Industrial First, Inc.

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industrial First, Inc. and United Slate, Tile and Composition Roofers, Damp and Waterproof Workers Association, Local 44, AFL-CIO. Case 8-CA-6415 June 19, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On February 2, 1972, Trial Examiner William J. Brown issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in answer to the exceptions of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the "Act," came on to be heard at Cleveland, Ohio, on October 28 and 29, 1971. The original charge of unfair labor practices was filed May 6, 1971, by the above indicated Charging Party, hereinafter sometimes referred to as the "Union," and the complaint herein was issued August 12, 1971, by the General Counsel of the National Labor Relations Board acting through the Board's Regional Director for Region 8. It alleged, in addition to jurisdictional matter, that the above-captioned Respondent, hereinafter sometimes re- ferred to as the "Company," engaged in unfair labor practices defined in Section 8(a)(1) and (3) of the Act. The Company's duly filed answer has denied the commission of the unfair labor practices alleged in the complaint. At the hearing, the parties appeared and participated, as noted above, with full opportunity to present evidence and argument on the issues. Subsequent to the close of the hearing, written briefs were received from the General Counsel and the Company and have been fully considered. On the entire record herein, and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT COMPANY The pleadings and evidence establish and I find that the Company, a corporation organized and existing under and by virtue of the laws of the State of Ohio, with its principal office and place of business located in Cleveland, Ohio, is engaged in the construction industry as a roofing contrac- tor and annually, m the course of its business operations, receives products at its Cleveland operations valued in excess of $50,000 and shipped directly from points outside the State of Ohio. The Company concedes, and I find, that it is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find, in accordance with the pleadings and evidence, that the Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction to the `Issues The Company has been at all material times a member of the Greater Cleveland Roofing Contractors Association and party to a collective-bargaining agreement wherein the Union is recognized as bargaining representative of journeymen roofers employed by Association members. The Company's supervisory staff at material times includ- ed Robert H. Snead, executive vice president; Wayne Baird, job superintendent, and Frank Redeman, working foreman. Carveth Bennett was initially employed by the Company as an apprentice roofer sometime in 1950, became a journeyman some 3 years later, and worked with the Company until sometime about 1957. He rejoined the Company as a journeyman roofer sometime in 1967 and worked, except for leaves of absence, until his discharge on November 27, 1970. During his last term of company employment, Bennett was, for 2 years, chairman of the Union's Executive Board, for about 3 years a union trustee in various joint funds, chairman of some union commit- tees, acting business agent and, up to the date of his discharge, a special investigator into questions of inade- quate employer payments into certain joint company- union trust funds. Bennett was discharged on November 27, 1970, by Baird. The Company contends he was discharged for provoking Foreman Redeman, a supervisor, into resigning the job of working foreman; the General Counsel contends he was discharged for his participation in protected concerted activity in the nature of zealous investigation into and enforcement of the collective-bar- gaining agreement and particularly the provisions relating to contributions required of employers under the various welfare and benefit agreements. The complaint also alleges an unfair labor practice in Baird's threatening Bennett with loss of employment in reprisal for his union activity. 197 NLRB No. 107 INDUSTRIAL FIRST, INC. B. The Discharge of Carveth Bennett Bennett worked his apprenticeship at his craft with the Company for a period of 2 to 3 years and thereafter worked as a journeyman mechanic at the roofer's trade in the Company's employ for some 6 or 7 years. After a hiatus, he again commenced work for the Company sometime in 1967 and remained with it until his discharge on November 27, 1970. There is no question as to Bennett's competence at his trade; in fact, the evidence indicates he had come under consideration by the Company for promotion to foreman. His discharge followed immediately upon Baird's receipt of information from Redeman that Bennett was about to press intraunion charges against Redeman, and Baird concedes that the reason for the discharge was the receipt of information as to the forthcoming charges to be pressed by Bennett against Redeman and the resultant resignation of Redeman from his supervisory position. As noted above, Bennett was active in union affairs and the record reveals that he, was president of the Local Union immediately preceding his discharge and had previously been chairman of the Union's Executive Board. He had also been for the 4-year period preceding his discharge, a union trustee in various joint funds and acting business agent. In mid-April 1970, Bennett was given leave of absence of the Company to work for the trustees of certain Joint funds' in an investigation into employer compliance with the requirements as to payments into the funds and the reporting in connection therewith. Bennett's diligence in the investigation was, to say the least, commendable. Prior to the conduct of his investigation, Bennett had received reports from fellow union members of suspected violations of the benefit payment requirements on the part of some seven employers; he had also conducted a spot check on his own. In all, Bennett investigated five contractors: West Side Roofing, Beidler-Taylor Roofing, Best Roofers Middleton Roofing, and Ray Roofing; of these only Middleton was an Association member. During the investigation of Middleton, according to Bennett's account which I credit, Middleton vigorously opposed the opening of his books and prevailed upon Snead to put pressure on Bennett to withhold his investigating. The Union Executive Board, however, backed Bennett to the hilt and, following a CPA spot check, Middleton eventual- ly agreed to a thorough audit. In all, Bennett's investiga- tion revealed noncompliance with the reporting and/or payment requirements on the part of four contractors. After the completion of the investigation into the question of compliance on the part of Middleton, no further investigations were conducted because of opposition on the part of employer trustees. Bennett returned to work for the Company late in June. About October 20, Bennett again took leave from the Company to participate in contract negotiations until November 20 when he returned to work at the trade for the I The Union-Association agreement required employer payments into the several joint trust funds not only on the part of members of the Association but also from nonmembers who employed members of the Union on theirjobs There are three separate joint funds vacation , welfare, and pension 2 Bennett's testimony indicated that four journeymen and two applicants 715 Company on the Lorain Ford project where he remained until his discharge on November 27. In the contract negotiations, Bennett was the principal spokesman for the Union; the negotiations developed some degree of heat but eventually agreement was reached on November 15 and ratified by the union membership on the same day. Shortly prior to this second leave of absence, while Bennett was working with Baird on an East Ohio Gas Company project, Baird, according to Bennett, asked Bennett if he was running for the business agent position and added that if Bennett ever left the Company he would find it hard to get work in the Cleveland area. Bennett worked about I week on the Lorain Ford project until his discharge on November 27. November 27 was a Friday, a payday, and a day of light rain which resulted first in some, but later in all, employees being sent home.2 Prior to the closing of the job on that day, Redeman, according to Bennett, said that he was sending some workers home because the workers' pay had not been delivered to the project, but that Bennett would be kept on the job. Bennett refused the offer of work in view of the fact that fellow members had been sent home. At the request of the other union members on the project, Bennett called Crowe, the Union's financial secretary and business agent. Crowe apparently refused to take action in connec- tion with the late delivery of the paychecks. At about this stage of events, Redeman came to the contractor's office, where Bennett had been talking to the financial secretary, and asked Bennett if he were putting him, Redeman, on charges; Bennett denied that he was, but Redeman said that he was going to quit running work. Although Bennett urged Redeman to continue work, Redeman called Baird and said that he would no longer act as a supervisor on the job because of union trouble but would continue to work as a rank-and-file mechanic. Then Crowe called with the message that Bennett should telephone Baird; when Bennett called Baird, the latter, according to Bennett, said, in effect, that Bennett was finished work not only on the particular project but forever in the Cleveland area. A few days later, Bennett received from the Company in the mail his layoff slip. Baird's account of the events of the day in question is that Union Business Agent Crowe called him at 9:30 and requested a meeting concerning problems on the Lorain Ford job. Unable to meet Crowe's schedule, Baird called Redeman who later called him back and said that he could not run the job any more as charges were being pressed against him from the Union. Baird called the union business agent, Crowe, to request that whoever was filing charges against Redeman talk with him. Bennett called Baird back and reported that Redeman was firing the tanker with only one man, contrary to custom, and that Bennett would find something to charge Redeman with. Baird, in the course of this talk with Bennett, fired Bennett and told him that he didn't know where he would find a job. He discharged Bennett, he asserted, because of were sent home Sometime during the morning of the day here involved, Bennett had called Union Business Agent Crowe to protest certain actions of Redeman on the running of the job He later filed charges, on December 1, although, as noted herein, his testimony denied that he told Redeman in response to the latter's question if he were filing charges. 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bennett's provoking Redeman into resigning as a supervi- sor. In determining the real reason for the Company's discharge of Bennett, as between the General Counsel's allegations that the discharge was in reprisal for his vigorous prosecution of the campaign against violators of the working agreement, particularly the requirement of benefit contributions from members of the Association and nonmembers alike and the company assertions that the discharge was lawfully based on Bennett's action in provoking the resignation by Redeman of his position as foreman, I place reliance on the testimony of Redeman who impressed me as a truthful and unhesitating witness both on his direct and on cross-examination. I do not credit Bennett's testimony that on the day of his discharge he informed Redeman , in response to the latter's question, that he was not preferring intraunion charges against him. Nor do I find of significance the testimony of company employee Bush to the effect that prior to Bennett's discharge Foreman Franek stated to him on November 10 at a jobsite that Bennett would not be long with the Company, in view of my conclusion that Franek is not shown to have been of sufficiently high status to speak for the officials of the Company and because, in any event, I credit Frank's denial of the utterance attributed to him. Finally, I am not convinced that any controlling or substantial significance should be given to the testimony of Agnes Kernc, a former company secretary , to the effect that she overheard a tape recording in the company office on or about June 1 referring to Bennett 's lack of certain qualifications and his plans to campaign for union office and raising the question "Can we do this?" 3 I conclude that the evidence , while it raises some suspicion, does not preponderate in favor of the conclusion that Bennett's discharge constituted a violation of the Act, rather it indicates that Baird discharged Bennett because the latter provoked the resignation of Redeman from his position as working foreman. C. Interference, Restraint, and Coercion The complaint alleges and the answer denies that on November 27 in the company office, Baird threatened an employee with loss of employment and other reprisals because of his activity in support of the Union. The testimony of Bennett is, with respect to this allegation of the complaint, that, in the course of discharging Bennett, Baird said Bennett would never work in the Cleveland area again. Baird's testimony is that in the course of discharging Bennett he told him that he didn't know where he would find another job. I credit Baird's account and conclude that the statement in question did not amount to an instance of interference, restraint, or coercion within the scope of Section 8(a)(1) of the Act. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3. The Company has not been shown, by a preponder- ance of the evidence, to have engaged in the unfair labor practices alleged in the complaint. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record herein, it is recommended that the complaint herein be dismissed. 3 The witness testified that the recorded voice was that of Middleton.