State Mechanical Constructors, Inc.

STATE MECHANICAL CONSTRUCTORS, INC. 547 State Mechanical Constructors, Inc. and James Hart- mann . Case 21-CA-9666 October 6, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 5, 1971, Trial Examiner Maurice Alexan- dre issued his Decision in the above-entitled proceed- ing, finding that 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 copy of the Trial Examiner's Decision attached hereto. The Trial Examiner further found that Respondent had not violated the Act in other respects alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision with a brief in support thereof and the General Counsel filed cross-excep- tions and a 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, cross-excep- tions, and briefs and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations 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 State Mechanical Constructors, Inc., Hawthorne, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. CHAIRMAN MILLER , dissenting: My colleagues find in agreement with the Trial Examiner that Respondent's reasons for selecting Hartmann for layoff were insubstantial and pretextu- al. I cannot agree. The evidence of discriminatory motivation amounts to little more than the fact that the selection was made shortly after Hartmann testified in a Board proceed- ing. This timing is sufficient to create a suspicion, but is refuted by the weight of the evidence. That evidence shows that Hartmann was one of six employees who could have been selected for a layoff that was economically necessary. Throughout the entire course of the job, the employees had worked in teams of two. The selection of any other employee for layoff would have required splitting two of the established teams, whereas Hartmann's layoff required breaking up only one team. In these circumstances, the record is sufficient, in my view, to refute the suspicion created by the timing, and no 8(a)(4) violation has been established. TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner: This case was heard in Los Angeles, California, on February 23 and 26, 1971, upon a complaint issued on December 15, 1970,1 alleging that Respondent had violated Section 8(a)(1), (3), and (4) of the National Labor Relations Act, as amended, by discharging James Hartmann. In its answer, Respondent denied commission of the unfair labor practices alleged. Upon the entire record, my observation of the witnesses, and the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent has admitted the following allegations of the complaint: 2.(a) Respondent is a California corporation engaged in the installation of plumbing, heating, and air- conditioning systems with its main office at 12619 South Daphine Avenue, Hawthorne, California, and is engaged in such installation at the construction site of the Criminal Courts Building located at Temple and Spring Streets, Los Angeles, California. (b) In connection with its operations descnbed above, Respondent, during the past 12 months, which period is representative, has purchased and received directly from outside the State of California goods, products, and materials valued in excess of $50,000. 3. Respondent is now, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. I find the facts to be as admitted, and that Respondent is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE UNFAIR LABOR PRACTICES James Hartmann was first employed by Respondent on April 13, 1970,2 as a pipefitter at one of its construction I Based on a charge filed on November 23, 1970, by James Hartmann 2 All dates referred to hereafter relate to 1970 unless otherwise stated. 193 NLRB No. 80 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD projects, commonly referred to as the Criminal Courts Building. On June 5, Respondent discharged Hartmann, who then filed an unfair labor practice charge asserting that his discharge was unlawful . Respondent reemployed Hartmann on October 20 at the construction site of a hospital . A complaint based on the said charge having been issued, a hearing was held before Trial Examiner Piper in Case 21-CA-9322 on November 17 and 18, at which time Hartmann gave testimony in support of the complaint. As pointed out in Respondent 's brief (p. 4), Respondent took the position that the discharge was motivated by poor work performance, whereas the General Counsel contended that the true reason was that Hartmann , who had been appointed job steward by the Union,3 had prosecuted certain employee grievances . Hartmann did not work on November 17 and 18 . He returned to work on the morning of November 19; and, at or about 1:30 p.m. that day, Foreman Patrick notified Hartmann that he was laid off and gave him his final check. The General Counsel contends that Hartmann was discharged because he filed the charge and gave testimony, and hence that the discharge was unlawful. Respondent contends that business conditions required a reduction in force and that Hartmann's selection for layoff was wholly unrelated to his charge or testimony . For the reasons noted below, I find that Respondent unlawfully terminated Hartmann's employment. Hartmann testified that Huffman , Respondent's public relations consultant and an admitted agent and supervisor, on several occasions offered benefits to Hartmann to induce him to withdraw his charge , and threatened him with reprisals if he refused. Thus, shortly after October 20, Huffman informed Hartmann that Respondent had much work, stated that he could stay with Respondent for quite a while, and advised him to withdraw the charge . Hartmann refused . Three or four days later, Huffman asked Hartmann whether he had reconsidered his decision and once more advised him to withdraw the charge . Again, Hartmann refused. On or about October 29, Huffman told Hartmann that he was being transferred from the hospital project where he was then working to the Criminal Courts Building project, where he had been employed at the time of his discharge on June 5. Huffman repeated his remarks made shortly after October 20, but Hartmann for the third time refused to withdraw his charge. Hartmann was transferred to the Criminal Courts Building on November 2. On the same day Huffman reminded Hartmann that another 3 years of active employment would "wind up" his pension credits, stated that "there was a hard way to do it and an easy way to do it," and suggested that the easy way would be to withdraw his charge . Hartmann refused, stating that he felt that he "had restitution coming." Two or three days later , Huffman invited Hartmann to join him for lunch . During lunch, he repeated what he had said on November 2, asked whether Hartmann had reconsidered his decision, and pointed out that other contractors were aware of his charge and that word of that kind got around . Huffman asked what Hartmann wanted in return for withdrawing his charge. Hartmann replied that the equitable solution was to pay him restitution for the 60 days of worktime that he had lost. On November 16, the day before the hearing on Hartmann's charge, Huffman asked Hartmann whether he would accept $1,000 to withdraw his charge, adding that he thought that Respondent's president , Weinberger, would accept Huffman's recommendation of such a proposal. Hartmann refused. Huffman admitted that he talked to Hartmann four or five times, but testified that only three of their conversa- tions involved the latter's charge : on October 29, at lunch on November 2, and on the day before the hearing of November 17. According to Huffman, he went to see Hartmann on October 29 at Weinberger 's request to arrange for the transfer to the Criminal Courts Building. Hartmann asked whether Respondent was offering him a financial settlement , and Huffman replied that he had no authority to do so. With regard to their conversation on November 2, Huffman testified : "I asked Mr. Hartmann if he would go to lunch with me. I wanted to talk to him." He then testified that at lunch Hartmann asked whether Respondent was ready to settle ; that Huffman replied that settlement had not been discussed with him ; that Hart- mann asked his opinion ; that Huffman advised him as a friend to drop the charge but stated that he could do as he pleased ; and that Hartmann refused because he thought he was entitled to compensation for the worktime that he had lost. Huffman testified that, on November 16, he offered to recommend a $1,000 settlement to Weinberger; that Hartmann declined, stating that he felt he had more money due him ; and that Huffman stated that Hartmann could do as he pleased. I credit Hartmann's version . He testified in a straightfor- ward manner . His testimony was corroborated in part by Huffman. And Huffman failed to explain why he wanted to talk to Hartmann on the day he invited the latter to join him for lunch. The likely inference is that Huffman sought out Hartmann to discuss the charge . I conclude and find that, although Huffman ultimately suggested the possibility of settlement during his final conversation with Hartmann, he attempted during their prior conversations to obtain a withdrawal of the charge by means of indirect threats of reprisal and by dangling the possibility of continued employment for Hartmann. On November 19, the day Hartmann returned to work following his absence to testify, he was terminated, and Huffman's implied threat became a reality. I am not persuaded by Patrick's vague testimony that the possibility of a layoff had theretofore been mentioned to Hartmann. Nor do I believe that Patrick had decided on November 15 to lay Hartmann off or, indeed, that he made the final decision . The record contains evidence that a reduction in force was economically justified on November 19, and that Patrick and General Foreman McWilliams had had some general conversations about the status of the work on the project prior to that date. However, Patrick gave equivocal testimony as to the date on which he assertedly decided that a layoff was necessary. The record indicates that he did not have authority to decide such a date or how many men 3 United Association of Journeymen and Appren tices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No 250 STATE MECHANICAL CONSTRUCTORS, INC. should be let go. It was not until November 19 that Patrick discussed with McWilliams the specifics of the need for a layoff, its timing, and the number of employees to be affected. At that time, Patrick threatened to resign if McWilliams did not agree to terminate Hartmann rather than someone else. In his testimony relating to the conversation with Patrick, which led to the selection of Hartmann for termination, McWilliams stated several times that "we" made the decision I am convinced and find that it was McWilliams who selected Hartmann. In addition, McWilliams and Patrick gave contradictory testimony as to whether they discussed the hearing in Case 21-CA-9322 with each other both prior to and after Hartmann's layoff. I find that they discussed the hearing before the termination; and that McWilliams, who had testified at that hearing, admittedly told Patrick that he felt that Hartmann had been discharged for cause on June 5. In the circumstances, it was entirely natural that Hartmann's pursuit of Board process should fortify McWilliams' view that Hartmann was an undesirable employee. Finally, Respondent has failed to provide a satisfactory explanation for terminating Hartmann. On November 19, Patrick's crew consisted of three two-man teams: Kelly Gruber, a pipefitter, who worked with Ron Tripp, a welder; Ed Zadel, a pipefitter and the job steward, who worked with Bob Ackerman, a welder, and Hartmann, who was employed as a pipefitter and worked with Mike Auten, an apprentice.4 McWilliams and Patrick testified that the reason for selecting Hartmann for layoff was that, as job steward, Zadel would normally be the last to go; that they did not wish to let Gruber go because he and Tripp had worked well together for many months; that they could not lay Auten off because the collective-bargaining contract required retention of one apprentice for each five journeymen employed; and that Hartmann was thus the logical choice. Patrick added that he knew Gruber's family; that Gruber had just completed his apprentice program, had a young child, and was heavily in debt; and that Patrick felt sorry for Gruber and knew that Hartmann was capable of finding other work. The record shows, however, that Hartmann was a certified welder, and Respondent has not persuasively explained why it preferred to retain Ackerman rather than Hartmann as a welder. According to McWilliams, Patrick stated to him that he did not wish to separate Zadel and Ackerman because they worked well together. But neither Patrick nor McWilliams testified that this was one of the reasons for selecting Hartmann. In addition, considering the vague, inconsistent, and conflict- ing nature of the testimony given by McWilliams and Patrick, I have little confidence in the reliability of their testimony concerning the reason for letting Hartmann go. I accordingly reject as pretextual the explanation given by Respondent for terminating Hartmann. As a consequence, the motive for his termination remains unexplained by Respondent. Assuming that a layoff was economically justified, I find on the entire record that the reason for the termination of 4 Patrick testified "There is no seniority [under the collective- bargaining contract I At least I don't see any " No claim is made by the General Counsel that Respondent should have followed seniority 549 Hartmann was the fact that he had filed a charge and testified in support of the complaint in Case 21-CA-9322.5 I therefore find that the termination violated Section 8(a)(4) and (1) of the Act. I further find that the record fails to establish the allegation of the complaint that Respondent discharged Hartmann "because he joined and assisted the Union or engaged in other union activity or protected concerted activity for the purpose of collective bargaining or other mutual aid or protection." Cf. V & H Industries, Inc, 179 NLRB No. 112. CONCLUSIONS OF LAW 1. By terminating Hartmann on November 19, 1970, because he filed a charge and testified under the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(4) and (1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 3. The record fails to establish that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I recommend that it cease and desist therefrom, and that it take certain affirmative action which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. As noted, Respondent may have been justified, for economic reasons, in laying off an employee on November 19. Although it is possible that Hartmann might have been selected for layoff even if Respondent had not utilized an unlawful criterion, the record furnishes no basis for resolving that issue. Under the circumstances, I recommend that Respondent be ordered to offer Hartmann immediate and full reinstatement to the position which he held at the time of his termination or to a substantially equivalent position at the Criminal Courts Building or any other construction project in which Respondent is engaged, without prejudice to any of his employment rights or privileges. In the event that there is insufficient work for Hartmann on any such projects, Respondent shall dismiss, if necessary, an employee hired subsequent to the date of Hartmann's termination. I further recommend that Res- pondent make Hartmann whole for any loss of earnings suffered because of the discrimination against him by paying to him a sum of money equal to that which he would have been paid by Respondent from the date of his termination to the date on which Respondent offers reinstatement as aforesaid, less his net earnings, if any, during the said period. The loss of earnings under the order recommended shall be computed in the manner set forth in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact, conclusions of law, 5 In so finding, I place no reliance on, and decline to take official notice of, the Trial Examiner's unfair labor practice findings in that case Duplan Corporation, 184 NLRB No 75. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended. 6 ORDER Respondent, State Mechanical Constructors, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminating against employees because they filed an unfair labor practice charge or gave testimony under the Act. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of any right guaranteed in Section 7 of the Act 2. Take the following affirmative action- (a) Offer to James Hartmann immediate and full reinstatement to his former or substantially equivalent position, and make him whole for any loss of earnings he may have suffered by reason of Respondent's discrimina- tion against him, in the manner set forth in the section herein 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 make available to the Board or its agents, on request, for examination and copying, all payroll records and reports, and all other records necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this recommended Order. (d) Post at its construction project known as the Criminal Courts Building, in places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 7 Copies of said notice on forms provided by the Regional Director for Region 21, after being signed by a representative of the Respondent, shall be posted immedi- ately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicuous places. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the receipt of this Decision what steps have been taken to comply herewith.8 6 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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 7 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 " N In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other aid or protection and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT discnminate against employees because they filed an unfair labor practice charge or gave testimony under the Act. WE WILL offer to take back James Hartmann to his old job or to an equivalent job, and pay him for all the wages he lost because of the unlawful discrimination against him. STATE MECHANICAL CONSTRUCTORS, 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, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5254.