Universal Utility Contractors, Inc.

668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Universal Utility Contractors, Inc. and Larry C. Ka- TRIAL EXAMINER'S DECISION minski. Case 19-CA-4730 February 24, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On September 21, 1970, Trial Examiner Robert L. Piper issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed limited exceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel thereafter filed a reply brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegat- ed its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the ex- ceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Universal Utility Contractors, Inc., Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' i The Respondent, in its exceptions, asserts that it offered the discrimmatee his former job of pipelayer on June 8 , 1970, and that he refused such offer Thus the Respondent argues that the Recommended Order of the Trial Examiner should be modified to provide only for backpay from the date of his discharge to June 8 , 1970. Rather than reopening the record at this time to permit further litigation of the matter raised , we find that the issue whether the Respondent's contention is supported is best left to compliance. 2 In footnote 5 of the Trial Examiner's Decision, substitute "20" for "10" days STATEMENT OF THE CASE ROBERT L. PIPER. Trial Examiner : This proceeding, under Section 10(b) of the National Labor Relations Act, as amended was heard at Seattle, Washington, on July 9, 1970,1 pursuant to due notice . The complaint, which was issued on May 28 , on a charge filed April 6, alleged in substance as amended that Respondent en aged m unfair labor practices proscribed by Section 8(a)(1) and (3) of the Act by discriminatorily discharging Larry C. Kaminski, an employee. Respondent's answer denied the alleged unfair labor practices . The General Counsel and Respondent filed briefs. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTIONAL FINDINGS Respondent is a Washington corporation engaged in the installation of underground utility pipelines with its princi- pal office located in Seattle, Washington. During the past year it purchased and received supplies and materials val- ued in excess of $50,000 directly from points outside the State of Washington. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Building Laborers Local Union No. 292, Laborers Inter- national Union of North America, AFL-CIO ( hereinafter called the Union), is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction and Issues Larry C. Kaminski, the Charging Party, was employed by Respondent for approximately 2 years. On March 9, at Respondent's request, Kaminski joined the Union. On April 2 the Union informed Respondent that Kaminski was not being paid the proper wages and travel pay under the Union s contract with Respondent. On April 3, Respondent discharged Kaminski. The issue, as framed by the pleadings, is alleged discrim- ination and interference, restraint, and coercion by the dis- charge of Kaminski. B. Chronology of Events Respondent, a Washington corporation since 1968, is en- gaged in the installation of underground utility pipelines. Its president and principal stockholder is Gerald D. Bold. He owns 50 percent, his wife 5 percent and Alvin D. Zahnow 45 percent of the corporate stock. Prior to incorporation in 1968, Bold operated the same business as an individual or sole proprietor doing business as Universal Construction Company. On November 29, 1966, Bold as such sole propri- etor entered into a compliance agreement with another local of the Laborers International Union, under the terms of which Bold agreed to abide by all the terms and conditions i All dates hereinafter refer to 1970 unless otherwise indicated 188 NLRB No. 104 UNIVERSAL UTILITY CONTRACTORS, INC. 669 of the master agreement and all subsequent agreements between the Associated General Contractors of America and the Western Washington District Council of Laborers, which included all of the locals in the 15 northwest counties of the State of Washington, including the Union. The cur- rent master agreement between Associated General Con- tractors and the Western Washington District Council runs from January 18, 1968, to May 31, 1971. The compliance agreement executed by Bold further provided that it would remain in full force and effect from year to year thereafter until terminated by either party upon 60 days notice in writing. No such notice was ever given. Kaminski was employed by Respondent in April of 1968. He worked for Respondent as a pipelayer. Although Re- spondent offered some testimony to the contrary, the record establishes that Kaminski was employed primarily as a pipelayer throughout his tenure with Respondent. Although the master agreement adopted as a result of the compliance agreement required employees to become members of the Union within 9 days of their employment and included specified wage rates for pipelayers. Kaminski had never become a member of the Union or been paid the specified wage rate by Respondent prior to the incidents in this case. During 1968 or 1-969 Zahnow, who had been employed by Universal Construction Company as a foreman and contin- ued as such after the incorporation of Respondent, told Kaminski not to join the Union. Around Thanksgiving of 1969 Bold told Kaminski that he had been doing a goodjob, deserved a raise, and that Bold was going to give him an additional 25 cents an hour. On or about March 1, Respondent commenced its Silver Lake project, the installation of utility pipelines for a munic- ipal water district. Respondent assigned Kaminski to that project as one of its two pipelayers. Shortly thereafter, Peter Hylback, assistant business manager of the Union, visited the project to check on union membership of the employees. Either Bold or Charles C. Caldart, Respondent's foreman on the project, informed Hylback that Respondent had a pipelayer, namely, Kaminski, in its employ whom it wished the Union to accept into membership. On or about March 8 Bold informed Kaminski that it looked like the Silver Lake project was going to be a union job, that Respondent would have to pay union wages and that he would have to join the Union. On March 9 Respondent gave Kaminski time off to go to the Union hall and join, which he did. Kaminski advised the Union that he had been employed by Respon- dent as a pipelayer for approximately 2 years and was work- ing as a pipelayer on the Silver Lake project. On April 1 Hylback and Loren Bogart, the Union's business manager, visited Respondent's Silver Lake project. They considered that they had the right to visit the project because the master contract stipulated that such union representatives had per- mission to visit the job at any time. They asked Kaminski and Nyal Bogart, Loren's brother, who was also employed by Respondent as a pipelayer, to show them their check stubs to ascertain whether they were being paid the appro- priate union scale . Nyal Bogart, who had been a member of the Union for some time, produced his check stub which revealed that he was being paid the appropriate union scale for pipelayers. Kaminski did not have a check stub availa- ble, so Hylback instructed him to bring one the following day. The following day, April 2, Hylback returned to the pro- ject and examined Kaminski's check stub, which revealed that he was not being paid the pipelayer's wage scale or the travel time required by the contract. Respondent was pay- ing Kaminski $4.50 an hour instead of the $4.90 an hour for pipelayers specified by the master agreement. (Prior to 1969 the amount specified by the contract for pipela ers was $4.60 an hour.) Hylback thereupon called this to the atten- tion of Bold, who was present at the project. Bold became very angry and upset. He immediately ran over to Kaminski and began yelling at him, asking why he had shown his check stub to Hylback, stating that Hlback was not God and that Kaminski did not have to show him a G.D. thing, and adding th at Kaminski should not pay any attention to Hylback. Kaminski replied that he had not known his rights and so had shown his check stub to Hylback. Bold then asked Kaminski if he wanted to work there and if he liked working there, adding that Bold had a mind to fire him. Kaminski replied that he liked working there. Bold then complained to Hylback that Bold had kept Kaminski work- ing when things were slow, had given him a Christmas bo- nus and would be damned if he was going to pay Kaminski union wages or $4.90 an hour. Hylback then left the project. The foregoing conversation was testified to by Kaminski, substantially corroborated by Hylback and undenied by Bold. At quitting time April 3, a payday, Caldart gave Kamin- ski two checks and informed him that he was being laid off, without any explanation. Later the same day Kaminski re- ported his discharge to the Union. On Monday, April 6, Respondent requested and the Union referred a replace- ment pipelayer. On April 6 Kaminski filed his charge with the Board. On May 28 the complaint herein was issued. On June 12 Respondent's counsel in writing offered Kaminski "reinstatement to his former position." Bold testified that this offer was for reinstatement as a laborer, not as a pipe- layer. (The wage scale for general laborers under the master agreement was $4.60 an hour.) Patently Respondent's offer was not to Kaminski's former or substantially equivalent position as required by the decisional law. C. Discrimination and Interference, Restraint and Coercion The complaint alleged that Respondent discharged Ka- minski on April 3 because the Union , acting on his behalf, sought to implement the wage terms of the collective-bar- gaining agreement. As hereinabove found , on April 2, after the Union informed Bold that Respondent was not paying Kaminski the wage scale and travel time required by the contract, Bold became very angry, criticized Kaminski for showing the Union's representative his check stub , threat- ened Kaminski with discharge, and advised him and the Union's representative that Respondent was not going to pay Kaminski union wages or $4.90 an hour. The following day Respondent terminated Kaminski without explanation, and the succeeding workday replaced him with another pipelayer requisitioned from the-Union. Respondent presents several contentions, all of which are without merit. Respondent contends that it was not a party to the master contract with the Union, because the compli- ance agreement was signed by Bold in 1966 while doing business as Universal Construction Company, a sole propri- etorship, and not by Respondent after its incorporation. The complaint as amended alleged that the Union at all times material had reason to believe that Respondent was a party to the collective-bargaining agreement, instead of alleging that Respondent was a party to said agreement. The parties to the compliance agreement agreed to be bound by the master agreement, and all subsequent agreements, be- tween the A.G.C. and the Western Washington District Council, including all of its members, until either party terminated the compliance agreement by 60 days written notice. It is undisputed that no such notice was ever given. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While there might be some doubt as to the legal signifi- cance of the change in operations from a sole proprietorship to a corporation vis-a-vis the contract, the record establishes that both the Union and Respondent considered themselves parties to the contract after the corporation was organized in 1968. The Union came onto the Silver Lake project site and checked on membership because it believed it had a right to do so under the terms of the contract, which provid- ed that all employees were required to become members of the Union within 9 days after employment. Respondent by several statements and acts admitted that it considered itself bound by the contract. Quite clearly if Respondent believed that it was not a party to the contract with the Union, it would have had no need to require Kaminski to join the Union, it would not have characterized the Silver Lake pro- ject as a union job, it could have ignored any demands from the Union, and it would have had no reason to consider itself compelled to pay Kaminski union wages when re- quested to do so by the Union. When the Union appeared at the Silver Lake project shortly after it started, Respondent advised the Union that Respondent had a pi elayer whom it wished the Union to accept into membership. Respondent then advised Kamin- ski that he would have to join the Union because of the contract, and instructed him to do so. When the Union advised Respondent that it would have to live up to the terms of the agreement with respect to Kaminski s wages and travel time, Respondent did not deny that it was a party to the contract but instead berated Kaminski for conveying such information to the Union, threatened him with dis- charge, advised the Union representative that Respondent wound not pay Kaminski union wages, and subsequently requisitioned a replacement from the Union. Patently Re- spondent would not have done these things unless it consid- ered itself a party to the agreement. I am satisfied and find that Respondent was, and/or believed that it was, a party to the collective-bargaining contract with the Union. More- over, the record establishes that Respondent was a succes- sor to the prior sole proprietorship within the meaning of the Act. It is now well settled that such a successor is bound by the terms of its predecessor's to collective-bargaining con- tract 2 Respondent also contends that on March 30, before the Union complained about Respondent's failure to pay Ka- minski the wages and travel time required by the contract, it had decided to terminate Kaminski on April 3 allegedly because of his laziness and ineffeciency, continually throughout the 2 years of his employment, at that time aggravated by the complexity and contractual deadline of the Silver Lake project. Respondent's proof in support thereof was self-serving, confused, in some instances contra- dictory, and in other instances inherently inconsistent. I do not credit the testimony of Res ondent's officials and fore- men that this was the reason for Kaminski's termination. Bold and Caldart testified that on Monday, March 30, before the Union visited the project with respect to Kaminski's pay, they had agreed to terminate Kaminski April 3 because of his alleged deficiencies. (In this connec- tion, contrary to Respondent's brief, there is no reliable proof in the record that Respondent had prepared Kaminski's termination check prior to the incident on April 2). Bold, Caldart, Bold's brother Charles, a foreman, and Zahnow, Kaminski's foreman a majority of the time, testi- fied that for the entire duration of Kaminski's employment he had been extremely lazy and frequently would not per- 2 The William J Burns International Detective Agency, Inc, 182 NLRB No 50 (1970) form his tasks but would waste time. Although this allegedly had been going on for 2 years, according to Kaminski, whom I credit, Respondent had never threatened him with discharge or otherwise disciplined him. Caldart and Charles Bold testified that Kaminski was incompetent and unable to do the work. Bold, Respondent's president, testified that Kaminski could and would do a beautiful job one day but the next day would goof off and avoid working. Bold in an affidavit stated that Kaminski had a likeable personality and got alone very well with his fellow employees. Caldart in his affidavit stated that Kaminski did not get along well with his fellow workers. Around Thanksgiving 1969 Bold told Kaminski that he was doing a good job, deserved a raise, and Bold was going to increase his pay 25 cents an hour. In spite of Kaminski's alleged deficiencies, in early March Respondent asked the Union to sign him up as a pipelayer and on March 9 requested Kaminski to join the Union as a pipelayer. Respondent also contended that Ka- minski was a general laborer, not a pipelayer. The record demonstrates the contrary. Kaminski testified that he was employed as Respondents principal pipelayer throughout the 2 years; Zahnow, his foreman most of the time, testified that Kaminski worked primarily as a pipelayer; it was un- disputed that Kaminski was employed as a pipelayer on the Silver Lake project; and Respondent admittedly requested the Union to admit Kaminski to membership as a pipelayer. Various statements and acts of Respondent were inher- ently inconsistent with its alleged decision on March 30 to terminate Kaminski April 3, and demonstrate that Respon- dent in fact did not decide to terminate Kaminski until after the Union's complaint about his wages. On April 2, when the Union advised Bold that Respondent wouldhave to pay Kaminski the wages and travel time required by the con- tract, Bold became very upset and angry, as hereinabove found. If in fact Respondent had already made a final deci- sion to terminate Kaminski the following day, this reaction is inexplicable. Bold yelled at Kaminski in profane language asking him why he had shown his check stub to the Union s representative. Bold also asked Kaminski if he wanted to continue working there, and threatened him with discharge for revealing that he was not being paid the correct amount. Bold also informed the Union representative that Bold would be damned before he would pay Kaminski union wages. All of this is inconsistent with Respondent's alleged prior decision to terminate Kaminski. Both Caldart and Bold made no reference in their affidavits to this alleged prior decision to terminate Kaminski. Caldart's affidavit stated: "Several times affiant told Jerry Bold that it would be necessary to fire Mr. Kaminski. Finally, on April 3, 1970, and after discussion with management, affiant did layoff Mr. Kaminski because he was such a poor worker, he did not get along with his fellow workers ... (Emphasis added.) Bold's first affidavit stated: "Improvement did not follow and it was again requested by the foreman that affiant lay off Mr. Kaminski. Even though this was the second request to lay off the man, affiant delayed hoping that there would be improvement. Finally on April 3, 1970, after having reports from several of the employees and the foreman that Mr. Ka- minski was not doing a good job and it appearing that he would not and could not improve in the future. affiant laid him off." (Emphasis added.) The foregoing clearly establishes that Bold did not decide to terminate Kaminski until April 3. In addition, when Bold was asked why on April 2 he had asked Kaminski if he didn't like his ob if the decision to terminate him had already been made on March 30, Bold replied: "Well, truthfully, you know, there is [sic] many times that ... the foreman has asked me to let the man go UNIVERSAL UTILITY CONTRACTORS, INC. and I kept saying maybe he will get better , maybe he will straighten out, and be a good man . Let's give him a chance. We have been doing this for 2 years and ... " When Bold was asked why he got upset when Hylback advised him that he would have to pay Kaminski the pipelayer 's scale, Bold testified that he was angry because Kaminski had not asked Bold for the pipelayers' scale, instead of the Union repre- sentative telling him, and that he would probably have given it to Kaminski if he had asked for it. Clearly such admission contradicts Respondent's contention that it had already de- cided to terminate Kaminski, and constituted an implicit admission that it was the Union's demand which led to Kaminski's discharge. It is now well settled that discharging or otherwise dis- criminating against an employee, because of his or his union's assertion of a claim or right pursuant to the terms of a collective-bargaining agreement, is a violation of both Section 8(a)(1) and 8(a)(3) of the Act 3 A preponderance of the reliable, probative, and substantial evidence in the entire record convinces me, and I find, that Respondent's alleged reason for terminating Kaminski was pretextual and that Respondent's real reason for discharging Kaminski was be- cause the Union, acting on his behalf, sought to implement the wage and travel-time terms of the collective-bargaining agreement, thereb discriminating against him in violation of Section 8(a)(3) of the Act, and interferingg with, re- straining, and coercing him in the exercise of rights guaran- teed in Section 7 of the Act , in violation of Section 8(a)(1) of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce, and the Union is a labor organization, within the meaning of the Act. 2. By discharging Kaminski because the Union acting on his behalf sought to implement the wage and travel-time terms of the collective-bargaining agreement, Respondent engaged in discrimination to discourage membership in the Union, and interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed by Section 7 of the Act, thereb engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the followmg: RECOMMENDED ORDER Universal Utility Contractors, Inc., its officers, agents, successors and assigns, shall: 671 1. Cease and desist from: (a) Discouraging membership in Building Laborers Local Union No. 292, Laborers International Union of North America, AFL-CIO, or any other labor organization of its employees, by discharging or in any other manner discrim- inating against employees in regard to hire or tenure of employment or any other term or condition of employment because of their union or concerted activities. (b) In any like or related manner interfering with, re- straining or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effec- tuate the policies of the Act: (a) Offer Larry C. Kaminski immediate and full reinstate- ment to his former job, or if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to that which he would normally have earned from the date of his discharge to the date of such offer of reinstatement, less his net earnings during said period (Crosser Lumber Company, 8 NLRB 440), said back- pay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 M). per annum (Isis Plumbing & Heating Co., 138 NLRB 716). (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to determine the amount of backpay due under this Order. (c) Post at its principal office and projects sites in Seattle, Washington, copies of the attached notice marked "Appen- dix."4 Copies of said notice, on forms provided by the Re- gional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to emloyees are custom- anly posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writ- ingg, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.5 3 N L.R B v Pruden Products Co, 422 F 2d 855 (C A 7); Great Falls White Truck Co, 183 NLRB No 64 (1970), George Kennedy Construction Company, Inc, 172 NLRB No. 196 (1968), and Bowman Transportation Incorporated 134 NLRB 1419 4 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 Rela- tions Board" shall be change to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " S In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Re- gion 19, in wnting, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government have suffered as a result of our discrimination against him. All of our employees are free to become, remain, or re- frain from becoming or remaining, members of the above- named or any other labor organization, except to the extent that such right may be affected by an agreement conform- ing to the provisions of Section 8(a)(3) of the National La- bor Relations Act. WE WILL NOT discourage membership in Building La- borers Local Union No. 292, Laborers International Union of North America, AFL-CIO, or any other la- bor organization of our employees, by discharging or in any other manner discriminating against our em- ployees in regard to hire or tenure of employment or any term or condition of employment because of their union or concerted activities. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. WE WILL offer Larry C. Kaminski immediate and full reinstatement to his former job, or if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay which he may UNIVERSAL UTILITY CONTRACTORS, INC (Employer) Dated By (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, Re- public Bldg., 10th Floor, 1511 Third Avenue, Seattle, Wash- ington 98101, Telephone 206-583-7473.