Bilton Insulation, Inc., 665 (1961)

DECISION AND ORDER

On April 18, 1961, Trial Examiner William F. Scharnikow issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs in support thereof.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Fanning].

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as noted in the footnote.' 'We find it unnecessary to pass upon the exception of the General Counsel to the finding of the Trial Examiner that Robinson and Raines were applicants for-rehire rather than applicants for reinstatement since in either event the Respondent violated Section 8(a) (1), (3 ), and (4 ) by its actions. See I. C. Sutton, Sr., d/b/a I. C. Sutton Handle Factory, 125 NLRB 1094, 1095.

The General Counsel excepts to the finding of the Trial Examiner that the Respondent delayed the rehire of Jodie Raines from July 15, 1960, rather than from July 1, 1960, when he first asked to return to work. We find merit in this exception, which corrects an apparent typographical error, and accordingly amend the Intermediate Report.

133 NLRB No. 76.

ORDER

Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Bilton Insulation, Inc., Arlington, Virginia, its officers, agents, successors, and assigns, shall:

  1. Cease and desist from :

    (

    1. Discouraging membership in United Construction Workers,

      Division of District 50, United Mine Workers of America, or in any other labor organization, by discriminating against its employees or applicants for employment in regard to their hire or tenure of employment or any term or condition of their employment.

      (b) In any manner interfering with, restraining, or coercing its employees or applicants for employment in the exercise of the right to self-organization, to form labor organizations, to join or assist the aforesaid Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and all such activities.' 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

      (

    2. Offer to Benjamin Robinson immediate employment in his former job, without prejudice to any rights and privileges previously enjoyed by him.

      (b) Make Benjamin Robinson and Jodie Raines whole for any loss of pay each of them may have suffered by reason of the Respondent's discrimination against him, in the manner set forth in the section of the Intermediate Report entitled 'The Remedy.' (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due, and right of Benjamin Robinson to employment under the terms of the Order herein.

      (d) Post at its plant in Arlington, Virginia, copies of the notice attached to the Intermediate Report marked 'Appendix A.' 9 Copies 2 As Virginia has a right-to-work law, we shall delete from the Trial Examiner' s recommended order and notice the proviso 'except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959 ' s This notice shall also be amended by substituting for the words 'The Recommendations of a Trial Examiner' the words 'A Decision and Order ' In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words 'Pursuant to a Decision and Order ' the words 'Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order.' BILTON INSULATION, INC. 667 of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by the Respondent or its representative, be posted by the 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 to insure that said notices are not altered, defaced, or covered by any other material.

      (e) Notify the Regional Director for the Fifth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith.

      INTERMEDIATE REPORT AND RECOMMENDED ORDER

      STATEMENT OF THE CASE

      The complaint alleges, but the answer of the Respondent denies, that the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (4) and 2 ( 6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), by discharging employees Benjamin Robinson and Jodie Raines on July 5 and 6 , 1960, respectively, and by thereafter refusing to reinstate Robinson , all because Robinson and Raines were members of the Union and assisted it, and /or gave testimony under the Act in a formal hearing involving the Respondent before a Trial Examiner of the National Labor Relations Board.

      Pursuant to notice, a hearing was held in Washington, D.C., on September 27 and 28, 1960, before the Trial Examiner duly designated by the Chief Trial Examiner.

      The General Counsel and the Respondent appeared by counsel , and the Union by its representative, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence upon the issues. The General Counsel and counsel for the Respondent have submitted briefs. Counsel for the Respondent also submitted proposed findings of fact in which they request me to make what amounts to a mixture of generalized findings of fact and conclusions of law. I accept the substance of the Respondent 's proposals only to the extent that they are material and consistent with the findings and conclusions hereinafter set forth.

      Upon the entire record in the case, and from my observation of the witnesses, I make the following:

      FINDINGS OF FACT

  2. THE BUSINESS OF THE RESPONDENT The Respondent, a Virginia corporation, maintains its principal office and place of business at Arlington, Virginia, where it is engaged, pursuant to subcontract, in the application of insulation in homes. During the year preceding the issuance of the complaint, the Respondent performed services of a value in excess of $200,000 at places located outside the Commonwealth of Virginia . During the same year, the Respondent purchased materials and supplies of a value in excess of $50,000, which were shipped from places outside the Commonwealth of Virginia directly to Respondent's plant at Arlington , Virginia.

    I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to entertain jurisdiction of this case.

    1. THE LABOR ORGANIZATION INVOLVED The United Construction Workers, Division of District 50, United Mine Workers of America, is a labor organization within the meaning of the Act.

    2. THE UNFAIR LABOR PRACTICES A. The general facts in the case Adolph Bilton is the, principal shareholder and the president and secretary-treasurer of the Respondent, Bilton Insulation, Inc., a 'family-owned corporation,' which has its shop in Arlington, Virginia. In addition Bilton is the 'owner' of Bilton Supply Company, Incorporated, which also has its warehouse in Arlington and furnishes materials for the Respondent's insulation business.

      The Respondent, Bilton Insulation, Inc., employs about 30 laborers whom it dispatches in its trucks from the Arlington shop on insulation jobs in nearby Virginia, Maryland, and Washington, D.C. The men are paid solely on the basis of the amounts of the materials used by them on their jobs, and report at the Respondent's shop for their assignments each morning between 6:30 and 7 o'clock.

      By this time, the Respondent has prepared a separate work card for each job that day, setting forth the nature and location of the job and the materials to be used.

      Assignments for the day are made by the issuance of each of these cards to one of the employees by either Superintendent William Fitzgerald or Foreman Caspy Johnson. Other employees who have reported that morning are then sent out to share the work with those who have received work cards, and at times some of the men are also given daywork with the Bilton Supply Company. Although the Respondent thus attempts to give work to all employees who report for work, including late arrivals, there are days when there is not enough work and some of the men who have reported for work receive no assignments.' The Respondent's work cards on its insulation jobs are returned by its employees with their signatures and notations of the amount of materials used on each job.

      This information is used by the Respondent both for billing its customers and determining the...

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