Mead and Mount Construction Co.

528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mead and Mount Construction Company and International Union of Operating Engineers, Local No. 571, affiliated with International Union of Operating Engineers , AFL-CIO. Case 17-CA-3144 January 30,1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On October 11, 1967, Trial Examiner David London issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor -Relations Board adopts as its Order the Recom- mended Order of of the Trial Examiner and hereby orders that the Respondent, Mead and Mount Con- struction Company, Omaha, Nebraska, its officers, agents, successors, and assigns, shall take the ac- tion set forth in the Trial Examiner's Recom- mended Order, as herein modified: 1. Delete from the second line of the first para- graph of the notice the words "a Trial Examiner of.,, 2. Delete from the fourth line of the first in- dented paragraph of the notice the words "Trial Ex- aminer," and substitute therefor "National Labor Relations Board." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID LONDON, Trial Examiner : Upon a charge filed February 9, 1967, by International Union of Operating Engineers, Local No. 571, affiliated with International Union of Operating Engineers , AFL-CIO, hereinafter referred to as the Union, the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for Region 17, issued a complaint on April 28, 1967, which, as thereafter amended, alleges that on January 30, 1967, Mead and Mount Construction Company, hereafter referred to as Respondent, discharged Theodore J. Foster and, on February 6, 1967, failed and refused to rehire him, because of his membership in, ad- herence to , and activity on behalf of the Union , thereby violating Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (the Act). Respondent, by its answer, denied that it had discharged Foster for the reasons alleged in the complaint and affirmatively pleaded that he "was discharged because of his inability to perform the work which was properly assigned to him in a competent and efficient manner." Pursuant to due notice , a hearing in the above-entitled matter was held before me at Omaha, Nebraska, on June 8-9, 1967. The General Counsel, Respondent, and the Union appeared at the hearing and were given full oppor- tunity to examine and cross-examine witnesses, to in- troduce relevant evidence , to argue orally, and to file briefs. Since the close of the hearing, briefs have been received from the General Counsel , Respondent , and the Union, and have been fully considered. Upon the entire record in the case , and my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Colorado corporation engaged in the building and construction industry as a general contrac- tor, with its home office at Denver, Colorado. During the 12 months prior to the filing of the complaint herein, Respondent performed work and services valued in ex- cess of $50,000 on projects located outside the State of Colorado. Respondent admits, and I find, that it is an.em- ployer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PACTICES Theodore J. Foster, the alleged discriminatee, was the first operating engineer hired by Respondent in the summer of 1966 while the latter was engaged as general contractor in the construction of the Nebraska Methodist Hospital in Omaha, Nebraska. During the interim ending with Foster's termination on January 30, 1967, five other operating engineers were also engaged on that job. In ac- cordance with craft practice and custom, Foster, the first engineer on the job and a member of the Union for 12 years, was designated and thereafter acted as job steward. Under its contract with the hospital owners, it was Respondent's responsibility to erect, maintain, and operate the hoist necessary to move all construction material, including that of subcontractors, to the 10-story hospital project. Foster was employed to help erect and to operate this hoist. For that purpose, Respondent pro- vided a gasoline engine housed in a shed 8 by 10 feet, 169 NLRB No. 79 MEAD & MOUNT CONSTR. CO. 529 located about 20 feet from the building being constructed. The shack failed to give Foster protection from debris and building materials falling from upper floors. Thus, on one occasion, sand, blown by an airhose from the con- struction project, was blown into Foster's eyes. On another occasion, an ironworker "cutting a beam off, didn't catch it, and it came through, bounced off the machine and glass cut [Foster] in the head." Another time, "a 2 x 4 bounced off [his] shoulder." Foster com- plained of these incidents to John Pike, Respondent's construction superintendent, and John Schreiner, the ironworkers' superintendent. The engine, located in the shack, was at least 25 years' old and a source of trouble from the day it was installed. The gas fumes which it ejected made it necessary for Foster to frequently seek fresh air outside the shack. Because of the poor condition of the machine, Foster called the State Safety Inspector "to get the machine red tagged." During the first or second week in December 1966, Respondent had to resort to the use of heaters to prevent freezing of the concrete then being poured. During that period, another engineer informed Foster that contrary to the terms of Respondent's collective-bargaining agree- ment with the Union, the heaters were being operated and maintained by employees other than operating engineers. Foster testified that he reported the aforementioned grievances to Pike, Schreiner, and Ivan Clay, Respond- ent's labor foreman, "about once a week." Pike ad- mitted that commencing in October, Foster several times presented grievances to him, that he knew that Foster, as steward, "was bringing up grievances" to Schreiner and Clay, and that "Foster was involved" on the occasions when he "had to put additional operators on this job." Schreiner complained to Foster that he was going by "that damn rule book." Pike told employee Richard Headley "that he was going to fire [Foster] if he didn't stay in the shack because he was always going around to the job with his nose in everybody else's business." When Headley remonstrated that this was part of the steward's responsibility, Pike merely replied that Foster "goes by the rule book an awful lot." On January 30, 1967, Respondent found it necessary to shut the hoist down for a period of a week. On the Monday 'before, James Gilpin, the Union's business agent, was called to the building site by Foster and in- formed that on the preceeding Saturday and Sunday, con- trary to the terms of the agreement with the Union, a small hoist had been operated without the services of an operating, engineer. When Gilpin complained of this to Pike, the latter told Gilpin 'that he had gone home to Denver over the weekend and was unaware of the in- cident. Pike informed Gilpin, however, that he "would definitely' instruct the roofing contractor that ... if there was any further work to be done with the roofing hoist, he would insist the men get an operating engineer on it." Pike then informed Gilpin of the proposed 1-week shut- down of the hoist, adding that he was "going to pay Ted Foster off and [didn't] want him back." When Gilpin asked to be given a reason, Pike replied: "Well, he is a troublemaker, he has a big mouth, he is too mouthy."1 Gilpin remonstrated that he considered this to be Foster's job and that when operation of the hoist was resumed, he would send Foster back to the job. Pike answered that if Foster appeared for work he would merely give him 2 hours showup time and send him back to the hall. Gilpin informed Foster of the conversation he had with Pike. On January 30, Pike handed Foster two paychecks, told him "this is it," smiled, and walked away. Pursuant to instructions from Griner, Foster reported for work at the construction site on February 6 when operation of the hoist was resumed. About a half hour later, Pike handed Foster a check for 2 hours showup time. When Foster asked why he was being fired, whether his work was unsatisfactory, Pike merely told him that it was "because of [his] big mouth." As previously indicated, Respondent's answer pleads that Foster "was discharged because of his inability to perform the work which was properly assigned to him in a competent and efficient manner." Respondent's own witnesses, however, testified that Foster was a competent and efficient operator. Thus, Pike testified he had no "complaint of [Foster's] ability to operate that hoist" or that Foster "failed to follow [his] directions." Schreiner, Respondent's ironworkers' superintendent and employed by Respondent for 17 years, testified that Foster operated "in a competent and efficient manner." Clay, Respondent's labor superintendent, testified that Foster "was a good qualified operator ... he could do one of the best jobs there was [sic]." At the conclusion of Pike's direct testimony, I asked him to state why he did not rehire Foster and Pike an- swered: "The way in which he operated, not the hoist, but the way he operated his personal habits at the job he was doing." When I remarked that I did not understand what he meant by "personal habits," Pike answered: "A habit of trying to run the job, telling different people what they could do and what they can't do, and this isn't part of his job at all. He is hired to run the hoist and nothing else." That conclusionary testimony, coupled with a painstak- ing review of the entire transcript of testimony, indicates that Respondent seeks to justify its discharge of Foster on a ground that he violated Pike's established rules or in- structions in two respects (a) that operation of the hoist be on a "first come, first served" basis, and (b) that Foster "stay in the shack, only operate the levers" and refrain from helping others perform their work.2 With respect to (a) immediately above, Pike, by means of hearsay testimony, testified that at weekly meetings with subcontractors they complained of delays in secur- ing use of the hoist. However, no subcontractor or em- ployee of a subcontractor was called upon to testify with any specificity concerning this alleged complaint. In any event, Pike testified that "the other subcontractors were complaining mostly" "about this delay while Respondent was pouring concrete. Pike admitted, however, that he had given "Foster a direct order not to let the subcontrac- tors use" the hoist while concrete was being poured, "that Mead & Mount [Respondent] came first." With respect to (b) above, Pike testified on direct ex- amination that he many times told Foster to stay in the shack, "operate the levers," and do nothing else, and that it was not Foster's "job to see to it that the platforms are loaded properly." On cross-examination, however, he ad- mitted knowledge of an occasion when "steel fell off the skip hoist when it was improperly loaded and fell to the ground." Later in his cross-examination, contrary to his direct examination, Pike admitted that "the operating en- I Pike admitted that he "might have said [Foster] was a troublemaker." 2 During the hearing, Respondent's counsel stated that Foster "was He also testified that he was "tired of Foster raising hell about every little discharged because he did not stay in the shack where he was supposed thing and that [he was] going to fire him " to." 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gineer has complete charge as to proper loading [of the hoist] for purposes of safety." On the entire record and my observation of the wit- nesses as they testified, I am convinced and find that Foster was not discharged or denied further employment for the reasons claimed by Respondent. Instead, I find that he was discharged and not rehired because of his zealous efforts as union steward and to dim the ardor of any steward that might succeed him. I am convinced and find that Respondent sought, and believed it had found, a reasonable pretext for ridding itself of a most zealous union steward. In any event, assuming that Foster was unable "to per- form the work which was properly assigned to him in a competent and efficient manner," this being the defense pleaded in Respondent's answer, "the. mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity. Sunshine Biscuits, Inc. v. N.L.R.B., 274 F.2d 738, 742. It is very apparant that [Foster] was a thorn in the side of Respondent. He had played [a] leading role in enforcing the rights of em- ployees under the union contract during the period he was steward." N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835. On the entire record, I find that Pike fired Foster and refused to reemploy him because of his zeal in the performance of his duty as union steward. Bunney Bros. Construction Company, 139 NLRB 1516; N. Y. Trap Rock Corporation, 148 NLRB 374; Top Notch Manufacturing Company, 145 NLRB 429; Interboro Contractors, Inc., 157 NLRB 1295; Pathe Laboratories, Inc., 141 NLRB 1290, 1298-99. Upon the basis of the entire record, I make the follow- ing: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By discharging Theodore J. Foster and thereafter refusing to reinstate him because of his protected, con- certed union activities, Respondent engaged in violations of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Respondent having violated Section 8(a)(1) and (3) of the Act in discharging Foster and refusing to reinstate him because he engaged in protected concerted activities under the Act, I recom- mend, in the event that the Nebraska Methodist Hospital project has not yet been completed and that work is available there for an operating engineer, that Respond- ent offer him immediate and full reinstatement to his former or substantially equivalent position, without preju- dice to his seniority or other rights and privileges. It is further recommended that Respondent be required to make Foster whole for any loss of pay he may have suf- fered as a result of the discrimination against him by pay- ment to him of a sum of money equal to that which he would have earned as wages from February 6, 1967, less his net earnings during such period, in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest on said sum, computed in accordance with the formula prescribed in Isis Plumb- ing & Heating Co., 138 NLRB 716. In the event the Nebraska Methodist Hospital project has been completed, I recommend that the foregoing be modified to the following extent: Respondent need not offer immediate reinstatement to Foster but shall notify him, in writing, that notwithstanding his discharge and refusal of reinstatement, he will be considered eligible for employment in the future on a nondiscriminatory basis at any of Respondent's projects if he should choose to apply for such employment. Copies of the attached notice marked "Appendix," shall be posted by Respondent at the Nebraska Methodist Hospital project if work per- formed by Respondent has not been completed. In the event said work has been completed, a copy of said Ap- pendix shall be enclosed with the written statement to Foster mentioned immediately above. Copies of said notice shall also be posted at Respondent's place of busi- ness and mailed to all employees who were engaged in performing work for Respondent at the Nebraska Methodist Hospital project on January 30, 1967. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is hereby recommended that Respondent, Mead and Mount Construction Company, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discharging, laying off, or otherwise discriminating in regard to the hire and tenure of employment, or any term or condition of employment of its employees, because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their right to engage in or to refrain from engaging in any or all activities guaranteed in Section 7 of the Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the Act: (a) In the event that the work which was to be per- formed at the Nebraska Methodist Hospital project by Respondent has not yet been completed and work for an operating engineer is still available there, offer Theodore J. Foster immediate and full reinstatement to his former or equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss he may have suffered by reason of his discharge in the manner and to the extent set forth in the section of this Decision entitled, "The Remedy." (b) In the event that the work which was to be per- formed by Respondent at the Nebraska Methodist Hospital project has been completed, make whole Theodore J. Foster for any loss of pay he may have suf- fered by reason of his discharge and failure to reemploy him, and assure him of his future eligibility for employ- ment by Respondent in the manner and to the extent set forth in the section entitled, "The Remedy." MEAD & MOUNT CONSTR. CO. 531 (c) In the event the work which was to be performed by Respondent at the Nebraska Methodist Hospital pro- ject has not yet been completed, post at said project co- pies of the attached notice marked "Appendix."3 Copies of said notice, to be furnished by the Regional Director for Region 17, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and remain posted as long as work is being performed by Respondent at the aforementioned project, but, in no event, for more than 60 consecutive days from the date of posting, in conspicuous places, including all places where notices to Respondent's employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) In the event Respondent's work at the Nebraska Methodist Hospital project has been completed, mail co- pies of said notice to the persons specified in the section entitled, "The Remedy." (e) Notify Theodore J. Foster 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 Train- ing and Service Act, as amended, after discharge from the Armed Forces. (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports, and all other records neces- sary or useful to determine the amount of backpay due under the terms of this Recommended Order. (g) Notify the Regional Director for Region 17 in writ- ing, within 20 days from the date of receipt of this Deci- sion, what steps Respondent has taken to comply herewith.4 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: After a trial in which both sides had the opportunity to present their evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and keep the promises that we make in this notice. WE WILL NOT discharge, lay off, or otherwise dis- criminate against any employee for engaging in union activity, or the zealous performance of their duties as union steward. Since the Trial Examiner found that we did so when we discharged and refused to rehire Theodore J. Foster, we will offer to Theodore J. Foster full reinstatement to his former or substan- tially equivalent job, and make him whole for any loss of earnings he may have suffered by reasons of his discriminatory discharge. WE WILL NOT discourage union activity or mem- bership in International Union of Operating En- gineers, Local No. 571, affiliated with International Union of Operating Engineers, AFL-CIO, or any other labor organization by discriminating against you if you choose to engage in union activity or join Local Union No. 571, or any other union. You and all our employees are free to become, or refrain from becoming, members of any labor organiza- tion. Dated By MEAD AND MOUNT CONSTRUCTION COMPANY (Employer) (Representative) (Title) Note: We will 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, 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, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 374-5282. 350-212 0-70-35