S. J. Carlson & Son, Inc.

S. J. CARLSON & SON, INC. S. J. Carlson & Son, Inc. and Ralph Riley. Case 38-CA-605 September 29, 1969 DECISION AND ORDER By CHAIRMAN MCCU LLOCH AND MEMBERS JENKINS AND ZAGORIA On June 9, 1969, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that the Respondent has not engaged in certain unfair labor practices alleged in the complaint and recommending that the Board dismiss the complaint in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision, and a supporting brief. 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 Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'While we agree with the Trial Examiner that the General Counsel did not establish that the Respondent engaged in any unfair labor practices by reason of Ralph Riley's discharge on Janaury 8, 1969, we do not adopt, and specifically disavow, his comments with respect to the relative weight to be accorded "timing" as a factor in drawing inferences regarding unlawful motivation TRIAL EXAMINLR'S DECISION STATEMLNT OF THE CASE HERBERT SILBERMAN, Trial Examiner Upon achargeftled on January 24, 1969. by Ralph Riley, a complaint, dated February 12, 1969, was issued alleging that the Respondent, S. J Carlson & Son, Inc , herein sometimes called the Company, has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended Respondent's answer denies that it violated the Act. A hearing in this proceeding was held in Rockford, Illinois, on April 15, 1969. Thereafter, the General Counsel filed a brief which has been carefully 178 NLRB No. 113 701 considered. Upon the entire record in the case and from my observation of witnesses and their demeanor, I make the following. FINDINGS OF FACT 1. THE BUSINFSS OF THE COMPANY Respondent , an Illinois corporation , is engaged in the business of installing plumbing and heating systems. In the course and conduct of its business , Respondent, during the past 12 months, which period is representative of its operations, purchased and caused to be delivered to its premises and job sites in Illinois from places outside that State goods and materials valued in excess of 550,000. Respondent admits, and I find , that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED Local 32, Laborers' International Union of North America, AFL-CIO, herein sometimes called the Laborers Union, and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. herein sometimes called the Plumbers Union, are labor organizations within the meaning of Section 2(5) of the Act. IIi. THE ALLEGED UNFAIR LABOR PRACTICES General Counsel contends that the Respondent on January 8. 1969. unlawfully terminated the'employment of Ralph Riley because the Company believed that Riley, although a member of the Laborers Union was instrumental in causing Rudolph Ammon. a business representative for the Plumbers Union, to visit Respondent's offices on January 3, 1969, and to protest the fact that the Company was using laborers and not licensed plumbers to lay cast-iron soil pipe on a particular job, referred to as the Canfield Clinic Job. As a result of Ammon's protest, the Company assigned a plumber to the job. Respondent denies that Riley was discharged for such reason. Its defense is that Riley for a substantial period of time assumed a contemptuously insubordinate manner in his dealings with his employer. shirked his work and for those reasons was discharged. The Company further contends that the decision to discharge Riley was made on November 2. 1968, prior to Ammon's complaint, but was not carried out until some months later when for seasonal reasons work became slack. The Company is a contractor in the building and construction industry engaged principally in installing plumbing, heating, and air conditioning systems. It also does considerable work in the streets such as running extensions to sewer lines and to water mains. The Company employs laborers, plumbers, and other craft classifications. All the Company's employees are members of the various unions having jurisdiction of the types of work performed by them. The Company recognizes and bargains with such unions as the representatives of its employees. The contract with the Laborers Union contains no seniority clause nor any restriction upon the Company laying off or discharging its laborers. However, the Company's practice has been to retain a so-called basic crew year around. Its reasons for doing so are to guarantee that the better employees will remain during the 702 DECISIONS Oh NATIONAL LABOR RELATIONS BOARD busy seasons and, according to Respondent's president, Roland Carlson, because the Company believes that a conscientious workman should earn a full week's pay every week of the year. Ralph Riley began to work for the Company about June 1963 as a laborer. He became part of the basic crew and worked continuously without layoff until he was terminated on January 8, 1969. Although Riley was a laborer and a member of the Laborers Union, he testified that on three different occasions during his 5 years of employment with the Company he complained about the fact that he was assigned to lay pipe which he believed to be plumbers' work.' He was not subject to a layoff or threat because of such complaints. The critical events relied on to support the complaint largely turn on Riley's assignment to the Canfield Clinic job. According to Riley, about noon on January 2, 1969, Supervisor Bob Sargent told him to lay pipe. Riley answered, "I didn't want to lay the pipe because I'd had trouble with the Plumbers on it " Sargent responded that he was acting under Carlson's instructions. To this Riley said, "Rollie [Carlson] knows better . . . . I told him before that if the Business Agent came out and said anything to me that I'd go to the office with him." Riley. nevertheless, laid pipe as he was instructed to do. The next morning in the shop, according to Riley. Bill Moore and Lowell Herbert, who are plumbers employed by Respondent, asked Riley who was laying the pipe at the Canfield Clinic lob and Riley replied, "You're looking at one of them."' The Plumbers Union business agent, Rudolph Atnmon, testified that he received an anonymous telephone call that laborers were laying pipe at the Canfield Clinic Job He went to the site to investigate. There he found that laborers were laying cast-iron soil pipe and that there was no plumber assigned to the lob He then went to the Company's offices and spoke to Roland Carlson According to Ammon, Carlson explained that the laborers were not supposed to lay the pipe but were only supposed to dig some ditches and that a plumber from another job was going to the Canfield Clinic site to lay the pipe. Ammon told Carlson "that he'd better get a [plumber] out there or it will cause some trouble" and threatened that if the matter was not taken care of "we'd have to pull the job " After Ammon's visit the Company assigned a plumber to the job Ammon's visit to the Company was on Friday, January 3, 1969 Riley was discharged the following Wednesday, January 8. 1-or y evidence of discriminatory motivation General Counsel depends upon the following testimony of Roland Carlson- Q. [By Mr Stanton] The company was aware that Mr. Riley was spending time, when he was paid by the Company, making efforts to protect the interests of other unions? 'No evidence was adduced at the hearing regarding the practice of the Company or of other employers in the area, whether pursuant to contract or otherwise, of assigning laborers or members of the various crafts to do any particular work Thus, there is no basis in the record for determining whether or not Riley's complaints were justified Furthermore, Riley testified that the business agent for the Laborers Union had said it was permissible for laborers to lay pipe 'Riley testified that he did not speak to the business agent of the Plumbers Union about laborers laying the soil pipe at the Canfield Clinic project A. Yes. I would say that but that's not any different than many of our others . . it's a general condition Q. (By Mr. Stanton ) It is the Company 's position that they felt it was unfair for Riley to spend time and effort to protect the interests of other employees and other unions on time when he was paid by S. J. Carl son? A I presume 1 might say yes to that but that's no different from what we have... many, many others are doing the same thing. We face that consistently Q. [By Mr. Stanton] . . you were aware that Riley told the men not to let the Company drive them? A. I was aware of that, yes. Q. And you were aware of the Net prior to his discharge, is that correct? A. I was aware of that many, many times. Q And prior to his discharge" A. Yes, many, many times * * * * * Q [By Mr. Stanton] Prior to Mr. Riley's discharge, you thought that Riley might have had something to do with Mr. Ammon's visit. Is that correct? A. I suppose I'd say yes to that. According to Roland Carlson, during Riley's last 3 years of employment he had become insubordinate and tended to shirk his work. Although Riley had the capabilities of being a good employee, Carlson testified that "[i]t got to the point, eventually, where he felt that he was doing us a favor to work for us ... " It was this attitude on Riley's part which the Company contends led to his discharge. Carlson further testified that on several occasions during Riley's employment with the Company he had given consideration to discharging Riley, and finally on November 2. 1968, reached a firm decision to terminate Riley On the day in question Riley and another laborer, Donald Bestor, were digging manholes The Company was under pressure to complete the particular work quickly. When Carlson visited the site on November 2, he observed that Riley was "standing down there piddling around. Just doing nothing, while Bestor [was] working his head off. So, I said to Riley, 'Riley, we've got to get this job done. [W]e've got to get going.' [Riley] said, 'I'm doing all I'm going to do.' I said. 'Riley, you and I have talked about this many, many times. I told you many times that if you don't want to work for us and you don't appreciate working for us, why don't you get up and go back to the shop and get your check? . . You don't have to stay here. I've put up with it for the last time. There won't be another time.' " Carlson further testified that he "had to get down in the hole and dig the hole" himself ' Upon his return to the office on the same day, Carlson instructed Superintendent Dale Anderson and Office 'I credit Carlson's version of the incident Riley did not deny that any angry exchange of words took place on the occasion in question According to Riley, "Me and Don was down in the hole [flinging] dirt out and Rollie he hollered we wasn t getting dirt out of the hole and he hollered down he said, 'Riley, you're big and strong' I said, 'i won't he very long if I keep this up all day.' And Rollie says, 'You know what you can do about it ' I said, 'Yes, and you do too; and that was all that was said " There is no denial that on the occasion in question Carlson himself dug part of the hole S J. CARLSON & SON, INC. 703 Manager Ken Linenmcyer that as soon as work becomes slack Riley should be laid off. However. Riley was not terminated until shortly after Ammon's visit to the Company on Friday, January 3, 1969 On Monday, January 6. Ken Lincnmeyer. the Company's bookkeeper was instructed by Carlson to make out Riley's check and to give it to him on Wednesday, January 8. the end of the pay period. According to Carlson, about a week before Riley was discharged he learned that Anderson had laid off some members of his crew but had not terminated Riley. Ile questioned Anderson as to why Riley had not been laid off and Anderson explained that he had forgotten about Carlson's instructions. Anderson corroborated Carlson Anderson testified that about Christmastime he had laid off some men at which time Carlson mentioned that he should lay off Riley Anderson indicated that he wanted to keep Riley on the job he was then doing and Carlson instructed him that "[W]hen we get caught up with that kind of work, we'll lay him oft." Anderson further testified that either "the morning before or the night before [Riley was laid off] ... [Carlson] said, `We might as well lay [Riley] off We have caught up with the work ' " The Company then had stopped work at the Canfield Clinic which was the last outside job that it did during that winter season. In a well-written brief, General Counsel gives the following summary of his position From the above discussion, it is evident that the November 2 incident and the events leading up to it were not the motivating reasons for Riley's layoff on January 8, 1969. The only remaining explanation for the layoll' is that it was motivated by Respondent's belief that Riley was responsible for the Plumber Business Agent's visit to Respondent's office on January 3. 1969, to protest the assignment of plumbers work to laborers. The conclusion is supported by the fact that Riley's check was prepared the following Monday Respondent must have viewed Ammon's complaint as important since it immediately sent a plumber to do the work. Moreover, the complaint took on an added importance since it was accompanied by a threat to pull the rush job, which would result in causing Respondent to break its word to the Clinic that the sewers would be laid before the rain or snow came Carlson admitted that Respondent resented Riley's past activities of protecting the interests of other unions and that he was the kind of' employee who minded other people's business. His belief that Riley was responsible for Ammon's visit could only have increased this resentment Angered by the thought that Riley could be so unfaithful, Carlson followed his normal practice of terminating unfaithful employees. General Counsel makes two affirmative points in support of his argument. The first is that the timing of Riley's discharge indicates a discriminatory motivation because Carlson gave final instructions to terminate Riley on the Monday immediately following Ammon's visit on the previous Friday, which visit Carlson suspected was somehow prompted by Riley. Although timing is a factor which the Board considers in drawing inferences regarding unlawful motivation, its weight in any given case is dependent upon its relationship to other incriminatory evidence Timing is subject to the infirmity that the particular interval between the linked events was merely coincidental. The factor of coincidence must be minimized, if not eliminated altogether, before timing can be given significant weight to support a conclusion regarding a party's motivation Here there are no other significant incriminatory factors to which the timing of Riley's discharge can be related to give controlling significance to the fact that he was terminated soon after Ammon's visit. General Counsel's second point is that the Company must have viewed Ammon's complaint and threat to pull the job as important because it immediately sent a plumber to do the work While it may be true that Carlson believed Ammon would have carried out his threat if the Company did not dispatch a plumber to the job, it does not follow that the Company viewed Aminon's visit as a matter of serious concern. There is no evidence that as a consequence of Ammon's visit the Company's operations were either hampered or made more expensive. Nor is there any evidence that similar complaints by business agents of the various craft unions seeking assignments of work were unusual and were not accepted as a normal incident of doing business' Stated otherwise, there is no evidence indicating that the Company or Carlson was inclined to engage in reprisals against the employees who might have been responsible for reporting to Ammon that no plumbers had been assigned to the Canfield Clinic job. There is an absence of evidence demonstrating a disposition on the part of the Company to discharge Riley (or any other employee) for having reported the Canfield Clinic job to Amnion. General Counsel makes a parallel argument to the effect that Riley was discharged because of Carlson's accumulated resentment, triggered by the Ammon incident, of Riley's past activities in protecting the interests of other unions and of' Riley's involvement in other people's business. The difficulty with this argument is that it appears from Carlson's testimony that other employees were guilty of the same offenses and there is no basis in the record for inferring that such offenses were viewed by the Company to he of sufficient magnitude as to impel the discharge of employees Although General Counsel vigorously attacks Carlson's credibility, his prima facie case is dependent upon Carlson's testimony. While it is not unusual to credit a witness in part and to discredit other portions of the witness' testimony. in this case, contrary to General Counsel, 1 find that Carlson was generally a truthful and reliable witness I credit the testimony of Roland Carlson that on Novembei 2, 1968, he finally decided to terminate Riley and had given instructions to such effect to, Anderson I also find credible Carlson' s and Anderson's explanations for the delay until January 8, 1969. in effecting the decision to terminate Riley. As I find that Ralph Riley was terminated, not for the reasons asserted by General Counsel, but because of a final act of insubordination on his part following a long period of generally unsatisfactory behavior, I further find that the General Counsel has not proved that the Respondent has engaged in any unfair labor practices by reason of Riley's discharge. I shall therefore recommend that the complaint herein be dismissed. CONCI USiONS oi. LAw Respondent has not violated Section 8(a)(1) and (3) of the Act as alleged in the complaint. 'Carlson testified that there have been no visits Irom the business agents of the Laborers Union, and that there were 3 or 4 visits by business agents of the Plumbers Union in the last 5 years "not directly in that area, but possibly in some other areas" Carlson was not questioned about visits by the business agents of the other craft unions. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER conclusions of law and upon the entire record in the case, I iccommend that the complaint in this case be dismissed Upon the basis of the foregoing lindings of fact and in its entirety.