John Hansen Materials & House Moving, Inc.

JOHN HANSEN MATERIALS & HOUSE MOVING, INC. 801 (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith 30 IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. x In the event that this Recommended Order is adopted by the Board, this provision shall be modified to iead • "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 effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL offer to Mancel E. Sinyard, Donald D. Goodwin, Michael F. Fox, E. H. Duke, and Donald E. Ryan immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their senior- ity or other rights and privileges and make each of them whole (with interest) for any loss of earnings they may have suffered as a result of the discrimina- tion against them. WE WILL NOT discriminate against any employee in regard to his hire or tenure of employment or any term or condition of employment, to discourage membership in International Association of Machinists and Aerospace Work- ers, AFL-CIO, or any other labor organization. WE WILL NOT coercively interrogate our employees with respect to their union activities or membership, or threaten our employees with reprisals for engaging in union activities, or tell our employees that we know who is attend- ing union meetings. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. All our employees are free to become or remain members of the above-named, or any other labor organization, or to refrain from such membership. BENDIX-WESTINGHOUSE AUTOMOTIVE AIR BRAKE CO., 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 his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia 30323, Tele- phone 526-5741. John Hansen Materials & House Moving, Inc. and Building Material and Dump Truck Drivers, Local 36, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 01-CA-6909. November 7. 1966 DECISION AND ORDER On July 1, 1966, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that the Respond- 161 NLRB No. 75. 264-133-67-vol 161-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent bad 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 attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and the General Counsel filed cross-exceptions, and a brief in support thereof and in answer to Respondent's exceptions. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. 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 Trial Examiner's Decision, the exceptions, cross-exceptions, and brief, and the entire record in this case and hereby adopts the findings,' con- clusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1 We agree with the Trial Examiner that Respondent discharged the nine employees involved herein, and we further agree that the discharges were grounded upon the union affiliation of the employees. That the discharges were so motivated is shown by the timing of the discharges with respect to Respondent's efforts to terminate its bargaining relation- ship with the Unions, by the absence of any other plausible explanation for the mass discharge, and by the various statements made to the discharged employees by Respondent in discussions about their reinstatement. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, herein the Act, was heard before Trial Examiner William E. Spencer in San Diego, Cali- fornia, on April 19, 1966, pursuant to due notice . The complaint, issued Decem- ber 30, 1965, pursuant to a charge filed on September 3, 1965, by the Union herein, alleged, and Respondent in its duly filed answer denied, that Respondent discharged and thereafter refused to reinstate nine named employees because of their union and concerted activities , thereby violating Section 8(a)(1) and (3) of the Act. Upon the entire record in the case, my observation of witnesses appearing before me, and consideration of the briefs filed with me by the Respondent and the Charg- ing Party, respectively, I make the following: FINDINGS OF FACT 1. THE LABOR ORGANIZATIONS INVOLVED Building Material and Dump Truck Drivers, Local 36, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America , herein Local 36, and Laborers International Union of North America, AFL-CIO, Local 89, herein Local 89 (jointly called the Unions ), are, each of them, labor organizations within the meaning of the Act. 11. JURISDICTION The Respondent, John Hansen Materials & House Moving, Inc., hereinafter Han- sen, a California corporation with its principal office and place of business in San Diego, California, at all times material has been engaged in the business of house moving and house wrecking and the retail sale of salvaged building materials. In the course and conduct of its business during the 12-month period ending Septem- JOHN HANSEN MATERIALS & HOUSE MOVING, INC. 803 her 1964, it provided services valued in excess of $324,000, made retail sales valued in excess of $158,000, and purchased and received goods valued at approximately $6,000 directly from a supplier located outside the State of California. Allen J. Riggs, d/b/a Riggs Construction Co., hereinafter Riggs, with its princi- pal office and place of business in San Diego, California, at all material times has been an employer engaged in the business of house moving, house wrecking, and excavation for individual homeowners. During the calendar year 1964, in the course and conduct of its business it provided services valued in excess of $123,000. It is the theory of the General Counsel that at all material times Hansen and Riggs were joint employers for purposes of collective bargaining, and as such joint employ- ers bargained with and entered into contracts with the Unions herein, and therefore that their combined gross revenues may be counted in applying the Board's formula for asserting jurisdiction. Their combined revenues do in fact satisfy the Board's retail formula and I am further convinced that, as alleged in the complaint, at times material to the issue of jurisdiction they bargained jointly with the Unions. Beginning about 1957, according to the undisputed and credible testimony of John S. Lyons, business agent and president of Local 36, there was collective bar- gaining between the Unions and an association of house movers. The number of joint employers in the association dwindled, due to death, changes in ownership, etc., until in about 1960 there were only three left, Hansen, Riggs, and William Ander- son. Negotiations with these three, on a joint basis, have been continuous and in the last 4 years two contracts have been negotiated. There has been no formal organiza- tion of the employers, no written bylaws, no commitment in writing to be bound by whatever agreement is consummated, but the employers through their representa- tives have participated jointly in negotiations and have executed the same or identi- cal agreements. The agreement of 1962 of 1 year's duration was signed jointly by representatives of Hansen, Riggs, and Anderson and representatives of the respec- tive contracting unions. In 1963, the Unions, through letters served on Anderson, Hansen, and Riggs, moved to reopen the contract, and negotiations ensued with the three employers in attendance. The terms of the 1962 contract remained in effect and a memorandum of understanding was executed by the three employers and the Unions. The negotiations ultimately resulted in a new contract with expiration date of May 1, 1965. This contract was executed individually by Anderson, Riggs, and Hansen, but it was Lyon's undisputed testimony that all three employers participated in the negotiations and signed identical contracts. In October 1964, Hansen and Riggs through their attorney, Dierdorff, served notice on the Unions terminating the 1964-65 agreement, and in April 1965, there were meetings of the contracting parties in which discontent was expressed by the employers because of competitive conditions caused by the nonunion house movers operating in the San Diego area. By letter dated April 29, 1965, signed jointly by Hansen and Riggs, the Unions were advised that Hansen and Riggs were terminating the 1964-65 agreement. Andeison executed a contract about May 15. From the foregoing it is clear that up to the termination date of the 1964-65 con- tract, and for years prior thereto, Hansen and Riggs acted jointly in negotiating agreements with the Unions, and at no time served notice on the Unions that in the future they would bargain individually rather than jointly. The fact that what was once a multiemployer unit of numerous employers dwindled until the number of joint employers was only three-Anderson, Riggs, and Hansen-in no way released the remaining three employers of their obligations as joint employers. A multiem- ployer unit is not determined by how many employers are represented jointly in col- lective bargaining so long as the number remains at two or more. Nor does the fact that the Unions appear to have negotiated a contract with Anderson individually, after Hansen and Riggs had acted to terminate the existing contract, affect Hansen's and Riggs' continuing status as joint employers. Accordingly, I am convinced and find that at all material times Hansen and Riggs were joint employers for purposes of collective bargaining and that their combined gross revenues may be counted in applying the Board's formula for asserting jurisdiction. III. THE UNFAIR LABOR PRACTICES A. The issues Did Respondent discharge its employees on May 4, 1965, in order to evade and escape its bargaining obligations; did it thereafter make bona fide offers of rein- statement to its discharged employees. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The discharges For a period dating back some 10 or more years, the Unions have represented Respondent's employees in collective bargaining and at least up until May 1, 1965, bargaining contracts covering these employees were in force. On April 29, 1965, Respondent notified the Unions that it was terminating the then existing contract on its expiration date of April 30. On the morning of May 4, a Tuesday, Respondent's employees reported for work assignments as was their custom and instead of being assigned work were told to pick up their checks. It was their credited testimony that always previously, except on holidays, they received their checks on Fridays. Employee Edward Thornton testified, without contradiction, that this was the custom in the industry and that the direction to pick up their checks on a Tuesday , unaccompanied by explanation, sig- nified discharge . Respondent's attorney, in argument , denied that the men were dis- charged and stated that there was no work available for the employees on May 4 and that was the reason they were paid off, but he presented no witnesses to testify to this effect. Thornton testified credibly and without contradiction that there was work available for the employees on this occasion. On the basis of the credible and undisputed testimony of the General Counsel's witnesses, I find that on the morning of May 4, 1965 , the Respondent discharged all its employees. I further find that it discharged them to evade and escape its continu- ing obligation to bargain with the Unions. That it had such a continuing obligation is beyond question for assuming , arguendo, that its termination notice of its most recent contract was effective, it did not extinguish Respondent's continuing duty to recognize and bargain with its employees ' representatives. Respondent's counsel, apparently arguing in justification of the discharges , stated that "in accordance with the notice that went out to the Union, we were no longer obligated under the Union contract." Again apparently, he was arguing that after the termination of the con- tract, Respondent was no longer obligated to employ union help . In fact, however, Respondent was no more justified in discharging its employees because they were "union" after the termination of the contract-if, in fact, it was terminated-than it was before, since their protection against discrimination existed independently of a union contract or the exercise of bargaining rights. It is further observed that we have no lockout problem here, inasmuch as none is asserted as a defense to the dis- charges, and such a defense would be specious in any event since no impasse in bar- gaining had been reached and, in fact, bargaining appears to have come to a stand- still with Respondent's announcement that it was terminating the union contract. There is some intimation in the testimony that Respondent , because of the Unions' insistence on a continuation of bargaining , chose to term its union employees on stoke, but there is no evidence whatever to support such a contention. Respondent's discharge of its employees on May 4, 1965, in order to evade and escape its bargaining obligations , constituted a violation of Section 8(a)(1) and (3) of the Act.' C The reinstatement offers Following the discharges, the Respondent sought out some and perhaps all of its former employees and made overtures to them concerning their return to Respond- ent's employ . Some of these offers related to enterprises of the Respondent other than that on which they were employed at the time of their discharges. Such offers as related to their old jobs were conditioned on their giving up certain privileges under the union contract. A few accepted the offer and returned to work tor Respondent on an "on and off" basis . Others refused . Employee Walker testified that he refused reinstatement except under a union contract. Employee Arellano accepted reinstatement but worked only a short time, quitting, according to his testimony, after checking with the Union . Thornton, the most articulate of the employees, tes- tified that Hansen, Respondent's owner, in approaching him about reinstatement, urged him to drop out of the Union in order to "teach the union a lesson" and return to work as a nonunion employee. Walker testified that Respondent's foreman, Ronnie Denker, told him that to return to work he would "have to get out of the Union." Employee Arthur Whittle testified that Foreman Denker asked him if he would go back to work "and forget the Union." Arellano, of Mexican extraction, with obvious language difficulties, testified that Hansen saw him about going back to The following employees were discharged on that date Juan G. Arellano , Joe Estud,ilo. Jose Lopez, Alfred R McClure, Edward Thornton, Ben Schmidt, Harvey Walker, Norman G. Wallace, and Jack Whittle. JOHN HANSEN MATERIALS & HOUSE MOVING, INC. 805 work and wanted him "to drop the Union ." The testimony of all these witnesses was undisputed and I see no reason not to credit it. From it, it appears that such offers of reinstatement as were made were conditioned on a renunciation of union representation. This would be consistent with Respondent's act in discharging its employees in order to evade and escape its bargaining obligations, for unless it could bring them back into its employ without union representation it would have gained nothing by its discharge action. Further evidence of Respondent 's motive in ,evading its bargaining obligations , is seen in its conditioning its offers of reinstate- ment on its discharged employees forfeiting some of the privileges they enjoyed under a union contract, a unilateral act of changing or modifying working condi- tions without reference to their bargaining representatives. Upon the entire evidence I conclude and find that at no time since their discharge on May 4 have Respondent's employees received a bona fide offer of reinstatement. Under such circumstances Walker's testimony that he would not have accepted rein- statement except under a union contract is immaterial ; his further testimony that he was told that he would have to get out of the Union in order to be reinstated shows that he received no bona fide offer. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section II, 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent discharged its employees because of their union and concerted activities, and to evade its bargaining obligations, I shall recommend that the Respondent offer Juan G. Arellano, Joe Estudillo, Jose Lopez, Alfred R. McClure, Edward Thornton, Ben Schmidt, Harvey Walker, Norman G. Wallace, and Jack Whittle immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing if necessary employees hired subsequent to their respective discharges, and make them whole for any loss of pay suffered because ,of the discrimination against them, by payment to them of a sum of money equal to that which they normally would have been paid in Respondent's employ from the date of the discharge to the date of Respondent's offer of reinstatement, less their net earnings, if any, during said period. Loss of pay under the backpay order recommended above shall be computed upon a quarterly basis in the manner estab- lished by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent's violations are of such character and scope that a broad cease and desist order is required. 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. Hansen and Riggs are, and have been at all times material, Employers within the meaning of Section 2(2) of the Act, engaged in commerce and a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. By discharging its employees Juan G. Arellano, Joe Estudillo, Jose Lopez, Alfred R. McClure, Edward Thornton, Ben Schmidt, Harvey Walker, Norman G. Wallace, and Jack Whittle because of their union and concerted activities, and to evade its bargaining obligations, thereby discouraging membership in a labor organization, Respondent Hansen has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 4. ,Because of the aforesaid discharges, the Respondent has engaged in and is engaging,in unfair labor, practices within the meaning of'Section'8(a)(1.)• of the Act. 5. The' aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the Act, as amended, it is hereby ordered that Respondent, John Hansen Materials & House Moving, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Unions, or in any other labor organization, by discriminating against any of its employees in regard to their hire or tenure of employment, or in any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the right to self-organization, to form labor organizations, to join or assist the Unions, or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all'such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Juan G. Arellano, Joe Estudillo, Jose Lopez, Alfred R. McClure. Edward Thornton, Ben Schmidt, Harvey Walker, Norman G. Wallace, and Jack Whittle immediate and full reinstatement to their former or substantially equivalent positions and make them whole for any loss of pay they may have suffered as a result of the discrimination against them, in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recom- mended Order. (c) Notify Juan G. Arellano, Joe Estudillo, Jose Lopez, Alfred R. McClure, Edward Thornton, Ben Schmidt, Harvey Walker, Norman G. Wallace, and Jack Whittle if presently serving in the Armed Forces of the United States of their rights of reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its office in San Diego, California, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 21, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and maintained by it for 60 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 Region 21, in writing, within-20 days from receipt of this Decision, what steps it has taken to comply herewith .3 In the event that this Recommended Order is 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 is 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." 8In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said regional Director , in wilting, 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 effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Building Material and Dump Truck Drivers, Local 36, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America and Laborers International Union of CORNWELL COMPANY, INC. 807 North America, AFL-CIO, Local 89, or any other labor organization, by discharging any of our employees because of their concerted or union activities or in any other manner discriminate in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization , to form, join, or assist the above-named Unions, or any other labor organization, to bargain collectively through representatives of their own choosing , or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer immediate and full reinstatement to Juan G . Arellano, Joe Estudillo, Jose Lopez, Alfred R. McClure, Edward Thornton, Ben Schmidt, Harvey Walker, Norman G. Wallace, and Jack Whittle and make them whole for any loss of pay they may have suffered because of the discrimination against them. 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, as amended , after discharge from the Armed Forces. All of our employees are free to become , remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. We will not discriminate in regard to hire or tenure of employment , or any term or con- dition of employment , against any employee because of membership in or activity on behalf of any labor organization. JOHN HANSEN MATERIALS & HOUSE MOVING, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5229. Cornwell Company, Inc. and United Furniture Workers of America, AFL-CIO. Case 25-CA-243f. November 7, 1966 DECISION AND ORDER On July 26, 1966, Trial Examiner Maurice S. Bush issued his Decision in this proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint 1 and recommended dismissal of those allegations. Thereafter, Respondent filed excep- tions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. 1 As amended at the hearing. 161 NLRB No. 72.