. He worked approximately an hour in stripping an embank- ment and at approximately 8 a.m. was informed by Plumlee that he was being terminated . Earlier in the morning Plumlee had observed Luckett's work and had returned to the situs of Luckett's return, Luckett had parked his dozer and Plumlee observed Mitchell in the vicinity. Plumlee and Luckett spoke together and Plumlee informed Luckett that he was unable to use Luckett because Luckett could not do what Luckett had stated he could do. Nothing further was said and Luckett's termina- tion was effectuated. Luckett testified that on the morning of August 3, he was working on a steep embankment which had necessitated positioning the dozer on an angle to the hill. He further testified that he had 15 years' experience as a dozer operator and had never been terminated from employment for any reason relating to work capabilities.44 On the other hand, Plumlee testified that he observed Luckett's work during the workday of August 2 and for a period of time on the morning of August 3. He further testified that, in the meantime, Mitchell had given him an employees, Little was used as a contact for securing Indian laborers to work on the job. Additionally, Plumlee and Little consulted together on problems in the nature of grievances which arose. 42 The foregoing is based upon the undisputed testimony of Bernard Little. 43 The foregoing is based upon a composite of the credited testimony of Giles Luckett and Guy Plumlee. I credit the testimony of Luckett concerning the range of skills which he specified to Plumlee he possessed. 44 Giles Luckett credibly testified that following his termination on August 3 he became employed in the capacity of a mechanic and was subsequently promoted to master mechanic and offered the position of equipment superintendent. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adverse evaluation of Luckett's productivity and he had received a complaint from Ted Thoma to the effect that it had been necessary for him to "straighten out" Luckett's dozing work. Plumlee further testified that when he returned to the situs of Luckett's work on the morning of August 3 after having observed Luckett perform work that morning, he had already reached a determination to terminate Luck- ett's employment. He further testified that before he spoke to Luckett, Mitchell had gone in search of Luckett's replacement, employee Lyle Walker. Plumlee further testified that he and Mitchell had discussed Luckett's termination the previous day, but that he had not specifically instructed Mitchell on the morning of August 3 to search out Luckett's replacement. Plumlee conceded that the hill on which Luckett had been working on the morning of August 3 was a steep one, but he asserted that three other operators had successfully worked on the hill. Moreover, he testified that on the previous day, August 2, he had observed Luckett work with the dozer and found that he was not operating it efficiently. Following Luckett's termination, Plumlee had occasion to speak to Joel Lathan. Lathan requested Plumlee to reassign him to the dozer and asserted that Luckett could not run a dozer as well as he could. Lathan added that Luckett had tried to organize the employees. Plumlee declined Lathan's request, saying, in substance, that Lathan lacked sufficient skill to operate a dozer as well as Plumlee desired and that he would remain on the roller. He observed, further, that Luckett had already been terminat- ed and his involvement in unionization efforts was of no concern.45 Plumlee testified that he terminated Luckett because of his deficiencies as a dozer operator and added that he was not a fully productive mechanic. Plumlee conceded that at the time of Luckett's termination the Company had need for a competent dozer operator. At the time of Luckett's termination, no reference was made by Plumlee or Luckett to Luckett's union activities. The following morning, August 4, on the picket line, as found above, Morce charged that Plumlee had terminated Luckett for union activity. Luckett denied this, asserting that the termination had been accomplished because 45 The latter findings are based upon the credited testimony of Guy Plumlee I do not credit the testimony of Joel Lathan to the effect that soon after Luckett's termination Plumlee informed him that he had run Luckett off the job because he had tried to bring a union in. The record as a whole reveals that Lathan was ambivalent in his affinity to the cause of the Union and, in the showdown, revealed a willingness to abandon the Union in order to achieve more immediate employee objectives It is entirely consistent with Lathan's nature and personal objectives, I am convinced, for Lathan to have spoken to Plumlee in the manner above found, seeking in the process to obtain his own immediate objective of being assigned to a dozer in Luckett's stead and to seek also at the same time to place the onus for bringing in the Union on Luckett whom Lathan knew to be a principal advocate Lathan's tendency toward fleeting loyalty to the union cause renders totally unpredictable his future course of action, had Plumlee acceded to his request to be assigned to a dozer. Had Lathan achieved this objective, it is entirely foreseeable that he would have avoided any card-signing activities at the picket line on August 4, and that he would have striven to keep his leadership role in the union effort a secret. It was the shielding of his role as a leading advocate of the Union that was crucial as a protective device against possible employer retribution, for Lathan well appreciated that the fact of the organizational effort would Luckett could not operate the dozer in the manner he had represented. 12. The termination of Joel Lathan a. Lathan's work assignments Joel Lathan commenced his employment with the Company on or about July 8. He was initially employed in the capacity of a scraper operator. Subsequently, he was assigned to operate a dozer but was taken off the dozer on August 2 when Giles Luckett was assigned to it. Lathan, in turn, was assigned to work as a laborer. However, on August 3, following Luckett's termination, Lyle Walker was transferred from the roller to the dozer which had been operated by Luckett and Lathan was reassigned to the roller. Greater skill is required to operate a dozer than is required for operation of a roller. Soon after August 3, however, Lathan was again assigned to operate a dozer and remained as a dozer operator until August 15 when he was demoted to the laborer classification. On August 3, the dozer to which Lathan had been assigned became incapacitated through being immersed in mud. Similar episodes occurred on August 9 and 14. On the latter occasion, Lathan's dozer became so deeply buried in the mud that the fan and floor boards were covered and the mud rose to the top of the engine of the dozer. A crane was used to extract the dozer from the mud. It was necessary to repair the dozer after it had been freed.46 On August 15, Lathan's job classification was changed to that of laborer. Thereafter, on or about August 21, Lathan observed another employee operating the dozer which he had been operating on August 14. Lathan asked Plumlee why the other employee was operating his dozer.47 Plumlee answered that Lathan had taken a year's life off the dozer when he had immobilized it in the mud. Lathan contested this and questioned Plumlee's action in reassigning the dozer to another employee. He requested permission to speak with Shaw. He did so. Shaw, Plumlee, and employee Chee participated in the discussion. In speaking with Shaw, Lathan protested Plumlee's assignment of his dozer to another employee. Plumlee intervened during the course of the statement and asserted, soon be disclosed to the Company , and he had reason to believe on August 3 that the authorization cards would be used to gain recognition from the Company It is pertinent to note that while Lathan willingly signed an authorization card, he sought to avoid having cards signed by others returned to him on the job. Considering this, and upon the record as a whole, I find a logical basis for Lathan's willingness to disclose to Plumlee the emergence of organizing efforts and Luckett 's involvement therein. Moreover, in finding that Plumlee spoke to Lathan in the manner above found, I reject the testimony of Lathan to the effect that on August 2 Plumlee spoke in flattering terms concerning Luckett's capacity as a dozer operator Lathan's account of what Plundee purportedly said was to an extent garbled, and Lathan clearly lacked certitude with respect to what Plumlee supposedly did say. Lathan's marked tendency to rationalize parts of his testimony, and the absence of separate evidence revealing any high degree of skill vested in Luckett as a dozer operator requires rejection of this facet of Lathan's testimony. 46 The foregoing is based upon the credited testimony of Guy Plumlee. I credit the testimony of Joel Lathan only to the extent that it is consistent with the foregoing. 17 The record suggests that Lathan had been under the impression that his dozer was undergoing repairs. THE ROWAND CO., INC. 109 in substance, that the transfer had been effectuated because Lathan had caused the dozer to become stuck in the mud. In the course of the discussion which followed, Shaw withdrew from his desk the petition which had been circulated by Bernard Little among the employees on the project 48 Lathan studied the petition and handed it back to Shaw. He asked Shaw if he were going to get his dozer back. This led to a discussion between Shaw and Plumlee regarding Lathan's competency as a dozer operator. Shaw informed Lathan that he would render a decision later.49 Lathan testified that in an effort to obtain reassignment to his dozer, he asked Bernard Little in his capacity as steward to intervene on his behalf. Lathan credibly testified that Little refused to do so, asserting, in substance, that the fault for immobilizing the dozer resided with Lathan. Lathan disputed this point with Little, contending that Little had directed Lathan to perform the work which had resulted in the dozer becoming stuck. Lathan testified independently that on August 14 Bernard Little had directed him to perform the work which had resulted in the immobilization of the dozer and that during the period in question other machinery operated by other employees had become immersed and immobilized due to mud conditions. After August 15 when Lathan's classification was changed to that of laborer, he worked a total of 7 days in the capacity of a laborer . On September 8, his name was removed from the payroll records of the Company. b. The termination of Lathan effectuated On September 8, Plumlee reached the decision to terminate Lathan. However, because Lathan did not work on September 8, Plumlee did not effectuate Lathan's termination until September 9. Lathan had not reported to work on September 7 or 8 but he had worked on September 6. September 7 was a cloudy day and eight employees reported to work. However, work ceased at 2:30 p.m. on September 7 because of rain. The following day was a wet day but eight employees worked from a payroll complement of 34. In the period from August 15 through September 8, there were 16 normal workdays. On five of these days, excluding September 7 and 8, the project was closed down because of inclement weather. Lathan was informed of his termination on September 9 +8 As previously found, the petition stated the desire of the signatory employees not to have the Union represent them. +a The foregoing is based upon a composite of the credited testimony of Joel Lathan and John Shaw. I credit their respective versions of this meeting only to the extent that the testimony is consistent with the above findings. Specifically, I do not credit the testimony of Joel Lathan to the extent that it infers that when Shaw handed him the petition, he asked Lathan in specific terms whether Lathan was going to sign the petition. On the other hand, however, I do not credit the testimony of John Shaw to the effect that the petition was not shown Lathan until Plumlee and Chee had departed from his office and the discussion of the dozer assignment had been terminated. I credit Shaw's testimony that he showed Lathan the petition knowing that Lathan was a leader in the organizational effort and desiring, therefore, to obtain Lathan's reaction to the petition 50 The foregoing findings are based upon a consideration of the testimony of Guy Plumlee, Joel Lathan, and J. C. Campbell. I credit the testimony of Plumlee and Campbell to the effect that Campbell was present during the incident in question and overheard the conversation between Plumlee and Lathan. Campbell testified persuasively with respect to his presence and Plumlee credibly explained why counsel for Respondent by Plumlee when Lathan entered the trailer office of John Shaw to obtain his paycheck. Shaw was not present in the office but Plumlee and J. C. Campbell were. Plumlee asked Lathan for his hard hat and informed Lathan that he was being terminated because he had not shown up for work "enough." Lathan asserted that he had had rain for 2 days but Plumlee answered that "other people" had reported. Lathan asserted that if the Company were going to operate in the State of New Mexico, it would have to do so under union conditions. Plumlee did not reply directly but handed Lathan the business card of the attorney whom the Company had retained. He suggested that Lathan contact the attorney if Lathan desired to pursue the matter. As found, the initial charge in the instant proceeding had been filed on August 9 .50 Guy Plumlee testified that on the morning of September 8 he reached the decision to terminate Lathan. He testified that he did so because Lathan had failed to report to work on the 2 previous days, and he had observed Lathan on two or three occasions during the prior 48-hour period driving up and down the road near the work project in his automobile. Additionally, at approximately 7 a.m. on the morning of September 8, he had received a report to the effect that Lathan had been observed by the night watchman in the company equipment yard. This observa- tion allegedly had transpired at approximately 4:30 a.m. on September 8. In deciding to terminate Lathan, Plumlee had given weight to these two considerations and was motivat- ed also by the fact that Lathan had caused his dozer to be buried "in the creek"; Lathan's asserted inability to operate a dozer; his alleged failure on the last day of his employment to endeavor to do any "productive work," occasioned, in part, by his alleged continual interruption of other employees; and his asserted three separate 1-hour visits to the office to discuss the reasons for his removal as a dozer operator; his asserted refusal to work as a roller operator or a laborer; and the alleged refusal of Indian employees to work with Lathan as a laborer because of Lathan's reported attitude and alleged dangerous use of a chain saw while working with other laborers. Plumlee denied that Lathan was terminated for union activities. Plumlee testified that at the time of the last dozer burying incident he had Lathan's explanation of the circumstances surrounding the burying of his dozer in the mud. As found, Lathan, in substance, explained that he belatedly learned that Campbell witnessed the termination of Lathan. A careful analysis of Campbell's testimony convinces me that, contrary to the contention made by General Counsel in his brief, Campbell was not an evasive witness. Rather I conclude that he testified truthfully concerning the incidents which he observed and refused to be drawn into speculation concerning possible occurrences which were beyond his actual recall. I do not credit Lathan's testimony to the effect that in informing him of his termination Plumlee gave as the reason the fact that Lathan had not signed the petition circulated by Bernard Little stating the desire of employees not to be represented by the Union Plumlee's denial of this statement attributed to him by Lathan is believable and consistent with Respondent's general claim that Lathan was terminated for cause Indeed, in light of Plumlee's testimonial assertion that he had a variety of reasons for terminating Lathan, it would be anomalous, in my view, for Plumlee during his interview with Lathan to have rested his decision on the ground claimed by Lathan and to have avoided, as Lathan's testimony infers, advancing any work-related basis in justification for the termination. I am convinced, despite Lathan's apparent certitude to the contrary, that Lathan rationalized this aspect of his testimony. 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was following directives of individuals with authority over him. Plumlee further contacted Little and Yuzos, who, in substance, gave Lathan's explanation no support.51 Nei- ther through Plumlee nor otherwise did Respondent develop evidence to support Plumlee's assertion that Lathan did no productive work on the last day of his employment and/or refused to do work for which he was qualified. In further delineation of the grounds for terminating Lathan, Plumlee explained that it was merely the failure of Lathan to work productively that was weighed by him in deciding to terminate Lathan. Plumlee denied that the fact that Lathan visited the office on three separate times on his last day of employment to protest his removal from his dozer led to Lathan's termination. Further, the evidence of record reveals that the Company was the recipient of a written request, circulated by Bernard Little, and signed by Indian employees, that the Company remove Lathan from his job as a laborer. c. The aftermath of Lathan's termination On September 8, after Lathan had received his check, he was approached by the individual who had served as night watchman during the morning hours of September 8 and who had reported Lathan's presence in the equipment yard. Lathan was told by that individual that if he did not stay out of the equipment yard, he would be killed. Respondent did not undertake an investigation of Lathan's alleged presence in the equipment yard on the occasion in question. However, a letter dated September 8, treating with the subject, was prepared and dispatched to the tribal president. Lathan denies being present in the equipment yard and testified that he was at home during times pertinent to that incident.52 Lathan testified, in substance, that the night watchman who had implicated him had a propensity for physical violence. The record reveals that at the time of the hearing the night watchman was in jail.53 A week or two after his termination, Lathan had occasion to speak with Bernard Little . Little urged Lathan to speak with Richard Rowand about reinstatement, suggesting that Lathan "drop everything because [he was] not going to get any place that way anyway" 54 Conclusions 1. The Union's majority In agreement with the General Counsel, I find that the Union commanded a numerical majority in an appropriate bargaining unit when on August 4 demand was made on Plumlee for recognition. I find that on August 4 the unit 51 Bernard little testified that he had stated that Lathan had "no business" taking his dozer into the area where it became stuck. 52 I reach no determination concerning the accuracy of the report of Lathan's presence but I find, based upon the testimony of Guy Plumlee and Joel Lathan, and considering the record as a whole, that prior to terminating Lathan, Plumlee had received reports concerning Lathan's unauthorized actions. I find no basis for determining that the letter dated September 8 was incorrectly dated to give plausibility to Plumlee 's actions in terminating Lathan; and I find affirmative support for Plumlee's testimony that he was a recipient of reports implicating Lathan from Lathan's own testimony inferring that as of September 8 he was being accused by the night watchman of intrusion into the equipment yard. was comprised of 26 employees and the Union possesses 14 valid authorization cards. Basic to this finding is the conclusion, subsequently delineated, that Giles Luckett had been terminated on August 3 for cause, and that Sam Harrell was at pertinent times until August 4 a supervisor within the meaning of the Act. These two exclusions from the complement of 27 individuals are offset by the inclusion of J. C. Campbell in the unit. Abstaining for present purposes from a discussion of the Luckett termination, it is appropriate, nonetheless, to here specifically find that the exclusion of Harrell is based upon convincing record evidence establishing that on and before August 4, and until after August 9, Harrell possessed authority to assign work tasks to unit employees and to direct them in the performance of their work. His authority to use independent judgment in making work assignments rendered him more than a "straw boss." I find that until after August 9 Harrell was a supervisor within the meaning of the Act. On the other hand, the record reveals that J. C. Campbell possessed no authority of the type and character sufficient to render him a supervisor, as that term is applied under the Act. His inclusion in the unit perforce follows. Eight cards in possession of the Union on August 4 when the initial demand was made upon the Company are not in issue.55 Additionally, however, contrary to Respondent, I find that the Union possessed six other valid cards at the time of the initial demand which must be included in the computation of majority. These are the cards of Cisco Bob, Justin Mendez, Isadore Mendez, Gary Sherrell, Jerry Sherrell, and Don Bretz.56 The evidence establishes to my satisfaction that Cisco Bob and Justin Mendez executed their respective authori- zation cards in context of discussions suggesting that the Union could serve as a viable force in protecting the interests of employees; and the cards were signed with knowledge that other employees had seen fit to designate the Union to represent them. These manifestations by Bob and Mendez revealing an intent to join in concerted action for job protection and betterment through the Union are not negated by rumors, known to them, or assumptions, indulged by them-neither shown to have emanated from union misrepresentation or threats-to the effect that job tenure would be jeopardized by their failing to join in the card-signing activities. In a similar vein the card of Isadore Mendez must be found to represent a manifestation of his intention to authorize the Union to act on his behalf. This is so because he voluntarily affixed his signature to an authorization card after having observed other employees in the process 53 The night watchman did not testify but Bernard Little testified that the watchman had told him that he had observed two individuals in the equipment yard during the early hours of the morning of September 8. 54 This testimony is unrefuted . The record reflects that on September 27 an amended charge was filed alleging, inter Wig; that Lathan had been terminated because of his union activities. 55 These are the cards of Lathan, Cooper, Walker, Thoma, Gaines, Little, Andrews, and Dunleavy. 58 The latter three cards were signed very close in time to the initial demand upon Plumlee, but no argument is made that those cards won not in Morce's possession at the time he made demand upon Plumlee. THE ROWAND CO., INC. of signing cards. By his own testimony, he did this knowing that he was associating himself with the actions of the group with which he "worked." His act of affixing his signature to an instrument which designated the Union as his bargaining representative cannot be overcome by his after-the-fact declaration that he had received no explana- tion of the card's purposes and did not understand its functions. I further find insufficient basis for invalidating the cards executed by Don Bretz, Gary Sherrell, and Jerry Sherrell. The record reveals that prior to affixing their signatures to their respective authorization cards, each of the three individuals aforesaid had been informed of the asserted advantages of belonging to a union. But equally signifi- cant, contrary to Respondent, there is no threat or misrepresentation inferable from the legally factual and accurate representation made to them by Luckett concern- ing the application of a union-shop provision to building trades employees who might choose not to affiliate with the labor organization ultimately designated by the majority of employees as their bargaining representative. Finally, there is no showing that these three employees failed to read their authorization cards before signing them, and the inference is justified that in affixing their signatures to the cards they knew the nature of their act and possessed the capacity to understand that by signing they were furthering the cards' purpose.57 While the matter is not free from doubt, I conclude, nonetheless, that the authorization card of Melford Yuzos does not qualify as a valid designation to be included in the computation of the Union's majority. Thus, while Yuzos had been instructed by Lathan that the lot of employees generally would be improved by joining the Union, Lathan supplemented this representation by the statement that Yuzos was the last employee to sign a card and if Yuzos was not a union member he would be unable to work on the project. Because of impaired vision Yuzos did not have the opportunity to read the card which he signed, and he was not sufficiently instructed by Lathan as to the meaning and implications of his act of signing . Thus, Yuzos' signature may not be properly interpreted as signifying an informed and unfettered declaration of desire or intent to designate the Union as his bargaining representative. I similarly conclude that the Union possessed 14 valid authorization cards in a unit of 27 employees on August 9.58 The August 4 demand for recognition, a valid and continuing one, as discussed below, was sufficient to give rise to an obligation on the part of Respondent, on August 9, to recognize and bargain with the Union. But, in any event, the Union reiterated its demand and when it did it possessed majority status in an appropriate unit. In so finding, I include in the computation the authorization sr See N L R B v. Gissel Packing Co, 395 U.S. 575, 606-607 (1969); Levi Strauss & Co, 172 NLRB 732, 733. Cf Heck's, Inc, 156 NLRB 760 enfd. in pertinent part, 386 F 2d 317 (C.A. 4, 1967), which is inapposite because the threat to job security was stated as an absolute, unlike here where alternative consequences of signing or refusing to sign an authorization card were factually postulated 58 A fair inference is that by August 9, as employee grievances had not been remedied in Coto, and, indeed, corrective action had just begun, Campbell had not been installed as a supervisor. as Although these employees were not on the company payroll during the week ending August 4, the week in which they executed their respective III cards of Clifford Chee, John Balatche, and Edgar Torres which the Respondent does not challenge .59 I include also the authorization card of George LaPaz. I do so upon an evaluation of the record evidence which sufficiently establishes that LaPaz and Lathan had spoken together concerning unionization efforts and possible resort to union assistance in securing LaPaz' reinstatement to his former position of employment ; and upon my conviction that the chain of custody of the authorization card purporting to bear George LaPaz' signature was estab- lished with sufficient particularity to warrant the conclu- sion that the signature contained on the card which LaPaz himself delivered to Lathan contained LaPaz' authentic signature. Indeed, at the hearing Respondent made no effort to cast doubt upon the authenticity of what purported to be LaPaz' signature by presenting for comparison payroll or related social security forms bearing a signature verified to be that of LaPaz. 2. The demand I find no basis for concluding, as Respondent avers, that the Union in demanding recognition failed to define the bargaining unit with particularity sufficient to apprise the Company of the employee group in which the Union was seeking recognition and bargaining rights. As this record reveals, the initial demand was in a unit of all employees working for the Company and was based upon cards signed by employees allegedly working on the Cienegita Canyon project. The Company had no other employees in the State of New Mexico or any adjoining state. Plumlee inspected the cards and knew that the Union demanding recognition was a building trades union, the Operating Engineers. In the circumstances, it is doubtful that Plumlee was misled on August 4 into believing the request related to employees other than those on the project on which he was presently serving in a supervisory capacity. Moreover, any ambiguity that may initially have risen was short lived because the events of the day revealed clearly to the Company that the Union was seeking recognition in an employee group under supervision of Plumlee and Shaw, and it became apparent that, in Shaw's view, the tribe had essential say in the matter. While the record is silent regarding the number of employees on projects associated with the Company in Arkansas at the time in question, it strains matters to assume that, given the foregoing circumstances, Respondent was misled into believing that the Union was seeking recognition in a companywide bargaining unit. I reject such a notion as bordering on the frivolous 60 Similarly, as the nonsupervisory employees working on the project on August 4 were employed in operator and authorization cards, the parties tacitly treated Chee, Balatche, and Tones as employees with reasonable expectation of being employed, as indeed they were during the payroll period ending August 9. 00 "No particular form of words is necessary to apprise the employer of the Union's demand." N.LR B v. Albuquerque Phoenix Express, 368 F.2d 451 (C.A. 10, 1966). It is sufficient that the words used conveyed that a demand for recognition is being made and defined the unit with sufficient clarity to put the employer on notice. Joy Silk Mills v. N LR B, 175 F.2d 732, 741 (C.A.D.C.); Furrs, Inc., 157 NLRB 387, 397, enfg. 381 F.2d 562 (C.A. 10, 1967). In any event, the August 9 charge clearly and unambiguous- ly defined the unit. See National Welders Supply Co., Inc, 145 NLRB 948. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laborer classifications, and as Respondent's agents-in- cluding Rowand-were aware of the identity of the union seeking recognition, the Company could not reasonably have been misled as to the classifications encompassed within the demand. The project was, of course, a construction job and there was no significant complement of clerical or support personnel. The record does reveal, however, that there was a substantial integration and interrelationship of construction-related job classifications and functions on the project at the time of the August 4 demand. Accordingly, the fact that two employees at that point in time may have been working essentially as drivers of the water truck is too insubstantial a deviation to warrant adoption of the Respondent's contention that the unit was not properly identified as defined. The unit, limited to a single construction project, is presumptively appropriate.61 3. The alleged violations of Section 8(a)(1) and (5) I find upon the record evidence that Respondent engaged in conduct which violated Section 8(a)(1) and (5) of the Act, but I find that, because of the peculiar and mitigating circumstances which attend this case, and in light of the context in which these transgressions occurred, a Gissel-type bargaining order is not appropriate.62 The quest for union representation had its genesis essentially in the search by Indian employees for protec- tion and redress of asserted past abuses and predicted future mistreatment and discrimination in job assignment and tenure. Cooper, an Indian with past leadership credentials, and Lathan, a white married to a Mescalero Apache, took the initiative in contacting the Union following ad hoc meetings and discussions by the residual work complement of Indian employees who anticipated, but sought to foreclose, the fate that had befallen their fellow Mescaleros who had been separated from employ- ment on the project in favor of whites "from Arkansas." It was against this background that the Union entered the picture. But after entering upon the scene, the Union found that this particular organizing effort involved more than the normal triumvirate of employer, employees, and union, for the employee group was dichotomized because the objec- tives which motivated the Indian constituency were, at once, broader gauged, but, nonetheless, more ethnically oriented, than were those that attracted the segment of white employees-less than a majority-who joins : the Indians in seeking union guidance. Indians and whites shared in their desire for improved working conditions, but the Indian employees were seeking, first and foremost, job protection and a sense of recognition and dignity Sympathetic to the Indians, and committed legally and philosophically to betterment of the plight of the Mescale- rd Apache group, was the tribal administration, in reality a fourth force, neither hostile nor dedicated to the concept of uvuonization as the course of best interest for the Indian employees. Considering the principal factions embodied with vital irterest in the organizing effort, the thread that runs through this record is the interest of the Union and the Company, respectively, in protecting their normal and traditional interests; the preoccupation of the tribal administration with unimpeded progress in the develop- ment of the dam and recreational complex, consistent with tribal interests; and the opportunistic character of the Indians' interest in collective representation. Pragmatism was the hallmark of the Indians' involvement. Illustrative of the intermixture of atypical influences-represented by the Indian constituency and the tribal administration-in- to an otherwise typical organizing context, is the record evidence revealing the immediate, mediatory efforts undertaken by the tribal administration on the very afternoon of the initial day of picketing; and the unseemly willingness, reflected in the record, of Cooper and Lathan to seek out and meet with representatives of the Company on the very heels of the Union's demand for recognition and its assertion of bargaining rights on behalf of all employees. The instant record contains no basis for assuming an ulterior company-oriented motivation on the part of the tribal administration in convening the meeting on the afternoon of August 4. There is no significant record support for a finding that Cooper merely fronted for the Company in securing the presence of Lathan and Chee at a meeting with company representatives on the night of August 5.63 At both the August 4 and 5 meetings the Company addressed itself to a resolution of employee grievances. The forums were not of the Company's choice, but company representatives were willing participants, although enmeshed in a very real sense by the ardor with which a resolution of grievances, ultra vires the Union, was pursued by the employee participants in the meeting. And much that transpired must be viewed in context of the union avowal, in open meeting on August 4, that its continued presence as a representative force on behalf of the employees was wholly conditional upon the will and desire of the employees themselves. As I view the record, the Company at this point in time-August 4 or 5-was not free to deal with employees, individually or as a group, except through the Union. The Company was, of course, free to insist upon a Board election to resolve the question concerning representation raised by the Union's August 4 claim for recognition. As above delineated, this claim was supported by a valid card- based majority, and the request for recognition was, in all material respects, a valid one. Thus, even though the request had not been lodged with an official of the Company empowered to grant recognition, it had been factually conveyed to that official through Shaw and Plumlee, authoritative conduits. Being thus apprised of the Union's claim to bargaining rights, the Company was obligated to treat only with the Union if, during the period prior to the election which it was the Company's right to 61 Furrs, Inc., supra, Farmer-Bocken Co, 181 NLRB 410,414; Welsh Co., 63 Skepticism is not the equivalent of certitude and a mere suspicion that 146 NLRB 713. See also Benson Wholesale Company, Inc, 164 NLRB 536, Cooper was acting with duplicity in setting up the meeting is not a sufficient 545 basis for a finding that this was the fact 62 N.L.R.B v Gissel Packing Co., 395 U.S. 575 (1969) THE ROWAND CO., INC. 113 demand, any change or alteration in employee benefits or conditions of employment were to be effectuated.64 The willingness of the Company at the August 4 meeting to enter into a dialogue through Shaw concerning employ- ee grievances was not a serious or substantial transgression of employee rights, considering the circumstances of the occurrence, including the limited nature of Shaw's partici- pation and the relatively innocuous nature of Shaw's comments. Standing alone Shaw's conduct would hardly justify a remedial order. This is so even though Morce's protests of Shaw's actions were ignored by Shaw in favor of limited, essentially passive, participation in a considera- tion and enumeration of employee grievances. Shaw's conduct on the afternoon of August 4 assumes no more a critical dimension when considered against the earlier threat uttered by Plumlee on the picket line to the effect that he would clear the blockaded entrance to the project by the use of a "D-8." To be certain, this was a threat by a supervisor and is an utterance of the type not countenanced by Section 8(axl) of the Act. But the threat occurred at the outset of the picketing, after a truncated organizing effort, and was uttered in the confusion and "animal exuberance" of the picket line. This being so, it seems apparent that Plumlee acted impetuously through emotion, and his threat may not reasonably be construed as a portent of militant and calculated hostility on the part of the Company toward the Union. Of more crucial significance, however, was the participa- tion of Shaw and Plumlee in the August 5 meeting with Lathan and Chee. Here the Company clearly disclosed its willingness to do more than ride with the wave of employee ambivalence. Although not the prime movers in the salient events of the evening of August 5, the Company's supervisors, Shaw and Plumlee, deftly exploited the occasion prompted by Lathan's telling disclosure to the effect that the Union was dispensable if the employees could look to the Company for corrective action. The Company was in clear violation of the Act in participating with Lathan and Chee in a compilation of a list of employee grievances to be resolved by the Company. While I find no basis for concluding that Shaw and Plumlee promised in heat verba to correct the grievances enumerated on the list compiled, the act of signing the sheet containing the list carried an attribution and inferred an obvious commitment. The quid pro quo, although implied, was apparent. But if the participation of Shaw and Plumlee and their validating of the grievance list during the course of the August 5 meeting was unlawful-and I find that it was violative of Section 8(a)(5) and (1) of the Act-it is to be remembered that much of the initiative in listing the grievances came from Lathan. Notably, the concept of a steward and the replacement of the dirt foreman emanated from Lathan and only one item-basically an item which met employer interests-was included upon recommenda- tion of the company representatives. Contrary to the General Counsel, I do not find that Lathan was offered a promotion to foreman as an inducement for his coopera- tion in convincing employees to abandon the Union. A conditional hint, tentative enough in character, was broached to the effect that Lathan would be given favorable consideration , but no promise, as such, was articulated. Moreover, there was much in Lathan's person- ality and relationship to the tribe that made him a logical choice as a bridge between supervision and the employees, and it was not unnatural that, in response to Lathan's demand that the incumbent dirt foreman be removed, Shaw should inquire if Lathan were interested in the job. I find that Shaw violated the Act in holding out the prospects, even in veiled terms, that Lathan might benefit from changes to be wrought in supervision as a conse- quence of the discussions that had transpired during the course of the evening. As in previous situations , supervi- sion seized opportunities propitious to achieving a weaken- ing of the Union's following. This opportunity was not of the Company's making but the tactic was knowingly pursued. Finally, consistent with Shaw's adroitness in exploiting opportunities accorded him, the hospitality which he and Plumlee displayed to Lathan and his wife and the Chees on the night of August 5 sufficiently implies the willingness of the Company to foster the apparent disposition of the Indian group to abandon the Union. By lending its encouragement in the manner described, Respondent must be found to have violated Section 8(a)(1) and (5) of the Act. That the Company, through Richard Rowand and through Shaw and Plumlee, willingly participated in the August 6 meeting with Cooper is further established. Here, again, Cooper made the arrangements and nothing of substance would support a finding that the meeting arose from any company initiative. It is clear, however, that the meeting treated with matters relating directly to the concerted activities of the employee group that had signed union authorization cards. The meeting terminated with Rowand knowing that the strike and blockade of the entrance to the jobsite by Indian employees would not be continued. Cooper had conveyed to Rowand the willing- ness of the Indians to forego representation if employee grievances could be satisfactorily resolved . It is, therefore, readily discernible that in this instant, as in previous meetings featuring direct dealings with unit employees concerning terms and conditions of employment, the Company violated Section 8(a)(1) and (5) of the Act 85 In contradistinction to the foregoing, however, I am unable to discern a violation of the Act flowing from Shaw's mere attendance, through invitation of the tribal council, at the August 9 meeting. Shaw's role, beyond his attendance, was passive and he undertook no initiative designed to influence the discussions, decisions, or sub- stantive aspects of the meetings. The course of the meeting revealed that the events previously set in motion voluntari- ly by Lathan and Cooper seeking immediate satisfaction of employee grievances without the Union, had resulted in 64 f find unsupportable the Respondent's contention that "wages , hours, 65 Because the Company engaged in grievance discussions and dialogue and terms and conditions of employment " were not involved in the with unit employees prior to the time the employees voluntarily withdrew discussion of August 4 and subsequent meetings The topics related in the support for the Union, thereby encouraging their defection, N.LRB. v most immediate manner to conditions of employment . Reeder Motor Co., 202 F.2d 802 (C.A. 6), and cases of similar thrust, cited by Respondent, are not deemed apposite. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD achievement of a crystalized consensus among the Indian group, albeit, by company encouragement and strategy. As of August 9, however, matters which had engrossed the interests of all factions now were to be finally and conclusively resolved by the essentially unilateral action of the Indian group and their tribal and administrative advisers and servants. This was manifested and given form through the circulation of the petition by which the signatory members of the Indian group signaled their desire to withdraw from any commitment to the Union. I find that the evidence is not sufficiently compelling to warrant a conclusion that the Company assisted in the actual preparation or circulation of the petition. Little's prediction to Lathan concerning the adverse results to be visited upon him by his refusal to add his name to those that had been upon the petition is not attributable to the Company, and this is so even if it were to be found that Little had some borderline supervisory authority at the time. The Company must be found, however, to have violated the Act by agreeing to the selection of a steward, which action eventualized directly from the events of the August 5 meeting in which Shaw and Plumlee participated in the compilation of a grievance list. There is no basis, however, for concluding that the employee choice of Bernard Little to serve in the capacity of steward was in any way influenced by the Company,66 but, in any event, the remedy applicable to this incident would not be materially different by virtue of a finding to the contrary.67 And, in the absence of concrete evidence showing a nexus to the Company, as distinct from the tribal administration, I am not willing to presume that the decision to circulate the petition disavowing further employee interest in union representation was anything but a voluntary act agreed upon by the Indian group through consultation with tribal advisers. However, in agreement with the General Counsel, I find that Respondent violated Section 8(a)(1) when, on or about August 21, Shaw confronted Lathan with the petition during the course of a meeting and conversation relating to Lathan's protest against being denied assignment as a dozer operator. 4. The termination of Giles Luckett I am unable to conclude that the General Counsel proved by the preponderance of the credible evidence that Respondent terminated Giles Luckett because of his involvement in concerted or union activities. Initially, there is no direct evidence to refute Guy Plumlee's belir"able testimony that he first became apprised of union activities generally, and Luckett's role therein, specifically, following Luckett's termination. The organizing effort was a brief one and there is no evidence to suggest that the question of union representation had received anything but the most covert consideration by the employees on the project. Detection of employee card-signing activity and union- related conversation was rendered complex because of the 66 Cf. Swift Produce, Inc, 203 NLRB No. 60, wherein the Board found that the mere presence of an employer agent during the selection of an election observer to represent employees in a Board election was a salient consideration in finding a violation of Section 8(axl) of the Act. dispersal of jobs and manpower over the large geographic area of the project. Thus, upon the record developed by the General Counsel, only suspicion would support a finding that, prior to terminating Luckett, Plumlee or Mitchell, the dirt superintendent, knew that Luckett had signed a union authorization card and/or had played a leading role in attempting to organize employees. Nonetheless, the General Counsel earnestly contends that Respondent's defense of good cause termination is rendered suspect by Luckett's own capacity as a qualified dozer operator and the need which existed at the time of Luckett's termination for capable personnel to serve on the project. Such evidence as supports the General Counsel's evaluation of Luckett's capacity as an operator springs essentially from Luckett's own accounting of his years of experience. However, by his own appraisal his greatest skill appears to have been as a mechanic. Moreover, his own personal evaluation of his capacity to operate a bulldozer with a high degree of skill gains support only from his apparent record of successful employment by other employers and under different supervision. But, on the other hand, the General Counsel called no witness to cast doubt upon Plumlee's appraisal of Luckett's limited skill, as displayed during his short employment stint with the Company; nor did the General Counsel successfully challenge the testimony revealing that fellow employees were enlisted to redo some of Luckett's work. While there is little doubt upon the record as a whole that Respondent had need for competent operators, the record evidence does disclose that there had been a high degree of turnover on the project and there is much to suggest that Mitchell, the dirt foreman, had not been easily pleased by Luckett's predecessors and was not greatly impressed by Luckett's work performance. Indeed, the record warrants the inference that Mitchell shared Plumlee's dim view of Luckett's capacity and this was a contributing force in persuading Plumlee to terminate Luckett. The foregoing must also be evaluated against the record evidence revealing that Luckett was hired by Plumlee in full knowledge of Luckett's prior union membership, that employee Ted Thoma, whom Luckett himself had referred to Plumlee, was retained in Respondent's employ although he had signed a union authorization card; that Lyle Walker, who replaced Luckett, had similarly signed one; and upon the consideration, also, of evidence revealing a high degree of turnover at the project. When the evidence of record is thus evaluated, I conclude and find that the sole factor of the timing of Luckett's termination in relation to his union and concerted activities, which were limited and covert in nature, is not sufficient to support a finding of a Section 8(a)(3) and (1) violation. 5. The termination of Joel Lathan On the other hand, I find that the evidence preponder- ates in favor of a finding that Respondent demoted Lathan effective on or about August 21, and subsequently 67 1 subsequently find that certain conduct of Bernard Little was attributable to Respondent but this became so by virtue of Little's functions and role after he became steward. THE ROWAND CO., INC. terminated him on September 9 because he had engaged in union activities. It is axiomatic that if an employer is motivated, even in part, by union considerations in adversely affecting the job assignment or tenure of an employee, he engages in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. I am convinced that the record supports the finding that Respondent's demotion and subsequent termination of Lathan was pretextual. Respondent's knowledge of Lathan' s initial involvement in promoting the Union is established. Lathan's willingness subsequently to contribute to the defeat of the union effort, in exchange for immediate rectification of employee grievances, has been described. Lathan's refusal, still later, to join in the employee effort to withdraw their authoriza- tions to the Union or to disclaim further interest in the Union, is a matter of record. It is of no moment here to define the basis for Lathan's ambivalence. It may well have come from his realization that his efforts to circumvent the Union in search of a resolution of employee grievances had not rendered the Company sufficiently beholden to him to perpetuate him in his dozer assignment. On the other hand, he may have determined that his attempt to ride with Cooper's star had been frustrated by employee selection of Little as their steward or conduit to the Company rather than Lathan's compatriot, Cooper. Suffice to find Lathan decided after August 5 to again cast his lot with the Union and to disassociate himself from employee efforts by petition to bring about the Union's final demise. This, of course, came to the attention of supervision and was graphically revealed when Shaw confronted Lathan with the petition on August 21. I reject Respondent's contention that Shaw was only toying with Lathan. Shaw's action had a more significant meaning and it was intended to convey to Lathan the notion that his aspirations of being a dozer operator were tied to his willingness to join in the effort to finally and conclusively dislodge the Union. It begs the question to contend that Lathan had accorded Respondent with valid reasons for taking his dozer assignment away. The decision to assign another employee, other than Lathan, to the dozer, once it was reactivated, as it was by September 21, is inseparable in realistic terms from the decision to base futu. ' assignments on Lathan's willingness to recant from his renewed affinity to the Union. If future assignments were obtainable through the act of signing, it is reasonably inferable that the present assignment was being foreclosed because of Lathan's failure to sign. Obviously, skill as a dozer operator was not the sole determinant. Neither was past "proclivity" for immobilizing the dozer. I am convinced and find that these were rationalizations and were used as pretexts to cloak a discriminatory assignment decision springing, at least in part, from Lathan's unwill- ingness to sign the petition which was being circulated. From the point in time of Lathan's refusal, his ultimate fate as an employee became sealed. The pending unfair labor practice charge and prevailing circumstances made the moment impropitious for direct action against Lathan. Respondent bided its time and acted when Lathan's 115 absence from work accorded a reasonable opportunity for disguising true intent. The union-based motivation that had influenced the dozer assignment had continued unbroken for the several days between Lathan's unlawful demotion and his termination. That Respondent was not precluded from terminating Lathan for cause, even following his unlawful demotion, is not disputed. But the pretextual nature of the reasons advanced to camouflage the unlawful character of Lathan's eventual termination are disclosed by the disparate standard applied to Lathan's absences during inclement weather , as compared to similar absences by other employees during the same period of time.68 Moreover, it is noteworthy that in terminating Lathan, Plumlee specified only his absence as the reason. No reference was made to other asserted bases for the action. Clearly, the investigation into Lathan's alleged unauthorized presence in the equipment area during the early morning hours of his termination had not proceeded sufficiently far to have warranted immediate action. Lathan appears not to have been warned about his alleged neglect of his work on September 6 when he assertedly protested his work assignment . There is nothing to suggest that Lathan had been subordinate by refusing work given to him prior to his termination. No corrective action or cautionary efforts were undertaken to cause Lathan to correct his assertedly careless use of a chain saw. No verification of significance was undertaken to support the existence of any "improper" attitude on the part of Lathan toward other employees in the labor classification. While there is bases in the record for concluding that, given a different context, any or all of the explanations advanced at the hearing by Respondent for deciding to terminate Lathan would have justified the action taken. But Lathan's termination cannot be separated from the threat that preceded Lathan's demotion and the demotion itself. Respondent had done nothing to eradicate the effects of Shaw's August 21 implied threat relating to the petition. The entire record points toward a continuation of Respondent's desire to avoid treating with the Union. Respondent advanced only Lathan's failure to report to work as the basis for his termination when, on September 9, he was informed of his separation. It would, therefore, strain matters to conclude that Shaw's unretracted threat to Lathan had no motivating influence upon the September 9 action. I find that it did, that it was a moving consideration in the termination, and that the termination was unlawful within the meaning of Section 8(aX3) of the Act. Finally, in agreement with the General Counsel, I find that in late September or early October, when Bernard Little urged Lathan to "drop everything," Little acted as an agent of Respondent, and possessed a sufficient investiture of authority to recruit and effectively recommend the employment of employees to constitute him a low-echelon supervisor. I find that his request, because of its timing, constituted a request for Lathan to bring his influence to bear in an endeavor to cause the Union to drop the charges which had been filed relating to Lathan's termination. The statement violated Section 8(axl) of the Act. 68 The work force reached essentially skeleton proportions on September 7 and 8, and the weather had admittedly been inclement dung the previous several days. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully demoted Joel Lathan, and thereafter unlawfully terminated his employ- ment, in violation of Section 8(a)(3) and (1) of the Act, I shall order that Respondent offer Joel Lathan immediate and full reinstatement to his former or substantially equivalent position of employment as an operator without prejudice to his semonty or other rights and privileges and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him. Backpay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest in accordance with the policy of the Board as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The foregoing recommendation leaves Respondent free in a nondiscriminatory and objective manner to assign Joel Lathan either to a position of roller operator or dozer operator, or a substantially equivalent position, consistent with the interchangeable use made of his work skills prior to on or about August 21, 1973, when he was unlawfully demoted. Nothing in this order shall be construed as condoning or recommending Lathan's present or subse- quent discriminatory assignment to a work task in the laborer classification. Having found that the Union commanded a card-based ixiajority on August 4 and 9, when it made valid demands upon the Respondent for recognition and bargaining; and having further found that in the period between those dates, and thereafter, the Respondent engaged in conduct in violation of Section 8(a)(1), (3), and (5) of the Act, there remains the question whether the Respondent should be required, upon demand, to bargain collectively with the Union. I conclude that a bargaining order would not be appropriate because it would serve to impose upon the employees of Respondent in the unit herein found appropriate a bargaining agent from whose selection they recanted, at least partially as a result of their own initiatives, and which may not be of their present desire and choosing. The ill-defined nature of the employees' resort to and reliance upon the Union as an entity to further employee demands is exemplified, in part, by the clear distinction drawn on August 4 by the Indian employee group between its own efforts, through a blockade of the cattle guard entrance, to deny the Company access to the construction site on the reserva- tion ; and their abstinence from the simultaneous picketing conducted by select representatives of the Union. It is further illustrated by the ready willingness of the Indian group, including signators to union authorization cards, as first exemplified at the initial August 4 group meetings, to circumvent the Union, to relegate it to a totally auxiliary role and to treat it essentially as a redundancy in terms of their own efforts. While the evidence is sufficient to find that the Union possessed a card majority and thus to warrant Section 8(aX5) and ( 1) findings, there are substantial undertones in the record that the Indian constituency was acting without full appreciation and insight into the ramifications of union representation. Also, Respondent's conduct, while violative of the Act, was mitigated by other factors and eventualities detailed in the body of this Decision. The Court in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575(1969), made clear the fact that a bargaining order should be imposed or withheld in keeping with the particular circumstances of each case, and that no per se approach should be pursued by the Board in determining whether or not to order an employer to bargain with a union without an election. It is believed that the interests of the employees, and the public purposes protected by the Act, would best be served herein by ordering Respondent, (a) to cease and desist from the practices herein found violative of the Act; (b) to post appropriate notices; and (c) through an authorized agent or representative of the Company at the level of project engineer, or higher, at a meeting of employees called by Respondent, to read aloud the verbatim contents of the notice attached hereto as Appendix B. [Omitted from publication]. It is further recommended that Respondent be ordered to take reason- able steps through immediate proper posting of notices, and/or by direct mail, if necessary, to immediately notify all individuals in its employ during the payroll period ending August 4, 1972, and August 9, 1972, in job classifications included in the appropriate unit herein described, and all such individuals presently in its employ, of the time, place, and purpose of the meeting at which the contents of Appendix B shall be read aloud in verbatim fashion. Simultaneously or in essentially contemporaneous manner with the notification mail signed copies of Appendix B to each employee aforesaid. The meeting to be held in expeditious fashion as soon as reasonably practica- ble following the date of the issuance of this decision, and in any event within 30 days thereafter, shall be convened at the tribal administration facilities , the tribal administration willing, or at some other appropriate place in the environs of the Mescalero Apache Indian Reservation near Ruido- so, New Mexico; and it shall be open to a designated representative of the Union, the Union willing, and a representative of the General Counsel. It is believed that the suggested remedial steps will eradicate the effects of Respondent's unlawful conduct sufficiently to permit the employees to achieve collective representation through a union of their choice, or to refrain from such a course of action free from coercive influences 69 Upon the foregoing findings of fact and upon the entire record in this case, I make the following: THE ROWAND CO., INC. 117 CONCLUSIONS OF LAW 1. The Rowand Company, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 953, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All heavy equipment operators and laborers em-' ployed by Respondent at its Cienegita Dam and Reservoir project near Ruidoso, New Mexico, excluding office clerical employees, guards, watchmen, and supervisors as defined in the National Labor Relations Act, as amended, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On August 4, 1972, and on August 9, 1972, and in the period between those dates, the Union represented a majority of employees in the aforesaid appropriate unit and made legally valid demands for recognition and bargaining upon the Respondent. 5. By refusing to recognize and bargain collectively with the Union on and after August 4, 1972, with respect to employees in the above-described appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By bypassing the Union and negotiating directly with unit employees concerning wages, hours, and terms and conditions of employment of employees included in the above-described appropriate unit, the Respondent engaged in unfair labor practices in violation of Section 8(a)(5) of the Act. 7. By virtue of direct dealings and negotiations with unit employees, conducted without consultation and bargaining with the Union, resulting in resolutions of employee grievances and in the effectuation of changes in the terms and conditions of employment of unit employ- ees, the Respondent engaged in conduct violative of Section 8(a)(5) and (1) of the Act. 8. By threatening to clear the employee blockade of the entrance to the Mescalero Apache Indian Reservation by use of force; by offering Joel Lathan a promotion as an inducement for abstaining from union or concerted activities; by participating in the formulation of an agreement whereby unit employees would be accorded representation through a steward of their choice and assisting employees in the effectuation of that agreement achieved as a consequence of direct and unlawful dealings with unit employees at a time they were represented by the Union; by confronting Lathan with a petition revealing that he had failed to join others in withdrawing support of the Union; and by urging Joel Lathan to withdraw unfair labor practice charges filed with the National Labor Relations Board, the Respondent engaged in conduct in violation of Section 8(a)(l) of the Act. 9. By demoting Joel Lathan from his job as an operator on August 21 and assigning him to the lesser job classification of laborer; and by terminating Joel Lathan on September 9, both because Lathan had engaged in union and protected concerted activities, the Respondent engaged in conduct in violation of Section 8(a)(3) and (1) of the Act. 10. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 69 It is not recommended that the modifications made in working beyond that implicit in the cease and desist order herein to modify the conditions be rescinded, nor that the Company take any affirmative action status of the steward selected by the employees.