Englehardt, Inc.

556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Englehardt, Inc. and Donald Winsor. Case 38-CA-814 (Formerly Case 13-CA-9452) November 13, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS manner compatible with the purposes of the Act. In these circumstances I believe the policy of promoting industrial peace and stability through collective bargaining warrants deferring the matter to the procedures that the parties themselves have voluntari- ly established under binding commitment. Accord- ingly, I would dismiss the complaint in its entirety without deciding the merits of the controversy. On June 9, 1970, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that the Respondent had 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. The Trial Exam- iner also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dismissal of such allegations. Thereaft- er, Respondent filed exceptions to the Trial Examin- er's Decision and a supporting brief; and the General Counsel filed a reply brief thereto. 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner, and hereby orders that the Respondent, Englehardt, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER BROWN, concurring in part, dissenting in part: The matters considered in this proceeding, in my opinion, are more properly relegated to the provided contract procedures than to the complaint machinery of the Act. The parties have established within the framework of their contract a system of grievance processing and binding arbitration for the purpose of resolving such disputes between them. A decision obtained through the utilization of such machinery will resolve the unfair labor practices alleged in a 186 NLRB No. 81 I In the absence of exception , we adopt, pro forma, the Trial Examiner's recommendation that the allegation of the complaint, that Respondent unlawfully demoted Winsor, be dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Trial Examiner: Upon a charge filed by Donald Winsor on November 3, 1969, amended on November 24, the General Counsel of the National Labor Relations Board, by the Officer-in-Charge for Subregion 38, on January 23, 1970, issued a complaint against Englehardt, Inc., herein called the Respondent, alleging that the Respondent had engaged in unfair labor practices violative of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. Briefly stated, the complaint alleged that on October 15, 1969, the Respondent removed Winsor, an employee, from the position of laborers' foreman and terminated him on October 17, because he had sought assistance from the Union (Local 573, Laborers' International Union of North America) and had engaged in other union activity. In its answer, the Respondent denied the commission of any unfair labor practices. Pursuant to notice, I heard the case in Tuscola, Illinois, on March 31, 1970. All parties were afforded full opportunity to participate in the hearing and to adduce relevant evidence. Briefs filed by the Respondent and the General Counsel have been fully considered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 11 The Respondent, an Illinois corporation with its principal office in Mundelein, Illinois, and with places of business located at various areas in Illinois including Tuscola, the location here involved, is engaged in the construction and general contracting business. During the 12 months preceding issuance of the complaint, the Respondent purchased and caused to be delivered to its Illinois place of business, including Tuscola, goods and materials valued in excess of $50,000 from States other than the State of Illinois. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local 573, Laborers' International Union of North ENGLEHARDT, INC. 557 America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts The Respondent is a general contracting firm and a member of the Associated General Contractors of Illinois; the Association engages in multiemployer bargaining with unions on behalf of its members, including the Respondent. At all times here material, the Respondent was a party, through the Association, to a collective-bargaining contract with Central Illinois Laborers' District Council, which includes Local 573, covering highway and heavy construc- tion work in the counties comprising Highway District No. 5 of the State of Illinois. The events with which we are here concerned occurred at the work project of the Respondent on Interstate Highway 57 near Tuscola, Illinois. The Charging Party, Donald Winsor, was employed by the Respondent in October 1968 on the Tuscola project, having been referred by the Union pursuant to the exclusive hiring hall provision of the contract. His job was that of laborers' foreman, a position paying 25 cents more per hour than the highest paid laborer rate on the job. Winsor continued in this capacity until October 15, 1969, when he was reduced to the position of ordinary laborer by Luke Brown, the crew foreman or superintendent. Two days later Winsor was terminated by Brown. The General Counsel alleges that both the demotion and the termination of Winsor were discriminatorily motivated. In August and September 1969 there existed a jurisdic- tional dispute between the Laborers Union and the Operating Engineers regarding which craft should start and operate water pumps. About September 11 representatives of the two Unions met and it was agreed by them that laborers would set up the pumps and connect the hoses, but that operators would start the pumps. The Respondent was not a party to this arrangement.' Winsor and the Laborers shop steward, Sam Shoemaker, were informed of this arrangement by the Union's office manager, Raymond Wierman. Early in October 1969, Brown instructed Winsor to set up a pump so that water could be removed from a culvert preparatory to installing forms and pouring concrete. Winsor set up the pump and then was asked by the Operating Engineers steward, Burl Wallace, if he intended to start the pump. Winsor replied in the negative, saying that was not part of his job. While the culvert crew, consisting of laborers, carpenters, and an ironworker, stood around unable to proceed because of the absence of an operator to start the pump, Brown drove up and asked what was the matter. Brown asked Winsor if he was going to start the pump, to which Winsor replied that that was not his job but one for the operators. Brown and Wallace had a somewhat heated exchange, joined in to some extent by Winsor. Brown then drove to another part of the jobsite and brought an operator who started the pump. After the water was removed the culvert crew proceeded with its work. According to Winsor, Brown stated to him both at the time the incident occurred and later in the day that Winsor had "put the shaft' to Brown by refusing to start the pump. Brown could not recall making such a remark, although his own testimony makes plain that he resented the position taken by Winsor and Wallace. The contract between the Respondent and the Union provides (article XI) that when there are seven laborers on a project one of them shall be labor foreman and receive 25 cents per hour more than the highest paid laborer under his supervision. During the week ending October 4 two laborers were laid off (on October 3), leaving a total of six, including Winsor, the labor foreman. The following week one laborer quit on October 10 and a replacement for him was requested to be sent out on October 13 (Monday) from the union hall. Brown testified that on Saturday, October 11, as he was reviewing the payroll for the week ending that day he realized that the total complement of laborers had been reduced to six and that therefore under the contract it was no longer necessary to pay Winsor the premium rate as labor foreman. Brown testified he then decided not to pay Winsor the premium pay, and went to his home about 175 miles from Tuscola for the weekend. On Monday and Tuesday, October 13 and 14, work on the project was suspended because of rain. Winsor and other members of the labor crew reported for work Wednesday morning, October 15. Because Brown was absent, Superintendent Young informed Winsor that another supervisor, James Farner, would serve as crew foreman that day. Winsor and another laborer, Charles Lough, were assigned by Farner to load some scrap iron. Later in the morning, at approximately 10 o'clock, Brown arrived at the jobsite and informed Winsor that he no longer was labor foreman. Winsor inquired if the change was effective that day. Brown replied that it was effective for the preceding week. Winsor protested, claiming that since he was first told of the demotion that day (October 15) he was entitled to premium pay through that day. Brown disagreed, saying he was not going to pay him the extra rate and did not have to. Later, Winsor told Supervisor Farner about the dispute; Farner advised him to get it straightened out. Following this, Winsor again argued the matter with Brown in the presence of Shoemaker, the Laborers steward, but Brown remained adamant. Winsor also informed Superintendent Young of the matter, but Young disclaimed any knowledge of it and said that Winsor would have to argue it out with Brown. On Thursday, October 16, Brown distributed paychecks right after lunch. Winsor testified he looked at his, noticed it was short, and followed Brown saying his check was not right. Brown, according to Winsor, said that he had told Winsor that he would not pay him the premium rate and did not have to do so. Winsor then went to his car, and as he drove off the project met Superintendent Young. He told Young about the shortage, but Young said he had nothing to do with the matter. Winsor drove to the union hall, found it closed, and then went home. It is Brown's testimony that at the time he passed out the paychecks there was no discussion of premium pay between himself and Winsor. However, so Brown testified, at or 1 Winsor testified that Brown and Al Young, the job superintendent, had taken the position that it was unnecessary that the tasks involved in setting up and operating a pump. be split between the two crafts-that a member of either could do all the tasks. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about 1 o'clock he saw Winsor in his car and asked Winsor why he was not working . Winsor, according to Brown, .,said he wasn't going to work until he got his check straightened out." Later in the day Brown observed that Winsor was not on the job and spoke to Young about it. Friday morning, October 17, Winsor went to the Union's office and spoke to Wierman, the office manager, about the events of October 15 and 16 regarding his premium pay as labor foreman. Wierman called the Respondent's jobsite and spoke to Brown, who answered the telephone. Wierman took the position that Winsor was due premium pay through Wednesday, October 15, since that was the day Brown notified him of the change in status . At first Brown opposed Wierman's position, but ultimately agreed to pay Winsor the premium pay . According to Wierman, Brown said nothing about laying off Winsor, but did say that Winsor was no longer to be labor foreman and that, if Winsor wished to "come back out just as a laborer, it was fine with him." Brown , testified that nothing was discussed between himself and Wierman about putting Winsor back to work as a regular laborer or about Winsor being a foreman in the future. Winsor went to the jobsite from the Union 's office. Shortly after arriving he was told by Lawrence Moore, a fellow employee, that Brown wished to see him at the office. On his way in his car to the office Winsor met Brown coming from the opposite direction. The two stopped and Brown told Winsor he was discharged. The versions of this exchange given by the two participants vary considerably. Winsor testified that Brown "said he was firing me, that he didn't want any more problems with the union , and to come and go with him." Winsor denied that there was any discussion of "show up" time for that day on this occasion. On the other hand, Brown testified he told Winsor, "Donnie, I'm going to lay you off. I don't need you out here any more. We'll go up to the office and I'll get your check for your back pay and we will figure this week 's time out." Brown continued that he asked Winsor if he had two hours of "show up" time due him that day, to which Winsor answered that he did not know , that that was not his business. Thereupon , so Brown testified , he said to Winsor, "Well, I'm going to give it to you because I don't want any more trouble with Wierman today." On their way to the office Brown and Winsor, at the latter's suggestion, stopped to inform Shoemaker, the laborers' steward, of developments. Brown's testimony is that he told Shoemaker that he was laying off Winsor as he did not need him. Brown testified that Winsor then said to Shoemaker, "He's laying me off because he doesn't want any more trouble with the union," a statement Brown immediately protested as not true. Winsor testified that he said to Shoemaker, after Brown made the statement that he was firing Winsor, "Yes, Sam, you might as well know why he's firing me, because he don't want any more problems out of the union." Brown, according to Winsor, reacted to this statement by "jumping up and down" and saying, "No, you got the wrong idea." After the two reached the office, Winsor demanded that he be given two checks, one for his premium pay and one for the current week's work. Brown found he had only one check and left the office to find Young to obtain another check. When Brown returned in about 15 or 20 minutes, so Winsor testified, he reported that Young had only the one check, whereupon Winsor agreed to take only one check. At that point, so Winsor testified without contradiction, Young entered the office and said to Winsor, "What the hell's the matter? We paid you for two hours this morning and what the hell else do you want?" Brown then said that Winsor had agreed to take one check , but Young stated he had another check and threw it down. Brown then called Respondent's office concerning payroll data and, after obtaining it, made out two checks. After handing Winsor the checks Brown commented that Winsor had won again; Winsor replied, "I don't figure how in hell you think I won again because I lost my job." B. Concluding Findings The General Counsel argues that Brown reduced Winsor from the job of labor foreman to ordinary laborer because some days earlier Winsor had refused to start the water pump, as instructed by Brown, basing the refusal on the jurisdictional agreement between his union and the Operating Engineers . It does appear that Brown was irritated at Winsor's disregard of instructions and annoyed that it was necessary for him to go get an operator to start the pump so that work could proceed. On the other hand, Brown's explanation-that the number of laborers had been reduced to a point where under the contract the Respondent was not required to maintain a labor foreman-is supported by the record. There is no evidence indicating a practice to have a labor foreman when the complement of laborers was fewer than seven , as provided in the contract . Had Brown informed Winsor of the demotion on October 6, the beginning of the week when there were fewer than seven laborers on the payroll, and absent a showing of a custom to retain a labor foreman in such circumstances, I think the nondiscriminatory nature of the demotion would be clear. The fact that Brown waited until the condition had existed for more than a week and then made the change retroactive raises considerable suspicion regarding his motives. While the matter is by no means free from doubt, I am unwilling to draw the inference that Brown was prompted to effect the demotion and make it retroactive by a desire to discriminate against Winsor because Winsor had insisted on abiding by the jurisdictional agreement regarding operating the water pump. Accordingly, this allegation of the complaint will be dismissed. As we have seen, Winsor protested the retroactive nature of his demotion when told of it by Brown on October 15. Immediately after Brown distributed paychecks about noon the next day, Winsor renewed his protest. While Winsor was at his car at or about i p.m., shortly before going to the union hall, Brown asked Winsor why he was not working; to this, Winsor replied that he was not going to work until he got his check straightened out. Brown rather reluctantly testified on cross-examination that from this encounter and exchange with Winsor he assumed that Winsor was going to talk to the Union and that he was not surprised to get a call from the Union the next morning. Concerning the telephone conversation between Brown and Wierman the morning of October 17, 1 find, in ENGLEHARDT, INC. 559 substantial agreement with the testimony of Brown and Wierman, that the main subject of discussion was Winsor's entitlement to premium pay, which Brown eventually agreed to pay. Brown did not say anything about laying off Winsor or altering his employment status other than to say that he could no longer be labor foreman. The Respondent contends that Brown decided to lay off Winsor during the afternoon of October 16, after Winsor had left the jobsite. In this regard, Brown testified that Superintendent Young advised him, after Brown had said Winsor "had taken off and I didn't know where he had gone," that if he did not need Winsor to lay him off. Brown testified he decided to do so, as the job proceeded satisfactorily without Winsor. I think it unlikely that Brown would have refrained from informing Wierman the morning of October 17 that Winsor had been laid off if such a decision had already been made. Somewhat improbably, Brown stated on direct examination that on Thursday afternoon, when he decided he needed one less laborer, he selected Winsor instead of the last one hired (Breen) because he thought it would have been contrary to the union contract to lay off Breen and retain Winsor. Thereafter, he testified that he chose Winsor instead of Breen because Winsor "had left the job the day before." According to Moore, a rebuttal witness called by the General Counsel, Brown told him at the 7 a.m. starting time on October 17 to tell Winsor that he (Brown) wanted to see Winsor at the office. This fact, argues the Respondent, indicates clearly that the decision to discharge Winsor had been made before Winsor engaged in any protected activity. I think it unnecessary to determine whether the decision to terminate Winsor was made before or after the conversation between Brown and Wierman relative to Win soy's premium pay. Considering all the circumstances, I conclude that Brown was aware on Thursday afternoon that Winsor left the jobsite in order to take up the pay dispute with the Union. I do not credit Brown's uncorrobo- rated testimony that manpower requirements on Friday were such that one less laborer was needed. The decision to terminate Winsor, I am persuaded, was in substantial part made because Winsor sought the aid of the Union in the premium pay dispute with Brown. Significantly, when Brown informed Winsor of the discharge, he did not attribute it to Winsor's unexcused absence from the job on Thursday afternoon, but said he did not need him anymore. I accept Brown's testimony that before the two of them reached the office Brown asked Winsor if he had 2 hours of showup time coming for that day and, when Winsor said he did not know, said that he would give Winsor showup time for Friday as he wanted no more trouble from Winsor. Brown thus indicated that in his estimation Winsor had caused enough trouble for him with the Union by successfully prosecuting the premium pay dispute. While Brown protested as not true Winsor's statement to Shoemaker to the effect that Brown discharged him to avoid trouble with the Union, I am convinced that the moving factor in Brown's decision was his desire to retaliate against Winsor for enlisting the Union's assistance. Accordingly, I conclude that by discharging Winsor on October 17, the Respondent discriminated against him in violation of Section 8(aX3) and (1) of the Act. 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 set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discharged Donald Winsor on October 17, 1969, in reprisal for his having engaged in union activity, it will be recommended that he be offered reinstatement to his position as laborer, or a substantially equivalent position, without prejudice to his seniority or other rights and privileges. I shall also recommend that Winsor be made whole for any loss of earnings he may have suffered by reason of the discrimina- tion against him by payment to him of a sum of money equal to that which he normally would have earned from the date of his discharge to the date of the offer of reinstatement, less net earnings if any during such period. The backpay shall be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. I shall also recommend that the Respondent preserve and, upon request, make available to the Board payroll and other records to facilitate the computation of backpay. 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. Englehardt, Inc., is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 573, Laborers' International Union of North America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Donald Winsor on October 17, 1969. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent did not violate Section 8(a)(3) and (1) of the Act by demoting Donald Winsor from the job of labor foreman to the job of laborer on October 15, 1969. RECOMMENDED ORDER Upon the basis of the above findings of fact and 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusions of law, and upon the entire record in the case, it is recommended that Englehardt, Inc., Tuscola, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any of its employees for exercising the right to seek the assistance of Local 573, Laborers' International Union of North America, or any other labor organization. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section,8(a)(3) of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer to Donald Winsor immediate and full reinstatement to his former job as laborer, or, if the job no longer exists, to a substantially equivalent position, and make him whole for any loss of earnings he may have suffered by reason of the Respondent's discrimination against him, in the manner set forth above in the section entitled "The Remedy." (b) 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. (c) 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 other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its place of business in Tuscola, Illinois, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Officer-in-Charge for Subregion 38, after being duly signed by an authorized representative of the Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable, steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Officer-in-Charge for Subregion 38, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.3 It is further recommended that the complaint be dismissed as to allegations of unfair labor practices alleged but not specifically found herein. 2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of' the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 3 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Officer-in-Charge, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against any employee for exercising the right to seek the assistance of Local 573, Laborers' International Union of North America, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities , except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL offer to Donald Winsor immediate and full reinstatement to his former job, or if his job no longer exists, to a substantially equivalent position, and pay him for all the wages he lost because of his discharge. WE WILL notify Donald Winsor 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. Dated By Englehardt, Inc. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boule- vard, Peoria, Illinois 61602, Telephone 309-673-9282.