Panscape Corp.

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Panscape Corporation and Robert E. Shreve. Case 25-CA-7145 June 10, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On March 15, 1976, Administrative Law Judge Jerry B Stone issued the attached Decision in this proceeding Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed a brief in support of the Administrative Law Judge's decision Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Panscape Corporation, Muncie, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in said recom- mended Order DECISION STATEMENT OF THE CASE JERRY B STONE, Administrative Law Judge This pro- ceeding under Section 10(b) of the National Labor Rela- tions Act, as amended, was heard pursuant to due notice on October 16 and 17, 1975, at Muncie, Indiana The original charge was filed on June 12, 1975 The com- plaint in this matter was issued on July 31, 1975 The issues concern whether (1) the Respondent has engaged in con- duct of interrogation and threats in violation of Section 8(a)(1) of the Act, and (2) the Respondent discriminatorily discharged employees Shreve, Jackson, and Burton on June 6, 1975, because of or a belief in such employees' union or protected concerted activities, in violation of Sec- tion 8(a)(3) and (1) of the Act All parties were afforded full opportunity to participate in the proceeding Briefs have been filed by General Coun- sel and the Respondent and have been considered Upon the entire record in the case and from my observa- tion of witnesses, I hereby make the following FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER I Panscape Corporation, the Respondent is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Indiana At all times material herein the Respondent has maintained its principal office and place of business at Muncie, Indiana, herein called the facility, and various other facilities, including a facility at Indianapolis, Indi- ana, herein called the Fall Creek facility, and is and has been at all times material herein engaged at said facilities in the construction industry as a landscaping and earth moving contractor During a representative 1-year period, the Respondent, in the course and conduct of its business operations, purchased, transferred, and delivered to its Muncie facility, Fall Creek facility, and other construction jobsites located in the State of Indiana, goods and materi- als valued in excess of $50,000 which were transported to said facilities directly from States other than the State of Indiana During a representative 1-year period, the Re- spondent, in the course and conduct of its business opera- tions, performed services valued in excess of $50,000 in States other than the State of Indiana As conceded by Respondent and based upon the fore- going, it is concluded and found that the Respondent is, and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED 2 Local Union 1112, Laborers' International Union of North America, AFL-CIO, herein sometimes referred to as the Union, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A Preliminary Issues, Supervisory Status 3 At all times material herein the following-named persons occupied positions set opposite their respective names, and have been and are now agents of the Respondent at its Muncie and Fall Creek facilities, acting on its behalf, and are supervisors within the meaning of Section 2 (11) of the Act Kuhrman Hull President Vanis W Carter Foreman Steven L Emnck Foreman Douglass Spence Field Superintendent The facts herein are based upon the pleadings and admissions therein Z The facts are based upon the pleadings and admissions therein 3 The facts are based upon the pleadings and admissions therein 224 NLRB No 87 PANSCAPE CORPORATION 617 B The Facts 4 1 Panscape Corporation, sometimes herein referred to simply as Panscape or as the Respondent, is engaged in the construction industry as a landscaping and earth moving contractor Although Panscape may have other collective- bargaining relationship and agreements, the facts are clear that Panscape has a collective-bargaining relationship with Laborers' International Union of North America, State of Indiana District Council, and has or had the following col- lective-bargaining agreements with said Union First, Pan- scape on August 15, 1974, accepted the terms of and be- came a party to an agreement between the Indiana Highway Constructors and said Union, effective from Jan- uary 1, 1974, to December 31, 1975 Second, Panscape on July 2, 1973, accepted the terms of and became a party to an agreement between "Employer's Negotiating Commit- tee, State of Indiana" and said Union, effective from April 1, 1973, to March 31, 1976 Both of the above referred to agreements have clauses concerning automatic renewal or notice for cancellation and renegotiation The agreement between the "Employer's Negotiating Committee" covered construction labor work excepting for certain exclusions, among which was "Heavy and Highway" construction work Third, Panscape clearly is a party to an agreement between Indiana Utility Contractors Association and Sew- er Contractors of Indianapolis and said Union, effective as of April 1, 1975, to March 31, 1976 Local Union 1112, Laborers' Union of North America, AFL-CIO, and Local 120 of said International Union, are local unions specifi- cally referred to in the above agreements with reference to their jurisdictional areas for the purpose of said contracts and with reference to rights pertaining to the appointment to job stewards etc Panscape, on or about October 26, 1973, signed a collec- tive-bargaining agreement concerning coverage for its landscaping employees and landscape work The purport- ed collective-bargaining agent for such employees was the Laborers' International Union of North America, AFL- CIO, State of Indiana District Council The purported agents, who purportedly signed said agreement for said In- ternational Union, were George McMahan and Robert 0 Curry Both McMahan and Curry are local representatives of Local 1112 of the Laborers' International Union Said agreement, according to its terms, was to be effective from October 26, 1973, to March 31, 1977 Said agreement ex- cluded from coverage "all work which is now being done under agreement or contract with the Laborers' Interna- tional Union of North America, State of Indiana District Council throughout the State of Indiana, and all landscap- ing work being done under the predetermined rates set by the Davis Bacon Act unless those rates are less than this agreement " 5 4 The facts are largely not in dispute and are based upon a composite of the credited aspects of the testimony of all the witnesses exhibits and stipu- lations The testimony of any witness inconsistent with or contradictory of the facts found is discredited 5 As the General Counsel argues, it is not necessary for the purposes of this proceeding to determine the validity of the "landscape" agreement The issues concern whether the Respondent engaged in conduct directed against employees' union and protected concerted activity Employee activity con- Kuhrman L Hull, president of Panscape, credibly testi- fied to the effect that the "landscape" agreement was nego- tiated to obtain a level of consistency on wage rates for the "landscape" work as is revealed by the following credited excerpts from his testimony Q What labor agreement are you talking about, Exhibit 79 A Exhibit GC-2 This agreement Mr McMann (sic) and Mr Curry and myself worked on and brought into existence to try to equalize the landscape field, because people in the landscape field were al- ways working for two dollars an hour There was no level of consistency on wage rates or anything of this nature So we came up with an agreement in an effort to try to organize the landscape group of people so that we could get an equalization in our bidding of jobs, and get a wage factor up there that was livable for these people to exist, and we could keep the people this way Also, it would make it competitive bidding factor rather than bidding with people at two dollars an hour wage scale if we got this agreement into an Interna- tional force which we never did get done We would have had a level consistent, a consistent labor figure factor to work with Labor factor is the only factor in landscaping Your material factor is nil It is all work 2 Panscape's overall operation of demolition, earth- moving, and landscaping is seasonal in nature The work season is essentially from March 15 through November 31 yearly Panscape's overall employee complement varies from approximately 10 to 50 employees in accordance with the seasonal need 3 Robert E Shreve, David Jackson, and Richard Bur- ton were employees in Panscape's landscape division at the time of their discharges on June 6, 1975 6 Robert E Shreve was hired by the Respondent as a gen- eral laborer in the landscape division in August 1974 Thereafter, excepting when on layoff status, Shreve contin- ued to work for the Respondent until his discharge on June 6, 1975 His latest prior layoff status was for the period February 15 to April 1, 1975 David Jackson was hired by the Respondent on September 17, 1973 His layoff status thereafter commenced in the winter of 1974 and lasted un- til April 1, 1975 Richard Burton was hired by the Respon- dent in October or November of 1974 He thereafter worked for a week or two on Respondent's sewer crew, and after that was on layoff status until April 9, 1975, when he returned to work and commenced working as an employee in the landscape division Robert E Shreve, David Jackson, and Richard Burton were members of Local 1112 of the International Laborers' Union at the time of the critical events in this proceeding cerning determination of whether such contract was in effect or to be en- forced etc is clearly protected union or concerted activity as the case may be 6 The General Counsel's complaint alleges and the Respondent denies that such discharges were discriminatory and violative of Section 8(a)(3) and (I) of the Act 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whether such employees were current in their dues to said union is not revealed by the evidence 7 4 Union Representative Curry of Local 1112 appointed Robert E Shreve to be union steward for Local 1112 for the Panscape landscape division employees in August 1974 Shreve was such union steward thereafter and until his discharge on June 6, 1975 5 As indicated previously, Shreve was on layoff status from February 15 to April 1, 1975 During such period of time Shreve engaged in union and protected concerted ac- tivity concerning the question of employee working condi- tions, contractual rights, and wage rates Thus, around the middle of February 1975, Shreve secured and examined a copy of the "Landscape" contract,' believed that all of the terms of the agreement were not being followed, contacted Charles Morris, secretary-treasurer of the Indiana District Council of the Laborers' International Union and inquired as to whether the "Landscape" agreement was in effect and being enforced, and was told by such official that said con- tract was not in effect because it had not been approved by the Indiana District Council of the Laborers' International Union Shreve also inquired from said official as to the question of predetermined wages Shreve was told to con- tact a Mr Bills of the Indiana Department of Labor Thereafter Shreve contacted said Mr Bills and inquired as to the question of predetermined wages 9 Shreve was told to contact his local union about such question Thereafter Shreve contacted Local 1112's representative Curry and re- lated his contacts with Morris and Mr Bills Curry told Shreve that the agreement was still in effect to the best of his knowledge, that he would, however, look further into the matter Shreve asked Curry to try and schedule a meet- ing with management and employees for around April 1, 1975, when he (Shreve) anticipated recall to work Curry agreed to do so and told Shreve to try to set up a meeting also if he saw any of the management in the meantime Such proposed meeting had not been arranged by April 1, 1975, when Shreve returned to work 6 Shreve returned to work at Panscape on April 1, 1975 On such date Shreve contacted Superintendent Spence and asked him to set up a meeting for President Hull, the Union, and the landscape personnel The expressed pur- pose for such meeting was to go over the contract and to decide the rules and regulations that would govern the em- ployees The facts are clear that the Respondent knew, at least by April 1, 1975, that Shreve was the Local 1112 job steward and was interested in the proper administration of the "landscape" contract 10 On the same date, April 1, 1975, Shreve ascertained from 7 Evidence relating to statements by Respondent's President Hull to such employees after their discharges alludes to his having been told that they were behind in their dues obligations to Local 1112 8 Shreve had only seen a copy of the wage rates before such time 9 Wages set by governmental agencies in certain jobs performed for the Federal, state county, or city government or instrumentalities or projects thereof 10 Considering the fact that Shreve was Local 1112 s job steward, that the employee complement was small, and the nature of Shreve s request for a meeting, it is clear that the Respondent would be aware of Shreve s status by April 1, 1975 Hull testified to the effect that Shreve and employees told him that Shreve was Local 1112 s job steward Hull's testimony did not however, fix the time of such knowledge employee Jackson, who had returned to work on the same day, that his rate of pay was $4 50 instead of $4 75 as pro- vided in the landscape contract Curry, representative of Local 1112, came by the jobsite on April 1, 1975, shortly after Shreve had ascertained from Jackson his rate of pay Shreve, Jackson, and Curry discussed Jackson's rate of pay and the correct contract rate Curry then told Shreve and Jackson that the pay rate would be corrected Shortly thereafter Superintendent Spence arrived at the jobsite Curry told Spence that Jackson's pay rate would have to be corrected Thereafter Jackson's pay rate was corrected by the Respondent During the 2-week period April 1-15, 1975, Shreve dis- cussed his conversations with Morris, Bills, and Curry (about the validity and enforcement of the landscape con- tract and about predetermined wage rates) with fellow em- ployees Burton and Jackson On or about April 15, 1975, the requested management -union-employee meeting had not been arranged by Superintendent Spence Around April 15, 1975, Shreve again contacted Superintendent Spence at Spence's office and reiterated his request that Spence arrange with President Hull for a management- union-employee meeting to discuss the landscape contract and the rules and regulations that would govern employer- employee relations Spence told Shreve that he would try to arrange such meeting Around April 15, 1975, the Respondent commenced work on a project known as the Fall Creek Parkway proj- ect Such project was in Indianapolis, Indiana On the first or second day of work on such project, Field Representa- tives Tuttle and Tender of Local 120 of the Laborers' Inter- national Union came to the Falls Creek Parkway Project and checked membership cards and rates of pay of the laborer employees 11 When Local 120's representatives were questioning em- ployees as to their rates of pay, Shreve told such represen- tatives that the Panscape employees were being paid on the Fall Creek Parkway project the rates of pay under the "Landscape" contract rather than the rates of pay under the Highway Constructors' agreement Union Representative Tuttle on this occasion first checked Shreve's union card and then proceeded to check whether Burton and Jackson had membership cards 12 Finding that Burton and Jackson did not have union cards, Tuttle and Tender then proceeded to fill out applications for union membership cards and to secure Burton and Jackson's signature thereto Tuttle and Tender engaged in a conversation with Jackson and Burton about their con- tractual membership obligations and related matter The ensuing discussion also covered the question of rates of pay due under the Highway Constructors' agreement and the Union's enforcement of such rates Tuttle then returned to Shreve and asked him if he didn't know the rate of pay the employees were due, and told Shreve that the employees were due the rate under the Highway Constructors' agree- it The collective bargaining agreements between the Respondent and the Laborers International Union indicate that Local 120 has jurisdiction in Marion County where Indianapolis and said project were located 12 The facts are based upon a composite of the credited aspects of Tuttle and Shreve's testimony, stipulations as to Burton and Jackson s proposed testimony, and a consideration of the logical consistency of facts PANSCAPE CORPORATION 619 ment Shreve told Tuttle that he had a pretty good idea that the rate should be the Highway Constructors' rate but that they were receiving the rate set by Local 1112's con- tract, that he wished that there was someway that they could get out from under such contract, that, however, if any waves were made about such contract, he could be subject to being taken to court and sued Tuttle told the employees that he would guarantee that as long as they worked in Marion and Shelby counties, the Highway Con- structors' agreement would be abided by and they would receive the wage rate under such contract On the same afternoon that the events described above occurred, Tuttle called the Respondent's offices What oc- curred is revealed by the following excerpts from Tuttle's credited testimony A On the day of offering Jackson and Burton membership, that afternoon, on the return to the hall at approximately three p in I called PanScape's office I don't know who I talked to I informed them what the prevailing wage was, the type of work in the State of Indiana to which they were signatory, and the col- lective bargaining agreement, and I expected it to be paid Whoever I talked to said there was no problem On the same date or the next several days Superinten- dent Spence reported to Respondent's President Hull that Shreve had called the business agent of Local 120 to the Fall Creek jobsite and that the Local 120 agent had threat- ened to shut down the Fall Creek job because Shreve had reported to such representative that he, Burton, and Jack- son were being paid the Landscape rate of $4 75 an hour instead of the Indianapolis $5 90 an hour rate Interrogation, Threat of Reprisal, and Events of Mid-April 1975 7 The facts are clear that a conversation between Fore- man Emrick and Shreve occurred around mid-April 1975, during an occasion when Emrick, Shreve, and Leisure were riding in a truck going to Hartford City 13 During the trip referred to above, Foreman Emrick asked Shreve what he was trying to do with the Union Shreve told Emrick in effect that they were just trying to go over the contract and see whether the Respondent would abide by the contract or wanted to change it, that they wanted to see if the Respondent was going to pay showup time and the benefits and provisions that were in the con- tract, and that they wanted to see if the Respondent was going to pay predetermined wages on certain jobs or not Emrick told Shreve that the only way people ever got ahead was to have someone fight for them in an organiza- 13 The facts are based upon the credited aspects of the testimony of Shreve I found Shreve to appear to be a more forthright truthful, and honest appearing witness than did either Emnck or Leisure Emrick's own testimony reveals that he did question Shreve about his union intentions and that the question of testimonial allusion to Shreve's discussion of a 'slow down' was his own conclusion Leisure did not testify in great detail and did not appear to be a reliable witness at all The testimony as to the timing of events is insufficient to reveal whether the Emrick Shreve conver sation occurred before or after Tuttle visited the Falls Creek jobsite around April 15, 1975, or before or after a union management meeting in late April or early May 1975, discussed later herein tion Emrick told Shreve that he was getting in an awful tight position, that he was going to have to be careful or the Respondent would try to fire him (Shreve) Shreve told Emrick that he had been laid off each year and didn't have anything to lose Emrick told Shreve that he had his job to lose Contentions, Conclusions The General Counsel's complaint alleged in effect, and he contends, that the Respondent, by Foreman Emrick, unlawfully interrogated employees concerning their union activities or desires, and that Respondent, by Foreman Emrick, threatened employees with discharge in his con- versation with Shreve The Respondent contends in effect that Shreve initiated the conversation about the Union after Foreman Emrick had noticed that Shreve looked worried and had asked Shreve to tell him what was wrong The Respondent con- tends that the allusion to loss of job was with reference to a question of a statement by Shreve concerning a slow- down Essentially, the determination of the credited facts has resolved the question involved herein It is clear that Em- rick questioned Shreve as to his union intentions It is also clear that the facts do not reveal that Shreve had alluded to a slowdown Considering all of the foregoing, I am persuaded and conclude and find that the Respondent, by Emrick, coer- cively interrogated Shreve as to his union intentions I have considered the fact that Shreve was the union steward on the job However, considering the question of the applica- bility of the Highway Constructors' agreement as com- pared to the Landscape agreement and the remarks relat- ing to Shreve's being careful or the Respondent would try to fire him, it is clear that such interrogation of Shreve as to his union intentions was coercive and unlawful and viola- tive of Section 8(a)(1) of the Act Further, the remarks in total effect constituted a threat of discharge by the Re- spondent if the employee persisted in his union activity Such conduct is clearly violative of Section 8(a)(1) of the Act It is so concluded and found 8 As previously requested by Shreve, a meeting was held on a Monday morning in late April or early May in the Respondent's offices Present at such meeting were Su- perintendent Spence and Supervisors Emrick and Carter Also present at such meeting were Local 1112's Represen- tative Curry and Respondent's landscape employees, in- cluding Shreve, Jackson, and Burton There occurred a dis- cussion of some of the provisions in the "Landscape" contract and the question of predetermined wages Local 1112's Representative Curry requested that another meet- ing be arranged so that President Hull could be in atten- dance Superintendent Spence agreed to set up such a meeting Threat of Reprisal-Late April or Early May 9 Apparently 3 or 4 days after the above meeting in late April or early May 1975, Superintendent Spence told Shreve at a jobsite that there was to be a meeting at the 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office Spence asked Shreve if he would go with him to the meeting Shreve agreed and went to the office with Spence Instead of a general meeting involving union officials, em- ployees, and management, only Superintendent Spence, President Hull, and Shreve were present at the office-Presi- dent Hull told Shreve that he didn't have time for a meet- ing because he had to catch a plane in 10 minutes Presi- dent Hull asked Shreve to step outside, and the two went outside of the office President Hull apologized for not being able to meet with the Union and the employees and go over the contract sooner Hull told Shreve that he (Hull) made out the paychecks, that he wanted Shreve to cool his "shit," that he didn't want any union trouble out in the field Hull ended the meeting by telling Shreve that he would try to set up a meeting with the Union Superinten- dent Spence then took Shreve back to work Considering the foregoing, it is clear and I conclude and find that the Respondent, by President Hull, engaged in conduct violative of Section 8(a)(1) of the Act in late April or early May 1975, by threatening an employee with dis- charge or reprisals if he engaged in union or protected con- certed activity It is clear that President Hull communicat- ed to Shreve that Hull controlled his paycheck and job tenure and thus conveyed a threat of usage of such power if Shreve did not follow his admonition to cool his "shit" because Hull did not want any union problems It is clear that Respondent's conduct by Hull in such respect is viola- tive of Section 8(a)(1) of the Act It is so concluded and found 10 In early May, apparently around May 4 to 7, 1975, Local 120's agent Tuttle visited Respondent's Fall Creek jobsite and told Respondent's landscape employees that they would have to pay their dues or be terminated because of the union-security clause in the Highway Constructors' agreement The employees told Tuttle that they were not paying their dues because they were not being paid accord- ing to the Highway Constructors' agreement 11 In mid-May 1975, Foreman Emrick and Shreve had another conversation concerning the Union and Shreve's intentions This conversation occurred while Shreve was working near Marsh Warehouse in Yorktown, Indiana Es- sentially, what occurred is that Emrick questioned Shreve as to his intentions (re union action), Shreve repeated the objectives he had stated in mid-April 1975, and Emrick repeated his mid-April warning concerning Shreve's being fired Contentions, Conclusions The Mid-May Job Shutdown 12 On May 13 or 14, 1975, five representatives from Local 120, one representative from the Teamsters, and one representative from the Operating Engineers appeared at Respondent's Fall Creek jobsite around 8 a in Around 8 a in when Respondent's landscape employees arrived at the Fall Creek jobsite, Local 120's Business Manager Anderson told Shreve and the other employees in effect that the job had been shut down by the Union and that the employees would not proceed with any work until he had a chance to talk with President Hull Shreve 14 left and went to a telephone and telephoned Respondent's offices, reported what had occurred, and sought to contact President Hull Shreve was told that President Hull was unavailable but that he should call back in 15 minutes Shreve returned to the jobsite and related what had transpired A short time later, apparently for the purpose of making a telephone call to Respondent's of- fices, Anderson and other union officials left the jobsite Soon thereafter, Anderson and the other union officials returned and told the employees that they had made an agreement with the Respondent that the employees would be paid the $5 90 an hour wage rate,15 and that the employ- ees could go to work as long as they were signed up in the Laborers' union 13 During the period of time following the Fall Creek job shutdown and until June 6, 1975, Shreve had a number of conversations concerning wage rates with union officials and with Superintendent Spence The exact dates of occur- rences of most of these conversations are not established excepting as occurring during the time period indicated The sequence of the conversations, however, is established The first referred to conversation occurred after May 13 or 14, 1975, and involved a conversation between Shreve and Local 120's Business Manager Anderson At such time Shreve telephoned Local 120's Business Manager Ander- son and related that the employees were still not receiving the $5 90 an hour Indianapolis rate 16 Anderson told Shreve that the Respondent had agreed to pay such $5 90 an hour rate for laborers on the Fall Creek job and that he would look into the matter further Anderson also suggest- ed that Shreve contact officials of Local 1112 The next day after the referred to Shreve-Anderson conversations, Shreve, Jackson, and Burton went to Local 1112's union hall in Muncie, Indiana, and spoke to Local 1112's Repre- sentatives McMahan and Curry Shreve reported to Mc- Mahan and Curry what had transpired in his conversation The General Counsel contends and the Respondent de- nies that the Respondent engaged in conduct violative of Section 8(a)(1) of the Act, by coercive interrogation and threats of reprisal because of employee union activity For the same reasons as previously set forth, I conclude and find that the Respondent, in mid-May 1975, by Foreman Emrick, engaged in conduct violative of Section 8(a)(1) of the Act by questioning Shreve as to his intentions as to union activities and by threatening Shreve with the possi- bility of discharge because of his union or protected con- certed activity Such conduct is clearly violative of Section 8(a)(1) of the Act 14 As has been indicated, Shreve was the designated union steward for Local 1112 for Respondent's landscape laborers 15 The rate of pay required by the Highway Constructors' agreement The facts as to what was said were presented by the witnesses in a jumbled manner However Shreve s testimony as to a later conversation with Ander- son included testimony as to what Anderson had said about the $5 90 rate of pay at this earlier conversation Hull's testimony also reveals an admis- sion that Business Agent Anderson had spoken to a company official during this event and that the demand had concerned the $5 90 Indianapolis work rate for Shreve, Burton, and Jackson and for the hiring of three laborers from Local 120 for the Fall Creek job 16 Although the precise timing of events is not necessary for a resolution of the issues herein, a logical consideration of the testimony of the witnesses and the clearly established facts warrant a timing of the events as set forth PANSCAPE CORPORATION 621 with Anderson the day before McMahan indicated to Shreve and the other employees that he did not think that they would be able to get the higher rate because of the contract 17 Curry asked Shreve if he had been able to set up another meeting with President Hull Shreve told Curry that he had not heard any word about another meeting but that he would contact Superintendent Spence and also try to set up a meetmg with Hull himself The next morning Shreve contacted Superintendent Spence and inquired as to the status of efforts to secure a meeting with President Hull Spence told Shreve that he had not heard anything but that he would keep trying to set up a meeting with President Hull and the employees 18 Later, on May 27, 1975, Local 1112's Representative Curry came to a Respondent's jobsite known as the Long- fellowjob Curry asked Shreve if he had been able to set up a meeting with President Hull Shreve told Curry that he had not been able to set up such a meeting but that he was still trying to get such a meetmg set up During this occa- sion Superintendent Spence, Foreman Emrick, and em- ployees Riley Reese, Dave Jackson, and Richard Burton were at said jobsite with Shreve During this occasion Lo- cal 1112's agent Curry spoke to employees Burton and Jackson During the last few days of May, Shreve again contacted Superintendent Spence and asked whether Spence had been able to arrange for President Hull to meet with the employees Spence again told Shreve that he had been un- successful but would check into the matter further 19 14 During Shreve, Jackson, and Burton's tenure of em- ployment in 1975 and until June 6, 1975, no reprimands or warnings of discipline were issued orally or in writing to such employees concerning their work Shreve, Jackson, and Burton were classified as unskilled laborers and performed unskilled labor work in their land- scaping duties The facts reveal that on occasion the Re- spondent would instruct such employees to do some work, to do some work differently, or in effect to finish details as to some work Such instructions were also given to other employees During the tenure of Shreve, Jackson, and Burton's em- ployment the Respondent did not have any written records relating to improper work performance by Shreve, Burton, or Jackson On June 12, 1975, Shreve filed the unfair labor practice charges upon which this proceeding is based with Region 25 of the National Labor Relations Board There- after the Respondent undertook a compilation of incidents of alleged improper work performance Thus, President Hull instructed Superintendent Spence 17 Apparently referring to Local 1112's Landscape contract with the Re- spondent is Shreve s testimony was presented in such a manner that it is not clear whether Shreve contacted Spence two or three times after May 13 or 14 and before June 6, 1975, as to the status of a proposed meeting with President Hull A finding of either two or three such contacts by Shreve with Superin- tendent Spence would not affect the ultimate findings in this case I am persuaded that Shreve's testimony has only probative value to establish that two such contacts occurred and as set forth herein 19 The questions propounded to Shreve were long and compounded However, considering the logical consistency of the facts, I am persuaded that this last conversation between Shreve and Spence occurred after May 27, 1975 to prepare a compilation of incidents that might reflect on their job performances Spence, utilizing his records as to various jobs and his knowledge of the jobs worked on by Shreve, Burton, and Jackson, checked with his foremen and compiled a list of alleged incidents of poor job perfor- mance by Shreve and Jackson based upon what he knew and what the foremen related Spence also apparently esti- mated what he considered to be additional costs created by the alleged poor work performance With respect to the above compilation, I note that on June 15, 1975, Jackson was driving down 18th Street in Muncie and passed Respondent's landscape crew At such time Foreman Vanis Carter waved at Jackson and signaled him to stop Jackson stopped his car, and Foreman Carter and employee Leisure came to Jackson's car Carter asked Jackson to tell him what he, Shreve, and Burton were "up to " Jackson told Carter in effect that they were not up to anything Carter then told Jackson that he, Shreve, and Burton must be up to something because Spence had to go see a lawyer the day before Carter told Jackson that Spence had told him (Carter) that he (Carter) had to have 25 good reasons why the Respondent had fired Shreve, Burton, and Jackson Carter also told Jackson that he had told Spence that he could not think of any reason for the firing of the employees (Shreve, Burton, and Jackson), that Burton and Jackson had been good workers The Respondent thereafter submitted a position state- ment to Region 25 of the NLRB concerning the unfair labor practice charges Such position statement included the compilation of alleged improper work performance by Shreve and Jackson and estimated increased costs Such position statement set forth that a compilation of improper work performance by Burton would be submitted later This, however, was never furnished to the Region At the hearing of this matter, President Hull and Super- intendent Spence were questioned as to alleged improper work performance by Shreve, Burton, and Jackson and about the position statement and alleged improper work incidents Employees Leisure and Shreve, Jackson and Burton also testified as to the question of warnings, in- structions, and improper work Without setting forth in detail the alleged improper work performance incidents, as set forth in the written compila- tion or in the testimony, it is sufficient to say that the com- pilation concerned alleged incidents of rock throwing, of improper clean up, and of improper digging of holes or filling of holes Shreve credibly testified with respect to a number of alleged incidents Thus, as to the "rock throw- ing" incident, Shreve testified to an incident wherein Fore- man Carter and the employees were engaged in what ap- pears to be "horseplay " As to certain incidents of digging of holes or filling of holes, Shreve credibly explained that the problem was not one of employee failure to perform work but simply a question of problems that arose in the normal course of work, that part of the problem arose from supervision and determination of the work to be done 20 20 The facts are based upon a consideration of a logical consistency of the evidence the exhibits, and the credited aspects of the testimony of Hull Emrick, Leisure, Spence, Shreve, Burton, and Jackson, and stipulations as to testimony of witnesses Testimony of any witness inconsistent with or Continued 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Much of Hull and Spence's testimony relating to im- proper work performance by Shreve, Burton, and Jackson, appeared to be a reliance upon the written compilation in the position statement rather than an independent recollec- tion of their own Leisure appeared to be an eager witness whose testimonial effect was minimized by his answers on cross-examination I note that Respondent's position statement and testimo- ny seemed directed to establishing that the Respondent had warned the three employees of improper work perfor- mance prior to June 1975 The overall facts and cross-ex- amination of Respondent's witnesses overwhelmingly re- veal that the Respondent had never warned Shreve, Burton, or Jackson that they would be disciplined for im- proper work The Respondent also attempted to establish that Shreve had stated to Foreman Emrick that he would engage in a slowdown The facts reveal that Emrick's testi- mony to this point was conclusionary and not what was actually said The Respondent also presented evidence re- lating to the comparative financial condition of the Re- spondent in 1975 and prior years Considering the econom- ic climate of 1975 and all of the testimony of the witnesses relating to work performance, to the position statements, to Spence's remarks to Burton on June 6, 1975, to the effect that he would be discharged but later recalled, to President Hull's statements to the Union and Shreve, Jackson, and Burton on June 9, 1975, revealing the discharges to be based upon mixed considerations of employee union and protected activity and poor work performance, I am per- suaded that Hull and Spence's testimony relating to "work performance" reasons as the basis for discharges is unre- liable In sum, I do not find the evidence persuasive to establish that Shreve, Burton, and Jackson had engaged in improper work performance of such a nature that it consitituted a part of the Respondent's motivation for their discharges Although Shreve, Burton, and Jackson may have, on oc- casion, engaged in improper work performance, I am per- suaded that the Respondent has only considered such work to have been improperly performed as a rationalization and as a pretext for its discharges of Shreve, Burton, and Jackson I find it hard to believe and don't believe that Respondent would have considered the work of Shreve, Burton, and Jackson to be poor enough to require disci- pline without the Respondent's having warned such em- ployees of potential discipline Rather, the overall facts re- veal that the Respondent has attempted to present a ration- contradictory of the facts is discredited It suffices to say that Hull, Emrick Leisure, and Spence clearly presented themselves as witnesses prone to over- state or render conclusions rather than to present factual and objective testimony Emrick thus clearly tried to testify to his conclusion that Shreve had spoken of Shreve's intent to slowdown " Emrick's own testimony ulti- mately revealed this to be Emrick's conclusion of what Shreve had meant Hull and Spence's testimonial reliance upon a compilation written after the event of Shreve, Burton, and Jackson's discharge was very unimpressive In short the total fabric of all of the testimony, and Hull and Spence s ultimate testimony, is consistent with a finding that Burton, Jackson, and Shreve never received reprimands for their work Thus, the matter of instructions to complete work, referred to by Leisure, Spence, and Hull when considered with the failure of the issuance of reprimands, fails to persuade that improp- er work was the fault of the employees rather than normal problems incur red in unskilled and flexible work conditions or instructions alized and pretextuous defense as to the alleged improper work incidents Events of June 6 , 1975, The Discharges of Burton, Shreve, and Jackson 21 15 On the morning of June 6, 1975, Jackson reported to work after Superintendent Spence had already assigned tasks to Shreve and Burton Shreve had been assigned ajob of loading material on a truck for the day's work Burton had been assigned a task of helping a "Teamster" to un- load trash from a dump truck Superintendent Spence told Jackson that he had no work for him and that he should go back home Jackson asked Spence if it was fair to send a man home who had the longest seniority and to keep a man for work who had not been there long Superintendent Spence asked Jackson if he (Jackson) would prefer that he send Burton home and let Jackson work Jackson told Spence in effect that he did not think that this was right, that Burton needed the hours and money also Spence left but returned shortly and told Jackson to tell Burton, when he (Burton) came in, to go home and for Jackson to work in Burton's place Jackson then left and went home In the afternoon of June 6, 1975, Respondent's officials transmitted instructions to Jackson (at his home) and to Burton and Shreve (at work) to attend a meeting at the Company's offices around 3 30 p in Burton rode in a truck with Superintendent Spence from ajobsite to the company offices for said meeting Just before getting to the office, Superintendent Spence told Burton that although he was discharging Burton, Shreve, Jackson, and Pritchard, he would call Burton in a week to return to work because he was a good worker At the meeting, around 4 p in, Super- intendent Spence passed out checks to two "Teamster" em- ployees (Reese and Leisure) and to Shreve, Burton, Jack- son, and Pritchard Superintendent Spence told Shreve, Burton, Pritchard, and Jackson that President Hull had authorized him to discharge them Jackson asked Spence why he, Burton, and Shreve were being discharged Super- intendent Spence told Jackson that the reason for the dis- charge of the landscape crew (Jackson, Burton, Shreve, and Pritchard) was because "of the incident this morning and because of the rock throwing incident on McGalliard " Jackson, Burton, and Shreve started to leave the office At this point Superintendent Spence called Burton back and told him that he would call him back in the next week, that he should not tell anyone about what he had said Thereafter, Burton, Shreve, and Jackson went to Local 1112's union hall and related that they had been dis- charged Union Representative Curry told the three to meet him at Panscape's office on Monday, June 9, 1975 Thereafter on Monday, June 9, 1975, Local 1112's repre- sentatives, Curry and McMahan, Respondent's President Hull, and Burton, Jackson, and Shreve had a meeting con- cerning the discharges of the three employees During the meeting Union Representative Curry asked, in effect, why President Hull had discharged the employ- zi The facts are not in dispute and are based upon the credited aspects of the testimony of Shreve Burton and Jackson PANSCAPE CORPORATION ees Curry told Hull in effect that he had to have a good reason before firing the union steward, Shreve President Hull told Curry that the Union hadn't worked out as he had planned and hoped, that it probably was his fault be- cause he had not had the time he had hoped to have to work with the Union Hull told Curry that he had been bouncing the ball for 186 men, that he didn't have the time to put forth in dealing with Shreve and the Union, that if he needed laborers, he would get them out of the union hall, and that it would be good experience for Shreve, Bur- ton, and Jackson The three employees (Shreve, Burton, and Jackson) told President Hull that they liked their work, that all they were after was the $5 90 an hour wage rate President Hull told the union representatives and the em- ployees that he had a collective-bargaining agreement with Local 1112 and had been following the agreement, that the employees had sandbagged Panscape for a higher union scale President Hull told the Union and the employees that since he was paying the proper scale, since they were not performing their work, and that since they were not in compliance with the local union (concerning payment of dues) when they were asking for the fringe benefits of an- other local, they could forget it 22 Union Representative Curry asked Respondent Presi- dent Hull about the payment of predetermined wages on the Fall Creek job Hull replied in effect that the failure to pay such wages on the Fall Creek job had been an over- sight on the bookkeeper's part Hull stated that he would have such matter corrected immediately Shreve asked President Hull whether there would be payment for predetermined wages on previous jobs Hull told Shreve that if he (Shreve) had physical proof that there were predetermined wages on such jobs, he would pay such wages Hull told Shreve that if he (Shreve) didn't have physical proof that there had been predetermined wages that hadn't been paid, Shreve should forget it, that he (Hull) would tie the matter up in Court for 5 years Contentions, Conclusions The General Counsel contends in effect that the Respon- dent discriminatorily discharged Shreve, Burton, and Jack- son on June 6, 1975, because they engaged in union and protected concerted activities The Respondent contends in effect that it did not discharge Shreve, Burton, and Jackson because of unlawful discriminatory considerations and that it discharged such employees because of faulty work and because of economic considerations The Respondent con- tends that the union problems in this case are in effect problems between two unions concerning jurisdictional claims Considering the overall facts, it is clear that Shreve, Bur- ton, and Jackson engaged in union and protected concert- ed activities concerning their contacts with the Respondent 22 The overall facts, testimony, and exhibits clearly reveal that President Hulls testimony and statements constituted a rationalized attempt to justify discriminatorily motivated discharges I attach weight to statements in a pretrial affidavit which constitute admissions against interest I discredit Hull's testimony which is contradictory of the facts found and set forth herein 623 and the Unions about the propriety of the wages and other conditions accorded them by the Respondent and the rela- tionship thereto of the collective-bargaining agreements between the Respondent and the International Laborers' Union, and Locals 120 and 1112 of such Union The facts are also clear that the Respondent was aware of Shreve's active part in such union and protected activities, of Bur- ton and Jackson's similar activity and interests and close relationship to Shreve The facts are further clear that the Respondent was aware that Shreve's and the other employ- ees' union and protected concerted activity commenced in April 1975, and was continuing in early June 1975 Respondent's animus toward Shreve's and the other em- ployees' union and protected concerted activities is re- vealed by President Hull's remarks to Shreve to cool his "shit", by Hull and Emrick's threats of reprisal directed to Shreve, and by Hull's remarks to the Union, Shreve, Bur- ton, and Jackson to the effect that their discharges were because of mixed reasons, including considerations of their union and protected activity Hull's admissions in a pretrial affidavit to the effect that he told the Union, Shreve, Burton, and Jackson on June 9, 1975, that the discharges were based upon mixed consider- ations, including their union and protected concerted ac- tivity, clearly reveal that Respondent's conduct in dis- charging Shreve, Burton, and Jackson was discriminatory in nature and violative of Section 8(a)(3) and (1) of the Act I note that the Respondent contends that the "union" problems were in effect problems between two unions As- suming such to be so, such facts would not afford Respon- dent a defense Employees have a right to engage in union and protected concerted activity There is no evidence to warrant a finding that Shreve, Burton, and Jackson's con- duct was not protected The employees' activity was not directed toward the ignoring of a collective-bargaining agreement but toward the question of what constituted the proper wages, terms, and conditions of employment and as to what was the applicable collective-bargaining agree- ment Thus, such employee union and concerted activity is clearly protected activity I also note that President Hull's admissions in his pretri- al affidavit reveal reference to a contention that the dis- charged employees had not paid their union dues Howev- er, the overall facts do not reveal any reference to a union demand for compliance with such provision or that such failure constituted a part of the consideration for the dis- charges of such employees Rather, such remarks were in the nature of a rationalization as to why President Hull would not reconsider the prior discharges of such employ- ees Further, the statements as a whole revealed clearly that the overriding reason for the discharges was the employees' union and protected concerted activities Further, the evidence as to whether the employees had engaged in faulty work and whether the Respondent was motivated for the employees' discharges because of faulty work and economic considerations does not stand up un- der scrutiny The overall facts and testimonial demeanor of Respondent's witnesses revealed such evidence to be over- stated and unreliable But, even if such employees had en- gaged in faulty work and the Respondent had mixed moti- vation, the consideration of unlawful discriminatory 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasons for the employees' discharges would reveal the dis- charges to have been violative of Section 8(a)(3) and (1) of the Act The overall facts not only fail to establish that the employees had engaged in faulty work, fail to establish that the Respondent was motivated to discharge the employees because of faulty work, but also fail to reveal that econom- ic considerations were present The economic climate of 1975 would afford a basis for a general financial decline by the Respondent I note, how- ever, that the Respondent reinstated Burton and Jackson to their jobs several months after their discharges but did not reinstate Shreve, the most active and leader of the three Further, Spence, on June 6, 1975, told Burton in effect that his discharge was part of a coverup plan and that he would be recalled I note that the Respondent, in the reinstatement letters to Burton and Jackson,23 in a self- serving manner set forth that the reinstatement did not constitute evidence that the employees had been discrimi- natorily discharged Such letter was not part of a procedure of compromise or settlement I do not, however, construe such letter or reinstatement as an admission of wrongful conduct Rather, I am persuaded the reinstatement of Bur- ton and Jackson weighs against the contention that the discharges were economically motivated In sum, the overall facts, the nature of the testimony of Respondent's witnesses, the exhibits, and the belated addi- tion of the "economic" defense, the admissions of mixed lawful and unlawful reasons for the discharges, persuade me and I conclude and find, that the "faulty work" and "economic" defense reasons asserted by the Respondent are pretexts and rationalizations rather than the real rea- sons for the discharges of Shreve, Burton, and Jackson In sum, I am persuaded and conclude and find that the preponderance of the facts reveals that the Respondent was discriminatorily motivated in the discharges of Shreve, Burton, and Jackson on June 6, 1975, that Respondent discharged such employees because of consideration of such employees' union and protected concerted activities, and that such conduct was violative of Section 8(a)(3) and (1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's op- erations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent 23 I find as a fact that the Respondent sent reinstatement letters on Au- gust 15, 1975, to Burton and Jackson and reinstated such employees on August 19, 1975 The details of such letters are incorporated by reference herein cease and desist therefrom and take certain affirmative ac- tion to effectuate the policies of the Act It having been found that the Respondent discharged Robert E Shreve, David R Jackson, and Richard D Bur- ton, in violation of Section 8(a)(3) and (1) of the Act, the recommened Order will provide that Respondent offer each reinstatement to his former job, and make each whole for loss of earnings within the meaning and in accord with the Board's decisions in F W Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co, 138 NLRB 716 (1962), except as specifically modified by the wording of such recommended Order 24 Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act Upon the basis of the above findings of fact and the entire record in the case, I make the following CONCLUSIONS OF LAW 1 Panscape Corporation, the Respondent, is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local Union 1112, Laborers' International Union of North America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act 3 By discharging Robert E Shreve, David R Jackson, and Richard D Burton, the Respondent discouraged mem- bership in a labor organization by discriminating in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act 4 By the foregoing and by interfering with, restraining, and coercing its employees in the exercise of rights guaran- teed in Section 7 of the Act, Respondent engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act 5 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER25 Respondent, Panscape Corporation, its officers, agents, successors, and assigns, shall 1 Cease and desist from 24 The parties stipulated that Burton and Jackson returned to work on August 19, 1975 The regular and customary remedial order of reinstate- ment for Burton and Jackson will be utilized to insure that such employees are fully reinstated without loss of any benefits, seniority or otherwise, pre- viously enjoyed To the extent that Burton and Jackson 's return to work on August 19, 1975, satisfies the remedial order, the Respondent will be re- quired in the compliance stage of this proceeding to take only such steps as mad' be necessary to fully comply with the remedial order In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes PANSCAPE CORPORATION (a) Discharging or otherwise discriminating against em- ployees in regard to hire or tenure of employment, or any term or condition of employment because of their union or protected concerted activities (b) Threatening employees with discharge and other re- prisals because of their union or protected concerted activi- ties (c) Coercively interrogating employees concerning their union activities or beliefs (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act 2 Take the following affirmative action which it is found will effectuate the policies of the Act (a) Offer to Robert E Shreve, David R Jackson, and Richard D Burton immediate and full reinstatement to each's former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to each's seniority, or other rights previously enjoyed, and make each whole for any loss of pay or other benefits suf- fered by reason of the discrimination against each in the manner described above in the section entitled "The Rem- edy " (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this recommended Order (c) Post at Respondent's plant at Muncie, Indiana, cop- ies of the attached notice marked "Appendix " 26 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's representatives, shall be posted by it immediately upon re- ceipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily 26 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading `Posted by Order of the National Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board' 625 posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer to Robert E Shreve, David R Jack- son, and Richard D Burton immediate and full rein- statement to each's former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to each's seniority or other rights previously enjoyed, and make each whole for any loss of pay or other benefits suffered by reason of the dis- crimination against him WE WILL NOT discharge or otherwise discriminate against employees in regard to hire or tenure of em- ployment, or any term or condition of employment because of their union or protected concerted activi- ties WE WILL NOT coercively interrogate our employees concerning their union activity or beliefs WE WILL NOT threaten employees with discharge or other reprisals because of their union or protected concerted activities WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act except to the extent that such rights may be affected by lawful agreements in accordance with Section 8(a)(3) of the Act All our employees are free to become or remain, or re- frain from becoming or remaining members of any labor organization, except to the extent provided by Section 8(a)(3) of the Act PANSCAPE CORPORATION