Harry F. Berggren & Sons, Inc.

HARRY F. BERGGREN & SONS, INC. Harry F. Berggren & Sons, Inc., and Laborers' Local Union No. 880, affiliated with Laborers' International Union of North America , AFL-CIO. Cases 17-CA-3002 and 17-CA-3096. June 14, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On March 22, 1967, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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 Trial Examiner's Decision and a supporting brief. The General Counsel filed cross-exceptions to the Trial Examiner's Decision and a supporting brief. 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. 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modification.' We agree with the General Counsel that in accord with our recent Decision in Bilyeu Motor Corp., 161 NLRB 982, the policies of the Act will best be effectuated if the notice which Respondent is required to sign and post, and which informs the employees of their rights, how those rights were violated, and by what process they have been upheld, is expressed in simple and readily understandable language as set forth in the attached Appendix. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Harry F. Berggren & Sons, Inc., Scottsbluff, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 353 Substitute the attached Appendix for the Appendix set forth in the Trial Examiner's Decision. ' Member Zagoria would find the secret ballot poll of the employees, in all the circumstances, not violative of the Act. 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 our employees that: After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the Act and has ordered us to post this notice and to keep our word about what we say in this notice. WE WILL NOT hold unlawful elections to see if you want a union. WE WILL NOT fire you because you join a union or favor a union. Since the Board found that we violated the law when we fired Joseph Perez, Isidro Rodriguez, Pedro Rodriguez, Tiofilo Ramirez, and Tony Lopez over the Union, WE WILL offer them their old jobs back and give them backpay. You are all free to become or remain members of Laborers' Local Union No. 880, and we won't punish you in any way if you do. HARRY F. BERGGREN& SONS, 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. No other material relative to this matter shall be posted during this period. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106 , Telephone FR4-7000. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled consolidated proceedings was held before me, on January 23 and 24, 1967, at Scottsbluff, Nebraska, on separate complaints of the General Counsel against Harry F. Berggren & Sons, Inc., herein called the Respondent or the Company. The charges were filed on 165 NLRB No. 52 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 24, 1966, and December 15, 1966, and the complaints are dated October 31, 1966, and January 11, 1967, respectively. The issues are whether the Respondent violated Section 8(a)(1) and (3) of the Act. Briefs were filed after the close of the hearing by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Harry F. Berggren & Sons, Inc., is a Nebraska corporation engaged in the paving of roads, with its principal place of business at Scottsbluff, Nebraska. During the past calendar year it purchased materials for use in the conduct of its business valued in excess of $50,000 directly from sources located outside the State of Nebraska and performed services valued in excess of $50,000 outside the State of Nebraska. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Laborers' Local Union No. 880, affiliated with Laborers' International Union of North America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the statute. III. THE UNFAIR LABOR PRACTICES This proceeding arose from an organizational campaign carried on by Laborers' Local Union No. 880 in the city of Scottsbluff in the summer of 1966. On July 23 Simmons, the Union's business representative, gave a copy of his standard area agreement to Mr. Jerry Berggren, president of the Company. The wage scale for laborers set out in the proposed contract is higher than the wages paid by this Company to its laborers. Berggren arranged for a local minister to conduct a secret election among over 30 of his employees on August 15. It was held on the company premises, the question put to them in writing was whether they wished "to be represented by union," and the vote was seven in favor and the rest against union representa- tion. Berggren spoke to the employees before the election for 4 or 5 minutes. According to the uncontradicted and credited testimony of Joseph Perez, a laborer present, among other things Berggren "said that the air line strike would take two or three years to make up what they had lost in the strike. He also said to us his company had never been picketed nor lost a day's work. He also said it would be a hard time for us to strike, to do something like this because of payments and then he told us he was going to conduct an election to see whether his employees wanted to be represented by the union." The next day, August 16, the Respondent filed a representation election petition by letter with the Board's Regional Office. During the week ending Saturday, August 27, the Union's agents appeared several times at one of the Company's job projects, distributing union handbills and soliciting signatures to authorization cards. That weekend six laborers in the crew of about nine who were on that particular job were discharged, according to the complaint; the Respondent contends that they quit. The complaint alleges that the election held by the Company constituted illegal interrogation of its employees in violation of Section 8(a)(1) of the Act, and that the discharge of the six men was motivated by an intent to stop the self-organizational activities, unfair labor practices within the meaning of Section 8(a)(3). The Respondent denies the commission of any unfair labor practices. There is a direct question of credibility to be resolved. One of the six men who ceased work for the Respondent on August 27 did not appear at the hearing. The remaining five-all named in the complaint-told a consistent story of advising the foreman on the job that they wished to have the afternoon off; the supervisor-Claude Richards- testified at odds with them. The job at which these events occurred, involving repaving of a street near St. Mary's Hospital in the city, had been in progress 2 weeks and there was still several weeks of work to be performed. It consisted of restoring the street and sidewalks with poured concrete that arrived at the site in ready-mixed trucks from a cement supplier. There were eight laborers-some also doing cement finishing-in the crew under Richards at the time Things were taking their normal course all morning, according to the testimony of Richards, until: A. I would say a quarter to 12. We were finished dumping and striking off the first strike-off. I would say, at 10 after 12. The boys throwed down their tools and headed for the pickup. Q. What do you mean, headed for the pickup? A. Well, it was, I would say, 20 or 30 feet away from where we were working because I had my radio on in case I received a message from the office or a superintendent or the president of the Company. Q. What happened then, if anything? A. They passed out the cards and I asked what they were doing and they said, "We are quitting," and I said, "Well, what can I do, I can't hold you." And they just walked off the job and left me there with all the tools scattered for better than a full block and this concrete unfinished. On cross-examination Richards varied his testimony somewhat. "Isidro was the main one. He said,'I'm quitting this afternoon.' Lopez came up and said, `We are, too,' and that was the end of it. They were the only two had told me they were quitting, but they all went together. They was the spokesmen for these other fellows." Richards went on to say that of the total 500 feet of concrete that had been poured that morning, 300 feet remained.to be finished, and that to compensate for the work not performed by the six men who left, he had to work 2 to 2-1/2 hours himself to complete it. Of the six men involved, five returned to work the following Monday morning on schedule. Three-Tiofilo Ramirez, Isidro Rodriguez, and Pedro Rodriquez- appeared directly at the same St. Mary's Hospital job. There, Tiofilo Ramirez was told by Jerry Berggren, "No use you being here; you quit Saturday." To Isidro Rodriquez and Pedro Rodriguez, Foreman Claude Richards said: . the guys who left the job Saturday afternoon, they had to go talk to Jerry." The three proceeded from the job to the Company's downtown office. Tony Lopez went first to the Company's office in the -ity very early because he was sharing a ride with a new man who was first reporting for work and had to fill out a W-2 form. In the office, it was very early, he met Foreman Richards who told him he did not know whether Lopez would be permitted to work. "You left the job Saturday afternoon." Lopez asked what did Richards mean, and the foreman answered: "I don't know. You will have to talk to HARRY F. BERGGREN & SONS, INC. Jerry Berggren." Richards and the new man left the office and Lopez waited until Berggren arrived. At this point, according to Lopez ' uncontradicted testimony, Berggren said "we were discharged or off, I don't recall his exact words." The fifth man-Joseph Perez-presented himself early that morning at a place called Gering, where, according to his testimony, he had been told the previous Thursday or Friday to report on this Monday morning. Within minutes after he started work there, where the Company had a crew performing a street sealing job, Dale Nelson, a roving superintendent, arrived and told him he was not to work "because I had walked off the job Saturday." Nelson did not testify.' Notwithstanding these passing words of "discharge" from the employees in reference to the Monday morning events, the Respondent rests upon the testimony of Claude Richards to support its positive defense that all of the men quit. Counsel for the Company made clear at the hearing its position is that the men were not discharged, but chose themselves to terminate their employment.' In any event, it is clear they all returned for work as usual the next workday, and the Respondent refused to permit them to work. Against the testimony of Richards must be weighed that of the employees. Perez, who had been employed for about a month, testified that about noon on Saturday he said to Richards: "We would like the afternoon off," and that Richards replied "It's up to you." Ramirez, 6 years an employee of the Company, said he told Richards: "I had some bills to pay, that I wanted Saturday afternoon off ... he said to make my time out and I could leave,. . . he said, `I'll see you Monday."' According to Isidro Rodriguez, who had worked 3 years: "I told Claude about 11 o'clock that after all the concrete was poured, I was going to take off, which I worked, I guess, about, maybe, 10 minutes, 15 minutes after 12 to get done. He said it was all right. When it was done, I went. He said it was all right " Tony Lopez had been hired 3 or 4 weeks earlier; he testified: "The job was going to be finished for that day at noon so that's when I signed my card my time card and left." He added Richards was near him and said nothing. And finally, Pedro Rodriguez, who had also been hired only 2 or 3 weeks before: "I asked him if I can go home and he said ... `It's up to you if you want to go home,' so I filled out my card and go home." According to each of these men there was very little, if any, work to be done; no concrete is ever delivered to a job except during the morning on Saturdays. There were one or two laborers who remained and continued whatever work was left with the foreman. It is a normal practice on these jobs for the men to fill in their own timecards to record the hours worked; these are kept in a small pickup truck which Richards drives. In the usual way, the men went to the truck that day and filled in their time. It is also the practice that when the men have so noted their time, the foreman checks the cards for accuracy and initials each one. Richards did this that day also; he added no special notation to indicate any departure from the norm. I credit the employees. There is simply no rational explanation of why six men should, at the same moment, i The last laborer who, according to Foreman Richards, was working on the St Mary's crew on Saturday morning and quit was Julio Villaneuva He did not appear at the hearing, and therefore there is no evidence as to whether he ever returned to the Company In these circumstances, I shall recommend dismissal of the complaint with respect to Villaneuva 355 simultaneously decide to abandon their employment. This was the height of the season for them, the summertime. The very project to which they were assigned had several weeks of work ahead, and they were not skilled craftsmen who could easily change jobs. Moreover, the return of each of them the very next workday at the regular hour belies any intent to resign. Richards said that only two of the six said anything at all on Saturday; he would have it that the other four left their tools in midworkday without saying a word. He called these two the "spokesmen" for the rest, but offered no basis that could have justified the conclusion on his part. Moreover, it is highly unlikely that Richards would not have noted something on the timecards of the men to explain what at the hearing he insisted was most unusual conduct by them. And despite his testimony that there was much work to be done, he did not, as he himself testified, ask the men to stay and help him at least finish the day's work if they were not going to return at all. It is virtually impossible to believe that a foreman in charge of work yet to be done would not say something in criticism to so large a group who, without explanation, walk away from a regular assignment. Simmons, the Union's business representative, appeared at the jobsite that morning; he stood near the foreman's pickup truck while the men filled out their timecards. Richards saw he was there. It may well be that, among other purposes the men had that morning, they planned to have lunch with Simmons and talk union matters with him. In his testimony, Isidro Rodriguez said Simmons was waiting for them "to go eat our lunch, and he was going to talk to us, I guess, when we was on our own time in other words." Any intention the men had to meet with the union agent that day, rather than point to an intent to leave the Respondent's employment, instead supports their testimony of merely asking for the afternoon off. There would have been little purpose in futhering a self-organizational campaign if their working conditions as a group were no longer going to be of concern to them. It is true that all these laborers regularly worked all day Saturdays, although the foreman also said that often the work ended as early as 3 o'clock It was also shown, however, that on occasion, although not very frequently, the men for one reason or another did request to be released Saturday afternoons, and that the Company agreed. I find that this was one such occasion, that the men did not tell Richards they were quitting their jobs, and that in fact Richards saw nothing wrong then in their leaving early. He gave them permission. I also find that the Respondent discharged them when they arrived for work on Monday. The complaint alleges that they were discharged to curb the organizational activities then being carried on by the Union, and I think the evidence in its totality amply supports the assertion. On August 15 the Respondent, with a copy of the Union's proposed contract in its hands and with knowledge that union wage rates would be higher than what it was paying laborers, polled the-employees to check on their union sentiments. Mr. Berggren's remarks to them before the voting made clear he was opposed to having a union in his Company. The employees voted heavily against the Union then. The next day the 2In its brief the Respondent seemingly abandoned the affirmative defense that the employees left voluntarily, and argues instead that the Respondent had a right to discharge the men Virtually all the case precedent cited in support deals with discharges for cause 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent filed a representation petition with the Labor Board. Its purpose could only have been to confirm rejection of the Union through unquestionable methods and preclude another election for a year. During the week of August 22 to 27, Simmons, assisted by David Bonilla, appeared at the St. Mary's jobsite several times and distributed union leaflets and authorization cards. Foreman Richards saw Bonilla speaking to the employees in the street and told him "to get off the site and talk to the men while they were off the job and not on company time." When Simmons was there, on August 24, Richards was also present and one employee even handed him one of the cards the business representative was distributing. The next day Simmons returned and collected four cards signed by laborers. He was back again on Saturday, about 11 o'clock, and waited near the pickup truck for the men to finish working. There is an inescapable inference as to what really happened . The Union persisted in its organizational campaign notwithstanding the adverse expression of opinion by the employees in the Company's election. This ran counter to the Respondent's desire and expectation. A substantial number of the laborers being so openingly solicited chanced to ask for Saturday afternoon off that same week, and, at the moment, Richards thought little of the fact. On consideration over the weekend the Respondent decided this was an occasion to rid itself of these few who seemed vulnerable to the Union's solicitations . Richards' testimony, which cannot be credited, that the men had deliberately quit, became the device for separating the men from their jobs and weakening the Union's chance of success in a regular election which the Board might hold on the Company's petition. I find on the record in its entirety that the Respondent discharged Joseph Perez, Tiofilo Ramirez, Isidro Rodriguez, Pedro Rodriguez, and Tony Lopez on August 29, 1966, for the purpose of discouraging membership in the Charging Union, and thereby violated Section 8(a)(3) and (1) of the Act. The unlawful discharge of so large a number of employees so shortly after the election conducted by the Company on August 15 taints that interrogation with an illegal purpose in itself, and removes it from any protection which the Board's Decision in Blue Flash Express, Inc., 109 NLRB 591, may be read as according isolated interrogation in other circumstances. I therefore find that by polling its employees on August 15, 1966, concerning their union desires, the Respondent coerced and restrained them in their exercise of the right to self- organization and thereby violated Section 8(a)(1) of the statute. 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 Respondent's operations described in section I, above, have a close, intimate , and substantial relationship 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 the Respondent has committed certain unfair labor practices, I shall recommend that it be ordered to cease and desist from such conduct and to take certain affirmative action designed to dissipate its effect. The Respondent having illegally discharged five employees, it must be ordered to reinstate them to their former or equivalent positions. The Respondent must also be ordered to make these employees whole for any loss of earnings they may have suffered in consequence of the illegal discrimination against them . Backpay shall be computed in accordance with the rules proscribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In view of the nature of the unfair labor practices committed, the commission of similar and other unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Joseph Perez, Isidro Rodriguez, Pedro Rodriguez, Tiofilo Ramirez, and Tony Lopez and by coercively interrogating its employees concerning their union attitude, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce 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, the Trial Examiner recommends that Harry F. Berggren & Sons, Inc., Scottsbluff, Nebraska, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees because of their exercise of the right to self- organization. (b) Coercively interrogating its employees with respect to their desires for union representation, or in any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form labor organizations , to join or assist Laborers' Local Union No. 880, affiliated with Laborers' International Union of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Joseph Perez, Isidro Rodriguez, Pedro Rodriguez, Tiofilo Ramirez, and Tony Lopez immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make HARRY F. BERGGREN & SONS, INC. them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in "The Remedy" section of this Decision. (b) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Post at its central place of business and office in Scottsbluff, Nebraska, copies of the notice attached hereto and marked "Appendix." 3 Copies of said notice, to be 7 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 357 furnished by the Regional Director for the Region 17, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, 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 such notices are not altered, defaced, or covered by any other material. (d) Notif ' the Regional Director for Region 17, in writing, within 20 days from receipt of this Decision what steps the Respondent has taken to comply herewith.4 be substituted for the words "a Decision and Order " ' In the event that this Recommended Order is 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 Respondent has taken to comply herewith " 299-352 0-70-24