Wabash Asphalt Co., Inc.

820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wabash Asphalt Company, Inc and Kenneth Shaw, Neil Shaw, E G McPherson, Leroy Tinsley, and J P Watson, a Partnership, d/b/a Mt Carmel Sand and Gravel Company, Jointly and Ferrel L Hogard Case 14-CA-8859 June 15, 1976 DECISION AND ORDER By MEMBERS FANNING, PENELLO, AND WALTHER On March 16, 1976, Administrative Law Judge Joel A Harmatz issued the attached Decision in this proceeding Thereafter, Respondents filed point ex- ceptions and a supporting brief The General Coun- sel filed a brief supporting 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 brief 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 Respondent Wabash Asphalt Company, Inc, Mt Carmel, Illinois, its officers, agents, succes- sors, and assigns, and Respondent Kenneth Shaw, Neil Shaw, E G McPherson, Leroy Tinsley, and J P Watson, a Partnership, d/b/a Mt Carmel Sand and Gravel Company, Mt Carmel, Illinois, their agents, successors, and assigns, shall take the action set forth in the said recommended Order DECISION STATEMENT OF THE CASE JOEL A HARMATZ Admiristrative Law Judge This pro- ceeding was heard in McLeansboro, Illinois, on January 15, 1976, on an original charge filed on October 20, 1975, and a complaint issued on December 11, 1975, alleging that Respondents, as joint employers, violated Section 8(a)(3) and (1) of the Act by on various dates refusing to hire Ferrel L Hogard, Clarence Dale Anderson, Norman Anderson, and John R Taylor, because of their union and concerted activity in attempting, either as individuals or job stewards, to enforce the applicable collective-bargain- ing agreement Thereafter, Respondents duly filed an an- swer, denying that any unfair labor practices were commit- ted, and affirmatively urging a deferral of this proceeding to arbitration in accordance with the policy announced in Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB 837 (1971) 1 After close of the hearing, briefs were filed by the Gener- al Counsel and the Respondents Upon the entire record in this case,2 including my obser- vation of the witnesses while testifying and their demeanor, and following consideration of the posthearing briefs, I make the following FINDINGS OF FACTS I THE BUSINESS OF THE RESPONDENT Wabash Asphalt Company, herein called Wabash, is a Delaware corporation with a principal place of business located in Mt Carmel, Illinois, from which it is engaged in the construction, surfacing, and maintenance of roads and interstate highways During the year ending November 30, 1975, a representative period, Wabash in the course of said operations performed services exceeding $50,000 for vari- ous enterprises, each of which performed services for other enterprises located in States other than the State of Illinois Mt Carmel Sand and Gravel Company, herein called Mt Carmel, is a partnership with a principal place of busi- ness located in Mt Carmel, Illinois, from which it is en- gaged in the construction, surfacing, and maintenance of roads and interstate highways In the course of said opera- tions, Mt Carmel, during the year ending November 30, 1975, a representative period, performed services exceeding $50,000 for various enterprises, each of which performed services for other enterprises located in states other than the State of Illinois The complaint alleges, the answer admits, and I find, that Wabash and Mt Carmel are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find, that Southern Illinois Laborers' District Council, Local Union No 1197, affiliated with Laborers' International Union of North America, AFL-CIO, herein called Local 1197, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act 1 By telegraphic order dated January 7 1976 Administrative Law Judge Arthur Leff denied Respondents motion for dismissal of the complaint and for deferral to arbitration However as the Collyer issue in this case turns to some extent upon factual matters it has been treated as a viable defense herein 2 The General Counsels motion to correct certain inadvertent errors in the official transcript is granted 224 NLRB No 108 WABASH ASPHALT COMPANY 821 III THE ALLEGED UNFAIR LABOR PRACTICES A The Issues and Positions of the Parties This proceeding arises from a dispute under an exclusive hiring arrangement whereby Wabash sought to resist refer- ral of Ferrel Hogard, the Charging Party, in the face of Local 1197's attempt to place Hogard on Wabash's new road construction project as a steward As the controversy concerning Hogard unfolded, Wabash, and then Mt Car- mel,3 communicated to Local 1197 its disinterest in hiring the remaining beneficiaries of the complaint, Dale Ander- son, Norman Anderson, and John Taylor The allegations of discrimination relate to the refusal by Wabash to hire Ferrel Hogard on October 13, and a subse- quent declaration by Wabash on October 16 and by Mt Carmel on or about October 27, that they would not hire Hogard, Dale Anderson, his brother, Norman Anderson, and John Taylor These positions were taken by Wabash and Mt Carmel preliminary to the commencement of work on the Highway 142 project All of the above individuals, except Norman Anderson, had previously worked for Wabash The General Counsel concedes that Hogard was the only individual who lost work as a result of the action of either Respondent since the others, namely, Dale An- derson, Ronald Anderson, and John Taylor, were actively employed elsewhere at the time of the events material to their situations The General Counsel claims that the denial of the em ployment to Hogard, and the declaration against the em- ployment of the Anderson brothers and Taylor amounted to acts of reprisal based on their efforts to correct contract violations during prior periods of employment with the Re- spondent Respondent by way of defense claims that the General Counsel has failed to make out a prima facie case of discrimination in the case of any of the employees and that, in each instance, Respondents' action involved a law- ful exercise of their right to reject for employment any ap- plicant for nondiscriminatory reasons Wabash asserts that its disinterest in employing Hogard, Dale Anderson, and John Taylor was based exclusively upon their inadequate performance as employees on earlier projects It is also as- serted that this proceeding concerns issues regulated by specific provisions in the governing collective-bargaining agreement, and hence consideration of the merits should be deferred to arbitration in accord with the Board's Coll yer policy B Background Respondent Wabash and Respondent Mt Carmel, as 3 The complaint alleged that Wabash and Mt Carmel constituted a joint employer operating under a common labor policy with regard to the con struction project involved here The evidence is plainly insufficient to estab lish such a relationship and in its posthearing brief the General Counsel concedes that no reliance need be placed upon said allegation Instead the General Counsel argues that the evidence demonstrates that Mt Carmel and Wabash separately and individually committed the unfair labor practic es with which they are charged It is on this basis that I shall consider the liability of the separate Respondents for any unfair labor practices estab lished on this record employer-members of the Associated General Contractors of Illinois, are bound to a collective-bargaining agreement, stating terms and conditions of employment for laborers employed on projects within the jurisdiction of Local 1197 That agreement establishes an exclusive referral system whereby, subject to limited exceptions, the employer is to look exclusively to Local 1197 as its source of laborers The agreement does afford the employer the right to "request former employees for referral to a job or project," and when invoked, the Union is obliged to refer such individu- als, if available In addition section 3 of article III provides as follows The employer retains the right to reject any job appli- cant referred The employer shall have the right to determine the qualifications of his employees and shall have the right to hire and discharge accordingly Hiring of employees shall be on a nondiscriminatory basis, and shall in no way be affected by union mem- bership, bylaws, rules, regulations, constitutional pro- visions, or any other aspect or obligation of union membership, policies or requirements In October 1975 4 Wabash and Mt Carmel were prepar- ing to perform under separate subcontracts in connection with highway maintenance work on Illinois State Route 142 On October 12, Wabash's superintendent, Bruce Knowles, called Herman Skelton, business agent of Local 1197, requesting three laborers by name, and clearance of a fourth Skelton informed Knowles that Charging Party Ferrel Hogard would be referred because he was the top man on the Union's out-of-work list Hogard had been em- ployed by Wabash on ajob completed the previous month, he was Local 1197's steward on that project Knowles stat- ed that he would not hire Hogard because Hogard had meddled in company affairs and was too tough on the Company 5 The next day, October 13, Skelton accompanied Hogard and the three individuals requested by Knowles to the Wabash jobsite At that time, Skelton informed Knowles that Hogard would be the steward on the job 6 Knowles, adhering to his position, stated that the Company would not accept that Knowles and Skelton then agreed to con- tact their superiors in quest of a solution 4 Unless otherwise indicated all dates refer to 1975 5 The testimony of Knowles and Skelton as to the content of this tele phone conversation is in dispute in one minor respect Thus according to Skelton of the four men requested b) name one was unavailable and accordingly he simply suggested that Hogard be substituted for that mdi vidual According to the testimony of Knowles however all those requested were actually referred by Local 1197 and Skelton s position with respect to Hogard involved the latter s insistence that in addition to the men needed Wabash employ Hogard Between Knowles and Skelton Knowles is viewed as the more credible witness with respect to this aspect of their testimony Skelton s account in this respect was vague evasive and contradictory and lacked the precision to be expected of one responsible for the administration of the hiring hall during this period of controversy In this connection while Skelton could name the four individuals hired by Respondent pursuant to Knowles request at that time he could not identify the additional employee requested whom he alleges to have been working at the time and unavail able 6 Under established practice the steward on a particularjob is named by Local 1197 There is no evidence that either in contract or practice an employer is obligated to hire an individual because designated by Local 1197 as steward 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 14, Wabash, through its president, Kenneth Shaw, again contacted Skelton in quest of three additional laborers At that time Shaw read a list of eight names to Skelton seeking referral of any three Skelton indicated that all the men Shaw named were working but that Hogard was still out of work The next morning, Skelton again referred Hogard to the Wabash jobsite Knowles again sent him home On October 16, a grievance meeting was held at a Holi- day Inn in Mt Vernon, Illinois, concerning the dispute over the Hogard referral Attending on behalf of Wabash were Richard Curren, Director of Labor Relations for the Associated General Contractors of Illinois, Shaw, and Tinsley Present on behalf of the Union were Hogard, Skel- ton, Carl Moore, business manager of the Southern Illinois Laborers District Council, and L A Tolley, vice president of the District Council This meeting was arranged by Cur- ren pursuant to the contract grievance procedure in an ef- fort to avert a possible work stoppage' Apparently, at the outset of the meeting, Skelton protested the Company's re- fusal to hire Hogard and objected to the Company's prac- tice of requesting specific individuals by name Curren countered, pointing out that this was the Company s right under the contract Nonetheless, Skelton insisted that the Company hire Hogard, pointing out that it was necessary for him to place his qualified stewards Wabash persisted in its refusal to employ Hogard and during a recess, since no accommodation could be reached, Shaw, in an apparent effort to resolve the dispute, requested that Curren propose a compromise, whereby Wabash would abandon its prac- tice of calling applicants by name, if the Union were to agree not to refer Hogard, John Taylor, Dale Anderson, and Norman Anderson, the three remaining beneficiaries of the instant complaint The Union declined to go along with this proposal When the grievance could not be settled on this basis, Shaw stated that this was as far as he would go' During the course of the meeting, the Union pressed the Company to explicate its reasons for the refusal to hire Hogard I find that Wabash refused to furnish any reason, instead asserting its position under the contract that an employer held the absolute right to reject applicants 9 On October 20, 1975, an unfair labor practice charge was filed alleging that Wabash had discriminated against Ferrel L Hogard That same day, Curren coincidentally met Moore, Skelton, and Hogard at the NLRB Regional Office in St Louis Curren, on discovering that a charge would be 7 I credit the testimony of Bruce Knowles that on October 13 when Skel ton accompanied Hogard to the job Skelton threatened to put a picket on the job 8 The foregoing account of what transpired at the Mt Vernon meeting is based essentially on the testimony of Richard Curren a highly persuasive witness However also included are certain matters related by Skelton and Hogard which considering the probabilities I find to be a part of the sequence of events I discredit the testimony of Skelton and Hogard that at the October 16 meeting the Company made some effort to define Hogard s unsatisfactory work record by an oblique reference to his slowness in drilling core samples This testimony is inconsistent with that of the more credible witness Cur ren and considering Respondents effort to invoke and rely upon the re quest by name and right of rejection provisions of the contract I consider it more probable that the Company declined to furnish any reason for object ing to Hogard filed, told Moore that he preferred arbitration Moore indi- cated that he would rather rely on remedies under the Na- tional Labor Relations Act On October 21, a picket was placed on the Wabash job in protest of the refusal to hire Hogard As a result, all activity on the job ceased for a period of 2 days In this same time period, Mt Carmel was about to com- mence its operations on the Route 142 job In connection therewith, Ed McPherson, a partner in Mt Carmel, on re- questing that Skelton refer laborers, advised Skelton that he did not want any of the four laborers involved in the Wabash `litigation " According to McPherson, he took this action in order to avoid becoming embroiled in the existing dispute between Wabash and Local 1197 On November 24, 1975, the pending charge in Case 14- CA-8859 was amended to charge both Wabash Asphalt and Mt Carmel with discrimination in refusing to hire Ho- gard, Dale Anderson, Norman Anderson, and John Tay- lor In the interim, Curren on several occasions sought, with out success, to persuade Moore to arbitrate the dispute, rather than pursue the unfair labor practice litigation C The Collyer Issue At the hearing, upon close of the General Counsel s case-in-chief, Respondents renewed the motion that the in- stant proceeding be deferred to arbitration The motion was denied In sustaining the General Counsel's position at that time, it was my view that the theory of discrimination spelled out in the complaint, and the evidence adduced in support thereof, was sufficiently developed at that stage of the proceeding toprima facie establish the existence of con- troversy centering upon efforts to bar from employment certain individuals who in the past either themselves, as stewards or employees, or through their associations, had made efforts to enforce the governing collective-bargaining agreement Under similar circumstances, the Board has de- clined to defer to arbitration on the view that its own reme- dies must be brought to bear where necessary to facilitate access to grievance procedures See North Shore Publishing Company 206 NLRB 42 (1973), and Joseph T Ryerson & Sons, Inc, 199 NLRB 461 (1972) In Ryerson at 462, the Board, in reference to the limitation on Collyer which is relevant here, stated as follows If we are to foster the national policy favoring collec- tive bargaining and arbitration as a primary arena for the resolution of industrial disputes, as we sought to do in Collyer, by declining to intervene in disputes best settled elsewhere, we must assure ourselves that those alternative procedures are not only "fair and regular" but that they are or were open, in fact, for use by the disputants These considerations caution against our abstention on a claim that a respondent has sought, by prohibited means, to inhibit or pre- clude access to the grievance procedures In its posthearing brief Respondents ask that the refusal to invoke Collyer in this case be reconsidered Although I shall adhere to my original ruling I note that apart from the precedent cited above and the general principles ex- WABASH ASPHALT COMPANY pressed therein, this case would be well suited to disposi- tion through contractual grievance machinery Other than the events in issue here, the parties over the years appear to have enjoyed an amicable bargaining relationship, marked by an obvious ability to resolve disputes without resort to arbitration Indeed, this record attests to the fact that Wa- bash, subject to minor aberrations, responded to cited con- tract violations with quick compliance Furthermore, the credited testimony convincingly demonstrates Curren's genuine effort to obtain agreement to arbitrate the instant dispute Finally, specific clauses in the agreement would authorize an arbitration panel to resolve all issues present- ed here and, if warranted, to provide a full and complete remedy to Nonetheless, the Collyer issue involved here must stand or fall on the basis of the limitations on that policy ex- pressed by the Board in North Shore Publishing, supra, and Joseph T Ryerson, supra Any effort to distinguish those cases must rest upon the fact that, in both, the employers were charged with acts of coercion and discrimination con stituting interference with employee vindication of formal grievances In the instant case, however, none of the indi- viduals involved had ever filed a formal grievance, and there is no evidence whatever that, as stewards or employ- ees individually, they had sought relief through the formal steps of the grievance procedure Instead, the conduct on which the instant complaint centers relates to employer re- taliation against employees for simply calling down man- agement concerning noncomphances with a contract Thus, since the alleged discrimination preceded invocation of the formal grievance procedure, in a technical sense, the resulting obstruction to private dispute settlement machin- ery in such circumstances is less than direct Under Board precedent, however, this distinction is of no moment For the Board has recognized that whether the unlawful re- straint assumes the more direct form of obstruction to grievance action considered in Ryerson, supra, and North Shore, supra, or the more subtle interference involved here, the discouraging effect of such conduct upon employees who would utilize the grievance procedure is the same in either case This view was apparently endorsed in Morn son-Knudsen Company, Inc, 213 NLRB 280 (1974), where the Board declined to defer to arbitration on the basis of Ryerson in circumstances where a steward was allegedly discharged merely because of his verbal protestations of an employer's assignment of work to crafts in violation of its contract with the carpenter's Union As I construe Morn son-Knudsen, it stands for the proposition that the Board will exercise its exclusive jurisdiction with respect to al- leged unlawful acts of reprisal or coercion directed against employees who protest contract violations, even though those protests have not matured into formal grievances Accordingly, I find that the instant case is inappropriate for deferral to arbitration under the Board's Collyer policy it See e g National Radio Company Inc 198 NLRB 527 (1972) 11 There is no merit in the claim by counsel for the Respondents that National Radio supra and United Aircraft Corporation 204 NLRB 879 (1973) impel a conclusion that 8(a)(3) allegations involving reprisals against employees for simply having verbally protested contract violations D The Allegations Against Wabash 823 1 Ferrel Hogard Prior to the events involved in this proceeding Hogard had been employed by Wabash on the latter's I 64 project He began on July 30, 1974, and was named by Local 1197 as the steward on that job During his entire employment on that project, Hogard served as a laborer on a service truck That vehicle supplied oil, water, and fuel to equip- ment and employees on the jobsite Hogard's duties includ- ed the cutting of core samples from asphalt, which were furnished to engineers employed by the State of Illinois, to check the density and thickness of the paving In Novem- ber 1974 the 1-64 job was shut down for the winter, with construction resuming on April 16, 1975, and continuing until September 11, 1975, a few weeks prior to Re- spondent's alleged discriminatory refusal to rehire Ho- gard in connection with its new project on State Route 142 The employment history of Hogard on the 1-64 project is the critical reference point for both the General Counsel's theory of discrimination and Respondent's defense Testi- mony adduced by the General Counsel demonstrated that, in his capacity as steward, Hogard frequently inveighed against Wabash's supervisors for themselves performing la- borers' work, or for having condoned the performance of such work by members of other crafts, or employees of the State of Illinois I credit Hogard's testimony that on several occasions when he insisted to Knowles that the latter cease performing laborers' work, Knowles reacted with anger, refusing to talk to anyone but his keyman, Jess Bateman, for the rest of the day 12 In addition Hogard credibly and without contradiction testified to an incident in July 1975 where, upon advising Tinsley that it would be necessary for Wabash to hire an additional laborer to act as a flag man on the haul road, Tinsley reminded Hogard that he was getting more overtime than anyone else, and could be re- placed inasmuch as Hogard was making it too hard on Wabash's supervisors The credible uncontradicted testi- mony of Hogard further establishes that in September 1975, on the last day of work on the 1-64job, it was raining as the men reported for work Hogard, on behalf of the laborers, informed Knowles that there would be no work performed unless the laborers were supplied with rain gear Apparently Wabash had no rain gear available, and Knowles asked Hogard if he was going to require Wabash to purchase rain gear on the very last day of work Hogard responded that this was in the contract, which had to be observed if the job were to be finished that day Knowles then made a telephone call, apparently resulting in the de- livery of brand new rain gear to the job are appropriate for deferral under Collyer On the face of those decisions it does not appear that the Board considered that issue or that the question was posed from the nature of the alleged unfair labor practices involved In any event at best from the point of view of Respondents those cases would merely present a conflict in precedent as to which the more recent decision in Morrison Knudsen supra ought be given controlling weight 12 The keyman is a laborer who travels with the Company from job to job and is permitted by contract to be retained by the Company upon clearance from the local of the laborers union having jurisdiction in that particular area Bateman was a member of Laborers Local 1375 and not Local 1197 On October 13 Local 1197 cleared Bateman for employment on the State Route 142 project 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The foregoing amply attests to the fact that positions asserted by Hogard under the contract were often highly technical, and of a type resulting in considerable inconve- nience to Wabash It is also clear that, as could be expect- ed, Tinsley and Knowles received Hogard's protests with manifest resentment Consistent with said pattern, it is small wonder that Knowles, only a month after completion of the 1-64 job, and the concomitant termination of Ho- gard, would explain to Skelton that Wabash would not em- ploy Hogard on the Route 142 job because Hogard 'med- dles in company affairs and makes it too hard on us " Yet the efforts by Hogard to enforce the collective-bar- gaining agreement, even if viewed as strictly and inflexibly pursued, nonetheless constituted protected union activity within the contemplation of Section 7 of the Act And from the credited facts set forth above, it is clear that the Gener- al Counsel has established a convincing basis for finding that Hogard was denied work on Route 142 because of his often annoying efforts to force Respondent to strictly ad- here to the literal terms of the contract The foregoing, together with the timing of the failure to reemploy Hogard shortly after his tenure on the 1-64 job ended, and the ad- mission embodied in Knowles' explanation for the refusal to rehire, all furnish a convincing case of unlawful discrim- ination At the same time, I was not convinced by the evidence offered in defense which purports to show that Wabash, contrary to Knowles' statement to Skelton, acted exclusive- ly on Hogard's improprieties while working on the service truck during the 1-64 project In this regard Knowles, Tins- ley, and Wabash's keyman, Bateman, offered a composite portrayal of Hogard as a thoroughly incompetent employ- ee who not only would not perform his assigned duties but who shirked work, hid from supervisors, was suspected of theft of highly valuable equipment, stole company time, encouraged other employees to avoid work, deliberately damaged company property, and engaged in abusive be- havior towards employees of the State of Illinois and other craftsmen employed by Wabash Their testimony im pressed me as vastly exaggerated Several of the incidents related by Knowles, who was responsible for the decision to terminate Hogard, involved knowingly made half-truths which convinced me as part of a calculated effort to preju- dice my view of Hogard's work history Although, on Wabash's behalf, it is claimed that it was hesitant to take corrective action against Hogard during his prior employ- ment, which was coextensive with Wabash's performance on the 1-64 job, because of pressing financial concerns of the Company at that time,13 I find it difficult to believe no corrective action would be taken with respect to an em- ployee whom Wabash s own testimony portrayed as a dis- ruptive influence and totally inadequate performer Thus, Local 1197 at no time prior to the instant hearing was informed of the alleged work derelictions imputed to Ho- gard Nor was any effort made to seek relief by construc- tive efforts to counsel Hogard and make him aware that the Company could not tolerate the adverse performance record that he was developing While I have no doubt that there is some truth in Respondent's evidence and that Ho- gard was not the most outstanding laborer on the 1-64 job, the effort on the part of Knowles, Tinsley, and Bateman to exaggerate his job inadequacies, nonetheless, enforces the clear evidence offered by the General Counsel that Wa- bash refused to rehire him on the Route 142 job because "he meddles in company affairs' and "makes it too hard" on Wabash, through his efforts to assure that Wabash comply with the literal terms of the applicable collective- bargaining agreement Accordingly, I find that by refusing to hire Hogard on and after October 13, 1975, Respondent violated Section 8(a)(3) and (1) of the Act 2 Dale Anderson Dale Anderson, in prior years, worked on separate proj- ects for both Wabash and Mt Carmel, but has not been employed by Mt Carmel since the fall of 1968, when he served as a steward He first worked for Wabash in the summer of 1969, and then returned in 1973, performing on the Route 45 job This case relates essentially to his con- duct in connection with the Route 45 project That job began on September 19 1973, and ended on August 1974 With the exception of the winter break between December 1973 and May 1974, Anderson's employment continued for the job's duration and he served as the union steward As steward, Dale Anderson had frequent problems with a supervisor, Darrell York, who he claims to have persist- ed, on a daily basis, in performing laborers' work Ander- son reported this to Knowles, who indicated that he would talk to York about it According to Anderson, York never- theless adhered to this practice On one occasion when An- derson discovered York performing laborers' work in con- nection with the operation of a hydro-hammer, York threatened to assign Anderson to an arduous task 14 In an- other incident also in 1973, Anderson and Leroy Tinsley were party to a verbal dispute concerning Anderson's claim that the rolling of tarpaulins on trucks should be assigned to laborers When Anderson pointed out that the contract covering laborers awarded such work to laborers, Tinsley responded "that laborers' book doesn t mean a god damn thing to us " Anderson countered with, "go to hell, you son-of-a-bitch " The General Counsel argues that the foregoing efforts to police the contract by Anderson furnished the motivation for the announced refusal to hire Respondent claims that its action in this respect was based upon Anderson's record as an unsatisfactory employee 15 This in turn centers upon 13 The 164 job had been bid in 1972 Because of the delay in commencing work Wabash apparently had to sustain the increased cost of fuel and asphalt resulting from the petrochemical crisis and petroleum shortages be ginning in late 1973 As a result Tinsley prior to the commencement of work on the 1 64 job had instructed Knowles to tolerate an abnormally high level of labor trouble on that Job so as to avoid interruptions in work since it was in the Company s interest to complete that project with dis patch 14 As a result of this incident Knowles terminated Foreman York in the interest of securing harmonious relations on the job 15 In the view I take of the case I need not consider the assertion on behalf of Respondents that the October 16 expression that Wabash would not hire Dale Anderson Norman Anderson and John Taylor was excusa ble as part of a compromise offer to resolve the existing dispute concerning the request by name clause In any event I find no merit in this conten lion The statement in question was never rescinded and under the circum WABASH ASPHALT COMPANY 825 Dale Anderson's alleged conduct towards engineers em- ployed by the State of Illinois, who oversee the work of the various contractors on state road projects Thus, according to Vice President Tinsley, one such engineer, Brinkhoff, informed Tinsley that on two or three occasions he had been physically intimidated by Dale Anderson and wanted to know what could be done to bar him from future state projects Tinsley responded by indicating that the Compa- ny could attempt to exercise its right of rejection under the contract with respect to Anderson Although Brinkhoff was not called to testify, Tinsley's references to the bellig- erence with which Anderson handled the state engineers finds some corroboration in the testimony of Foreman Eu- gene Schotts and Keyman Jess Bateman Thus, Bateman testified to an incident in which he observed Anderson ap- proach Brinkhoff in a hostile manner, all the while admon- ishing Brinkhoff that he would "knock his god damned ass off " Schotts testified to an incident involving Anderson's conduct in relation to Wendell Chamblis, another engi- neer On this occasion, according to the uncontradicted testimony of Schotts, when Chamblis attempted to control traffic while assisting a disabled tractor off of a shoulder, Anderson, in reprimanding Chamblis for doing laborers' work, struck Chambhs on the shoulder While convinced that the allegations of discrimination concerning Dale Anderson have not been substantiated, in reaching this conclusion I have not overlooked the fact that, despite his offensive conduct towards the state engi- neers, Anderson was retained as a steward until completion of the Route 45 project in the fall of 1974 Furthermore, the discrimination against Hogard, because of his protect- ed activity as a steward, lends suspicion as to the genu- ineness of Respondent's subsequent declaration that it would not employ Anderson Indeed, the declaration by Respondent that it would not employ Dale Anderson, his brother, and John Taylor, coming as it did in the course of a dispute relative to the denial of employment to former Steward Hogard, and in the face of the appeal by Skelton that he had to place his stewards, is suggestive of an overall effort on Respondent's part to weed out from future em ployment stewards whom Wabash had considered offen- sive in the past However, no unfair labor practice arises from a cam paign to deny employment to stewards whose previous work history reflected "cause" for discharge, provided that such action was prompted by such considerations rather then union or protected activity In this connection, the General Counsel has not established by a preponderance of the evidence that Dale Anderson was deemed ineligible for future employment by Wabash for reasons proscribed by the Act Although considered against my findings in the case of Hogard, the treatment accorded Anderson is not free from doubt, the evidence offered by Respondent in support of the legitimacy of its action with respect to Dale Anderson was based essentially upon uncontradicted evi- dence which was convincing, consistent with my evaluation stances it conveyed what would be understood as a clear commitment by Wabash against the future hiring of the alleged discriminatees covered thereby of Anderson's demeanor, and nonexaggerated 16 Further- more, his difficulties on Illinois state projects in the past were entirely relevant to Wabash's performance on the Route 142 project, which was another job to be done under auspices of the State of Illinois In these circumstances in the absence of a more direct link between the debarment of Dale Anderson and his protected activity-namely, evi- dence of the type presented in the case of Hogard through the statement made by Knowles to Skelton concerning the latter's meddling in company affairs-I am unwilling to infer that the action taken with respect to Dale Anderson resulted in any substantial contributing degree from his past efforts to assure that Wabash adhere to the terms of the collective-bargaining agreement Accordingly, I shall recommend dismissal of the allegation that the treatment accorded Dale Anderson by Wabash violated Section 8(a)(3) and (1) of the Act 3 Norman Anderson The validity in the allegations concerning Norman An- derson turn essentially upon the ultimate conclusions with respect to Dale Anderson From all that can be ascertained from the record his involvement in this entire controversy relates exclusively to his filial relationship with Dale An- derson, and Wabash's alleged concern for the implications arising from that relationship Thus, other than the fact that Norman Anderson was a member of Local 1197, no evidence was offered that he had engaged in Section 7 ac- tivities of which Wabash was mindful At the same time the only explanation for his inclusion on the October 16 list was Knowles' testimony that various supervisors on other projects had complained that he had slowed down their work Considering the dearth of evidence as to Norman Anderson, I find that my conclusion that Dale Anderson was not a victim of any unlawful conduct is dispositive here Accordingly, the General Counsel has not made out a case of discrimination in connection with the former, and I shall recommend dismissal of the allegation that Wabash violated Section 8(a)(3) and (1) of the Act in this respect 4 John Taylor John Taylor was never employed as a steward on any job performed by Wabash 17 I-ideed, his employment with Wabash was limited to a 2-month period in the fall of 1973 on the Route 45 job Dale Anderson was the steward on that project Taylor served as a flag man In the course of that project, Taylor witnessed the dispute between Fore- man Darrell York and Dale Anderson with respect to the hydro-hammer, and after that incident he told York that he 16 It is significant that Wabash in 1973 discharged John Taylor in conse quence of the latter s run in with an engineer Though Taylor was reinstated for reasons not disclosed on the record the earlier discharge demonstrates the interest of Wabash in avoiding conflicts between its employees and those of the State 17 In the fall of 1972 John Taylor worked as a steward on a job for Mt Carmel The only incident in which he was involved during the course of that project concerned a single protest of that Company s having worked on a Saturday without notifying him as steward In consequence Taylor claimed 8 hours pay for that Saturday His claim was honored by Mt Carmel without incident 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD felt that Anderson had handled the matter in proper fash- ion and in a nice way is Several weeks later Taylor became involved in a dispute with a state engineer who had ac- cused Taylor of not knowing how to flag As a result of this incident, Taylor was discharged by Knowles who advised him that he could not have trouble with the engineers At the close of work that day, Taylor became involved in a dispute with Knowles concerning Taylor's claim for an ex- tra one-half hour's pay Taylor, after reporting this incident to steward Dale Anderson, was paid the amount he claimed, but Knowles advised that he would make sure that Taylor never worked on another Wabash job Despite his discharge, Taylor was referred back to the Wabash job the next day by Skelton, and he was put back to work continuing for 5 additional days, at which point he was permanently laid off He has never been recalled or re- ferred to a Wabash job On behalf of Respondent, Knowles testified that Taylor did not adequately perform his responsibilities as a flag man, that he solicited Taylor to improve his work perfor- mance on several occasions, and that Brinkhoff, the state engineer, had complained to him several times about Taylor's inadequate performance as a flag man The strength of the General Counsel's case with respect to Taylor is intertwined with the threatening remark made by Knowles in 1973 in response to Taylor's pay claim at the time of his discharge Despite this threat, however, Knowles was retained and continued to work for 5 days immediately after said remark Lending support to the Company's position is the confirmation appearing in Taylor's own testimony that his performance as a flag man was criticized by state engineers, his discharge in 1973 based upon such complaints, and his failure to again work on that project after his subsequent permanent layoff, and after work resumed on that job in 1974 In these circum- stances the preponderance of the evidence does not war- rant an inference that Taylor's debarment from future em- ployment with Wabash was predicated upon his activities as a steward or individual who pressed contract rights In- stead the entire record warrants the conclusion that Wab- ash took such action in October 1975 against Taylor be- cause of his nonproficient performance on the Route 45 job in 1973 Accordingly, I shall recommend dismissal of the 8(a)(1) and (3) allegations relative to Taylor E Discrimination by Mt Carmel The General Counsel's case against Mt Carmel is de- rived in essential respects from the testimony of Ed G McPherson, a partner in that operation who is responsible, generally, for overseeing the construction work performed by that firm Mt Carmel was scheduled to begin on the Route 142 project on October 27, 1975 Prior to the com- mencement of its operations, the picket placed by Local 1197 against Wabash had caused a 2-day disruption of work On or about October 26, McPherson contacted Skel- 18 It will be recalled that Darrell York was terminated following his con frontation with Dale Anderson on the Route 45 job and accordingly any protected comments made by Taylor to York with respect to that incident are plainly neutral to the assessment of motive in this proceeding ton informing him at the jobsite that he needed laborers In doing so, McPherson specified that he did not want the four people involved in the "litigation" with Wabash As- phalt The reason expressed by McPherson in taking this position was that he did not want to complicate the situa tion by hiring Hogard, Taylor, and the Andersons Skelton responded by indicating that McPherson need not worry because he would not send Hogard in that he was going to make Wabash hire him, and that the other three were not available because working elsewhere Based on the foregoing testimony of McPherson, I am satisfied that McPherson allied Mt Carmel with Wabash, and by conspiring to deny employment to the four individ uals, any unlawful motivation on which Wabash acted must, perforce, be imputed to Mt Carmel Thus, while nothing unlawful inured from Mt Carmel's refusal to em- ploy Taylor and the Andersons, the Hogard situation pre- sents an entirely different problem It is a fair inference that McPherson who, like Kenneth Shaw of Wabash, was a partner in Mt Carmel, was fully mindful that Wabash was involved in a dispute with Hogard concerning the latter's right to employment on the Route 142job and that charges before the National Labor Relations Board were pending when he declared that Mt Carmel too would decline to employ Hogard In the circumstances, Mt Carmel's denial of employment of Hogard stands on a footing offensive to statutory policies equal to that resulting from the original act of discrimination perpetrated by Wabash Accordingly, I find that Mt Carmel, by indicating that it would not employ Hogard because of the dispute with Wabash, also violated Section 8(a)(3) and (1) of the Act 19 CONCLUSIONS OF LAW 1 Wabash Asphalt Company, Inc, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Kenneth Shaw, Neil Shaw, E G McPherson, Leroy Tinsley, and J P Watson, a Partnership, d/b/a Mt Car- mel Sand and Gravel Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 3 Southern Illinois Laborers' District Council, Local Union No 1197, affiliated with Laborers' International Union of North America, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act 4 Respondent Wabash Asphalt Company, Inc, violated Section 8(a)(3) and (1) of the Act by refusing to employ Ferrel L Hogard on and after October 13, 1975, in reprisal for his past efforts to enforce a collective-bargaining agree ment as the duly designated job steward 19 My view is not altered by the testimony of McPherson that Skelton responded to McPherson s declaration that Mt Carmel would not hire the four alleged discriminatees by indicating that McPherson need not worry about Hogard because the Union would force Wabash to hire him In the circumstances despite this response one cannot ascertain what course Skel ton would have taken with respect to Hogard had McPherson not previous ly rejected the latter At best Skelton s statement creates an ambiguity which falling short of a clear expression that the Union was predisposed not to refer Hogard fails to relieve Mt Carmel of the unlawfulness in McPherson s action WABASH ASPHALT COMPANY 827 5 Respondent Kenneth Shaw, Neil Shaw, E G Mc Pherson, Leroy Tinsley, and J P Watson, a Partnership, d/b/a Mt Carmel Sand and Gravel Company jointly, vio- lated Section 8(a)(3) and (1) of the Act by declaring that it would not hire Ferrel L Hogard on and after October 27, 1975, with respect to its operations on the highway 142 project 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act THE REMEDY Having found that the Respondents have engaged in cer- tain unfair labor practices I shall recommend that they cease and desist therefrom and take certain affirmative ac- tion deemed necessary to effectuate the policies of the Act Having concluded that Respondent Wabash Asphalt Company, Inc, discriminatorily refused to employ Ferrel L Hogard, in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that said Respondent be ordered to offer him immediate employment and to make him whole for any loss of pay resulting from said discrimination by payment of a sum of money equal to the amount he nor- mally would have earned as wages from October 13, 1975, to the date he is offered employment, less net interim earn rags during that period Backpay shall be computed on a quarterly basis in the manner prescribed in F W Wool worth Company 90 NLRB 289 (1950), and shall include interest at 6 percent per annum as provided in Isis Plumb ing & Heating Company, 138 NLRB 716 (1962) With respect to Respondent Kenneth Shaw, Neil Shaw, E G McPherson, Leroy Tinsley, and J P Watson, a Partnership d/b/a Mt Carmel Sand and Gravel Company, it shall be recommended that with respect to its discrimina- tion against Hogard that said Respondent immediately no- tify Laborers Local 1197 that they hold no objection to the referral of Hogard in accordance with the uniformly appli- cable provisions of the hiring hall arrangement set forth in the governing collective-bargaining agreement With re spect to backpay, in the particular circumstances involved here, as Respondent Wabash Asphalt Company, Inc, is deemed principally responsible for the discrimination against Hogard, I do not recommend that Respondent Mt Carmel and its constituent partners sustain mutual and several liability with Wabash in connection with the back pay remedy However, as Mt Carmel and its constituent partners did participate in the continuing unlawful denial of employment to Ferrel L Hogard and thereby itself com- mitted an unfair labor practice, it shall be recommended that said Respondents make Hogard whole in accordance with the formula set forth above, but only to the extent that Respondent Wabash Asphalt Company, Inc, is unable to grant full satisfaction of the amount due Upon the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER 20 A Respondent Wabash Asphalt Company, Inc, Mt Carmel, Illinois, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to hire or in any other manner discourag- ing union membership by discriminating against employ- ees because they attempt, either as union stewards or individuals, to enforce their rights under a collective-bargaining agreement (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act 2 Take the following affirmative action necessary to ef- fectuate the policies of the Act (a) Offer to Ferrel L Hogard immediate and full em- ployment in a position comparable to his former job or, if such position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earn- ings, in the manner set forth in the section of this Decision entitled The Remedy " (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 this rec- ommended Order (c) Post at its Mt Carmel, Illinois, facility copies of the attached notice marked "Appendix A" 21 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized repre- sentative of Wabash Asphalt Company, Inc, shall be post- ed by said Respondent 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 said Respondent to insure that said notice is not altered, defaced, or covered by any other material (d) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith B Respondent Kenneth Shaw, Neil Shaw, E G Mc Pherson, Leroy Tinsley and J P Watson a Partnership, d/b/a Mt Carmel Sand and Gravel Company, Mt Car mel, Illinois, their agents, successors, and assigns, shall I Cease and desist from (a) Discouraging union membership by declaring that an employee would not be hired because, as a union stew- ard or individual, he has attempted to enforce rights under 20 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 21 In the event the Boards Order is enforced by a Judgment of the 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 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a governing collective-bargaining agreement (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act 2 Take the following affirmative action necessary to of fectuate the policies of the Act (a) Notify Laborers' Local Union 1197 that it has no objection to the referral of Ferrel L Hogard, in accordance with uniformly applicable referral arrangement set forth in the current collective-bargaming agreement (b) Make whole Ferrel L Hogard for losses sustained between the date of the discrimination against him and the date of such notification to the Union, in the manner set forth in the section of this Decision entitled "The Reme- dy," but only to the extent that Respondent Wabash As- phalt Company, Inc, is unable to comply herewith (c) 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 (d) Post at its Mt Carmel, Illinois, facility copies of the attached notice marked "Appendix B " 22 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by a duly designated agent of Respondent Mt Carmel, shall be posted by said Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in con- spicuous places, including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by said Respondent Mt Carmel to insure that said notice is not altered, defaced, or covered by any other ma- terial (e) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith 22 In the event the Board s Order is enforced by a Judgment of the 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 APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice The Act gives all employees these rights To engage in self-organization To form, loin, or help a union To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection or To refrain from any or all of these things WE WILL NOT refuse to hire Ferrel Hogard, or any other employee, because they seek to enforce rights under a collective-bargaining agreement WE WILL offer immediate employment to Ferrel L Hogard and make him whole for any loss of earnings he may have suffered by reason of our discrimination against him with 6-percent interest per annum WABASH ASPHALT COMPANY, INC APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice The Act gives all employees these rights To engage in self-organization To form, join, or help a union To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection or To refrain from any or all of these things WE WILL NOT discourage our employees from engag- ing in union activities by declaring that we will not employ Ferrel L Hogard or any other employee be- cause they have attempted to enforce rights under a collective-bargaining agreement WE WILL notify Southern Illinois Laborers' District Council, Local Union No 1197, affiliated with Labor- ers' International Union of North America, AFL- CIO, that we have no objection to the referral of Fer- rel L Hogard to any of our projects in accordance with the uniformly applicable conditions under the hiring arrangement set forth in the applicable collec- tive-bargaining agreement WE WILL make whole Ferrel L Hogard for any loss- es sustained by reason of our participation in the dis- crimination against him, to the extent that Wabash Asphalt Company, Inc, is unable to do so KENNETH SHAW, NEIL SHAW, E G MCPHERSON, LEROY TINSLEY, AND J P WATSON, A PARTNERSHIP, d/b/a MT CARMEL CONSTRUCTION COMPANY