New York Trap Rock Corp.

374 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD New York Trap -Rock Corporation , Nytralete Aggregate Divi- sion and Nicholas A. Roberti. Case No. 3-CA-2230. - August 20, 1964 - DECISION AND ORDER On May 13, 1964, Trial Examiner Thomas F. Maher issued his Decision in the above-entitled proceeding,' finding that the Respond= ent had not engaged in certain unfair labor practices and recommend- ing that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Coun- sel filed exceptions to the Trial Examiner's Decision and a supporting brief, and the Respondent filed an answering brief. 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 Leedom and Brown]. The Board has reviewed the rulings -made by the Trial Examiner at the hearing,and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings of the Trial Examiner only to the extent they are consistent with our decision herein. The complaint alleged that the Respondent violated Section 8 (a) (3) and (1) of the Act by discharging Nicholas A. Roberti, and violated Section 8 (a) (1) of the Act by threatening an employee with reprisals if he sought the aid of his union representative over a matter affecting terms and conditions of employment. The Respondent is a party to a collective-bargaining contract with Local Unions Nos. 825, 825A, 825B, International Union of Operating Engineers. On numerous occasions, Roberti, an employee, com- plained personally and through, his union representatives to the Re- spondent that it was not living up to the terms of the contract. Thus, lie complained when the Respondent failed to pay call-in pay and to give him the opportunity to work overtime, as required by the con- tract. The Respondent either rectified or promised to rectify these complaints. Other complaints about the rate of pay applicable to his job were denied. When Roberti requested a pay increase in May or June 1963, Production Manager Reedy told him, "Instead of com- plaining about your rate, maybe'you'd better be looking for a job. Maybe you'd better start looking for a job." Roberti also complained on several occasions of the Respondent's failure to post job vacancies, as the Respondent had agreed to do. Although the job posting- of vacancies was not specifically provided in the collective^bargainirig 148 NLRB'No. 41. ` N Y TRAP ROCK CORP, NITRALETE AGGREGATE DIV 375 agreement, the agreement did pi ovide for promotions in accord with seniority, and Robeiti's complaints iegaiding job posting were made with iefeience to this seniority provision Once when Roberti brought up the subject of job posting to Plant Manager Reid in June 1963, Reid told him, "Listen, I'm running this goddam job and not t lie Union " On September 1S, 1963, Reid visited Robeitr's father at a dock near the Responclent's plant, and discussed a business matter with him As Reid was leaving, the younger Roberti asked him again about the Respondent,'s handling of job posting and seniority rights Reid ieplied, "Listen, you guinea, you son of a bitch, I'm running this job, not you or the union If you don't like it here you can leave" Rob- erti ieplied, "I might be a guinea son of a bitch, but it's better than being a liar ' Reid then told Roberti not to report to work until fuithei notification Roberti was thereafter discharged When Shop Sten,Yaid Ricketson and Union Representative McArdle intervened, unsuccessfully, with Reid in an attempt to have Roberti reinstated, Reid conceded to them that the numerous complaints made by Roberto contributed to his discharge The record shows that the day after Roberti's discharge another employee, Bunce, complained to Foreman Tucker because Bunce had not been appointed to fill a job vacancy, and Tucker told him, "One man got fired last night and if you don't keep your mouth shut, you're liable to be next " About a month later, in October, employee Bunce was reprimanded b) Supervisor Tucker for taking an overlong coffee break, and Reid became involved in the discussion Bunce requested that the union representative be called to take part in the discussion, and was told by Reid that if he did call the union representative, "it would be the sorriest day of his life " The Trial Examiner concluded that Roberto s complaints did not constitute, protected activity under the Act but merely served to make Roberti a nuisance and that, m any event, Roberti was not discharged becau,ze of these complaints but because he called Reid a hai We do not agree with either of these conclusions All of Roberti's complaints were attempts to implement the pro- visions of the existing collective-bargaining agreement As such, they constituted grievances within the framework of the contract, af- fecting the rights of all employees in the unit The filing of such grievances constitutes conceited activity which is protected by Sec- tion 7 of the Act 1 Neither the fact that Roberti s grievances were numerous, nor the fact that he processed some of the grievances him- 1Morlyn Bonney and Cla,ence Bunney, Paitnera, d/b/a Bunney Bros Construetaon Company, 139 NLRB 1516 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD self changed their protected nature .2 Moreover, a preponderance of the evidence shows that it was because Roberti was attempting to im- plement the contract negotiated by the Union that the Respondent dis- changed him. Thus, on various occasions when Roberti was present- ing grievances he was told to look for another job, and that the Union was not running this job. Moreover, at the time of his discharge, Reid answered his complaint about job posting with the remark that neither he nor the Union was running this job. In addition, as set forth'above, Reid admitted that Roberti's complaints contributed to his discharge. On the other hand, Roberti called Reid a liar only after he had been provoked by Reid's abusive response to his question concerning prior grievances.' In all the circumstances, therefore, we find that absent Roberti's union and concerted activity in filing grievances under the contract he would not have been discharged, and that the Respondent thereby violated Section 8(a) (3) and (1) of the Act. We also find, contrary to the Trial Examiner, Reid's remark to em- ployee Bunce that, if he called his union representative over a dispute concerning working conditions, "it would be the sorriest day of his life," constituted a threat, and therefore violated Section 8(a)'(1) of the Act. THE REMEDY Having found that the Respondent violated Section 8(a) (1) and (3) of the Act by discharging Roberti, we shall order Respondent to cease and desist therefrom and to offer Roberti immediate and full reinstatement to his former or substantially equivalent position, with- out prejudice to his seniority or other rights and privileges, and to make Roberti whole for any loss of pay be may have suffered by rea- son of the Respondent's discrimination against him, by payment to him of a sum of money equal to that which he would normally have earned as wages from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during said period, in a manner consistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289. Intereston backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As a discriminatory discharge "goes to the very heart of the Act," we shall order the Respondent to cease and desist from in any man- ner infringing upon the rights of employees as guaranteed by Sec- tion 7 of the Act 4 2 Farmers Union Cooperative Marketing Assn., 145 NLRB 1. That Roberti may have, on one additional occasion, attempted to obtain for himself a pay increase in excess of the contract rate, does not change our conclusions herein. 3 Cf. V C. Britton Co., 143 NLRB 220 * N.L.R B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ; Fry Products, Inc., 110 NLRB. 1000, 1005. N.Y. -TRAP ROCK CORP., NYTRALETE AGGREGATE DIV. 377 ORDER Pursuant to Section-10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, New York Trap Rock Corporation, Nytralete Aggregate Division, Eddyville, ,New York, its, officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening or otherwise interfering with, restraining,, or coercing employees in the exercise of the rights guaranteed under Sec- tion 7 of the Act. (b) Discouraging activity having for its purpose the, submission, presentation, and processing of grievances pursuant to the terms of a a collective-bargaining agreement, by ' discharging, refusing to rein- state, or in any other manner discriminating against any of. its em- ployees in regard to their hire or tenure of employment, or any term or condition of employment. - (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. 2. Take the following affirmative action which the Board, finds will effectuate the policies of the Act`: (a) Offer to Nicholas A. Roberti, immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of Respond- ,ent's, discrimination against him as set forth in the section of this Decision and Order entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. - (c) Preserve and, upon request, make available to the Board or its ,agents, for examination and copying, all payroll records, social se- curity payment records, timecards,' personnel records and reports, and 378 , DECISIONS OF. NATIONAL .LABOR 'RELATIONS' BOARD all other records necessary to analyze the amount of backpay due and all other rights under the terms of this Order. (d) Post at its plant in Eddydille, New York, copies of the at- tached notice marked "Appendix." I Copies of said notice, to be fur- nished by the Regional Director for Region 3, shall, after being duly signed by the Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 6'0 consecutive days thereafter, in conspicuous, places, including all places where notices to its employees are customarily posted.' Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 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 "a Decision and Order " the words "a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the' National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT threaten or otherwise interfere with, restrain, or coerce employees in the exercise of the 'rights guaranteed under Section 7 of the Act. WAVE WILL NOT discourage our employees' from- engaging in activity having for its purpose. the submission, presentation, and processing of grievances pursuant to the terms of a collective- bargaining agreement, by discharging, refusing to reinstate,, or in any other manner discriminating against any of our employees in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL offer to Nicholas A. Roberti immediate and full ,rein- statement to his former or substantially equivalent position, with- out prejudice to his seniority and other rights and privileges, and make him whole for any loss of pay he,may have suffered by, reason of the discrimination by us against him. WE WILL NOT, in 'any other manner, interfere with our em- ployees' rights guaranteed under Section 7 of the Act, except to the extent that, such rights may be affected by an agreement re- quiring membership in, a' labor organization, as , a condition , of N.Y.. TRAP, ROCK CORP., NYTRALETE AGGREGATE DIV. 379 employment, as -authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act-of 1959. NEW YORK TRAP ROCK CORPORATION, NYTRALETE AGGREGATE DIVISION, Employer. Dated---------------- By------------------------------------- (Representative ), (Title) NoTE.-We will notify the above-named employee if presently serv- ing in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Serv- ice Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted-for 60 consecutive days from the date of posting, and must not be altered, defaced, or,-covered by any other material. Employees may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York, Telephone No. TL 6-1782, if they have any question con- cerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION - STATEMENT OF THE CASE Upon a charge filed on December 9, 1963, by Nicholas A. Roberti, the Regional Director for Region 3 for the National Labor Relations Board, herein called the Board, issued a complaint on behalf of the General Counsel of the-Board on Jan- uary 30, 1964, alleging violations of Section 8(a) (3) and ( 1) of the National Labor Relations Act, as amended (29 U.S.C. Sec.' 151, et seq.), herein called the Act. In its duly filed answer the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher on March 11 , 1964, at Kingston, New York, where all parties - were represented by counsel and were afforded full opportunity to be heard, to present oral argument, and to file briefs with me. Briefs were filed by Respondent and the General Counsel. Upon consideration of the entire record in this case, including the briefs of the parties, and upon my observation of each witness appearing before me , I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT New York Trap Rock Corporation, Nytralete Aggregate Division, is a New York corporation maintaining its principal office , and place of business at, West Nyack, New York, and elsewhere in the State of New York conducts business including a plant at Eddyville, New York, where it is engaged _ in the manufacture , sale, and distribution of lightweight aggregate . In the course and conduct of its business operations Respondent purchases , transfers, and .delivers annually to its places of business in the State of New York, supplies and other goods and materials valued in excess of $50,000; of which supplies, goods, and materials valued in excess of $50,000, were transported to said places of business directly from States of the United States other than the State of New York. -Upon the foregoing conceded facts I find and conclude that Respondent is engaged in commerce within the mean- ing of Section 2 (6) and (7) of the Act. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED It is conceded that Local Unions 825, 825A, 825B, International Union of Operat- ing Engineers, AFL-CIO, individually and collectively herein called the Union, each are, and have been at all times material herein , a labor organization within the meaning of Section 2 (5) of the Act, and I so conclude and find. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The discharge of Nicholas Roberti Nicholas Roberti, an employee with 11/z years' tenure with Respondent and em- ployed as a front-end loader operator, was terminated following a heated discussion with Respondent Plant Manager Roy Reid under circumstances which the General Counsel alleges to constitute unlawful interference, restraint, and coercion, and as a result thereof unlawful discrimination. In substance the incident involves a visit of Plant Manager Reid to the boat marina owned and operated by Roberti's father. Roberti Senior, it appears, had complained to Respondent that dust blowing from Respondent's nearby aggregate manufacturing operations had from time to time settled on the surfaces of pleasure boats moored at the Roberti docks, to the grievous annoyance of both Roberti and the boatowners. Reid, by his visit, sought to exonerate Respondent (however successfully the record does not disclose) by the well-recognized expedient of point- ing elsewhere, in this instance to the nearby Callahan operations which also appears to have generated a considerable amount of dust in the area. However successful Reid may have been he departed and was escorted to his car by employee Nicholas Roberti who had been present at the conversation between Reid and his father. While walking to the car Roberti initiated a discussion involving job posting and seniority rights among employees, asking Reid, "What about the jobs being gov- erned by seniority. Why weren't they being governed by seniority?" Whereupon Reid heatedly replied. "Listen you guinea, you son of a b-, I'm running this job not you or the union. If you don't like it here you can leave." Whereupon Roberti replied, "I might be a guinea son of a b-, but its better than being a liar." Reid then told Roberti not to report to work until further notice and departed the scene., Reid immediately reported the incident to Union Shop Steward Victor Ricketson, stating that because Roberti had called him a "goddamn liar" he had told him not to report to work. The matter was then referred by Ricketson to Union Representa- tive McArdle who unsuccessfully intervened in Roberti's behalf.2 Roberti has not since been employed by Respondent. Roberti's credited description of events which transpired during his employment with Respondent provides significant backdrop to his stormy departure. Roberti, in effect, described himself as being constantly vigilant to protect the employment rights which he deemed to be his by virtue of his tenure and his membership in the union representing him. While at no time is there evidence that either Business Representative McArdle or Shop Steward Ricketson was lax in the performance of their respective duties in this respect Roberti provided ample assistance to them, whether or not they knew or approved of it. Thus Roberti on a number of occasions objected to the fact that when called in for an emergency job he was not given the 3-hour call-in pay agreed upon in the contract. On the occasions when he com- plained of this the matter was rectified by Respondent who told him on each occasion that the failure was an oversight. Earlier, beginning in July 1962, Roberti had learned that his machine, a front-end loader, was being operated by truckdrivers at night when he was at home, in what he believed to be a manner contrary to the contract provisions. On four occasions he went to Plant Manager Reid to complain and on each occasion was assured the matter would be straightened out. Roberti did not indicate if the matter was actually adjusted on these occasions, nor did he indicate why this matter was not referred to the proper union officials in the first place. 1 The foregoing, as are substantially all my findings herein' unless stated otherwise, is based upon the credited testimony of Roberti. While Reid's testimony corroborates Roberti's account it attributes more colorful expletives to Roberti and does not include his own reference to Roberti 's ethnic and zoological background . I find it unnecessary to , rely upon Reid's version in this instance 2 The credited testimony of Ricketson and McArdle. N.Y. TRAP ROCK CORP., NYTRALETE AGGREGATE DIV. 381 In August 1963, Roberti while operating the front-end loader, sought, through Shop Steward Ricketson and Business Representative McArdle, to get an interpretation of the contract whereby he would be held entitled to a shovel operator's pay rate when he was engaged in loading trucks with his assigned equipment. This rate was refused him. Roberti stated, however, that he had already discussed this matter with management five or six times prior to referring it to the union officials. Roberti appears to have been particularly vigilant as to the posting of jobs. Thus, at an August 1963 union meeting, he registered a complaint that posting at the Respondent's plant was not being accomplished, having previously objected on this same subject to Plant Manager Reid in June 1963 and subsequently, and. finally on the occasion of his termination in October 1963. The June incident involved the rumor that a bulldozer was to be purchased and an employee named Roenkese, with 2 days less seniority than Roberti, was to be assigned to the newly acquired equipment. When Roberti pressed the point with management, Plant Manager Reid told him, "Listen, I am running this goddamn job. And not the Union." Actually, the purchase of the bulldozer was then merely in the "talking stage" and it was not actually purchased until 5 months thereafter, in November. By this time Roberti had been discharged .3 One final instance of Roberti's continuing brush with management was a reprimand by General Foreman Irving Tucker for taking too long to do an assigned job. Roberti immediately went to Plant Manager Reid, claiming that in the process of doing his assignment he understood he was required to stop and do certain cleanup jobs for men and that this was the delaying factor. The next time Tucker reprimanded him for the same sort of delay, Roberti informed him that he had cleared the whole procedure with Reid. Thereafter Roberti heard it rumored that Tucker was going to make an example of him, to which Tucker, when confronted by Roberti, replied that he had actually said he was going to make an example of "someone." There is no further evidence that reprisal of any sort was thereafter visited by Tucker upon either Roberti or any unidentified "someone." B. Analysis and conclusions Employee Roberti appears to have suffered not so much from Respondent's discrimination as from his own imprudence. General Counsel stated his position as to the real cause for Roberti's discharge as being an attempt to implement the contract and to protest regarding it, consulting on various occasions with Plant Manager Reid. Shop Steward Ricketson, on the .other hand, testifyng in behalf of the General Counsel, provided a more realistic appraisal of why Roberti was discharged. When asked if Plant Manager Reid's mention of Roberti's complaint was Reid's "reason why they took action against him," Ricketson conceded it had a part but, "basically, it was the thing that happened at the dock." Upon my evaluation of the whole record, and particularly Roberti's own testimony, I too, believe it was the "thing that happened at the dock"-Roberti's verbal altercation with Reid. Certainly it cannot be questioned that 'an employer may fire his employee for calling him a liar, regardless of the merits of the charge or of the provocation that gave rise to it. Indeed it is well settled that an employee may be discharged for any reason, valid or otherwise, so long as it is not for reasons proscribed by the Act. What inevitably complicates such situations, however, is the suspicion lurking in the background, as claimed here, that there is present an element of discrimination for engaging in concerted activities, thereby discouraging membership in a union, a violation of Section 8 (a) (3) of the Act. It goes without saying that Nicholas Roberti must have been a source of irritation to Respondent's management. No man who registered so many and repeated so many complaints could be otherwise. And in such a situation where all the employees were shown to be adequately represented, I am familiar with no principle governing the law of labor relations that would relegate to an individual with Roberti's propensities the functions of a one man band. Roberti was not the Union's spokesman nor its representative. Indeed the record shows the Union had two effective ones, McArdle and Ricketson. Roberti was simply intruding himself into a position not provided for by the scheme of representation 8 Roberti also testified that in June or July 1963 , he sought to file a grievance "on the matter" but Shop Steward Ricketson informed him that grievance forms were not available. 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD then in operation, and was attempting to substitute his judgment for that of his duly selected bargaining agent 4 Neithei does an employee's right to engage in concerted activities independently of his bargaining agent 5 carry with it the correlative right of being a complaining nuisance 6 Quite apart from the serious doubt that can be raised concerning the concerted nature of Roberti's solitary efforts, I am disposed to view his conduct, as Respondent appears to have viewed it, as a nuisance, and I so conclude and find But in any event I am persuaded that this continuing conduct and attitude, however much it provided a background symptom of Roberti's personality, was not the reason why he was discharged In short I conclude and find that Roberti, the complainer and nuisance that he obviously was, was discharged for the reason assigned in the record by himself, by Plant Manager Reid, and by Shop Steward Ricketson, namely that be called Reid a liar I accordingly recommend th tt so much of the complaint as relates to Roberti's discharge be dismissed C Interference, restraint, and coercion Independent of the Roberti incident it is also alleged that Respondent's Plant Manager Reid threatened an employee with reprisal if he consulted with or sought the aid and assistance of the Union regarding terms and conditions of employment Late in October 1963, Employee Henry Bunce was reprimanded by his foreman, Irving Tucker, for taking an excessive amount of time on his coffee break Shop Steward Ricketson appeared on the scene as the dispute raged and Foreman Tucker asked him "to straighten this guy out" Bunce's account of what then transpired follows Mr Tucker was using vile language on me, and I had said I don't want to take this crap from him Vic [Ricketson] said no I didn't Mr Reid came out and asked what this discussion was about There was the idea where Mr Tucker said he was always chasing me around I said we should bring this thing to a head Mr Reid agreed with nze I said I would like to have Henry McArdle, and Mr Reid said if I called Henry McArdle in on this it would be the sorriest day of my life I said to Vic [Ricketson] I wanted Mr McArdle to be brought in [Emphasis supplied ] According to Bunce the shop steward did not call Business Representative McArdle Shop Steward Vic Ricketson's version of the incident accords with Bunce's and describes more fully Reid's comments, thus, Henry Bunce said, "I would like to have Mr McArdle " Roy (Reid) said, "If you bring Mr McArdle up here it will be the sorriest thing you ever done " I don't believe he meant it the way it sounded Then Roy said to me, "For every petty thing that happens on that job, we have to call Mr McArdle Mr McArdle everything is Mr McArdle Every- time you have a petty grievance " He said, "These things should be settled right here on the job " Upon the foregoing I fail to see how Reid's remarks could reasonably be con- strued as interfering with, restraining, or coercing Bunce or any other employee in the exercise of their statutory rights To begin with Shop Steward Ricketson evaluated Reid's remark as not being meant the way it sounded And when, ac- cording to Bunce, he told Reid that his relationship with Tucker should be brought to a head, Reid agreed with him Under these circumstances it seems hardly worth the effort to dignify a plant manager's frustration over a minor coffee break dispute as a violation of the National Labor Relations Act I accordingly recommend that the allegation of a violation of Section 8(a) (1) be dismissed 7 RECOMMENDED ORDER It is recommended that the complaint herein be dismissed in its entirety I Pi ant Mlan iger Reid testified is ithout dispute that on one occasion Roberti sought to negotiate for himself i rite for operating his equipment that exceeded the rate provided for in the current contract FThc pro\iso to Ceetion 9(i) of the Set affords in employee such a right 6 Cf Stcains Roper Mfg Co 134 NLRB 172 7 Cf AvncricanGscetzng8 Corporation, 142 NLRB 283