Paul Hardeman, Inc.

846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and related work, including stripping,• opaquing, and platemaking to employees who are represented by us, rather than to employees who are represented by International Typographical Union or its Local No. 11. INTERNATIONAL PRINTING PRESSMEN AND ASSISTANTS' UNION OF NORTH AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) MEMPHIS NEWSPAPER PRINTING PRESSMEN'S UNION, LOCAL No. 24, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) FRAZIER MOORE This notice must remain posted for 60 consecutive days after 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, 746 Federal Office Building, 167 North Main Street , Memphis, Tennessee, Telephone No. 534- 3161 , if they have any question concerning this notice or compliance with its provisions. Paul Hardeman, Inc.'and Wesley Warren, Paul Ozen, Steve Ozen. Cases Nos. 23-CA-18312-1, 23-CA-183 -3, and 23-CA-1832-3. Jan- uary 8, 1965 DECISION AND ORDER On October 29, 1964, Trial Examiner C. W. Whittemore issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain' affirmative action,, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent, filed exceptions to the Decision and a supporting brief, and the General Counsel 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 Mem- bers Fanning and Brown]. 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 Decision, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- 1'50 NLRB No. 77. PAUL HARDEMAN; INC. 847 inendecl1by'the Trial Examiner and orders that' Respondent, Paul Hardeinan,, Ilic.,'its officers, agents, successors,, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' i The Board includes as part of its Order the "Armed Forces" provision now appearing in the notice attached to the Trial Examiner's Decision. TRIAL EXAMINER'S DECISION STATEMENT, 017 THE CASE Upon charges filed by the above-named individuals on June 9, 1964, the General Counsel of the National Labor Relations Board issued, on July 29, 1964, his consoli- dated complaint including the,above-entitled cases.' The complaint alleges that the Respondent Employer, has engaged in unfair, labor practices in violation of Section 8(a) (1) and (3) of the National Labor Relations Act, as amended. Pursuant to notice, a hearing was held in 'Jasper, Texas, on September 22; 1964, before Trial Examiner C. W. Whittemore. ' At the opening of the hearing counsel for the Respondent submitted a copy of his answer to the complaint, the original of which, General Counsel said he understood, had been received at the Regional Office the preceding day, a week after expiration of an already extended filing date. General Counsel moved for summary judgment on the, pleadings, pursuant to Sections 102.20 and 102.21 of the Board's Rules and Regu- lations, Series 8, as amended. I held my ruling in abeyance, but permitted the answer to be filed and the Respondent to present its case. The motion for summary judgment is now denied. The answer, as filed, denies the commission of the alleged unfair labor practices. At the hearing General Counsel and the Respondent were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from General Counsel and the Respondent. Upon the record thus made„and from his observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Paul Hardeman, Inc., is a Michigan corporation. At all times material herein it has been engaged as general contractor in the construction of the Sam Rayburn Dam and power plant, with its office at Jasper, Texas. This is the only facility of the Respondent involved in this proceeding. During the year preceding issuance of the 'complaint, the Respondent performed services valued at more than $500,000. Services valued at more than $50,000 were performed by it in States other than the State'of Texas. During the same period it purchased goods and materials valued at more than $50,000 which were transported directly to it from points outside the State of Texas. The'complaint alleges, the answer admits, and it is here found that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Construction and General Laborers Local 853 is a labor organization representing certain employees of the Respondent at its Jasper jobsite'. ' III .' THE UNFAIR LABOR PRACTICES A. Setting and major issues The sole issue involved here is the alleged unlawful discharge on May 25 and 26, 1964, ,of three laborers, the charging,individuals listed in the title. General Counsel i The same individuals, also on June 9, filed charges against Construction and General Laborers Local 853, in Cases Nos 23-CB-549-1, 549-2, and 549-3 The consolidated complaint, as issued by General Counsel, included these cases. At the opening of the hear- ing, however, General CounseLwithdrew all allegations of the complaint against the said labor, organization, leaving,only,the cases noted above. i ' 775-692-65=vol. 150-55 , 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contends that they were dismissed because they were engaging in concerted protected activities for their mutual aid or protection . The Respondent denies this allegation. Its answer, however, advances no specific affirmative reason for the admitted discharge of the individuals. B. The discharges 1. Relevant facts There is no real dispute as to the events immediately preceding the discharges, all of which were effected upon the decision and order , according to his own testimony, of Jack Mounts, labor superintendent. During the lunch period on May 25 Warren , the two Ozen brothers, and a number of other employees met for discussion as to what could be done about retroactive pay which they had expected to receive in their most recent paycheck . In short explana- tion, it appears that a preceding contract between Local 853 and the Respondent had expired on March 31 , 1964, and that a new one was not signed until May 11. Testi- mony indicated that the laborers had expected that , upon signing of the contract, a pay increase would be retroactive to the date of the previous contract's expiration, a not uncommon arrangement. The local, however, had signed a contract which provided for no retroactive pay beyond the actual date of the new contract's execution. Warren, a union steward, led the discussion among his fellow laborers , the Ozen brothers standing nearby. As the end of the lunch period approached, Superintendent Mounts came up to them, accompanied by Sam Caruso, a business representative of the local . According to the latter's testimony , as a witness for the Company, "Warren and the Ozen brothers approached me ... on this retroactive pay, [claiming ] that it was unjust, I was letting them down and [they ] didn't see why they couldn't get it." Mounts then interrupted the argument , and told the three "you heard what the man said, there is no retroactive pay. Either you go to work or go up the hill and get your money." All three, as well as others, returned to their work as usual. Late that afternoon the Ozen brothers were fired , and Warren was discharged the next day . The Ozens were given discharge slips by General Foreman Sexton, the slips merely stating thereon that the reason for termination was "unsatisfactory." It is undisputed that Sexton told them that he hated to "do it," but had to take orders from "above." He told Paul, especially, that he "hated" his task since he had assured the employee that he would have a job with him as long- as he was general foreman. Warren was given a similar slip by his foreman , Lloyd Hanks. It is undisputed that Hanks told Warren that he was "sorry ," remarking that they had worked together ever since he had been made foreman, but he had to follow orders. It is also undis- puted that Warren, who was on "premium" pay, had often been consulted by his foreman regarding work to be performed. 2. Conclusions The Respondent offered no substantial evidence tending to rebut the testimony of the three laborers as to the events leading up to the discharges. The first witness called by the Respondent was Union Representative Caruso. Coming from the purported representative of the employees , Caruso's testimony is most curious. In the first place, he stressed a claim that the three argued with him "about 5 minutes past time of work ," thus voluntarily setting up a situation favorable to a contention by Mounts that the employees were fired for not returning to their jobs on time. In the second place , Caruso candidly admitted , after stating that it was his "job to keep my members on the job if possible," that he made no effort to find out from Mounts what the basis might be for the "unsatisfactory " discharge slips. When Mounts testified , however, the indicated direction of the defense was altered. The superintendent flatly denied that the meeting of May 25 had anything to do with his decision to order the discharges . Instead, he testified vaguely and in general terms that for varying periods he had been dissatisfied with the work performance of each of the three men. I can place no reliance upon any part of Mounts' testimony . Even if his plainly manifested discomfiture as a witness be discounted, he offered no explanation for the mathematical improbability that of the hundreds of laborers on the job , he should suddenly select for an "unsatisfactory" discharge the same three individuals identified by Caruso as having "argued" impolitely with him about their backpay. The remarkable coincidence, plus Caruso's callous treatment of his own "members," suggest that by withdrawing the complaint against the Union the General Counsel restricted the presentation of evidence to that pertinent only to Mounts ' action. In any event, I am convinced and find that Warren and the two Ozen brothers were PAUL HARDEMAN, INC. 849 discharged because of their vocal efforts to obtain , or to learn why they had not obtained, certain retroactive pay they believed due them . Such activities were con- certed and protected,. and within the scope of union activities. It is therefore found that the discharges violated both Section 8 (a) (1) and (3) of the Act: interference , restraint, and coercion in the exercise of rights guaranteed by Section 7 of the Act, as well as discrimination in employment to discourage union activities. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices I will recom- mend that it cease and desist therefrom and take certain affirmative action to effec- tuate the policies of the Act. It will be recommended that the Respondent offer employees Wesley Warren and Paul and Steve Ozen immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrimination against them, by payment to each of them of a sum of money equal to that which he would normally have earned absent the discrimination, and in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the serious nature of the Respondent's unfair labor practices it will be recommended that it cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Construction and General Laborers Local 853 is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating as to the tenure of employment of employees , to discourage activity on behalf of the above-named labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3 ) of the Act. 3. By interfering with , restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting con= merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Paul Hardeman , Inc., its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in, and activity on behalf of , Construction and Gen- eral Laborers Local 853, or in any other labor organization, by discharging, laying off, refusing to reinstate , or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining , or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer Wesley Warren and Paul and Steve Ozen immediate and full reinstate- ment to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings suffered by them as a result of the discrimination against them, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying , all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to determine the amounts of backpay due. 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its jobsite at Jasper, Texas, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 23, shall, after being duly signed by the Respondent's representative, be posted by it 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the date of the service of this Trial Examiner's Decision, what steps it has taken to comply herewith.3 2In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 3 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to conduct our labor relations in compliance with the National Labor Relations Act, as amended, we notify you that: WE WILL NOT unlawfully discourage you from being members of or active on behalf of Construction and General Laborers Local 853, or any other union. WE WILL NOT violate any of the rights you have under the National Labor Relations Act to join a union of your own choice or not to engage in union activities. WE WILL offer reinstatement to Wesley Warren and Paul and Steve Ozen, and make them whole for any loss of pay caused by our discrimination against them. PAUL HARDEMAN, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their 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. 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, 6617 Fed- eral Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol 8-0611, Extension 4271, if they have any question concerning this notice or compli- ance with its provisions. Mose Franck Heating and Air Conditioning, Inc. and United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 522, AFL-CIO. Case No. 9-CA-3086. Janu- ary 8, 1965 DECISION AND ORDER On October 23, 1964, Trial Examiner Reeves R. Hilton issued his Decision in the above-entitled proceeding, finding that the Respond- 150 NLRB No. 73.