Hintze Contracting Co.

HINTZE CONTRACI'ING COMPANY Hintze Contracting Company, Inc.' and Lonnie Gene Bartel. Case 28-CA4232 May 15, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MMB1RERS PEN'LL[O AND TRL IESDAI.Ii On February I, 1978, Administrative Law Judge Gordon J. Myatt issue the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. 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 briefs and has decided to affirm the rulings, findings.2 and conclusions 3 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.4 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. as modified below, and hereby orders that the Respondent. Hintze Contracting Company. Inc.. Phoenix. Arizo- na, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I he aunae of Respondent .appe.ar, a, amended ., the hearingi In hi inittial fintdings of fact. Ihe Adminlratite I.a., Judge .uited that emploitec I.onnle Bartel approached Field Superintendent Smith it the loh- site and aiked hthl he and his father cie rctelilin less than union srcale In his concluiding findineg. Ite Administratlxe I .it Judge stated tiLt (on (hih cc3asion Bartel asked nnll ahout his own rate of pat. {'e herehs correct Ihe Administlrtle I aI. Juldge's findings lf fa.ct regarding this ronsers;aion to conform t l th hli conlluding findings. ihich are Lsupported hi the re cord 'In his i)eision. the Administralle Law. Judge ina.lderteittl' nuitlltd ai case a " I he inuglir ( ,oqtotlr. a Dn)i ,, : r, Beatrl, ,,i- ,, f ,. 217 N I R B 8 (1975." I rom the cronilt It appears that the \dlntiinir't.iiie I.a Jutdgae proh.labl intended to cite 7 1h S,t'r (' in/piipi, ( hI'lit ( IIlto/ Dlit, sol 198 Ni RB 870 t 1972). and John Se t- (Ao u ,)1 l a D tioi oi Bf r * tric; ., <,, 217 NI RH hti1975i In pi:r i(h) if his ,ccrmrunendcd Order, the \idninlsiriittiC iLI Juidge provided that Rsplden sha cease ndnt hall c e and desi fm "ln ians hke or re- lated nainner" infringing upion emploece ighls guaranteedl In Set 7 ,of the Act. lluoever, it Larc.e of Ihls kind. in'olslnf .i dischairge tl tIoiitlu)n of Sec 81alt I). its he Blard's established pohrc to use the hroad lnjunctive l;lnguiage "mi .an oiher Ilalnnet" See 1. R RB t,l.irti tl MI t ( t. 121I F. d i32. 536 i( : 4 1941 J). lccrdingl). ve shall niodift thIe cdmimtistra live La .lJudge's recolmnended Order and iittlre tow conflrm his injulnctri iIltgiuaCe lti thalt cLtattlnllrlyi used h\ the Bt,.htd 1. Substitute the following for paragraph l(b): "(b) In any other manner interfering with. re- straining, or coercing employees in the exercise of their rights under Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX Noilwi-l To EM1PLOYFES PoSEI) B5 ORDER OFi lIti NATIONAI. LABOR R. LtArTONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing at which all parties had an opportuni- tE to present evidence, that we committed certain un- fair labor practices in violation of the National La- bor Relations Act, as amended, has ordered us to post this notice. We intend to abide by the following: Wt Wll.tI NOt interfere with, restrain, or coerce our employees by discharging them for engaging in protected concerted activity in requesting a wage increase or for engaging in other such ac- tivities for the purpose of mutual aid or protec- tion. Wi. wl.i NOI in ann other manner interfere with. restrain. or coerce employees in the exer- cise of rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. Wt- wii i offer Lonnie Gene Bartel immediate and full reinstatement to his former position of employment or, if that position no longer exists, to a substantially equivalent position. without prejudice to his seniority or other rights and privileges, and ,i W iil.i make him whole for any loss of earnings he may have suffered by reason of the unlawful termination of his emplo yment. HlNrz71 CON IR \( IIN(, CO)MPANY IN( DFE(ISION SIs[ll NIr TOl HE C(ASE (ORI)ON J MvArr Administrative Law Judge: The charge in this case was filed on February 23. 1977, by Lon- nie Gene Bartel, an individual (hereinafter called Bartel or the Charging Parts ) against Hintze Contracting Company. Inc.' thereinafter called Respondent). On April 7. 1977, the Regional Director for Region 28 issued a complaint and notice of hearing on behalf of the General Counsel alleging that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the National Labor Rela- ' I he Rcpondcni' nni u.ais mcnlintded ai Ihe hearintg to reflelt Its ctr- rCC I Ta; iC 236 NLRB No. 8 45 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions Act, as amended (29 U.S.C., §151, et seq.). The com- plaint alleged that Bartel was discharged on December 6. 1976,2 because he protested the failure of Respondent to pay him and another employee the same hourly rate of pay given to other employees performing similar work at a job- site located near Happy Jack, Arizona. It is asserted that Bartel's protest regarding the wages constituted protected concerted activity within the meaning of Section 7 of the Act, and the resultant discharge violated Section 8(a) (I) of the Act. Respondent filed an answer denying various alle- gations of the complaint and specifically denying the com- mission of any unfair labor practices. A hearing was held in this matter on June 16, 1977, in Phoenix, Arizona. All parties were represented by counsel and afforded full opportunity to examine and cross-exam- ine witnesses, and to present material and relevant evi- dence on the issues involved. Briefs were submitted by both counsel and have been duly considered. Upon the entire record in this case, and from my obser- vation of the witnesses and their demeanor while testifying. I make the following: FINDINGS OF FACT I JURISDIC(TION The complaint alleged, and Respondent admitted at the hearing.3 that Respondent is an Arizona corporation en- gaged in the business of performing street paving and re- lated construction services. Respondent's principal place of business is located in Phoenix. Arizona. During the past 12 months, Respondent, in the course of its business opera- tions, performed services valued in excess of $50,000 for the Del Webb Development Company, which is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. During the same period, the Del Webb Development Company purchased goods and mate- rials valued in excess of $50.000, which were transported to its place of business in the State of Arizona directly from States other than the State of Arizona. Accordingly, Respondent is, and has been at all times material herein, an employer as defined in Section 2(2) of the Act, engaged in commerce and in operations affecting commerce as defined in Section 2(6) and (7) of the Act. nI IHF All I(iED ) UNF AIR LABOR PRA( I[CES Lonnie Gene Bartel was hired as an operator of heavv- duty rolling equipment in May 1976 by Robert Smith, field superintendent of Respondent's operation. Until Novem- ber 1976. the majority of the work performed by Bartel was in the Phoenix area. There is conflict in the testimony concerning Bartel's ini- tial hourly rate of pay. Bartel testified that at the time he was hired, he was a member of the Operating Engineers' Union, and initially his wages were in accord with the waoge I.nless other l'.e indilated. all dates herein refer to Ihe \ecar 1')76 Although Responident's answer denied the jurisdicmional alleg.alos o the complaint. the parties agreed at the hearing to stipulate to this polnatnll the complaint rates contained in the collective-bargaining agreement then in effect between Respondent and the Union. He stated that the contract expired June 1, and Respondent did not execute a new agreement with the Union. According to Bartel, he was informed at that time by Smith that Respon- dent was going "nonunion." He testified that Smith re- duced his hourly rate to $8.13, which was even less than union scale under the expired agreement. Smith and William Hintze, owner of Respondent, testi- fied that Bartel was hired initially at a rate of $8.13 per hour because he was not a fully experienced operating en- gineer. Copies of Respondent's payroll records were intro- duced into evidence, and examination of those documents discloses that Bartel was hired on May 18, 1976, at a rate of $8.13 per hour. In view of the testimony of both Smith and Hintze in this regard, and based on the computations as reflected on the payroll records, I find that Bartel was paid $8.13 per hour from the inception of his employment by Respondent. The record indicates that Bartel worked for Respondent continuously until his discharge in December 1976. During the early part of November, Rick Brown. paving foreman for Respondent. assigned Bartel to work on several pro- jects which Respondent had under contract in the northern part of the State. One jobsite was located at Mormon Lake, where Respondent's employees were assigned to the pay- roll of Pacific Western, the general contractor on the proj- ect. 4 The other jobsite was located at Happy Jack, which was not too far from Mormon Lake. The testimony indi- cates that Respondent's employees had to live in tempo- rary trailers during the life of the northern Arizona projects because of the considerable distance from Phoenix. Adolph Bartel, father of Lonnie and an experienced oper- ating engineer as well as a member of the Union, was also employed by Respondent to work at the Mormon Lake and Happy Jack projects. During the time that Adolph and Lonnie were employed on the projects they shared a trailer. The testimony indicates that Respondent's employees worked alternately on the two jobsites. There were occa- sions when the)y would stop work at Mormon Lake and move the equipment to Happy Jack, to perform work there, and vice versa. When the employees worked at Hap- py Jack, they reverted to Respondent's payroll and re- ceived their wages on checks issued by Respondent. When the employees performed work at Mormon Lake, they were paid the prevailing wage rate by Pacific under the terms of the current collective-bargaining agreement. The first check the employees received for work performed at Happy Jack was issued on November 6. Upon checking the pay stubs, both Adolph and Lonnie Bartel ascertained they were being paid at a rate of $8.13 an hour. Adolph Bartel was concerned because he never worked for wages less than union scale, and could be subjected to penalties bh the Union for doing so.5 Lonnie Bartel became con- 4 At Mormon tlake, Respondent's crew was supervi ed bh Rick Brown. hut the emplo\ees were carried on the pawroll of and received their wages fronm Pac';ific estern. This arrangemnent was necessary because of a con- tTactual Ilmilation on ihe amounl lof work which Pacific could suhcontracl at( Olher contractors. I'he basic rate under the terms of the collective-bargaining agreement .s Is ' S' 9 an hout 46 HINTZE (CONRACTING COMPANY cerned because he had been receiving union scale at Mor- mon Lake and discovered that all of the other operating engineers employed by Respondent, with the exception of his father, were receiving union scale for work performed at Happy Jack. After some discussion among themselves. l.onnie Bartel and his father decided to confront Rick Brown with the pay discrepancy. They asked Brown whN they were recei'- ing less than union scale for the work at Happ' Jack. Brown was unable to supply an answer and told them that they would have to check with the timekeeper in Phoenix to determine the reason. Lonnie Bartel testified that shortls after he and his father spoke with Brown. he approached Smith on the subject matter. Smith was at Happx Jack inspecting the work at the time Bartel asked Smith if the job were union, and if so. why he and his father were re- ceiving less than union scale? Smith replied he did not know whN their pay was less than the other operating engi- neers. but that he would look into the matter. The employees turned in their job timecards for the week ending November 13 to Brown for submission to the Respondent's pa\roll office in Phoenix. I.onnie Bartel wrote a short statement on his card indicating his dissatis- faction with receiving $8.13 an hour for the work at llapps Jack. His note read as follows: You were short last week on ms check. I'm to be paid union scale like everyone else on this job. $9.96 per hour. If you have ans questions call the Flag [Flagstaff] union hall. Take all deductions, no $8.13 per hour. Adolph also authorized lonnie to put a notation on his timecard complaining about his rate of pa.. l.onnie wrote the following on Adolph's card: You are to pas union wages of $9.96 per Hr. [sic l plus time and 1 2 plus double time on this job. I want all withholdings taken out. federal, state. vacation etc. No more $8.13 per hour union beenefit [sic] like ev- ervone else on the Hlappy Jack job. The undisputed testimony discloses that Brown turned in the timecards to Smith at the Respondent's Phoenix of- fice. When Smith read the notations on the Bartel cards. he questioned Brown about it. Brown informed Smith that "they" (the Bartels) thought thes should be getting $9.96 an hour. He also told Smith of his conversation with the Bartels regarding their rate of pa': at the Happ) Jack job- site. As a result of their complaints, both Adolph and Lonnie Bartel received retroactive wage adjustments. increasing their pay to $9.96 an hour for work performed at Happy Jack. The) continued to receive union scale until their work on the Happy Jack project was completed on No- vember 20.' After completion of the work at Happ 3 Jack. 'Smith had no recolle Ctlln oi f s11 . itcl',er. ltill Hc;ausi e fnind that .innie Bartel testified credlbl in thit reeard and hecanlu e Smuith "..' Ilelr- tain as Ito hether such a ,,nmecr,.altin t,,ik place. I find thai BiFrtci did appro;ach him regarding hie ublect of the trle f pa;\ he and hi, fathelr icre receiv ttg Res pondernls Ultrese~ tctlled [hai :t i a, nieer irtncded Ih.at \:i5pl h Bariet receive a n.thini le, ti lsll ui llin ,ll!e fir .rr k rrfttirtled for Re- the crew returned to Mormon Lake and worked there 4 or 5 days until the work on that project was also completed. When the employees completed the assignment in north- ern Arizona. they were told by Brown to return to Phoenix. ile advised the employees to contact him or he would con- tact them with regard to their next assignment. On Decem- ber 2. Lonnie Bartel called Brown at Respondent's office to determine where he would be assigned next. Brown told Bartel to hold on so that he could check the work schedule. While Brown was off the line. Smith got on and spoke to Barrel. There is very little dispute as to the conversation between Smith and Bartel. Smith stated that Bartel had agreed to work for $8.13 an hour when first hired by Re- spondent. 'Ihat he appeared not to be satisfied because he wanted $9.96 an hour. although he had worked for the lesser rate before going to Happy Jack and Mormon Lake. Smith told Bartel that he could not employ him at union scale, and that he didn't have any further roller work for him.? According to Bartel. he told Smith that he had never agreed to work for less than scale at Happy Jack. Bartel also asked. whs his father had received less than union wages for the work? Smith replied that he did not know. Since the conversation with Smith on December 2, Bar- tel has not been recalled or employed b? Respondent. CON( I DIN(i FINDIN(iS The General Counsel contends that the facts here por- traas a "classic case" of concerted activity, which Section 7 of the Act is intended to protect. He argues that the failure to receive union scale for work performed at Happs Jack was the basis of the dissatisfaction of both Bartels. There- fore, their joint actions in bringing the matter to the atten- tion of management. although expressed individually by each employee, was in furtherance of a common cause and thereby constituted concerted activity. Respondent. on the other hand. argues that each Bartel was concerned only about his failure to be paid at union scale, and the com- plaint of each was personal and did not encompass the dissatisfaction of the other. Stated another way, Respon- dent contends that each employee was seeking an adjust- ment in his own particular rate of pay, rather than attempt- ine to secure union wages for the two of them. In mv judgment, the facts here warrant the finding of a vsiolation. and I so find. There is no question that Adolph and Lonnie Barrel wsere dissatisfied with the lower wage rates, and conferred aniong themselves as to what course of action the' would spmondenl lie hd, a b.a,.,. heen paid Llnion ,cale it the past heaue he m,a ,ontidcred .itt cnpcricnced 'peraitie etigineer tintze testified that the hookkecpcr erronciiiU' .a,,llned the ,ame ;sage rate to Adolph .1 retceied h, the 'sounier Balrtel Iheretmreo the error ,ais corrected is siooln as t ia s hroiuchlt i the h.ookkeeper s .Itteniln With respell to( I onnme Bariel. hou- eccr. Respondent intinllined that he Aa, hred at the Ilo:er uaie rate be- ialuse if hi, inespericne . \5icording ti Respondent. he had al.a.\ heetn piid Ic iti1 h il utlon ,ide anlid that age rate ast intended vo appu 1o hi, ,ork 1at the itlppi Ja.ck lhbite s Bartel testific thait Smith alsv asserted . nother reason for nol h,. iltg ait; v ,rk for hinl ai-ordlin Ii , Hartel. Smith ,itied that he (Bartel. ua.uld not.t dio celiluih - hoiiel . rk his va,s aconsidered lahb icr' aurk Smillh ienited nll lkine mlih iut .teniCtt n i d0 TGiil find [hi, io be nilllet t 1i. the is, ie, r sr,enid h, this .,isc ind I iltik n. Ftititlihe .i, 1, - hnether thec ,, csnid rca ,n - i, A ,serted hi SitLih 47 DECISIONS OF NATIONAL LABOR RELATIONS BOARD follow in order to get their pay adjusted. They jointly con- fronted the paving foreman, who was the highest manage- ment official permanently onsite at Happy Jack, with the problem. When he could not provide an answer for their concern, they brought the matter to the attention of Re- spondent's home office in Phoenix, based on the foreman's advice. In the interim, Lonnie Bartel questioned the field superintendent, who was visiting the jobsite, about the rea- son for his lower rate of pay. Thus, it is evident that each Bartel had conferred and acted together regarding a matter of common concern-even though each complaint was ex- pressed individually. Both employees were seeking the same objective, i.e., to have Respondent compensate them at the hourly rate of pay required by the Operating Engi- neers' master agreement, albeit Respondent was not a par- ty to that contract.9 When the Bartels noted their objection to the lower wage rate on their individual timecards on November 13, they put management on further notice that they shared a mu- tual complaint."' If Smith, Respondent's responsible offi- cial, had any doubt about the common objective of these two employees, it was dispelled when he questioned the foreman regarding the written comments on the timecards. Brown told Smith that "they [the Bartels] thought they should be getting $9.96." It is not material in assessing the commonality of their complaints that each was motivated by different reasons. Adolph, because he never worked for less than union scale, and Lonnie, because he was under the impression that the job was "union" and he had received union scale for work performed at Mormon Lake. It is sufficient that each ex- pressed a common complaint and sought a common objec- tive-payment of union wages. Nor is it of any conse- quence that the Respondent felt Adolph Bartel's complaint was meritorious, since his lower rate was the result of a bookkeeper's error, and that Lonnie Bartel's complaint was unjustified because he was reneging on his agreement to work for $8.13 per hour. Board case law holds that Section 7 protection accorded employees who are engaging in con- certed activities does not depend upon the merit or lack of merit of those activities. Hale Manufacturing Co., Inc.., 228 NLRB 10 (1977); John Sexton & Co., a Division of Beatrice Food Co., 217 NI RB 80 (1975). Based on the above, I find that Lonnie Bartel was en- gaged in concerted activity when he and his father com- plained about the wages they initially' received for work performed at Happy Jack. I further find that his discharge on December 2 was in part motivated by his actions in this regard. Although the Respondent asserts that Bartel was } Since Respondent wAs ainot signaltory tio the contract, this case is dlsln- guishabhl from cases wherein individual action has been found io be 1on- certed aCtivits. on the theory that it is merely an extension of the concrerted activit? which culminated in the collective-bargaining agreement See tie, l'tn Bl/tnlwc nd ( airsl( re Bunnehi.L PrtinCrI. d h a] Bntll'le Bro, ( ,,oll-itw i il (Compani, 139 N.RB 1516. 1519 (1962): Itlerhsro ( ,nllirlc r, i s, I57 NL.RB 129s ( 1966), enid 388 F.2d 495 (CA. 2, 1967). ° Although L onnie Bartel wrote Adolph's compl.aint on the latier', I!elr- card. I find that Respondent had no knowledge that he had done so or that it was at Adolph's request discharged because he reneged on the agreement to work for $8.13 an hour, I credit Bartel's testimony that he was told by Smith that there was no work for him because of his "actions at Happy Jack," and because he agreed to work for the lesser amount in Phoenix. Consequently, I find that Bartel's discharge violated Section 8(a)(1) of the Act. Waco Insulation, Inc., 223 NLRB 1486 (1976). CONCLUSIONS OF LAW I. Respondent Hintze Contracting Company, Inc., is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By refusing to assign further work and thereby dis- charging employee Lonnie Bartel, on December 2. 1976, for engaging in protected concerted activities, Respondent violated Section 8(a)( ) of the Act. 3. The aforesaid labor practices are unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE EFFECT OF ItIF UNFAIR LABOR PRAC(-TICES UPON COMMER( E The activities of Respondent. as found herein, occurring in connection with its operation described above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. THEi RFMEDY Having found that Respondent is engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act, Respondent shall be ordered to cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It shall be recommended that Respondent offer Lonnie Gene Bar- tel immediate and full reinstatement to his former position of employment or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the unlawful termination of his employment. Backpay shall be computed. with interest thereon, in the manner prescribed in F W. Woolworth Company,. 90 NLRB 289 (1950). and Florida Steel Corporation. 231 NLRB 651 (1977).'' Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: See, Cenclaills I.s ItPl,,ht,, A. lt,oIlr' (e , 1, NI RB 7161( 19621 48 HINTZE CONTRACTING COMPANY ORDER ,2 The Respondent, Hintze Contracting Company, Inc.. Phoenix, Arizona, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Discharging or otherwise discriminating against any of its employees for engaging in protected concerted activi- ties for the purpose of obtaining an increase in hourly wage rates or other mutual aid and protection. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act as amended. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Offer Lonnie Gene Bartel immediate and full rein- statement to his former position of employment or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, and make him whole, in the manner set forth above in the section entitled "The Remedy" for any loss of earn- 2 In the event no exceptions are filed as provided by Sec 10246 of1 the Rules and Regulations of the National Labor Relations Btiard. the findings. conclusions. 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 he deemed waived for all purposes. ings he may have suffered by reason of the unlawful termi- nation of his employment. (b) 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 and relevant to analyze and compute the amount of backpay and reinstatement rights due under this recom- mended Order. (c) Post at its Phoenix, Arizona, office copies of the at- tached notice marked "Appendix." 13 Copies of said notice. on forms provided by the Regional Director for Region 28, after being duly signed by Respondent's authorized repre- sentative, shall be conspicuously posted by it immediately upon receipt thereof, and maintained for 60 consecutive days thereafter, in places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to ensure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 28, in writ- ing, within 20 days of the date of this Order, what steps Respondent has taken to comply herewith. " In the esent that this Order is enforced b i a Judgment of a U nited States ('ourt of Appeals, the words in the nritie reading "Posted bh Order of the National I .abhr Relatlolns Board" shall read "Posled Pursuanl to a Judgment of the United States ( our of .\ppealk Enforcing an Order of the Naional I ahor Relalions Board " 49