Flynn Paving Co.

Flynn Paving Company and James Stewart. Case 7- CA-14376 June 6, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On March 7, 1978, Administrative Law Judge Ir- win H. Socoloff issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Flynn Paving Company, Southfield, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Respondent has excepted to certain credibility findings made hb the Administrative Law Judge. It is the Board's established polics not to oser- rule an Administrative Law Judge's resolutions with respect to credibilit) unless the clear preponderance of all of the relevant evidence cons inces us that the resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB 544 (1950). enfd 188 F.2d 362 (C.A. 3. 1951), We have carefull) examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF. Administrative Law Judge: Upon a charge filed September 6, 1977, by James Stewart, an indi- vidual, against Flynn Paving Company, herein called Re- spondent, the General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 7, issued a complaint dated October 4, 1977, alleging viola- tions by Respondent of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respondent, by its answer, denied the commission of any unfair labor practices. FLYNN PAVING COMPANY Pursuant to notice, a hearing was held before me in De- troit, Michigan, on January 4, 1978, at which all parties were represented by counsel and were afforded full oppor- tunity to be heard, to examine and cross-examine witness- es. and to introduce evidence. Thereafter, Respondent filed a brief which has been duly considered. Upon the entire record in this case, and from my obser- vation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a Michigan corporation engaged in the as- phalt paving business, is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and meets the Board's standards for assertion of jurisdiction. II. THE UNFAIR LABOR PRACTICES A. Background On August 30, 1977, Respondent discharged employee James Stewart immediately after Stewart filed a charge against it with the State of Michigan Civil Rights Commis- sion. In this proceeding, the General Counsel contends that Stewart was then engaged in a protected concerted activity and that the discharge occurred as a result of that activity and, thus, was violative of Section 8(a)(1) of the Act. In defense, Respondent claims that it discharged Stewart be- cause, in filing the aforementioned charge, he made know- ingly false statements. B. Facts I Stewart was hired by Respondent in April 1967, as a laborer.2 He remained in that classification until the date of his discharge. On August 2, 1977, Superintendant Jelsch showed Stewart and his fellow laborers a letter, sent by the Associated General Contractors, Michigan Road Builders Association,' which announced that, effective August 10, 1977, the laborers would receive a decrease in pay of $1 per hour. Thereafter, on the announced effective date, the wage rate of the laborers was so changed. On Friday, August 19, 1977, the affected employees re- ceived their first paycheck reflecting the wage decrease. Laborers Stewart, Jones, Simpson, and Jarmon then in- formed Jelsch that they would go to the offices of the Na- tional Labor Relations Board on the following Monday, August 22, rather than report to work at the decreased pay rate. Jelsch responded: "Fine. I don't blame you a bit. Go see what you can do about it . . . call me when you're I The fact findings contlained herein are based upon the credited testi- mons of Stewart and Respondent's superintendent and vice president. Frank Jelsch : At all times material herein. Respondent's laborer employees have been represented. for purposes of collective bargaining. by "Local 1191. Labor- ers." hereinafter referred to as the Union XAlthough not identified in the record as such, that organization appar- entll represents Respondent for collective-bargaining purposes. 236 NLRB No. 79 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ready to go back to work." Thereafter, on Monday, those employees visited Region 7 of the National Labor Rela- tions Board and filed a charge alleging that the Union had violated Section 8(b)(1)(A) of the Act by agreeing to the wage decrease.4 At noon, they left the Regional office and agreed among themselves to call Jelsch that evening in or- der to receive their work assignments for the following day.' That evening, all employees, save Stewart, contacted Jelsch and received work directives. Stewart called Jelsch that night but was informed by Jelsch's son that his father was in the restroom. While Stewart left word with the son to have Jelsch return the call, Jelsch did not receive the message and, so, Stewart did not get a return call. The next morning, Stewart attempted to call Jelsch at home, and then at the company garage, but in each instance there was no answer. The employee next called his steward at home but was told by the latter's daughter that he had gone to work. Stewart then decided to stay home and did not, thereafter, attempt to contact Jelsch, the steward, or any of his fellow employees. On the next day, Wednesday, August 24, Stewart applied for unemployment compensation bene- fits. That evening, he happened to meet a fellow employee who told him that the laborers were working. However, Stewart made no further inquiries since, by that time, he had decided that he had been discharged.6 Jelsch did not attempt to contact Stewart. According to Jelsch, when the other employees returned to work, they stated that they felt it had not been wise for all of them to miss work while pursuing their grievance and that it was more practical to have one man involved in that matter while the others remained at work. Thus, Jelsch concluded that Stewart had not returned to work because he was still actively engaged in attempting to rescind the wage de- crease and was unwilling to work for the lesser amount. On Friday, August 26, Stewart reported to Respondent's office to receive his "final paycheck." He encountered Sec- retary-Treasurer Flynn, who stated: "I thought you'd be in court today." Stewart replied: "Well no, not today. When- ever we have to go to court, we'll be there." The matter of Stewart's supposed discharge was not mentioned. Stewart reported to the Michigan Civil Rights Commis- sion on August 30, 1977. He filed a charge which alleged that he had been discharged on August 22 and that, he believed, his race "was a factor" in the discharge. Stewart also alleged that he and his fellow black employees had been denied promotion because of race, stating: I have never been promoted in the past ten years of employment. When a machine operator position, which is a higher paying job is available no blacks are promoted and instead whites are hired to fill the va- cancies. Later that day, a representative of the commission called Jelsch and informed him that Stewart had filed a charge Subsequently, that charge was administratively dismissed. Due to the nature of Respondent's business. it is a general practice. when an employee misses a day of work, for that employee to call Jelsch in the evening in order to determine the location of the jobsite for the next day. , Nonetheless, Stewart did not file a grievance under the effective collec- tive-bargaining contract. claiming that he was discharged because he is black. Jelsch replied that Stewart had not, in fact, been discharged. However, shortly thereafter, Jelsch called the commission representative and told her that, at that point, he had de- cided to discharge Stewart. At the hearing in this case, Jelsch explained the reason for that action, as follows: Because he went down there and he lied about me . . . Because he knew the other black men were back to work and he was claiming he was fired because he was black. It just doesn't make any sense. Respondent employs some six laborers, five of whom are black, and three to five operating engineers (a higher pay- ing job), only one of whom is black. When job openings last occurred in the operating engineer classification, 4 years ago, the positions were not offered to any of the laborers. Rather, Respondent hired two new employees to fill those jobs and those new hires were white. At that time, the laborers complained to Jelsch, without satisfaction, about Respondent's failure to afford them available pro- motional opportunities. Thereafter, Stewart testified, "the fellows, amongst ourselves, we always talked about it." C. Conclusions Respondent has not taken issue with the theory of the General Counsel that Stewart, in filing a charge with the Michigan Civil Rights Commission, was engaged in a con- certed activity 7 protected under Section 7 of the Act. It argues, however, that the protection of the Act was lost when Stewart made statements to that Commission which Respondent characterizes as "knowingly false." While I am persuaded by Jelsch's testimony that Re- spondent discharged Stewart because Respondent believed that that employee had uttered deliberate falsehoods about it to the State commission, I am not convinced, in the light of this record, that Stewart was actually engaged in such an attempt to maliciously injure Respondent. The record evi- dence does establish, as the General Counsel concedes, that Stewart had not, in fact, been discharged when he so complained. Nor can it be said that Stewart, when he con- cluded that he had been fired, made diligent efforts to as- certain the true facts. I find, however, that Stewart be- lieved, even if somewhat unreasonably, that he had been fired when he filed a complaint. He also believed, based on Respondent's past hiring patterns, that Respondent had denied its black employees the opportunity to work as op- erating engineers because of race. I need not, herein, pass upon the merits of those charges. For the protected nature of employee activity does not depend upon its ultimate merit. Nor do employees forfeit the protections of the Act if, in the course of protected activity, they give currency to 7As noted, one of the allegations made by Stewart in the charge he filed with the commission was that Respondent refused to promote its black laborer employees because of race, a matter of demonstrated concern to other, similarly situated, employees See Dawson Cabinet Companv, Inc., 228 NLRB 290 (1977). Cf. King Soopers, Inc., 222 NLRB 1011 (1976); G. V.R., Inc., 201 NLRB 147 (1973), at fn. 2. 722 FLYNN PAVING COMPANY inaccurate (but not deliberately or maliciously false) infor- mation. 8 Accordingly, I conclude that Respondent, when it discharged Stewart because he filed charges with the Mich- igan Civil Rights Commission, violated Section 8(a)(1) of the Act. III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III. above, occurring in connection with Respondent's opera- tions 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 commerce and the free flow of commerce. IV THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)( 1) of the Act. I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW' 1. The Respondent, Flynn Paving Company, is an em- ployer engaged in commerce, and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. By discharging James Stewart. Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. Upon the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 9 The Respondent, Flynn Paving Company, Southfield, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees because they engage in con- certed activities for their mutual aid and protection. (b) In any other manner, interfering with, restraining, or coercing its employees in the exercises of their rights under Section 7 of the Act to engage in concerted activities for their mutual aid and protection, or to refrain from such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Offer to James Stewart immediate and full reinstate- ment to his former position or, if that position no longer exists, to a substantially equivalent position, without preju- dice to his seniority and other rights and privileges. (b) Make James Stewart whole for any loss of pay he may have suffered by reason of Respondent's discrimina- tion against him by payment to him of a sum of money equal to that which he normally would have earned as wag- es, from the date of the discrimination to the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay to be computed in the manner prescribed in F. W. Woolworth Company. 90 NLRB 289 (1950), with interest as set forth in Florida Steel (orporation, 231 NLRB 651 (1977) (see, generally, Isis Plunibing & Heating Co.. 138 NLRB 716 (1962)). (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facilities located in Southfield, Michigan, copies of the attached notice marked "Appendix." 10 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 7, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by Respon- dent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to in- sure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. Ilh t, arhn FirearrnL (ornrpan, 116 NLRB 1834 (1956). In the event no exceptions are filed as provided by Sec. 10246 of the Rules aind Regulalions of the National Labor Relalions Board. the findings, conclusions and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted b, the Board and become its findings, conclusions. and Order, and all obhjections thereto shall he deemed waived for all purposes. ' In the event that this Order is enforced hb a Judgment of a United Stiles ('ourl of Appeals. the words in the notice reading "Posted hi Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the U nited States Court of Appeals Enforcing an Order of the Natiiinal abor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIt L NOT discharge employees because they en- gage in concerted activities for their mutual aid and protection. WE WILL. NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in the National Labor Relations Act. WE will. offer James Stewart immediate and full re- instatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. WF wi.L make James Stewart whole for any loss of earnings because of the discrimination against him. plus interest. FLYNN PAVING COMPANY 723