G & M Underground Contracting Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD G & M Underground Contracting Co. and Robert Wright. Case 7-CA-14441 October 25, 1978 DECISION AND ORDER BY MEMBERS PENELLO. MURPHY, AND TRUESDALE On September 13, 1978, Administrative Law Judge Irwin Kaplan issued the attached Decision in this proceeding. Thereafter, the General Counsel and Re- spondent filed exceptions and supporting briefs. 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.2 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, G & M Underground Contracting Co., Roseville, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Ad- ministrative Law Judge. IRespondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Although the Administrative Law Judge in his recommended Order pro- vided that Respondent offer reinstatement to employee Robert Wright and make him whole, he inadvertently failed to include such provisions in his notice. Accordingly, we shall substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge any employees for in- voking the assistance of the Union concerning working conditions or because they have other- wise engaged in concerted activities for mutual aid and protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. WE WILL offer Robert Wright immediate and full reinstatement to his former position or, if that job no longer exists, to a substantially equivalent position, without prejudice to his se- niority or other rights and privileges, and make him whole for any loss of earnings he may have suffered, with interest. G & M UNDERGROUND CONTRACTING CO. DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge: This case was heard before me in Detroit, Michigan, on January 25, 1978. The charge herein was filed by Robert Wright, an individ- ual, on September 27, 1977, and a complaint issued thereon October 20, 1977, alleging that G & M Underground Con- tracting Co. (herein called Respondent) discharged said Robert Wright because he sought the assistance of Local 324, International Union of Operating Engineers, AFL- CIO (herein called Union), concerning his work assign- ment, in violation of Section 8(a)(3) of the National Labor Relations Act, as amended (herein called the Act). In its answer the Respondent conceded, inter alia, certain facts with respect to its business operations and the supervision and agency status of individuals as alleged, but it denied all allegations that it committed any unfair labor practices. Upon the entire record, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a Michigan corporation, is engaged in the construction and installation of sewers and water mains. During the fiscal year ending March 31, 1977, which pe- riod is representative of its operations during all times ma- terial herein, Respondent, in connection with its business operations, purchased and caused to be transported and delivered to its Roseville, Michigan, place of business sew- er pipes and other goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 originated outside the State of Michigan. Respon- dent admits, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 78 G & M UNDERGROtUND CONTRACTING C O. 11 LABOR ORGANIZATION Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. I1 TiHE ALLEGED UNFAIR L.ABOR PRA(TICE A. Setting Respondent is engaged in the business of installing sew- ers and water mains at various construction sites, including the jobsite involved herein, located at Nine Mile Road and Cushing Road in east Detroit (herein called the Nine Mile site). Robert Wright commenced his employment for Re- spondent in May 1977 ,' and approximately 90 percent of his work involved the Nine Mile site. He worked as a heavy equipment operator, principally on a machine called a rub- ber tire and loader. On September 14, early in the morning, Joe Rocca, Respondent's foreman and Wright's immediate supervisor, called Wright and told him that they were rained out, signifying that there would not be any work that day. Nonetheless, Wright appeared at the Nine Mile jobsite that day about 10 a.m. and observed other employ- ees working, including Ed Risner, the bulldozer operator, who was on the rubber tire end loader normally operated by Wright. Thereupon Wright called the union 2'office and left word to have Union Business Agent Raymond Pou- pore come out to the Nine Mile site because someone else was operating his machine. Wright returned to the jobsite. and about 10:45 a.m. he confronted Foreman Joe Rocca. who had just appeared, as to why he (Rocca) had called him earlier that morning to tell him to stay at home, assert- edly because there wasn't any work, and then assigned Ris- ner to operate his machine. Rocca told Wright that Super- intendent Dodge said "it would be alnght." Wright protested further that it was not all right, that he wanted to get paid for the day, and informed Rocca that he had called the Union and asked for a union representative to come out to the site. Rocca got into his truck to report the matter and left the area. Approximately 20 minutes later, Superintendent Dodge arrived at the site, and Wright im- mediately questioned Dodge as he had Foreman Rocca a short time earlier. Dodge, who had hired Wright and who has known him for approximately 25 years. pointed out that there wasn't that much work in, olved. Dodge testified that an inspector on the site wanted certain work to be done and that, as Risner was already there, the foreman had Risner operate Wright's machine. Dodge characterized the problem as a "mix up." Wright was not mollified b) Dodge's explanation and told him that he called the U nion about the matter and expected to get pail for the dals. According to Wright, Dodge was "mad" but agreed to pas him for the half day. With regard to the oither half of the day, Dodge assigned Wright to another jobsite, located at Eleven Mile Road and Mound Road therein called the Mound Road site). The next day. September 15, Wright All dates hereinafter refer Io 1977 unlc oliteruise Indic;ilcd ! Respondent, a a a Illcmlcr of 'ssociated iL ndcrglltJnd ( ltriii.or, h i, had a COlletlive-bargal.riin rclaili>,, ~ith ()peitila t lg I gl eers, I ,, I1 324 (heretr the t nion) lar app xrimsiaiely, 7 .icars. operated his loader at the Mound Road site. At approxl- mately 5 p.m., at the end of the day, Wright got into his truck, departed, and almost imnniediately becaine ic ilved in an accident with another motorist I he nlotorist and Wright first exchanged words and then a fist ight ensued. As a result of the fight, Wright sustained an injurs to hi, hand which required emergency aid at Mt. C!emens Gien- eral Hospital. The next day, Frida%, September 16. Wright went to the office and told Superintendent D)odge abhou how he injured his hand during the fight the previous ese- ning. He told Dodge that his hand still hurt and that tie could not tell precisely when he would Ie able to resume working. Dodge instructed Wright to;, advise him the da,\ before he would be able to report for work Fhe following Monday, September 19, about 10 p.m.. W right called Dodge at home to advise him that his hand swas much improved and to ask for instructions as to where he should report for work. Wnght asserts that Dodge told him that Peter Gandolfo (an owner) told him ( Dodge) to fire Wright because the LUnion had contacted the office about Wright not operating his machine on September 14. Within a few das, Wright visited the field office at tnc Nine Mile Road site, where he met Owner George Miaro)- vich) According to Wright. he asked Markoeich wh, he was fired, and Markovich responded, "You don't call hec Union. You come and see me." Wright uttered ain epithet at Markovich and the latter countered bs oidering Wright out of the office and escorting him off the property. Mar kovich, on the other hand, denied that Wright asked hin why he was fired saving rather that he asked how come h( wasn't working. Markovich testified that Wright told him that he had called the lUnion. and he replied. "Why didn't you call me? Why Wh' did you call the UInion." A,\s Mar- kovich stood up. Wright approached him and uttered a profanit). Markosich told Wright to get out if thC tiailei (field office) and then followed him outside because he (Markovict) assertedlv w\as in a hurrN to gvo >ionitelic!c Markovich asserts that he discharged Wright hbecause tht latter called him an "insulting" name. B. Do. lusvi;i1 cIN]r ( ;vH ' ll i 1he record .erea.ls that on Septcn. ,i 14 I o!erna.i, Rt, La called \, right at home and told himn iil to iet .l fI work that das because it had been iainrinm l urtlici dii record disclo'se. that ,ni September 14 1 d Risncr! ; illt dozei ,)peratot. .. s aitssigned to )iopcoc !V-'ht's machine. When Wright disco,.ered li!c:l- ii. nmit nin:!.. Risner uxa assigned to operate hnis machini. righ! i. woked the assistance of the .niorn. I his, he called ar union office to relate his cntiplinnt :ind !'ft l,,'Td lIoi I nlion Business Reptie',entatle R i, Piupoie t I'l. i ti the ihtbite Poupore testifcld creJilbls alid Aithoilt ltl tradictiol that he visited the Nine Mlec Iobhite on Sewnt-:in ber 14 in fur!her.mtcc (of Wrieht's photi- cal! a:itd :i ti hb the teitcman thlit Wrig!it had bc >',i Cellt :- 1't thi , i' sitc anid that the in.ttel hald bieen setile.. Prloi thci''t \Wrigc' in! rl e id firxt Folelliall RotCa nld k:!t'l It'ClI \ o ~rI : hl . tmfi ( . il.i I aIrFe ,.. cfr-t i ie i,, p,],d. t. R. I i: DECISIONS OF NATIONAL LABOR RELATIONS BOARD tendent Dodge that he expected to be paid under the union contract 4 because Risner was wrongfully assigned his work and that he (Wright) called the union office to send some- one to the jobsite for assistance. While Dodge agreed to pay Wright for the half day, it was only after Wright had disclosed that he had called the union office and was ex- pecting the union agent on the jobsite. Wright character- ized Dodge's reaction as "mad." Dodge testified that he went to the Nine Mile jobsite on September 14 in response to the foreman's urgent phone call that Wright was causing trouble. Dodge concedes that Wright told him he had al- ready called the Union. The Board has long held that an employee who invokes the assistance of the Union with regard to securing the Employer's compliance with the terms and conditions set forth in the contract is engaged in union or protected con- certed activity?5 In the absence of evidence of bad faith, it is immaterial whether the complaint that the contractual terms have been violated is in fact meritorious.6 In the in- stant case, the facts set forth above clearly establish and I find that Wright's effort to enlist the aid of the Union is protected concerted activity within the meaning of the Act and that Respondent at all times material herein had knowledge of such activity. Respondent, however, con- tends that it discharged Wright not because he engaged in union or protected concerted activity but rather because he used profanity and displayed disrespect to Owner Marko- vich. In tracing the events which led to the aforementioned encounter with Markovich, it is noted that Wright had a fight near the Eleven Mile Road site on Thursday, Septem- ber 15, which incapacitated him for a few days. The credi- ble evidence reveals that Wright met with Superintendent Dodge the following day (Friday) and told him of the acci- dent and fight with the motorist and that he could not tell for certain when he would be able to work again. The only instructions Dodge gave Wright were for the latter to call him the day before he was ready to report for work. By the following Monday, September 19, Wright's hand was much better, and he called his longtime friend, Superintendent Dodge, and reported that he was ready to go back to work. Wright credibly testified 7 that Dodge told him that "Pete [Gandolfo] said that [he should] fire mre because the Union had called back to the office." A few days after. Wright confronted Markovich as to why he was fired, and Marko- vich replied, "Why didn't you call me? Why did you call the Union." While Markovich's account is substantially 4While Wright hlitceyed that under the tcrmll of the c ontrait Ian .,pcera lli could not he switched from one machine to another, Ihe recrd is desvoid if any probatise evidence in support thereof See Perrenoud. Inc. 236 NL RB No, 92 (1978); Marm,,n Iron,,nlio, 219 NL RB 102, 108 11975:) Enduro Metal Produwi (I, h, .i6o N RB 1411 (1966) Interiboro ( .tracorrs In,, 157 NiLRB 1295. 13011 02 196) e 4ro, Int 227 NI RB 243 (1976): Perrntslud. /11 ,orlpa Inlterhoir, (i rraIctorn. Inc. vupro at 1298. fn. 7. I credit the testimony of Wright where it confli is i ith the leslimonlls of Dodge. I found Dodge Io be unresponsive and equivocal I hus,. uhel asked whether he had al conveisaition with Wright regarding the laltcr's return to work after his hand healed. Dodge first responded. "I can't retienlclbei" lie was then asked whether he instructed Wright to call him when he Awas read? to return to work. to which Dodge responded, "I might have said thati. yes" Still further, Dodge was asked whether he recalls sayLilg all thing 1,i \Wlight about letting him know the day before he was reld)y to return, and this time Dodge answered, "No, I don't think I did." the same as Wright's, he denies that Wright asked him why he was fired but rather why he wasn't working. Markovich concedes that after Wright told him that he had gone to the Union he asked him why he called the Union and not him. Markovich further acknowledged that he would rather have employees give him a chance to work out problems without the intervention of the Union. With regard to Markovich's assertion that Wright merely asked why he wasn't working, I am unconvinced that he did not actually ask why he was fired, or words to that effect. In any event, in the circumstances of this case, I do not deem the conflict material. It is undisputed that when Markovich questioned Wright as to why he went to the Union and did not come to him with the problem Wright responded with an epithet Ac- cording to Respondent, Wright was immediately dis- charged because he used profane language and showed dis- respect for Markovich. It is well recognized that "[a]lthough an employer had a right to discharge an em- ployee for profane and insubordinate conduct, the mere existence of a justifiable ground for discharge is no defense if it is a pretext and not the moving cause." 9 According to the General Counsel, the Markovich incident was after the fact; Wright had already been fired. In this regard the General Counsel argues with substantial appeal that Re- spondent offered no explanation to support its version of Wright's visit with Markovich. On the other hand, the Gen- eral Counsel argues persuasively that "the only plausible explanation is that, as Wright testified, this conversation occurred after his discharge when he was questioning Mar- kovich as to the reason for his discharge." As I have found that the credible evidence establishes that Superintendent Dodge told Wright that he was fired before the Markovich incident, I further find that Respon- dent's assertion that Wright was discharged by Marko- vich m because of profanity or disrespect is pretextual. Rather, the preponderance of the credible evidence reveals, and I find, that what precipitated the discharge was Wright's invoking the assistance of the Union, even if erro- neously, to secure him benefits under the contract. Accord- ingly, I find that Respondent discharged Wright for engag- ing in union or protected concerted activity in violation of Section 8(a)(3) of the Act.1 ' Mlaikoichl testified tlat when he ordered Wright out of the trailer (field office} he was deemed to be discharged lIhus. Markovich was asked wheth- er lie told VWright al Ihat tinme that he was fired. He responded, "That is correct. V'hen I sas iut, he is out l'hat is what I mean" Similarly. I find that 'i ight coneised the tle.ning to Markoslich that he was asking why he was fliied. eelv if he did not use the precise nords G(,id//-[ tlfdn (;irp,rraio,,n. 233 NI RB 772 (1977). I found Marklich to he unresponsise. inconsistent. and unreliable I huis whenl he ',as asked whether Superintendent Dodge had informed him that Vrlighl had called tile I riion. Mlarkovich responded. "I don't think he told nic. beciuse It is not imputtalnt for me if he called the ULniont or not." Ionwesver. lie alsoi colnceded thill ,when Wright confronted him In the field office hhe asked Wright, '"' h didn't you call me 9? Whv did you call the wonii'?" hi, tetiiions al tal ids to reficct in Ma[rkoiich's unlon animus Ilt this cinnection Marko\ich asserted thait le was surprised that Wright had gmiire to the I niln because he I Marki,ich} was pros iding io;ertimc for Wright and he could have switched him tiio another lob any time he wanted to, without oivertinle nork I I'e I',i?,d l/i ( upra Intcerhori ( C ldlt iorn /In . upnra 80 G & M UNDERGROUND CONTRACTING CO. IV THE EFFECT OF THE ULNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section Ill, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. CONCL USIONS OF L.AW I. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Robert Wright because he engaged in protected concerted activity, namely, invoking the assis- tance of the Union concerning a work assignment. Respon- dent has violated Section 8(a)(3) and (I) of the Act. THE RFMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respondent cease and desist therefrom and that it take certain affirma- tive action to effectuate the policies of the Act. It having been found that Respondent discharged Rob- ert Wright in violation of Section 8(aX3) and (1) of the Act. I shall recommend that Respondent be ordered to offer him full and immediate reinstatement to his former or a substantially equivalent position and to make him whole for any loss of earnings he may have suffered by reason of his unlawful discharge, by payment to him of a sum of money equal to that which he normally would have earned from the date of discharge to the date of a valid offer of reinstatement. Backpay shall be computed according to the Board's policy set forth in F. W. Woolworth CompanY. 90 NLRB 289 (1950). Payroll and other records in possession of Respondent are to be made available to the Board, or its agents, to assist in such computation. Interest on backpay shall be computed in accordance with Florida Steel Corpo- ration, 231 NLRB 651 (1977),12 It will be further recommended, in view of the senous unfair labor practices herein found, that Respondent be ordered to cease and desist from "'in any other manner" infringing upon the rights guaranteed employees in Section 7 of the Act. See N.L.R.B. v. Entwistle Mfg.., 120 F.2d 532, 536 (4th Cir. 1941). On the basis of the above 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: 12 See, generally, Isis Plumbing & Hearing Co. 138 N .RB 716 11962) ORDER 13 The Respondent, G & M Underground Contracting Co., Roseville, Michigan. its officers, agents, successors, and as- signs, shall: I. ('ease and desist from: (a) Discharging any employees because they have in- voked the assistance of the Union regarding working con- ditions or because they have otherwise engaged in concert- ed activities for mutual aid and protection. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative actions, which are nec- essary to effectuate the policies of the Act: (a) Offer Robert Wright immediate and full reinstate- ment to his former job or, if that job 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 earnings he may have suffered, 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 records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its place of business at Groesbeck Highway, Roseville, Michigan, copies of the attached notice marked "Appendix." 14 Copies of the notice, on forms provided by the Regional Director for Region 7. after being duly signed by Respondent's authorized representative, shall be posted by 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 Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in wnting, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. " 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. 10248 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 4 In the event that this Order is enforced by a judgment of a United States Court of Appeals. the words in the notice reading "Posted be Order of the National Iahbor Relations Board" shall read "Pos:ed Pursuant to a Judgment of the United States (court of Appeals Enforcing an Order of the National I abor Relatilonts Board." 81